PAPER B1

Purpose: For Decision

Committee: LICENSING PANEL

Date: 11 MAY 2004

Title: APPEAL AGAINST THE HACKNEY CARRIAGE & PRIVATE HIRE VEHICLE LICENCE CONDITIONS WHICH PREVENT THE LICENSING OF A VAUXHALL ZAFIRA FOR UP TO A MAXIMUM OF 6 PASSENGERS

REPORT OF THE HEAD OF CONSUMER PROTECTION

PURPOSE/REASON

1. To consider an appeal against the Licensing Officer’s refusal to grant a Hackney Carriage or Private Hire Vehicle licence due to the fact that the vehicle does not comply with the Council’s licence conditions.

DETAILS

2. A request has been received from Mr R D Titley of Hartwell Isle of Wight, Carisbrooke Road, Newport Isle of Wight that the Council consider licensing a Vauxhall Zafira for up to a maximum of 6 passengers. Letter attached as Appendix 1. The request was refused by the Council’s Licensing Officer as the vehicle does not comply with the Council’s Hackney Carriage or Private Hire Vehicle licence conditions for 6, 7 & 8 seater vehicles due to lack of easy access to all seats. The vehicle also has tip-up seats.

LOCATION & SITE CHARACTERISTICS

3. The Vauxhall Zafira will be available for Panel Members to view.

RELEVANT HISTORY

4. The Licensing Panel have waived the licence conditions previously with regard to condition No. 15 for a Hackney Carriage (No. 14 for private hire), paragraphs (a) (b) (c) and (e). Side facing seats have been licensed previously in the American Limousines. A Peugeot 806 MPV was refused by the Licensing Panel on 7 September 2001. Set out below are details of the decision:

The Committee having viewed the vehicle, and although this type of vehicle would be licensed by Southampton and Winchester Councils, this Committee was concerned on the safe ingress and egress of passengers in an emergency. It was therefore resolved:-

“THAT the grant of a Hackney Carriage Vehicle licence to…….. be refused as the vehicle failed to comply with the Council’s standard Hackney Carriage Vehicle conditions”.

Members will also be aware that at the last meeting it was agreed to grant a licence for a Citroen Synergie for a maximum of 5 passengers. The decision is also set out below.

“THAT the application for a Hackney Carriage Vehicle Licence for a Citroen Synergie be granted, for up to a maximum of 5 passengers, subject to the condition that the nearside seat, of the middle row of seats, be removed, at all times when the vehicle is used as a Hackney Carriage”.

COUNCIL POLICY

5. The policy is by way of conditions attached to the licence and the relevant condition is set out below:

“No 15 for Hackney Carriage (No 14 for private hire) With regard to the licensing of 6, 7 and 8 seater vehicles the following applies:-

(a) Passenger entry and exit doors should be on the nearside of the vehicle only.

(b) No passenger entry or exit doors will be permitted at the rear or on the offside of the vehicle except emergency exits and wheelchair access.

(c) There must be easy access from the entry and exit doors to all seats.

(d) Tip-up seats are not to be permitted in any vehicle except purpose built limousines.

(e) All passenger seating shall face the front of the vehicle.

(f) Emergency exits must be clearly marked as such.

6. The vehicle appears not to be able to comply with (c) & (d) above.

FORMAL CONSULTATION

7. The Police have no comments to make on the application.

8. The Principal Road Safety Officer has no comments to make on the application.

9. The Crime & Disorder Unit has not commented on the application.

THIRD PARTY REPRESENTATIONS

10. Not applicable to this application.

FINANCIAL IMPLICATIONS

11. Broadly, Council expenditure on Licensing matters and in particular those which are administered and enforced through Consumer Protection, balances income received from licence fees.

LEGAL IMPLICATIONS

12. Legislation governing the licensing of Hackney Carriage & Private Hire Vehicles is set out below:-

Town Police Clauses Act 1847

Local Government (Miscellaneous Provisions) Act 1976 Part II

Transport Act 1985

13. Each application should be considered individually so as to comply with the rules of Natural Justice.

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

14. Without prejudice to any other obligation imposed on it, it shall be the duty of each authority to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to prevent, crime and disorder in its area.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

15. Members are advised that this application must be considered against a background of the implications of the Human Rights Act 1998.

There are three convention rights which need to be considered in this context:-

a) Article 6 - Right to a fair trial

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

It has been held that the fact that there is a right of appeal to the magistrates’ court from any decision the Panel is sufficient to make that the Council’s licensing system is compliant with the convention rights.

b) Article 8 - Right to respect for private and family life.

Everyone has the right to respect for his private and family life, his home and his correspondence. In the case of article 8 there shall be no interference by a public authority with the exercise of this right except as such in accordance with the law and is necessary on a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder and crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

c) Article 1 of the first protocol – protection of property.

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. In the case of Article 1 of the first protocol “no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law. The preceding provisions (of which articles 6 and 8 are but two) shall not however in any way impair the right of the state to enforce such laws as it deems necessary to control the use of the property in accordance with general interest or to secure the payment of taxes or other contributions or penalties”.

In this particular case Article 6 would appear to be relevant.

d) The Panel needs to be clear as the rights granted and the need to ensure that the reasons given for any interference are proportionate and in accordance with the Council’s legitimate aim.

OPTIONS

16. To refuse to grant the Hackney Carriage or Private Hire Vehicle licence as the vehicle fails to comply with the Council’s standard vehicle licence conditions as stated.

17. To grant a Hackney Carriage or Private Hire vehicle licence by varying the licence conditions for this vehicle only, subject to the vehicle passing the Council’s Compliance Test and carrying not more that the number of passengers to be determined by the Licensing Panel.

EVALUATION/RISK MANAGEMENT

18. Officers believe that the amount of space for entry or exit from the nearside rear passenger door is insufficient. The maximum number of passengers for which the vehicle could be licensed would be four if the rear row of seats were removed. Insufficient luggage space for five and six passengers could well be another reason for refusal.

19. Officers have considered the implications under the Human Rights Act 1998, Local Government (Miscellaneous Provisions) Act 1976 Part II and Section 16 of the Transport Act 1985 and Town Police Clauses Act 1847.

20. This matter has been discussed with the Council’s Compliance & Risk Management Section and it is believed it is the applicant’s responsibility to carry out their own risk assessment in relation to their own or their employees’ safety.

21. Insofar as any risk to the Council is concerned, the issue of Crime and Disorder and Human Rights have been evaluated. Any resolution the Panel makes is within its delegated powers.

RECOMMENDATIONS

22. To refuse to grant the Hackney Carriage or Private Hire Vehicle licence as the vehicle fails to comply with the Council’s standard vehicle licence conditions.

APPENDICES ATTACHED

23. Appendix 1 - letter from Mr R D Titley, Hartwell Isle of Wight

BACKGROUND PAPERS

24. Checklist for this report in relation to the Human Rights Act, Wednesbury principles, and proportionality.

Contact point: John Murphy, F 823152

ROB OWEN

Head of Consumer Protection