Appendix 1: Consultation Responses 1. Extract from Taxi Consultation Forum Minutes 13th September 2006 5. HACKNEY DEMAND SURVEY 5.1 DJB referred to the sequence of reports which has been presented to Environment Scrutiny and Licensing Committees and is due to be considered by the Executive on 26th September. 5.2 He specifically referred to the letter submitted by the HCA dated 1st September seeking further consultation on the issue. 5.3 All three Trade representatives indicated that they were opposed to the proposal to de-limit the issue of hackney carriage licenses. The following points were specifically raised: i. Trade requested a full copy of the Consultant’s report – agreed. ii. It was agreed that there was currently a shortage of ranks and that this would have to be addressed. iii. The Trade felt that extra ranks, that had been provided in the past, had not been successful. iv. The Trade felt that there was no scope for additional ranks and cab numbers and that drivers would be unable to make a decent living. 2. Minute from Environment Scrutiny Committee 16th August 2006 5. Hackney Carriage Licences Matters Sue Graham: Discussed • She reported on options regarding the determination of Hackney Carriage Licences, including delimitation, and sought a recommendation from the Committee to the Executive. Members discussed the three options available and made the following points; • Use of only one main rank had not provided a good service to date • Option three would increase free enterprise, increase the choice of Hackney Carriages and reduce plying for hire by private hire vehicles IT WAS That Option three involving delimitation be recommended to the Executive, AGREED as this would realise the customer benefits of increased choice, improve Public safety and remove the requirement for periodic demand of Surveys. 3. Minute from Licensing Committee 12th September 2006 24. Hackney Carriage Licences Mr. Abdul Shakoor and Mr. Alan Hosker exercised their Right To Speak on this item. Mr Abdul Shakoor represented the Hackney Carriage drivers. He indicated that the drivers felt the Council should maintain their limits and not issue additional licences. Mr Alan Hosker indicated that he was waiting for his application for a Hackney Carriage licence to be determined. He further indicated that he intended to challenge the Council and would take legal action if his application was refused. Karen Davies reported on the process of determining the level of Hackney Carriage Licences and seeking a recommendation from this Committee for Executive Decision. She indicated that Burnley had limited the number of Hackney Carriage Licences that it issues to 34 and currently all are in use, in October 2003 a survey of demand found there would be an unmet demand within the Borough and recommended an increase in the number of Licences available. As a consequence, in April 2004 the Executive decided to phase in, over four years, the issue of a further 18 Hackney Carriage Licences. She further indicated that in September 2005, following concerns submitted by the Hackney Carriage Trade, and the Executive agreed to commission a further demand survey and defer the issue of additional Licences until the results of the survey were known. She highlighted the outcome of demand survey was unpredictable. Reliant on service to justify limitation and number of Licences places the Council in a vulnerable position when considering the obligations, and places the Council at continuing risk of judicial review and claims of mal- administration. She further highlighted that there were three options to move forward, and the three options were available to the Council. She indicated that the report provided an Options Appraisal attached to Appendix 1 comparing the implications of each option across the range of legal, enforcement, trade and customer issues. She also highlighted that the Head of Legal & Personnel had indicated that delay beyond October 2006 should be avoided which meant securing an Executive Decision on the 26th September, by which time all necessary consultation would be required to have taken place. Members raised the following points:- There was concerned expressed the way taxi survey’s were being carried out in Burnley. He highlighted that Hackney Carriages do not pick passengers up from super markets or railway stations and that drivers do not respond to hailing from the street. It was said that the business should be more competitive and the Council needs to cut down on Private Hire Vehicles plying for hire illegally therefore she supported option three. Members asked how many Hackney Carriage Taxi Stands were in operation through out Burnley. Peter Henderson reported that altogether the Borough had 15 stands and 9 were in use. He indicated that some stands were in use at night only and that the Highways Authority was looking at introducing taxi ranks to other sites. Sue Graham reported that under the new shopping centre development the developer had been asked to include rank provision within their proposals. RESOLVED That the Executive be recommended to agree Option 3 which would be to delimit the number of licences issued by the Council and open up the market to competition. This approach would be in line with the Office of Fair Trading’s recommendation. This deals with public safety issues arising from Private Hire Vehicles illegally plying-for-hire, removes the need to continuously review demand, and allows market forces to determine the success or failure of a business venture. In this situation all applications received which satisfy the conditions would be approved. This would realise the customer benefits of increased choice and improved Public safety, and remove the requirement for periodic demand surveys. 5. Submission to Burnley Borough Council on the issue of delimitation of Taxi Licences from Aubrey Isaacson Solicitors on behalf of Burnley Hackney Carriage Association – dated 6th November 2006. 1.The starting point is the fact that the Licensing Committee at Burnley Borough Council resolved on the 12th September 2006 to opt for delimitation of taxi licences. (Licensing Committee did not make that decision – it is a decision only the Executive can make) 2. There was no adequate consultation prior to this decision being arrived at and the decision flew in the face of the conclusions of a TPI survey report commissioned by Burnley Borough Council which was only two months old that there was no unmet need for Hackney carriages within the Burnley area. Indeed, in that report there were various comments including one form the Police representative that no further taxis would be welcome because of the existing congestion and lack of taxi ranks. 3. Following the Licensing Committee decision Councillor Bullas is quoted by the local press as saying that if Burnley did not grant extra licences they could be taken to Court by the applicants which could cost them a lot of money. Councillor Bullas’s fears of applicants taking this Council to the Crown Court if their applications for licenses are turned down and it costing this Council a lot of money are completely unfounded. The legal position is that as a result of the provisions of the Town Police Clauses Act 1847 and section 16 of the Transport Act 1985 ‘the Council has power to limit by number the Hackney Carriage Licences issued but only if it is satisfied that there is no significant demand for such services which is unmet’. Here the very recent survey showing that there is no unmet need would make the Council bullet proof against any such applications to the Crown Court should the Council refuse applications for licences. Such applications would be almost certain to fail. On the other hand if the Council were to opt for delimitation the likelihood of a six figure sum in costs being awarded against the Council in the Administrative Court on an application by the Burnley Hackney Carriage Association is a considerable one. The reference by Karen Davies in her report to the Executive of 26th September 2006 that the Council would be at risk because of applications received prior to the September 2006 survey is wrong. The Court would look at the current position and the Council would be full entitled to rely on the current not previous survey. (The Council’s concern about legal challenge is on the non-determination of licence applications and the delay caused by having to wait for a further survey, rather than the risk caused by previous applications being turned down) 4. The decision of the Licensing Committee subsequently endorsed the Scrutiny Committee decision of 16th August 2006. (Neither committee decided on the level of HC licences, they merely made a recommendation to the Executive) 5. I was then instructed by Burnley Hackney Carriage Association and wrote to the Council on 19th September 2006 with various submissions. I was then invited to represent the BHCA at a consultation forum meeting which took place on Friday 3rd November 2006. Present at that meeting on behalf of the Council were Karen Davies and Peter Henderson from the Licensing Office, David Brown Director of Environment and Councillors Birtwistle and Horrocks. Reference was made at that meeting to the Office of Fair Trading Report November 2003 which recommended delimitation. That report, however, was considered by the Parliamentary Committee of Transport in November 2004 and was heavily criticised as being seriously flawed. The Government considered that ultimately Local Authorities remain best placed to determine local transport needs and should be given the opportunity to assess their own needs in the light of the OFT findings rather than the Government imposing a legislative solution. 6. The Government issued a Taxi and Private Hire Vehicle Licensing Best Practice Guidance which was also referred to at the consultation forum. That Best Practice Guidance should be referred to in full as to the relevant sections relating to limitation. At the forum the Council representatives stressed only that the Government was in favour of delimitation. In any event the Best Practice Guidance is only the advice from Government and is not in any way compulsory. The Guidance moreover sets out in great detail the need for consultation and the questions that should be asked in relation to consultation. It stresses the need for a survey which has, of course, been carried out very recently. The conclusions of that survey were that there is no unmet need have been ignored by the Licensing Committee as have the Government’s recommendations for extensive consultation. 7. A very similar situation arose in Watford very recently. A Mr Sardar took Watford Borough Council to the Administrative Court and the case was heard on the 30th June 2006. In that case a decision was arrived at to delimit without adequate consultation on the 5th September 2005. A further Council meeting on the 20th October 2005 following a degree of consultation endorsed the original decision to delimit but the Judge decided that the consultation subsequent to the decision to delimit had not taken place at a time when proposals were still at the formative stage and the Judge overturned the decision. The Burnley situation is even clearer than the situation in Mr Sardar’s case (where the Council took their decision prior to carrying out a further three year survey following the one that had been carried out in 2001). In this case in Burnley a further survey has been carried out and the result was published just a few months or so ago which showed no unmet need. To ignore that decision as has been done by the Scrutiny Committee and then the Licensing Committee would be completely contrary to the decision of the Court of Appeal in Rv North and East Devon HA ex parte Coghlan 2001 QB213 at para 108 where it was said “it is common ground, that whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be at a time when proposals are still at the formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and intelligent response; adequate time must be given for this purpose and the product of consultation must be conscientiously taken into account when the ultimate decision is taken. Rv Brent London Borough Council ex parte Gunning 1985, 84 LGR at page 168” Losing the Sardar case cost Watford Borough Council £127,000 in legal costs. (The decision to delimit was not taken by either Licensing or Scrutiny Committee, they were consultees and were asked to make a recommendation on one of 3 options as part of the consultation to this report) 8. Numerous Councils which have decided to opt for delimitation have gone back to restriction because of the chaos which ensued. In the case of Burnley there are 34 Hackney Carriage licence holders who because of the limited custom available from the public are finding it difficult to make a reasonable living. To flood the market with extra licences (it is understood that there are 66 applicants waiting for a decision as in the Sardar case where there were 56) would serve in detriment of the public interest by destroying the trade altogether and pushing out of business the existing licence holders who have experience and lengthy service in the trade. It is understood that many of the applicants for new licences are private hire operators who would like to be able to ply for hire. There is no pot of gold at the end of the taxi rank rainbow notwithstanding what some people may think. Ms Davies assertion that “current plate values in Burnley can exceed £20,000” is utter fiction. If delimitation took place and numerous new licences were granted there would clearly not be enough custom to go around or ranks to accommodate the taxis. Chaos would ensue and the public would suffer. ( the market is unlikely to be ‘flooded’ – new entrants would need to purchase a black cab and meet all the stringent conditions attached to the licence before they can enter the market – a 10 to 30% increase is most likely) 9. If, for example, there were a factory operating efficiently and having 34 workers working full time but with 66 people waiting outside wanting to apply for jobs no rational person would say that the 34 existing workers should go onto job sharing in order to give the 66 outside an opportunity. 10. The law is clear in that you do not have to take into consideration the livelihoods of the existing licence holders and your sole consideration should be the benefit of the public. There is however not one shred of evidence that the public would be any better if delimitation was put into effect and indeed the likelihood is that the public would suffer considerably and the service would deteriorate rather than improve. At the moment there is only one rank where it is worthwhile the taxis waiting for custom, which is outside the bus station. At the other ranks the taxi drivers can wait there all day and not get more than perhaps one fare. Even driving round the town waiting for someone to hail the cab provides very little custom. 11. The survey in fact reveals the situation that there are in fact too many taxis at present in Burnley with inadequate ranks. It is not a situation of queues of people waiting for taxis. Instead there are queues of taxis waiting for people. There is not one shred of evidence before the Licensing Committee or before this Council to show that there is a need for more taxis. The question therefore arises as to why the Licensing Committee arrived at the decision to delimit. On the face of it that decision is irrational, illogical and not one to which any reasonable public body properly directing itself should have arrived at. (The Licensing Committee did not take the decision to delimit). 12. There is one final point which this Council should seriously take into account. At the moment 100% of Hackney Carriage drivers in Burnley are Muslim/Asian ethnic origins. Hackney Carriage drivers have had to put up with a considerable amount of racial abuse with people throwing eggs and stones at their taxis. Bearing in mind the survey report that there is no unmet need a decision to delimit in these circumstances could be interpreted as the Council wanting to push ethnic Asians out of the trade in order to get more white drivers in. I am not suggesting for one moment that that consideration would play a part in any decision by this Council but there is a considerable risk that that is how a decision to delimit would be interpreted. This is particularly so bearing in mind the considerable press coverage which was given to the election to this Council of members of the British National Party. 13. The last thing that the Burnley Hackney Carriage Association would wish to have to happen is for them to have to take this Council to the Administrative Court. Their livelihoods are, however, at stake and if a decision to delimit were approved by this Council they would be left with no alternative. In the light of the decision in the Sardar case in my view they would be highly likely to succeed. 14. There is an old saying that ‘if it ain’t broke don’t try to fix it’. In this case the need of the citizens of Burnley for Hackney Carriages is more than adequately met and ‘it ain’t broke!’. 6. Burnley and Pendle Bus Company –17th November 2006 Have concerns about additional Hackney Carriages blocking bus routes/access to the bus station. Have concerns about competition from additional Hackney Carriages on marginal bus routes in evenings and at weekends. 7. Bus Station Management –16th November 2006 The Hackney Carriages using the rank at the bus station often cause problems for buses getting in and out. The Taxis should use the other ranks that are provided, as well as Croft Street. He is generally in favour of delimitation because he feels that it would improve transport services to the public and be complimentary to bus services. He considers that the taxis currently provide a poor service to the public at present. 8. Burnley Disabled People’s Network – extracts from minutes of meetings held in August and September Say that the quality of the vehicles is poor and that the drivers need training in how to provide a better service to the disabled. Gave numerous examples of inappropriate treatment to disabled customers, including refusal to take disabled people. 9. Disabled Persons Transport Advisory Committee – emailed on 13th November 2006 They have concerns about the training of taxi drivers, and would support any action that increased the number of modern and more accessible vehicles operating in the area. 10. Police – Note of meeting between Sue Graham, Inspector Damian Darcy and Inspector Dave Croll, 21st November 2006. The Police do not consider delimitation to be a potential problem, they feel that after an initial period of uncertainty the market will find its balance, and there will be no great impact on the number of Hackney Carriage vehicles on the road. The Police consider the black cabs to be a safer vehicle for drivers. The drivers have better protection from verbal and physical assault in a black cab. An increase in the number of Hackney Carriage vehicles on the road at busy times would help in the dispersal of crowds from the town centre on busy nights, it would help reduce the bunching of customers on Hammerton Street and Lower St James’s Street, reduce the opportunity for disorder and therefore improve safety for the public. They would be prepared to advise and assist the Council in dealing with any withdrawal of service or other issue which might arise if the Council changes its policy on the number of Hackney Carriage vehicles to be licensed.