Article by: Steven Toy, NPHTA Board member and Trade Leader of the Cannock Chase HC PH Liaison Group

Many thanks to Antony Schiller of Dennings Solicitors, Rowley Regis for his help in preparing this article.

A number of councils up and down the land are currently undertaking consultation exercises in order to revise their licensing policies. Most do this in good faith with a view to making their policies more fit for purpose to improve the service we provide to the travelling public, public safety and perhaps even ease some of the burdens placed upon us by their regulatory activities and policies.

Unfortunately, as many of you are aware, other councils regard the process as a score-settling exercise and view it as an opportunity to give the trade a sound thrashing. This can take the form of placing onerous burdens upon us or threatening to do so in order to appear accommodating when they don’t subsequently carry out those threats. On the face of it they may simply be reacting positively to responses received from the trade through the consultation process. A more cynical interpretation is that they were never serious about [insert hare-brained proposal] in the first place and were diverting attention away from other onerous proposals in their draft policy document.

Either way, many councils are perceived by their local trade as ‘a law unto themselves.’ By way of example, my own local authority back in 2012 proposed to require the removal of social and domestic use from insurance documentation in order that vehicles may only be used for hire and reward. Another was a requirement to notify them in advance of a licensed vehicle being road tested by a mechanic who was not a licensed hackney carriage/private hire driver.

Fortunately, neither of these saw the light of day in the policy document that later came into force. Things have improved drastically since those days in my area, I must say. Other examples of silliness from other areas include a requirement to replace factory-installed tinted glass with clear glass, the removal of seats from MPVs when this is likely to cause the vehicle’s body control module to mal-function and other pointless and onerous modification requirements. Then there are those driver dress codes that some councils dream up....

The good news is that councils are not as free to impose arbitrary and burdensome regulations upon us as we or they might think. Firstly, sections 47 (1), 48 (2), 51 (2), 55 (3) of the Local Government Miscellaneous Provisions Act 1976 all make provisions for councils to attach conditions to the


granting and renewal licences of hackney carriage vehicles, private hire vehicles, private hire drivers and private hire operators respectively but only as they/the council may consider reasonably necessary.

In all instances, to the attachment of such conditions there is a right of appeal to the Magistrates’ Court within 21 days of them coming into force. If relief is required from the wider stated aims of policy, a judicial review may be needed but this is perhaps the most drastic of the remedies which are available.

What is meant by ‘...consider reasonably necessary?’

Consideration is a process by which we arrive at a conclusion based on evidence. To consider is not the same as to think or to believe for these are just opinions which, in the absence of supporting evidence, are completely worthless. Therefore the use of the word consider points to the need for evidence that the condition is reasonably necessary and this means that the benefit of the condition must demonstrably outweigh the burden placed upon the licensee.

Appeals against conditions in the courts are usually upheld when the condition fails the reasonably necessary test. Otherwise, what would there be to stop councils requiring all licensed drivers to wear pink underpants as an outer garment while driving a licensed vehicle? What may be subjectively desirable on the part of often septuagenarian or even octogenarian councillors and/or licensing officials is certainly not the same as being reasonably necessary in law.

There was also the Best Practice Guidance 2010 document: - that many councils chose to ignore because it was only ‘guidance’.

Further, there was James Button and Philip Kolvin’s: Safe and Suitable Guidance 2018: - which many councils chose not to ignore but to adopt in its entirety, without so much as casting even a passing critical eye over it, despite it also only being merely guidance- and the fact that it states in the document itself that it need not be ‘slavishly followed’. (See 1.6 on page 3 of the Guidance).

APRIL 2021

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