PUBLIC PROTECTION LICENSING COMMITTEE
Minutes of a meeting held on 6th September, 2016.
Present: Councillor A.G. Powell (Chairman); Councillors G.A. Cox, Mrs. P. Drake, E. Hacker, Mrs. A. Moore, N. Moore, Mrs. A.J. Preston, Ms. R.F. Probert, Mrs. M.R. Wilkinson and C.J. Williams.
293 APOLOGIES FOR ABSENCE -
These were received from Councillor H.C. Hamilton (Vice-Chairman); Councillors Mrs. V.M. Hartrey, K. Hatton, J.W. Thomas and R.P. Thomas.
294 MINUTES -
Councillor N. Moore advised that he had tended his apologies for the Public Protection Licensing Committee that took place on 5th July, 2016, however, it had not been recorded in the Minutes.
RESOLVED - T H A T, the minutes of the meeting on 5th July, 2016 be approved as a correct record subject to it being noted that Councillor N. Moore had tendered his apologies for this meeting.
295 DECLARATIONS OF INTEREST -
No declarations were received.
296 PROPOSED ‘INTENDED USE/REMOTE TRADING’ POLICY FOR HACKNEY CARRIAGES (DEH) -
The Committee received a report to consider the risk to public safety presented by the remote trading of Hackney Carriages in other Authority areas and to request the Committee’s approval to consult the local taxi trade on a draft policy to mitigate such risk.
In presenting the report, the Licensing Policy Officer informed the Committee of the background to the report. In 2008 a High Court Judgement, Newcastle City Council v Berwick-upon-Tweed established a principle that it was lawful for Hackney Carriages to trade as Private Hire Vehicles, (accepting only pre bookings) in a Local Authority area other than that which issued the licences (the home Authority). The full judgement was attached at A to the report.
The judgement in itself was acceptable, in that many licensed vehicles trade to some extent, in areas other than the home Licensing Authority where licences were issued. For example, residents of the Vale of Glamorgan may wish to travel to or from neighbouring Authorities, such as Cardiff, Bridgend, Newport, or Caerphilly and this generally does not present a problem to the trade or the travelling public, being a legitimate aspect of a journey.
However, the case precedent arose as a result of a challenge from a Licensing Authority, Newcastle City Council, against a neighbouring Licensing Authority, Berwick-upon-Tweed, where there was a considerable disparity between standards of vehicles, conditions of licence and fees. There were a disproportionate number of licence applications, both personal and vehicle, in Berwick-upon-Tweed, where applicants sought to take advantage of less stringent conditions of licence and preferential fees, although vehicles and drivers were actually intending to trade exclusively in Newcastle. The position of Berwick-upon-Tweed was that the less stringent conditions and lower fees applied to their licences were proportionate to the local conditions and supported a viable fleet in their Borough.
The position of Newcastle City Council was that the less stringent conditions and lower fees detracted from their ability to promote public safety in a city centre environment, with a consequential risk to the travelling public.
As a result of the decision that such activity was indeed lawful, several Licensing Authorities identified ‘out of area’ vehicles trading in their Boroughs and took steps to eliminate such trade. This primarily affected larger cities, but more recently all types of areas have been affected. The principle of local control was important and a Licensing Authority would set out its regime to ensure that its statutory obligations to provide a service were met, subject to the specific needs of its area, with the understanding that such vehicles and drivers would trade primarily within that area.
Another notable Authority to have dealt with this issue was Shropshire. They were faced with a large number of their licensed vehicles operating out of Birmingham and the West Midlands. For this reason they adopted an ‘Intended Use’ policy in February 2012. The justification for such a policy was on the grounds of public safety, in that, if vehicles were predominantly operating outside of the area where they were licensed then they were not available to be spot checked by officers when carrying out enforcement.
Having examined the circumstances and applications of various licensees, there was limited concern that the practice of out of area / remote trading was currently prevalent amongst drivers licensed in the Vale of Glamorgan. However, best practice advocated that prevention was better than cure and it was preferable to apply closer scrutiny to applications, with the prospect of challenging them prior to being granted, as opposed to the review of a licence when trading activity becomes a problem.
The draft Intended Use Policy was detailed in Appendix B, attached to the report. This policy was based on the template provided by the Directors of Public Protection Wales (DPPW) which was approved for use by Welsh Local Authorities.
The issue of remote trading posed a problem for both the Authority where the vehicle was licensed and the Authority where the vehicle was operating. Licensing Enforcement Officers were normally only authorised to carry out checks on vehicles licensed in their own Authority. If vehicles were predominantly operating outside of the area where they were licensed then they were not available to be spot checked by officers in the area that they were operating. This also posed a problem for officers of the Licensing Authority having to carry out enforcement at a distance. Officers of the Shared Regulatory Service of Bridgend, Cardiff and the Vale of Glamorgan were authorised to carry out checks across each of the three Authorities. However, the enforcement issues would still exist for vehicles coming from outside these Authorities.
There were a number of guidelines and conditions governing the suitability of persons and vehicles issued with licences and also how those licences operated. These conditions were decided by each Authority, having regard to whether they were proportionate to local conditions and supported a viable fleet within the Authority. For example, with the exception of London style taxis, all Hackney Carriages in the Vale of Glamorgan must be white with a black bonnet. However, in Cardiff they must be black with a white bonnet. This situation could cause confusion to the public as they see Vale of Glamorgan vehicles marked “Hackney Carriage” operating throughout the city that cannot be hailed from the roadside.
The Licensing Policy Officer advised that Cardiff and Bridgend Councils were looking to introduce similar policies in order to harmonise practices across the three Authorities involved in the Shared Regulatory Service.
The Committee was advised that one of the benefits of the policy would be that when Hackney Carriage licences were granted in the Vale of Glamorgan, enforcement officers would be able to stop them from plying for hire in other areas. The application form would assist with the process. When completing the form applicants would have to indicate where they would be trading for the majority of the time, if this was not in the Vale of Glamorgan, the Authority could look to revoke or not renew a licence.
The Licensing Policy Officer advised that he did not envisage the policy would increase the cost to the Council. Enforcement officers were already on the ground and would liaise with neighbouring Councils and they had the tools in place to deal with issues. He advised that there was evidence in Cardiff that this was already occurring. Vale of Glamorgan taxi drivers were working for Uber in Cardiff and this practice could increase. It was hoped that the policy would curb this, however, advised that as yet the policy had not been tested.
He advised that if a driver indicated that they would be working substantially outside the boundary area of the issuing Authority the Council would have powers to revoke the licence.
The officer clarified that the Policy would not prevent legitimate fares across Authorities for example a pick-up in the Vale of Glamorgan travelling to Cardiff and back.
The Licensing Policy Officer confirmed that due to the arrangements of the Shared Regulatory Service, Enforcement Officers throughout Bridgend, Cardiff and the Vale of Glamorgan already had powers to deal with vehicles from each of the three Authorities, but in general enforcement officers did not have powers to deal with vehicles coming from neighbouring Authorities.
A Member asked how different the policies would be across the three Authorities and asked if there would be a difference in the fees levied for Hackney Carriages. The Licensing Policy Officer advised that this Committee was the first to receive a report on a draft policy. Bridgend Council was likely to receive a similar report in October and Cardiff Council would be receiving their report in October but it would be to introduce the policy, rather than approve consultation.
The Committee was advised that there would be an additional question on the licence application form for applicants requesting that they confirm where they intend to trade for the majority of their business. He advised that this question was relevant and would affect all Authorities throughout the United Kingdom.
The Head of Shared Regulatory Services advised that fees for Hackney Carriages would be different for the three Authorities due to the calculations that were used to set licensing fees. This was based on the outcome of the Hemmings case, where each Council was required by law to ensure that locally set fees were based on an up to date calculation of the cost to administer licences, and this would generate the fee for each Authority. He advised that due to this the three Authorities would always have different licensing fees and that Councils needed to be clear and transparent in the way they calculated their fees.
A Member asked how the terms ‘substantial’ and ‘predominantly’, within the draft Policy, were to be defined, as they had not yet been tested. The Member also asked whether the Council could establish a reciprocal agreement, with Cardiff and Bridgend Councils or indeed with other Authorities in Wales and ask whether these terms had been tested in any other Authorities. Furthermore, he asked whether the draft policy would need to be referred to the WLGA. The Head of the Shared Regulatory Services advised that the policy had been based on a template that had been developed across Wales. The template had been provided by the Directors of Public Protection Wales (DPPW) which was approved for use by Welsh Local Authorities. The policy would provide better control for Local Authorities. He confirmed that the Council had liaised with the WLGA on this policy.
In referring to reciprocal arrangements the Head of Shared Regulatory Service advised that there should be an awareness of the Policy in other Welsh Local Authorities via the WLGA, however, he would check on this. He further advised that the policy would need time to bed in. The Council was now sharing information held on computer systems and the Council’s intelligence would benefit from this policy. Members would have a degree of confidence in regard to who was trading in the Vale of Glamorgan. Cardiff taxi drivers were resisting Uber which could lead to them trading in the Vale of Glamorgan. The policy would mean that the Council would know where the Vale of Glamorgan taxi drivers would be and who was operating in the Vale of Glamorgan.
He advised that the words ‘substantial’ and ‘predominantly’ were subjective terms and each application would be based on its merits and come to the Committee to be determined. A Member asked whether officers could be given a delegation for these applications or if each application would need to be brought to the Committee. The Chairman expressed the view that the Committee may need to make a decision on applications and that if an applicant appealed a decision, the Authority would need to convince the magistrate that the Council’s interpretation of predominantly was correct. The Authority would therefore need something that these terms could be measured against. The Head of Shared Regulatory Services advised that the recommendation in the report was to request that the Committee approve consultation on the draft policy, and the Licensing team could look at enhancing the policy in terms of what constituted ‘substantial’ and ‘predominantly’.
A Member asked whether there could be a set fee for all three of the Authorities in the Shared Regulatory Service. The Head of Shared Regulatory Services advised that this would not be possible due to the calculations used for determining the cost of the licence as previously mentioned. These fees reflected the cost of the administration of licences for each Authority. Although there were uniform salaries across the three Authorities, there were other factors involved in the calculations, such as the number of licences issued which would affect the cost of administration. The licence fees across the three Authorities were becoming closer together, however, due to the legislation in place they were unable to introduce a standard fee across the three Authorities. A Member advised that the Shared Regulatory Services Agreement stipulated that all fees collected stayed with the originating Authorities; therefore they would be unable to introduce a standard fee. The Head of Shared Regulatory Services advised that they were able to harmonise certain elements, however, a standardised fee could be challenged through Judicial Review. There were also other factors, such as changes in legislation and new computer systems which had to be factored into the calculations. It was a very complicated system to calculate licence fees as the Authority was required to disaggregate the time spent by officers on different licensing areas, for example alcohol, taxis, gambling, street trading, in order to determine how much each licence cost the fee payer.
The Chairman asked what the likely timescale was for the introduction of the policy. The Head of Shared Regulatory Services advised that if the Committee approved the Policy for consultation there would be a four to five week period of consultation, then it would be brought back to the Committee in December 2016 in order that it could be in place by 1st January, 2017.
Following discussion of the report the Committee
(1) T H A T the proposal to consult with the local taxi trade on the introduction of an intended use/remote trading policy in the Vale of Glamorgan be approved.
(2) T H A T the Policy be reported back to the Committee, following the consultation period, with further detail to be included in relation to the interpretation of the terms, ‘significantly’ and ‘predominantly’.
Reasons for decisions
(1) To approve the draft Policy for consultation with the local taxi trade.
(2) To ensure that the draft Policy included further detail on how these terms were to be interpreted.
297 EXCLUSION OF PRESS AND PUBLIC -
RESOLVED - T H A T under Section 100A(4) of the Local Government Act 1972, the press and public be excluded from the meeting for the following items of business on the grounds that they involved the likely disclosure of exempt information as defined in Part 4 of Schedule 12A (as amended) of the Act, the relevant paragraphs of the Schedule being referred to in brackets after the minute heading.
298 APPLICATION TO GRANT A HACKNEY CARRIAGE AND PRIVATE HIRE VEHICLE DRIVER LICENCES - G (EXEMPT INFORMATION PARAGRAPHS 12, 13 AND 14) (DEH) -
The Committee considered an application for the grant of Hackney Carriage and Private Hire Drivers Licences for G. The matter was referred to the Committee because there was a policy guideline in place in respect of the grant of a licence that had previously been the subject of disciplinary action, resulting in revocation of G’s Hackney Carriage and Private Hire Drivers Licences.
The Chairman asked G to identify themself. In referring to the procedure to be followed the Chairman advised that that the Licensing Officer would introduce the report and G would be given the opportunity to state their case. Members would then be able to ask questions on these representations. The Chairman asked whether G had any questions at this point and G advised that they did not.
Following the presentation of the report, G’s representations and questions from the Members, G and the Head of Shared Regulatory Service vacated the room in order that the Committee could make a decision in private.
Following discussion of the matter at length, G and the Head of Shared Regulatory Services were invited back into the room for the decision.
The Chairman informed G that having thoroughly considered the report, their application and the Council’s Taxi and Private Hire fitness criteria policy and having questioned the applicant at length. The Committee
RESOLVED - T H A T G’s application for the grant of Hackney Carriage and Private Hire vehicle licences be refused.
Reasons for decision
The Committee considered that G was not a fit and proper person within Section 51 (1) of the Local Government (Miscellaneous) Act 1976 because of G’s admitted conduct in April 2014 where G engaged in sexual activity with a female passenger in G’s licensed vehicle.
In coming to that conclusion the Committee had used the test:
“Would you, as a Member of the Licensing Committee, allow your son or daughter, spouse or partner, mother or father, grandson or granddaughter or any other person for whom you care, to get into the vehicle with this person alone?”
The Committee also took into account the principles set out in the case of Leeds City Council v Hussain 2008.
G’s conduct led to the revocation of G’s licence in 2014, which decision was upheld by the Magistrates Court on appeal. On hearing G today G fully accepted that the sexual activity took place in the licensed vehicle. That conduct in the Committee’s view meant that G remained unfit because a relatively short period had elapsed since the conduct in question and G, although appearing contrite to a point, did not appear fully to appreciate the seriousness of their conduct, which perception gave the Committee cause for serious concern.
The Chairman advised G that if they had any further questions or required clarification or guidance, the Licensing Officer would be available to speak to after the meeting.
The Chairman advised G of their right to Appeal to the Magistrates Court within 21 days.