ALL THINGS LICENSING
Article by Mike Smith, Senior Specialist for Licensing and Community Safety at Guildford Borough Council and Vice-Chair of the Institute of Licensing South East Region.
Please note that this article represents my own views which are not presented as the views of the Institute of Licensing or Guildford BC.
DECISIONS IN LINE WITH LICENSING POLICY
In the Statutory Taxi and Private Hire Vehicle Standards originally published in 2020, the Department for Transport recommended that all Licensing Authorities “make publicly available a cohesive policy document that brings together all their procedures on taxi and private hire vehicle licensing. This should include, but not be limited to, policies on convictions, a fit and proper person test, licence conditions and vehicle standards.”
The reason for this recommendation is that otherwise there is no statutory requirement to have a licensing policy. This is unlike other areas of local government licensing such as alcohol, entertainment and gambling, where it is a legal requirement to have such a policy document.
However, sections 47, 48, 50, 51 and 55 of the Local Government (Miscellaneous Provisions) Act 1976 set out that the licensing authority can attach conditions to the grant of driver, vehicle and operator licences which are considered to be reasonably necessary.
Clearly therefore there needs to be some way of the authority describing what it considers to be necessary. Similarly the authority needs to be able to set out the criterion used to assess whether an applicant is fit and proper to hold a licence as required. Hence, the concept of the licensing policy for taxi and private hire licensing was born.
All applicants and licence holders will be aware that licensing policies set out requirements and
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standards which they are expected to meet. It should therefore be no surprise that if an individual does not fall within the parameters of a policy, their application is refused or licence removed.
However, this is generally not the case and there are, rightly or wrongly, many licensing authority decisions which are challenged in the courts. This is naturally an appellant’s right and is the cornerstone of our democracy and legal system whereby those aggrieved with the decision of a public authority have the power to ask for it be reconsidered.
The way in which the legal system works is that parliament passes legislation and its application is interpreted by the courts. The senior courts; High Court and Court of Appeal, can also look at cases and make decisions which then should go on to influence other similar decisions.
There have been a number of cases which have ruled on the application of a council licensing policy. From case law outside although applicable to taxi and private hire licensing, the senior courts have ruled that licensing appeals are a de novo (a fresh rehearing) where new evidence can be called.
The courts have also described that in a licensing appeal, the appellant has to set out to prove that the council’s decision was wrong.
Finally, and importantly, the courts must also apply the policy of a licensing authority as if it were ‘standing in the shoes’ of the council.
This means that whilst any person can challenge a decision of the council made in line with their policy, the courts still must apply the policy when considering any appeal.
This was emphasised by the High Court in taxi licensing specifically before Christmas when Mr Justice Linden handed down an important judgment on the approach to departures from licensing policy. The case relates to taxi licensing but its implications are wider, and are likely to
FEBRUARY 2025 PHTM
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