PAPER B2

Purpose: For Decision

Committee: LICENSING PANEL

Date: 3 NOVEMBER 2003

Title: APPEAL AGAINST THE PRIVATE HIRE VEHICLE LICENCE CONDITIONS WHICH PREVENT THE LICENSING OF A MERCEDES V CLASS FOR UP TO A MAXIMUM OF 6 PASSENGERS AND TO BE GRANTED PERMISSION TO DISPLAY THE EXECUTIVE STYLE PRIVATE HIRE IDENTITY PLATE

REPORT OF THE HEAD OF CONSUMER PROTECTION

PURPOSE/REASON

1. To consider an appeal against the 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 APPLICATION

2. An application has been received from Mr & Mrs W Rounsevell, 10 Mayfield Road, East Cowes, Isle of Wight to licence a Mercedes V Class as an Executive Private Hire for up to a maximum of 6 passengers.

3. The application was refused by the Council’s Licensing Officer 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.

4. If the licence is granted by the Panel Mr & Mrs Rounsevell would like an exemption from displaying the Council’s standard identity plate and be permitted to display the executive-style plate.

LOCATION & SITE CHARACTERISTICS

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

RELEVANT HISTORY

6. Recently Mr Rounsevell presented a Mercedes V Class to licence as a Private Hire Vehicle. At that time due to the vehicle having a tip up seat in the passenger area, the applicants were informed that the vehicle could only be licensed to carry 5 passengers, not the six requested due to the seating arrangements and this would necessitate the tip up seat being removed.

7. The applicants were informed in writing by the Licensing Officer of this decision and a subsequent letter of appeal was received on 15 October 2003.

COUNCIL POLICY

8. The policy for 6, 7 and 8 seater vehicles is by way of conditions attached to the licence and the relevant condition is set out below:

“14. 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.

9. The Policy for Executive Private Hire identity plates was determined at the Licensing Panel meeting on 7 July 1998 when it was reported that each case would be considered on its own merits and no vehicle would be automatically exempt from displaying an appropriate plate and was resolved

(a) THAT the design, as amended, be agreed for the Council identity plate and disc for private hire vehicles undertaking limousine/chauffeur type work.

(b) THAT vehicles be viewed prior to any consideration being given to exemption from the display of identity plates and drivers badges.

FORMAL CONSULTATION

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

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

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

THIRD PARTY REPRESENTATIONS

13. Not applicable to this application.

FINANCIAL IMPLICATIONS

14. 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

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

Local Government (Miscellaneous Provisions) Act 1976 Part II

Transport Act 1985

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

17. 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

18. 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

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 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”.

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

20. To grant the Private Hire Vehicle licence as requested by the applicant.

21. To grant a Private Hire Vehicle licence for a lesser number of passengers.

22. To refuse to grant the application as requested by the applicant.

23. To grant the request that the vehicle be permitted to display the executive style plate.

24. To refuse the request to display the executive style plate and issue the normal Private Hire Identity plate.

EVALUATION/RISK MANAGEMENT

25. 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.

26. 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.

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.

RECOMMENDATIONS

28. (a) Members are requested to determine the application for the seating capacity of the vehicle.

(b) To grant the request for the executive plate to be displayed

APPENDICES ATTACHED

29. Application form.

BACKGROUND PAPERS

30. None.

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

Contact point: John Murphy, 823152

ROB OWEN

Head of Consumer Protection