PUBLIC PROTECTION LICENSING COMMITTEE
Minutes of a meeting held on 7th February, 2017.
Present: Councillor A.G. Powell (Chairman); Councillor H.C. Hamilton (Vice-Chairman); Councillors G.A. Cox, Mrs. P. Drake, E. Hacker, Mrs. V.M. Hartrey, J.W. Thomas, Mrs. M.R. Wilkinson and C.J. Williams.
755 APOLOGIES FOR ABSENCE –
These were received from Councillors K. Hatton, Mrs. A. Moore, N. Moore, Ms. R.F. Probert and R.P. Thomas.
756 MINUTES –
RESOLVED – T H A T, the minutes of the meeting held on 16th January, 2017 be approved as a correct record.
757 DECLARATIONS OF INTEREST –
No declarations were received.
758 LICENCE FEES: EUROPEAN COURT OF JUSTICE RULING – HEMMING V WESTMINSTER (DEH) –
The Team Manager – Licensing presented the report, the purpose of which was to advise Committee of the recent European Court of Justice (ECJ) ruling in the Hemming v Westminster Case. The ruling had implications for the way in which Local Authorities could charge for the cost of administering and enforcing certain licensing regimes.
The Team Manager advised that the European Services Directive aimed to make it easier for service providers to operate across Europe, and also made it clear that licence fees could only be used to cover the costs associated with the licensing regimes covered by the Directive and not to make a profit or deter service providers.
In 2012, the Timothy Hemming led a case against Westminster City Council contesting that the level of licence fees charged by Westminster City Council were not reasonable. Westminster’s fees were in excess of £26,000 and included costs for the management of the regime including enforcement activities against unlicensed operators. It was this aspect of the fee that was not considered by Hemming to be “reasonable and proportionate” under the legislation.
The case was presented to the Administrative Court in 2012 and also to the Court of Appeal in 2013. The Administrative Court, and subsequently the Court of Appeal, ruled that licence fees must not exceed the cost of administering the licensing process and that this could not include the costs of enforcement against unlicensed operators. However, the judgement did make it clear that the costs of compliance and enforcement against licensed operators could be included in the licence fee.
The case was also presented before the Supreme Court. Westminster Council had appealed the decision of the Court of Appeal and in April 2015, the Supreme Court overturned the Court of Appeal’s decision and made it clear that Local Authorities could set their fees at a level that would enable them to recover the full costs of managing and enforcing the licensing regime, including the costs incurred in proceedings taken against unlicensed operators.
The Supreme Court also gave consideration to how such fees should be structured. Two methods were considered:
Scheme A – an application fee is charged to cover the authorisation procedures involved in the processing of the application, then successful applicants are charged an additional fee that covers the running costs and enforcement of the licensing regime.
Scheme B – the applicant is charged one fee upfront that covers all costs of the application process, and running / enforcement costs of the licensing regime. If the applicant is unsuccessful, the portion of the fee that covers the running / enforcement costs is refunded to the applicant.
The Team Manager advised that the Supreme Court had concerns whether these fee structures were compatible with the EU Service Directive and felt that the reference to the ECJ was necessary for clarification.
In November 2016, the ECJ ruled that the Scheme B approach of fee setting was not compatible with the EU Service Directive. The ECJ argued that the Directive precluded the requirement for the payment of a fee, at the time of submitting an application for the grant or renewal of an authorisation, part of which corresponds to the costs relating to the management and enforcement of the authorisation scheme concerned, even if that part was refundable if that application was refused. The ECJ ruling meant that Licensing Authorities should structure their fees under the Scheme A approach. This meant that there should be two separate fees in place, one to cover the authorisation costs e.g. the cost involved in receiving and considering an application, and an additional fee only paid by successful applicants to cover the running and enforcement of the licensing regime.
The Committee was advised that the Service Directive did not currently apply to taxi related fees (drivers, operators and vehicles), or fees and charges under the Gambling Act 2005 and the Licensing Act 2005. It would apply to licensing regimes such as sex establishments, street trading, animal related licences, and houses in multiple occupation.
As with many other Local Authorities, the current position in the Vale of Glamorgan was that fees were charged in line to the Scheme B approach, with all costs included in the initial application. All fees were therefore in the process of being reviewed and would be structured as outlined in Scheme A to ensure compliance with the Service Directive. It was envisaged that the new fee structure would be in place by June 2017.
The Licensing Section was currently awaiting further guidance from the Local Government Association on when the additional charge could be made and what action could be taken for non-payment of the additional fee.
A Committee Member queried whether the Licensing Team had already considered how the new charges would be collected. In reply, the Team Manager stated that a toolkit would be used to help inform the best approach, but at present, a final decision had yet to be made. It was also important for a consistent approach to be devised across the three member Local Authorities.
RESOLVED – T H A T the report be noted and for a further report on this matter to be received in order to ensure the Council’s licensing process reflects those advocated by the European Court of Justice.
Reason for decision
Having regard to the contents of the report.
759 APPLICATION TO WAIVE THE VALE OF GLAMORGAN COUNCIL’S AGE POLICY GUIDELINES FOR THE GRANT OF A PRIVATE HIRE VEHICLE LICENCE, VAUXHALL VECTRA, AT57 ENP (DEH) –
The Team Manager – Licensing presented the report, the purpose of which was to allow the Committee to consider a request by Mr. David Mais of Cabs 64 of Penarth to waive the Vale of Glamorgan Council’s Age Policy Guidelines in respect of a Private Hire Vehicle Licence application for a Vauxhall Vectra, registration number AT57 ENP.
Mr. Mais was not present at the Committee meeting.
In referring to the report, the Team Manager – Licensing, advised that the vehicle was licensed as a Private Hire Vehicle No. PH188, from 14th December, 2012 to 13th December, 2016, when no application was submitted to renew the licence.
On 22nd December, 2016, Mr. Mais submitted an application for a Private Hire Vehicle License for AT57 ENP. The application was accompanied by a letter requesting that the Licensing Committee consider waiving the Age Policy Guidelines in respect of the grant of a licence for this vehicle. A copy of Mr. Mais’ letter was attached at appendix A to the report.
The Team Manager – Licensing advised that Licensing Officers had delegated authority to waive the Age Policy Guidelines in certain circumstances, but only when an application was made within five working days of the expiry or surrender of a previous licence. In this instance, the maximum time period had elapsed.
Having considered the report, the Committee
RESOLVED – T H A T the request to waive the Vale of Glamorgan Council’s Age Policy Guidelines in respect of the vehicle be granted.
Reason for decision
To take account of the report and Mr. Mais’ letter.