PAPER B3

 

Purpose: For Decision

 

Committee:    LICENSING PANEL

 

Date:               14 DECEMBER 2004

 

Title:                APPEAL AGAINST THE DECISION TO REFUSE TO LICENCE A PRIVATE HIRE MERCEDES “VITO” FOR EIGHT PASSENGERS

 

REPORT OF THE HEAD OF CONSUMER PROTECTION

 

 

PURPOSE/REASON

 

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

 

DETAILS OF THE APPEAL

 

2.         An appeal has been received from Mr G Turner, 114 High Street, Ryde, Isle of Wight, to licence his Mercedes Vito, DF04 KVL, for a maximum of eight passengers. His letter of appeal, dated 12 October 2004, is set out at Appendix 1.

 

LOCATION & SITE CHARACTERISTICS

 

3.         The vehicle will be available for Panel Members to view.

 

RELEVANT HISTORY

 

4.         The Council’s Principal Licensing Officer, at the request of Mr Turner, inspected a similar vehicle, which had been brought to the Island but refused to licence the vehicle for up to eight passengers because the vehicle does not comply with the Council’s Private Hire Vehicle licence condition No.14 (d) as it has a tip-up seat. 

 

5.         On 9 July 2004, Mr Turner presented a Mercedes Vito to licence as a Private Hire Vehicle.  At that time the applicant was reminded that the vehicle could only be licensed to carry seven passengers, due to the vehicle having a tip up seat in the passenger area, not the eight requested, and that this would necessitate the tip up seat being removed.

 

6.         The vehicle was licensed on the 9 July 2004 to carry a maximum of seven passengers.

 

COUNCIL POLICY

 

7.         The policy for 6, 7 and 8 seater vehicles is by way of conditions attached to the licence and the relevant condition (no.14) is set out below:

 

“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.

 

FORMAL CONSULTATION

 

8.         Not applicable to this matter.

 

THIRD PARTY REPRESENTATIONS

 

9.         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 at Appendix 2.

 

FINANCIAL IMPLICATIONS

 

10.       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

 

11.       Legislation governing the licensing of Private Hire Vehicles is set out below:-

 

            Local Government (Miscellaneous Provisions) Act 1976 Part II

            Transport Act 1985

           

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

 

13.       In arriving at their decision the Panel will have taken into account all relevant matters; and not taken into account any irrelevant matters.

 

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 1998

 

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 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 “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”.

 

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.

 

Articles 6 and 8 are particularly relevant to this matter because by the grant of a Private Hire 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

 

16.       To grant the appeal as requested by the applicant, and licence the vehicle for eight passengers.

 

17.       To refuse the appeal.

 

EVALUATION/RISK MANAGEMENT

 

18.       Officers have taken into account the matter of access and egress for passengers.

 

19.       Officers have also considered the fact that there are other vehicles of a similar type, which have only been licensed for seven passengers.

 

20.       Officers have also considered the implications under the Human Rights Act and the Local Government (Miscellaneous Provisions) Act Part II. 

 

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 the appeal as requested by the applicant, and continue to licence the vehicle for seven passengers.

     

     

 

APPENDICES ATTACHED

 

23.       Appendix 1 - Mr Turner’s letter of appeal.

Appendix 2 – IW Taxi Proprietors’ Association comments.

 

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