Taxis row goes to High Court

Berwick upon Tweed Borough Council

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

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Draft Policy for the Licensing of Hackney Carriages
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Introduction

1. 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 (what people sometimes call, albeit incorrectly, 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.

2. The drivers and vehicles of hackney carriages and private hire vehicles are subject to licensing requirements. There are two quite separate regimes, however, for the licensing of each. The Town and Police Clauses Act 1847 makes provision for hackney carriage licensing. The Local Government (Miscellaneous Provisions) Act 1976 makes provision for private hire licensing.

3. 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.) Importantly, 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.

4. The High Court has recently 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.

b. A licensing authority should 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 should also 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 would not be unlawful per se to grant a licence to someone who intends only to operate the hackney carriage remotely from an authority’s area; but the circumstances in which it would be rational to do so are likely to be exceptional. Each application must be decided on its merits.

e. The discretion whether to grant or refuse remains with the licensing authority; and whilst it must not be exercised so as to frustrate the policy 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”.

5. In light of the above, the Council has drafted the following policies.

The Policies

Applications for the new grant of a hackney carriage licence – Policy HC1

(i) Applicants for new licences will be expected to demonstrate a bona fide intention to ply for hire within the Borough of Berwick-upon-Tweed under the terms of the licence for which application is being made.

(ii) There will be a presumption that applicants who do not intend to ply for hire within the Borough will not be granted a hackney carriage licence authorising them to do so.

(iii) Each application will be decided on its merits, however; and the presumption mentioned in (ii) is 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 HC1

6. The Council wishes to ensure that applications for the grant of hackney carriage licences are determined in accordance with the guidance given by the High Court in its judgment, and the Declaration made in the case of Newcastle City Council v Berwick upon Tweed Council [2008] EWHC 2369 (Admin) as identified in the Introduction above.

Applications for the renewal of a hackney carriage licence – Policy HC2

(i) Applicants for renewals of licences will be required to inform the Council whether they have an intention to ply for hire within the Borough of Berwick-upon-Tweed under the terms of the licence for which application is being made.

(ii) In the case of an application for the renewal of a licence first granted after November 5th 2008 there will be a presumption that applicants who do not intend to ply for hire within the Borough will not be granted a hackney carriage licence authorising them 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.

(iii) In the case of an application for the renewal of a licence first granted before November 5th 2008 there will be no such presumption as is mentioned in (ii) above. Each application will be decided on its merits, but the Council will place public safety above all other considerations. Applications will be determined by the Council in accordance with its long-standing practice to refuse such applications if a vehicle is not fit for public service as a hackney carriage and / or the proprietor is not a fit and proper person. Provided there is no prejudice to public safety, however, and the vehicle is fit for public service as a hackney carriage and the proprietor is a fit and proper person, the Council will take into consideration evidence of hardship or unfairness if renewal were to be refused to those who earn their livings or have built up businesses in reliance on licences granted before November 5th 2008. It will be for the applicant to show genuine hardship/unfairness; and also 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 HC2

7. The decision of the High Court in Newcastle City Council v Berwick upon Tweed Council [2008] EWHC 2369 (Admin) brings about a fundamental change to the way applications for the grant of hackney carriage licences have been considered, not just by Berwick-upon–Tweed Borough Council, but by councils throughout England and Wales.

8. There will inevitably be a large number of licensees who have been granted licences under the law as it was understood to be, and who now earn their livings or have built up businesses in reliance on those licences. The Council believes that there is an obvious potential for unfairness and possible hardship to those licensees, and those who depend on them, if the basis on which their licenses were originally granted to them were to be changed so as to disentitle them to renewal.

9. 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.

10. In light of the above, the Council considers that there may be applications for renewal in which it would 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. Each application will be determined on its merits, however, and the policy emphasises that it will be for an applicant to show genuine hardship or unfairness.

11. With respect to hackney carriage licences granted after 5th November 2008 (i.e. the date of the High Court decision) the Council sees no reason why renewal should not be determined by reference to the criteria mentioned in Policy HC1.

Applications for the ‘transfer’ of hackney carriage licences

12. 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 an operator replaces a licensed vehicle, or when a licensed vehicle is transferred from one person to another. 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.

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

Transfer of ownership – Policy HC3

(i) Provided requisite notice has been given in accordance with section 49 of the Local Government (Miscellaneous Provisions) Act 1976 the Council will register the transferee of a licensed hackney carriage as the new proprietor, in accordance with the judgment of the High Court in R v Weymouth Borough Council, ex-parte Teletax (Weymouth) Ltd.

(ii) The transferee of a licensed hackney carriage will be asked to inform the Council whether he has a bona fide intention to use the vehicle to ply for hire within the Borough of Berwick-upon-Tweed. Transferees should note the obligation under section 73 of the Local Government (Miscellaneous Provisions) Act 1976 to give to an authorised officer information which may reasonably be required by him for the purpose of carrying out his functions under the legislation. Where there is a failure to provide the requested information, the Council will give serious consideration to exercising its powers of suspension of the licence under section 60 of the 1976 Act until such information is forthcoming, in addition to its powers under section 73.

(iii) Transferees of existing licences will be expected to have a bona fide intention to ply for hire within the Borough of Berwick-upon-Tweed under the terms of the licence in respect of the vehicle being transferred.

(iv) Where the transferee of a licensed hackney carriage is found to have no intention to ply for hire within the Borough of Berwick-upon-Tweed, consideration will be given (either at renewal or earlier) to the suspension or revocation of the licence under section 60 of the 1976 Act. Where the transferee proposes to operate remotely from the Borough there will be a presumption that his licence will be revoked. 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 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 HC3

14. 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.

Change of vehicle – Policy HC4

(i) Applicants seeking the grant of a hackney carriage licence for a vehicle intended to replace another licensed vehicle which was first granted a licence before November 5th 2008 will not be required to demonstrate a bona fide intention to ply for hire within the Borough of Berwick-upon-Tweed under the terms of the licence for which application is being made.

(ii) Applicants seeking the grant of hackney carriage licence for a vehicle intended to replace another licensed vehicle which was first granted a licence after November 5th 2008 will be asked to inform the Council of any material change to their intended use of the vehicle 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 for hire within the Borough of Berwick-upon-Tweed will not have the new hackney carriage licence granted.

(iii) Each application will be decided on its merits, however; and the presumption mentioned in (ii) 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 HC4

15. HC4(i): It is the Council’s view that where possible a “light touch bureaucracy” should be applied to an application by a proprietor to licence a replacement vehicle. The Council does not think that the simple replacement of a vehicle first licensed before the recent High Court decision should be subject to the new policies relating to first grant and renewal.

16. Policy HC4(ii) is directed at the replacement of a vehicle which was first granted a licence after the recent High Court decision. Assuming all else to be in order, the first grant will already have taken account of these policies, and unless there has been a change in the proprietor’s intentions with regard to plying for hire within the Borough, there should be no reason why he should not be granted a licence for a replacement vehicle. On the other hand, an applicant who obtained his first licence on the expressed intention of plying for hire within the Borough, 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 HC4(iii) reiterates the fundamental principle that each application will be determined on its merits.

Reply

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