OPINION – continued from page 11
Imagine the scenario when all the small limousine operators, both exist- ing and proposed, have their PSV operators licenses revoked, add to this the 50% of local licensing authorities who do not or will not realisti- cally license limousines. The industry will revert to the dark ages of operators running unlicensed. With no realistic or a sensible and con- sistent regime, anarchy will rule.
Drug dealers, money launderers, and the like will flourish; good honest businesses will either die or turn illegal to exist. VOSA with its limitations on finance and manpower will not be able to adequately police the law. The police will continue to have very little understanding of the law gov- erning limousines, and uninsured and unlicensed operators will once again become the norm.
After years of trying to convince operators that the DfT, VOSA, Traffic Commissioners the police and the NLCA are all on the same side, I now find it increasingly difficult to support this argument, and now feel that we are effectively on opposing sides with less common ground than ever in the last thirty years.
I have implored the DfT and Traffic Commissioners to look at the latest decision again, consider the ramifications, involve the NLCA at the deci- sion making stage, and finally commit to a positive programme of licensing on a national basis (under the administration of the Traffic Commissioners) for all limousines both up to and over eight passenger seats. The problem is surmountable with the will of government and the commitment of all involved.
If any operator of a limousine, novelty vehicle, business car, minibus or people carrier of less than nine seats capacity currently works under a PSV “O” license, then they are at serious risk of losing their livelihood. The NLCA needs every operator who may be affected to join in the cam- paign and support what will inevitably be a long, arduous and expensive series of challenges through the courts.
The NLCA will be calling an extraordinary meeting in the near future to establish the route forward, every operator in the UK is invited to attend and all offers of support in any form will be gratefully received.
Bill Bowling Legislation Officer, National Limousine and Chauffeur Association RESPONSE From NICK JONES
Traffic Commissioner for the Welsh Traffic Area Traffic Commissioner for the West Midland Traffic Area
10 March 2010 Dear Mr Bowling
You wrote to me as lead traffic commissioner on the subject of limou- sines with some suggestions on the interpretation of the law relating to small PSVs. I promised to respond to you once traffic commissioners had completed their review of the law relating to the licensing of limou- sines and novelty vehicles. I have numbered paragraphs in this letter for ease of reference.
1. In this letter a small vehicle or small limousine is a vehicle adapted to carry eight or fewer passengers. A large vehicle or large limousine is a vehicle adapted to carry nine or more passengers.
2. This has been an interesting exercise and of course it is important that traffic commissioners do not make law – rather that is for Parliament. It is the role of traffic commissioners to try and interpret the law cor- rectly.
3. Traffic commissioners have been assisted by DfT providing its view of the law. It is appreciated that ultimately only the courts can defini- tively interpret the law.
4. I appreciate that your view has been that you would prefer traffic com- missioners to license small vehicles as you believe that we are more consistent than local authorities.
I acknowledge that published guidance has led to the current posi- tion whereby many operators have obtained PSV licences in good faith in the absence of an agreed position. Traffic commissioners have now taken the opportunity to come to a collective, clear and firm view that this is no longer appropriate. Traffic commissioners’ value limousine operations as a legitimate trade and this review of the law is not about making life difficult for the good operator and
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forcing them to operate without licences; rather, it is about applying the law correctly and ensuring that where an operation is really a pri- vate hire arrangement, it is licensed as such.
As you can see from the views expressed below, we believe that small vehicles can in some circumstances be licensed as PSVs; however most of the limousine operations involving small limousines are like- ly to fall under the category of private hire and will not be a genuine PSV. Where there is a suspicion that this is so, it is likely that a new application will be heard at public inquiry to consider whether the requirements of Section 14 (3) of the Public Passenger Vehicles Act 1981 are being capable of being complied with. One of the require- ments under this section is that the traffic commissioner must be satisfied that there will be adequate arrangements for securing com- pliance with the law relating to the driving and operation of the vehicles. It will be for an applicant to satisfy a traffic commissioner on the balance of probabilities that the requirements are met.
5. I enclose below a series of questions and answers which set out what traffic commissioners believe represents the law. I have also enclosed extracts from a recent government circular to local author- ities setting out that they should not decline to license 1-8 passenger seat limousines as has happened in the past. I hope that you and your members will find the circular helpful. As you will recall I am of the view that if a local authority declines to license any limousine as a matter of principle, the remedy is to appeal to the local magistrates’ court without delay. Separate rules apply in Scotland where appeals lie to the Sheriff Court.
When can a small limousine legitimately be licensed as a PSV?
6. It is often suggested that, wherever separate fares are being paid by passengers, the vehicle can legitimately be licensed as a PSV rather than a PHV.
7. This is not the case: further conditions also need to be met in order for the vehicle to qualify as a PSV (rather than a PHV). The effect of the legislation is that, where a small vehicle is made available for exclusive hire to an individual or group, it falls to be licensed as a PHV.
8. A small vehicle will normally qualify as a PSV only if separate fares are paid and one of the following two conditions is met.
CONDITION 1: The service must have been advertised to the public, so as to create a genuine opportunity for members of the public to be carried on the particular journey in question. i.e. the journey is not an exclusive hiring for an individual or group. Advertise- ment at a place of worship, a place of work, a club or other voluntary association for the information of people present at those places, or in periodicals circulated wholly or mainly among such persons, does not count as advertisement to the general public.
CONDITION 2: The service was not advertised as per condition 1, but the arrangements for (i) bringing together the passengers, and (ii) the payment of separate fares, were initiated by the driv- er, operator or owner of the vehicle, or some other intermediary who is paid for doing so – not by the passengers themselves, or any other party. This condition might be met where the transport provider has identified a number of people each wanting to make the same journey, and has suggested to them that they might want to travel together and split the cost.
9. If neither condition is met, the vehicle is very unlikely to qualify as a PSV in relation to the journey in question. It would therefore need to be licensed as a PHV.
I have a large limousine which I hire out on a ‘dry hire’ basis. Do I need a PSV operator’s licence?
10. It depends. If the hirer drives the vehicle him/herself – as they would under a typical car rental agreement – then the hire company will not be operating the vehicle. Similarly if the hire agreement allows the hirer to employ the services of a chauffeur selected by the hirer, entirely independently of the hire company, then the hire company is unlikely to require an operator’s licence.
11. However, ‘dry hire’ arrangements are sometimes used to try to cir- cumvent the operator licensing requirements. In particular, hire companies sometimes require or encourage the hirer to employ the services of a particular driver (or company who provides drivers), or perhaps offers a limited selection of drivers who may be used. In such cases, a connection exists between the hire company and the
OPINION – continued from page 11 PHTM AUGUST 2009
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