PAPER B2

Purpose: For Decision

Committee: LICENSING PANEL

Date: 14 DECEMBER 2004

Title: TO CONSIDER AN APPEAL AGAINST THE COUNCIL’S DECISION TO REFUSE AN APPLICATION TO INCREASE THE SEATING CAPACITY OF PURPOSE BUILT TAXIS SO THAT A PASSENGER CAN BE ACCOMMODATED NEXT TO THE DRIVER

REPORT OF THE HEAD OF CONSUMER PROTECTION

PURPOSE/REASON

1. The Panel is requested to determine an appeal against the refusal by the Council’s Principle Licensing officer to licence a purpose built Hackney Carriage vehicle for more than six passengers.

DETAILS OF THE APPLICATION

2. An appeal has been received from Mr M Bull & Mr K Pont, 10 Victoria Crescent, Elmfield, Ryde, Isle of Wight against a decision to refuse an application to increase the seating capacity of a purpose built taxi so that a passenger can be accommodated next to the driver. His letter of appeal is attached as Appendix 1.

LOCATION & SITE CHARACTERISTICS

3. Currently the Council licenses a mixed fleet of Hackney Carriage vehicles (taxis), which include saloon and estate cars, approved multi-purpose vehicles, which carry six, seven or eight passengers, and certain purpose built eight seater vehicles such as the Ford Transit. The Council also license purpose built wheelchair accessible Hackney Carriage vehicles such as the London type taxis, namely the FX and TX range along with MetroCab and other conversions which have a Low Volume Build certificate or full M1 crash tested by the Vehicle Certification Agency.

4. The applicant has been requested to attend the meeting to answer any questions Members may have, and to bring the vehicle to the meeting should members wish to inspect the vehicle.

RELEVANT HISTORY

5. The FX – TX type vehicle, along with the MetroCab and other wheelchair accessible vehicles, meeting the specification as set out in paragraph 3 above are licensed up to a maximum of six passengers.

6. This ensures the space next to the driver of these vehicles can also be used for luggage.

7. Members may be aware that a previous appeal by another Proprietor against the Council’s decision to limit the number to six passengers was granted at the meeting on the 16 March 2004.

COUNCIL POLICY

8. Byelaws approved by the Secretary of State and licence conditions approved by the Council in 1995 control policy.

FORMAL CONSULTATION

9. Hampshire Constabulary has no comments to make on this application.

10. The Principal Road Safety Officer has no comments to make on this application.

11. The Crime & Disorder Unit has no comments to make on this application.

THIRD PARTY REPRESENTATIONS

12. The Isle of Wight Taxi Proprietors Association have made a general comment, which indicates that they would like discussions with the Council to clarify rules and regulations regarding various types of seat layout before the Panel make their final decision. Their comment is attached as Appendix 2.

FINANCIAL IMPLICATIONS

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

LEGAL IMPLICATIONS

14. The Town Police Clauses Act 1847 Section 68 and Town Police Clauses Act 1889 Section 6 permit the making of Byelaws along with Section 171 of the Public Health Act 1875 with respect to Hackney Carriages. Copy of the Council’s Byelaws is available in the Members’ room.

13. Byelaw 3 (g):-

Provide means for securing luggage if the carriage is so constructed as to carry luggage.

14. Road Vehicles (Registration and Licensing) Regulations 1971. S1 1971 No 450.

Seating capacity of Hackney Carriage:-

42. - (1) For the purposes of the last preceding Regulation and of Schedule 2 to the Act (which prescribes the annual rates of duty on Hackney Carriages) the seating capacity of a vehicle shall be determined as follows –

(a) where separate seats for each person are provided one person shall be counted for each separate seat provided; and

(b) where the vehicle is fitted with continuous seats one person shall be counted for each complete length of 16 inches measured in a straight line lengthwise on the front of each seat, and where any such continuous seat is fitted with arms for the purpose of separating the seating spaces and such arms are so constructed that they can be folded back or otherwise put out of use such seat shall be measured for the purposes of this Regulation as if it had not been fitted with such arms.

Local Government (Miscellaneous Provisions) Act 1976 Part II, Licensing of Hackney Carriages.

15. 47. – (1) A district council may attach to the grant of a licence of a Hackney Carriage under the Act of 1847 such conditions as the district council may consider reasonably necessary.

16. The Council table of fares permits an extra charge of 10p for each piece of luggage conveyed outside the passenger compartment.

17. The above allows the Council to attach conditions regarding the carrying of luggage and the seating capacity of Hackney Carriages (Taxis).

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

18. Without prejudice to any other obligation imposed on it, it shall be the duty of each authority to which this section applies 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 1998

19. 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 of the Panel is sufficient to make the Council’s licensing system 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 it states that “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”.

20. 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.

21. Articles 6 and 8 are particularly relevant to this matter because by the grant of a Hackney Carriage Vehicle Licence with an increased capacity the Panel will have to balance the requirement of the passengers against the applicant’s right to run his business.

OPTIONS

22. To have a policy of considering seating capacity for FX, TX and other wheelchair accessible Hackney Carriages approved by the Council at the request of the licence holder.

23. To have a policy that the maximum seating capacity be set by the Council’s Principal Licensing Officer having regard to all legislation and where there is a partition that clearly separates the driver from the passengers, no passenger seat will be fitted next to the driver.

24. To licence wheelchair accessible taxis such as the FX, TX, MetroCab and Euro Taxi type models up to a maximum of seven passengers including the use of the area next to the driver where legislation permits.

25. To licence all vehicles of similar design and appearance to the vehicle, commonly known as the London Cab, up to a maximum of six passengers (where legislation permits) within the passenger compartment of the vehicle.

EVALUATION/RISK MANAGEMENT

26. Officers have considered the implications under the Human Rights Act and the Local Government (Miscellaneous Provisions) Act Part II Section 61(1).

27. 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.

RECOMMENDATION

28. To licence all vehicles of similar design and appearance to the vehicle, commonly known as the London Cab, up to a maximum of six passengers (where legislation permits) within the passenger compartment of the vehicle.

APPENDICES ATTACHED

29. Appendix 1 – Mr M Bull and Mr K Pont letters of appeal

Appendix 2 – IW Taxi Proprietors’ Association comments.

BACKGROUND PAPERS

30. 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