Northumberland Hackney Carriage Intention of use

Northumberland County Council

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Hackney Carriage Intended Use Policy
(Draft)
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Development and Regulatory Services
Public Protection
May 2009

Introduction

1. Northumberland County Council (the Council) has a duty to carry out the licensing functions relating to Hackney Carriage Drivers and Vehicles as set out within legislation listed below:

• Town and Police Clauses Act 1847 (TPCA 1847)
• Local Government (Miscellaneous Provisions) Act 1976 (LGMPA 1976)
• Transport Act 1985 (TA 1985)

2. The purpose of this policy is to set out how the Council will deal with the licensing and renewal of hackney carriage vehicle licences and other related matters following the re-organisation of local government in Northumberland and the recent High Court judgment – Newcastle City Council v Berwick upon Tweed [2008] EWHC 2369 (Admin)..

3 For clarification, a hackney carriage is what most people would call a ‘taxi’. Its main features are: it carries passengers in return for payment; it may advertise itself to be for hire and be hailed in a street in the area of the council with which it is licensed; or it may be hired from a taxi-rank in the area of the council with which it is licensed. It is to be distinguished from a private hire vehicle (often referred to as a ‘minicab’), which also carries passengers for reward, but must be pre-booked with a private hire operator – it cannot be hailed in the street, or hired from a rank.

4. A hackney carriage may only ply for hire within the area of the relevant licensing authority. That is, the authority to which application was made for its licence, and which granted the licence. Within Northumberland, a consequence of local government re-organisation is the creation of six hackney carriage “zones”, which for the purposes of hackney carriage licensing, retain and replicate on the basis of the previous administrative areas of the former six district councils (Alnwick, Berwick, Blyth, Castle Morpeth, Tynedale and Wansbeck) of Northumberland the role of the original licensing authority. However, a hackney carriage in respect of which a hackney carriage licence is in force is specifically exempted from the private hire vehicles licensing requirement, and may accordingly be pre-booked to pick up and carry passengers for reward either within or outside the area of the relevant licensing authority.

5. The recent High Court judgment, has provided guidance as to the proper approach to be taken by a licensing authority when considering an application made to it for a hackney carriage licence by someone who does not intend to ply for hire in the area of the authority, but only applies to be granted such a licence in order to take advantage (elsewhere) of the statutory exemption from the requirements of private hire vehicle licensing. The following principles may be stated as established by the judgment in that case –

a. The scheme of the legislation is to provide a local control over hackney carriages and their drivers, for the protection of the public. This implies that in general the licensing system should operate in such a way that the authority licensing hackney carriages is the authority for the area in which those vehicles are principally used

b. A licensing authority is obliged to have regard to whether an applicant for a licence intends that the hackney carriage if licensed will be used to ply for hire within the area of that authority. It would be a lawful exercise of the authority’s discretion to refuse to grant a licence to an applicant who does not so intend.

c. A licensing authority is also obliged to have regard to whether an applicant for a licence intends that the hackney carriage will be used (either entirely or predominantly) for private hire remotely from the area of that authority. It would be a lawful exercise of the authority’s discretion to refuse to grant a licence to an applicant who does so intend.

d. It is generally desirable therefore that a licensing authority should only licence hackney carriages which it is intended will ply for hire within the area of that authority and should refuse licences to hackney carriages that do not intend to ply for hire, to a material extent, in the area.

e. While it would not necessarily be unlawful per se to grant a licence to a proprietor who intends that the hackney carriage shall only be used remotely from the area of the licensing authority, it will rarely be rational for an authority to do so. It follows that it is only in wholly exceptional circumstances that a licence is likely to be granted where the proprietor intends that the hackney carriage shall only be used remotely from the area of the licensing authority.

f. The discretion whether to grant or refuse remains with the licensing authority; and whilst it must not be exercised so as to frustrate the purpose of the legislation, “there will be proprietors who wish to use their vehicles in a number of different authorities’ areas and in that case no doubt there will be flexibility in the exercising of the discretion”.

6. The Council when considering new applications for hackney carriage proprietors licences, more commonly referred to as hackney carriage vehicle licences, will determine those applications in accordance with the above principles and the overall conclusions contained within the Approved Judgment handed down by the High Court on the 5th November 2008. To than end:

(i) Applicants for new licences will be expected to demonstrate to the satisfaction of the Council a bona fide intention to ply to a material extent for hire within the relevant hackney carriage licensing zone under the terms of the licence for which application is being made. All applicants will be required to complete and submit a “Request for information – intended usage of a hackney carriage” form ((Appendix A)

(ii) There will be a presumption that applicants who do not intend to predominantly, or entirely ply for hire within the relevant hackney carriage licensing zone will not be granted a hackney carriage licence authorising them to do so.

(iii) The presumption mentioned in (ii) is capable of being rebutted in exceptional circumstances. Whilst it is neither possible nor prudent to draw up a list of what might amount to exceptional circumstances, an applicant who claims that exceptional circumstances exist will be expected to be able to satisfy the Council that a licence can be granted without frustrating the purposes of the legislation and/or compromising public safety.

(iv) In all cases, when considering applications for hackney carriage proprietors licences, the Council will place public safety above all other considerations

7. In light of the above, the Council has approved the following policies

• Applications for the renewal of a hackney carriage licence – Policy HC2
• Transfer of ownership – Policy HC3
• Change of vehicle – Policy HC4

8. For the avoidance of doubt, the individual policies will only apply to those areas where the Council, when carrying out the licensing function, is able to exercise discretion. In all other instances, the requirements of the individual relevant statutory provisions will be applied.

The Policies

Applications for the renewal of a hackney carriage licence – Policy HC1

(i) Section 41 of the Town Police Clauses Act 1847, provides that a hackney carriage licence shall only be in force for one year. Section 60 of Local Government Miscellaneous Provisions Act 1976 introduces the concept of “renewal” and gives the Council the power to refuse to renew a licence on both specific grounds and for any reasonable cause.
(ii) Applicants seeking to renew a licence will be required to demonstrate to the satisfaction of the Council that they have a bona fide intention to ply to a material extent for hire within the relevant hackney carriage licensing zone under the terms of the licence for which application is being made. All applicants will be required to complete and submit “Request for information – intended usage of a hackney carriage” form.

(iii) There will be a presumption that applicants who do not intend to predominantly, or entirely ply for hire within the relevant hackney carriage licensing zone will not be granted a hackney carriage licence authorising them to continue to do so. Each application will be decided on its merits, however; and the presumption will be rebuttable in exceptional circumstances. Whilst it is neither possible nor prudent to draw up a list of what might amount to exceptional circumstances, an applicant who claims that exceptional circumstances exist will be expected to be able to satisfy the Council that a licence can be granted without frustrating the purposes of the legislation and/or compromising public safety.

(iv) The Council will determine each application on its merits, but the Council will place public safety above all other considerations.

Reasons for Policy HC1

1 The decision of the High Court in Newcastle City Council v Berwick upon Tweed Council [2008] EWHC 2369 (Admin) requires the Council to introduce policy to determine the way applications for the grant and renewal of hackney carriage licences are considered.

2. There will inevitably be a large number of licensees who have been granted licences prior to the High Court judgment, and who now earn their livings or have built up businesses in reliance on those licences. The Council recognises that there is potential that those licensees may not have their licences renewed, if the basis on which their licenses were originally granted to them were to be changed so as to disentitle them to renewal. Notwithstanding, the Council believes it has a duty to:

• Balance the human rights of both applicants and the public with the need to protect public safety through a system of local control.
• Balance the rights of individuals to seek licences and employment whether in Northumberland or otherwise.

3. The existing legislative provisions relating to the licensing of private hire vehicles, drivers and operators (LGMPA 1976) do not permit a licensing authority to restrict the number of licences that may be granted. It is therefore possible for an applicant seeking a licence who intends to use a vehicle for private hire remotely from the area of the relevant hackney carriage licensing zone to seek a licence from the relevant licensing authority.

4. The High Court was not asked to consider the position on the renewal of licences already granted, and did not do so. Moreover, the Declaration made by the Court identified a discretion to refuse in the given circumstances, not an obligation to do so.

5. In light of the above, the Council considers that there may be applications for renewal in which it may be appropriate to consider exceptional circumstances when it may not be right, or consistent with an existing licensee’s legitimate expectations, to determine the application by reference to criteria that are wholly different from those pertaining at the time of the first application and grant. In considering those expectations, the Council is aware that judicial review and high court proceedings were known to the trade in advance of the High Court judgment being handed down on the 5 November 2008.
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6. The Council will determine each application on its merits, but the Council will place public safety above all other considerations

Notification of the ‘transfer’ of hackney carriage licences

7. No statutory provision is made for the transfer of hackney carriage licences. What are commonly regarded as transfers of licences, however, regularly take place – as when a proprietor replaces a licensed vehicle, or when the “ownership” of a licensed vehicle changes, and the new owner wishes to continue to operate the vehicle as a hackney carriage under the terms of the existing licence. . In the latter situation Section 49 of the Local Government (Miscellaneous Provisions) Act 1976 requires that the proprietor of the licensed vehicle who “transfers” his interest to another must, within 14 days of the transfer, give written notice to the Council of the name and address of the transferee of the hackney carriage. The Council has no power to refuse to register the new proprietor: see R v Weymouth Borough Council, ex p Teletax (Weymouth) Ltd [1947] KB 583.

8. Policies have been adopted to address each of the above-mentioned situations.

Transfer of ownership – Policy HC2

(i) The transferee of a licensed hackney carriage will be requested to inform the Council under the provisions of Section 73 of the LGMPA 1976 whether he has a bona fide intention to use the vehicle to ply to a material extent for hire within the relevant hackney carriage licensing zone.

(ii) The Council, where there is a failure to provide the requested information, will give serious consideration to exercising its powers of suspension of the licence under section 60 of the LGMPA 1976 Act until such information is forthcoming.

(iii) Transferees of existing licences will be expected to have a bona fide intention to ply to a material extent for hire within the relevant hackney carriage licensing zone under the terms of the licence in respect of the vehicle being transferred.

(iv) Where the transferee of a licensed hackney carriage is found not to intend to predominantly, or entirely ply for hire within the relevant hackney carriage licensing zone, there will be a presumption (either at renewal or earlier) that the suspension or revocation of the licence under section 60 of the 1976 Act may follow. All information requested following a transfer will be considered on its merits, however; and the presumption will be rebuttable in exceptional circumstances. Whilst it is neither possible nor prudent to draw up a list of what might amount to exceptional circumstances, an applicant who claims that exceptional circumstances exist will be expected to be able to satisfy the Council that it would not frustrate the purposes of the legislation or compromise public safety if the licence were renewed (or if were not suspended or revoked as the case may be).

Reasons for Policy HC2

9. The Weymouth decision requires the Council to register the name of the new proprietor of the vehicle. It seems to the Council also to open up an obvious route to circumvent the recent decision of the High Court, unless precautionary steps are taken. This policy is intended to put the Council in a position to respond responsibly to the transfer of a Berwick hackney carriage into the name of someone who operates outside the Borough or (more importantly) remotely from it.

10. The Council has a duty to:

• Balance the human rights of both applicants and the public with the need to protect public safety through a system of local control.

Change of vehicle – Policy HC3

(i) Applicants seeking the grant of hackney carriage licence for a vehicle intended to replace another licensed vehicle will be asked to inform the Council of any material change to the intended use of that hackney carriage vehicle licence from that which was expressed to the Council (if any was) when application was made for the licence sought to be replaced. There will be a presumption that applicants who no longer intend to ply either predominantly or entirely within the relevant hackney carriage licensing zone will not have the new hackney carriage licence granted.

(ii) Each application will be decided on its merits, however; and the presumption will be rebuttable in exceptional circumstances. Whilst it is neither possible nor prudent to draw up a list of what might amount to exceptional circumstances, an applicant who claims that exceptional circumstances exist will be expected to be able to satisfy the Council that a licence can be granted without frustrating the purposes of the legislation and/or compromising public safety.

Reasons for Policy HC3

11. It is assumed that if the proprietor has a legal entitlement to hold a licence that, unless there has been a change in his intentions with regard to plying to a material extent for hire within the relevant hackney carriage licensing zone, there should be no reason why he should not be granted a licence for a replacement vehicle.

12. An applicant who obtained his first licence on the expressed intention of plying for hire within the relevant zone, and who on application to replace that vehicle with another discloses that he no longer so intends, effectively engages the presumption against grant that is mentioned in the earlier policies. That presumption, however, admits of exceptions in the usual way; and the fundamental principle that each application will be determined on its merits will apply.

Download:Hackney Carriage Intended Use Policy

LICENSING AND REGULATORY COMMITTEE

5th June2009

REPORT OF THE PUBLIC SAFETY AND ENFORCEMENT MANAGER

Hackney Carriage – Intended Use Policy

1. SYNOPSIS

Under the provisions of the Town Police Clauses Act 1847 Northumberland County Council are responsible for the granting of “hackney carriage proprietors licences” which are more commonly referred to as a hackney carriage vehicle licences.

A recent High Court judgment (Newcastle City Council v Berwick upon Tweed {2008} EWHC 2369 (Admin)) demonstrates the need for licensing authorities to establish the “intended use” of a vehicle as part of the decision making process when considering an application for the grant or renewal of a hackney carriage licence.

The Regulatory Committee are asked to give consideration to the attached policy and are recommended to endorse its adoption by the Council when it meets on the 1st July 2009.

2. IMPLICATIONS (include references to budget and policy framework)

Policy: The proposal advocates the introduction of a new Northumberland wide policy.

Financial and
Value for money There is a risk that the proposed policy or decisions made there under, may be subject to legal challenge and thereby expose the council to financial risk. Should the policy not be progressed, there is a similar risk that the council may be subject to legal challenge if, following the recent High Court Judgment, the council were to continue to grant licences to proprietors of hackney carriages who did not intend to a material extent to operate the vehicle within the zone to which the licence relates.

Personnel: None

Property: None

Crime and Disorder: The proposed policy seeks to ensure that licences and the operation of hackney carriages can be monitored through a system of local control.

Equalities: None

Customer Considerations The proposed policy seeks to ensure that licences and the operation of hackney carriages can be monitored through a system of local control.

3. RISK ASSESSMENT (include references to which of the 4 levels of risk apply and any matrix, Workshop, Panel meetings)

Not appropriate

4. CONSULTATIONS

Following publication of the High Court judgment on the 5th November 2008, Berwick upon Tweed Borough Council elected to develop an intended use policy. As part of this process, extensive consultation was undertaken with the trade, trade organisations and local licensing authorities. Whilst a draft policy was produced and revised following the consultation exercise, a final policy was not adopted prior to the abolition of the Council on the 31st March 2009. The revised policy is attached as Appendix A and consultation responses at Appendix B.

No additional consultation has been undertaken. The proposed policy has been developed as a response to the High Court Judgment and seeks to set out how the Council will, where it is permitted to do so when carrying out its statutory duties, exercise discretion so as to ensure local control of licensed hackney carriages and protection of the public which must be uppermost when undertaking the licensing duties.

5. RECOMMENDATIONS

The Regulatory Committee is recommended to:

Endorse the attached Northumberland County Council Hackney Carriage Intended Use Policy (Appendix C) and recommend adoption of the policy by the Council.

6. BACKGROUND (include options, reasons and effect on performance)

Under the provisions of the Town Police Clauses Act 1847, Section 37, councils are responsible for the granting of hackney carriage proprietors licences which must, subject to very few exceptions, be driven by a person who holds a hackney carriage drivers licence. The issuing authority for both licences should be the council in the area in which the proprietor of the vehicle intends to undertake his business by either plying for hire or waiting at a taxi rank located within the administrative area of the council.

In addition to operating in the manner described above, a hackney carriage may undertake work on a pre-booked basis either within or outside of the administrative area of the licensing authority, which is not subject to any additional controls or licences.

Under the provisions of the Local Government (Miscellaneous Provisions) Act 1976, a further licensing regime is provided for work which is undertaken solely on a pre-booked basis. This requires that any person who wishes to operate a private hire vehicle must hold three licences, each of which must be granted by the same licensing authority. The licences in question are an operators’ licence, a private hire vehicle licence and a private hire driver’s licence. Those businesses that operate on the basis of private hire are not permitted at any time to ply for hire or wait at a taxi rank.

This therefore creates a situation where a hackney carriage may be used to fulfil a pre-booked hiring even though the hackney carriage in question may be licensed in a different area. Where this happens, the authority in whose area the hiring takes place has no automatic enforcement powers over those vehicles, which in turn are unlikely to be subject to the same conditions as that authority.

Prior to the 5th November 2008, Berwick upon Tweed Borough Council had taken the view that they were unable to refuse to issue licences to hackney carriage proprietors unless either the vehicle or the driver were unfit. The outcome of this approach and as a consequence of local licensing arrangements was that over a period from April 2006 to August 2008 the number of licences increased from 46 to 672.

Newcastle City Council, concerned at the number of hackney carriages licensed by Berwick that were being used within their area to fulfil private hire bookings, challenged the view of Berwick via judicial review.

This matter was subject to a hearing in the High Court before Mr Christopher Symons QC on the 15th, 16th, 17th of September and the 5th November 2008. The overall conclusion of the court in response to Newcastle City Councils’ claim was:

(i) In the proper exercise of its statutory discretion under section 37 of the Town Police Clauses Act 1847 a licensing authority is obliged to have regard (a) to whether the applicant intends that the hackney carriage if licensed will be used to ply for hire within the area of that authority, and (b) whether the applicant intends that the hackney carriage will be used (either entirely or predominantly) for private hire remotely from the area of that authority.

(ii) A licensing authority may in the proper exercise of its discretion under the said section 37 refuse to grant a licence in respect of a hackney carriage that is intended to be used to ply for hire within its area and/or is intended to be used (either entirely or predominantly) for private hire remotely from the area of that authority.

(iii) In determining whether to grant a licence under the said section 37 a licensing authority may require an applicant to submit information pursuant to section 57 Local Government (Miscellaneous Provisions) Act 1976 in order to ascertain the intended usage of the vehicle.

A copy of the Approved Judgment is attached as Appendix D

In dealing with the claim of Newcastle City Council, the Court concentrated on the granting of new licences and did not specifically comment upon the renewal of licences. A proprietor’s licence in accordance with Section 43 of the Town Police Clauses Act it is stated “shall be in force for one year only from the day of the date of such licence or until the next general licensing meeting”. The Act makes no reference to the “renewal” of licences and therefore it was expected that each licence shall be granted as a new licence.

The Local Government (Miscellaneous Provisions) Act 1976 Section 60 makes reference, notwithstanding the provisions of the Town Police Clauses Act 1847, that a district council may suspend or revoke, or refuse to renew a vehicle licence on both specific grounds and for any other reasonable cause.

Whilst the High Court Judgment makes no reference to the renewal of licences, it would seem appropriate to apply the same overall approach when dealing with such applications so as to provide a system of local control and protection of the public.

Furthermore, the policy as drafted whilst recognising that the basis on which the original hackney carriage proprietors licence were granted, may in the future, under the terms of the policy be subject to different considerations does, where exceptional circumstances exist enable the council to consider and grant licences where it would be appropriate to do so.

7. BACKGROUND PAPERS

Appendix A – Berwick Revised Policy
Appendix B – Berwick – Response to consultation
Appendix C – Draft Northumberland Hackney Carriage Intended Use Policy
Appendix D – Newcastle City Council v Berwick upon Tweed {2008} EWHC 2369
(Admin)

Town Police Clauses Act 1847
Local Government (Miscellaneous Provisions) Act 1976
Transport Act 1985

8. CONTACT OFFICER(S)

This report has been prepared by:

Mr Philip Soderquest, Public Safety and Enforcement Manager

For further information please contact Mr Philip Soderquest – 01434 652458 Philip.Soderquest@northumberland.gov.uk

Download:REPORT OF THE PUBLIC SAFETY AND ENFORCEMENT MANAGER

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