Licensing Committee Minutes

Licensing Committee Minutes

Date:
Monday 15 June 2015
Time:
1:30 p.m.
Place:
Mandela Room, Town Hall, Middlesbrough
 

Attendance Details

Present:
Councillor B E Taylor (Chair); Councillor R Arundale, Councillor J Goodchild, Councillor T Lawton, Councillor L Lewis, Councillor T Mawston, Councillor D McCabe and Councillor J Rathmell.
Observers:
J Etherington, Legal Services.
Councillor Davison and five members of the public (In relation to Agenda Item 4 only).
Officers:
J Dixon, J Hodgson and B Roberts.
Apologies for absence:
Councillor S Biswas, Councillor R Brady, Councillor T Harvey, Councillor G Purvis, Councillor J A Walker.
Declarations of interest:

There were no Declarations of Interest made by Members at this point in the meeting.

Item Number Item/Resolution
PUBLIC
15/1 MINUTES - LICENSING COMMITTEE - 30 MARCH 2015 AND 10 APRIL 2015

The Minutes of the previous Licensing Committee meetings held on 30 March 2015 and 10 April 2015 were submitted and approved as a correct record.

15/2 APPLICATION FOR VILLAGE GREEN STATUS - LAND AT MARTON AVENUE.

The Assistant Director of Organisation and Governance submitted a report informing Members of the findings of the Inspector appointed by the Council regarding the application to register land at Marton Avenue, Middlesbrough, as a village green and to seek a decision as to whether or not to register the land as a village green.

 

The Chair introduced those present and explained the procedure to be followed at the meeting. Five members of the public were in attendance at the meeting and two advised that they would present the case on behalf of the Marton Avenue residents.


The Head of Legal Services presented the report setting out the circumstances of the case.

 

As Commons Registration Authority (CRA) for Middlesbrough, the Council received an application to register land at Marton Avenue as a village green, on 23 November 2011. The Council was also the landowner of the site and initially objected to the application, however, this was later withdrawn.

 

In light of rapidly developing case law, the CRA decided to hold a non-statutory Public Inquiry into the application and appointed an impartial Inspector. The Inspector did not consider a Public Inquiry to be necessary and produced a report detailing her advice and findings in relation to the matter. This was attached at Appendix 1 to the submitted report. The Inspector’s recommendation was as follows: "It is my view that the Registration Authority should reject the application."

 

Within the relevant legal framework, the application sought the registration of the land by virtue of the operation of Section 15(2) of the Commons Act 2006. Under that provision, land was to be registered as a village/town green where:-

 

a)  A significant number of the inhabitants of any locality or any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years; and

 

b)  They continue to do so at the time of the application.

 

Definitions of 'by right' and 'as of right' were provided. It was explained that land used 'as of right' was without the permission of the landowner and, therefore, not 'by right' but the use was actually carried on as if it was by right. Land used 'by right' was the use of privately owned land with permission from the landowner.

 

The Inspector had concluded that the land in question was public access land and was therefore being used 'by right' and, as such, did not qualify for use as a village green. The Inspector’s conclusions were detailed at paragraph 6 of her submitted report (Appendix 1).

 

Members were asked to note that the CRA could not lawfully abrogate its decision-making duty to a third party and consequently Members were required to consider the report and background papers and decide whether or not the land should be registered as a village green.

 

Mr Gardner and Mr McGee, representing the applicant (Marton Avenue residents), were in attendance at the meeting and Mr Gardner proceeded to present the case in support of the application.

 

The applicant explained that Marton Avenue was made up of 31 households and was physically isolated -bordered by the railway on one side, and fencing on the two other sides to the Prissick area and Ladgate Lane. The applicant stated that the land was a key part of the community’s cohesiveness. It provided a safe area for the children to play and various family events had been held there. This was threatened in February 2011 when the Council had advised that the land would be potentially used for housing development. The underlying agreement of the land owner was that the land would always be used for recreation. The residents of Marton Avenue subsequently submitted an application to register the land as a village green in November 2011.

 

The applicant stated that the process had taken three-and-a-half years, to date, and had been very frustrating. The initial one-line objection had been made by the Council, as landowner, and stated that, as landowner, the Council had not consented to the use of the land and also that the use of the land did not demonstrate that the land users had enjoyed the land 'as of right'.

 

The applicant advised that there were three criteria to meet the definition of using the land 'as of right', they were:-

  1. Use without force.
  2. Use without secrecy.
  3. Use without permission.

The Council had stated that the land had been used without permission, yet it was considered that the land had not been used 'as of right'. The applicant felt that this did not make sense and was conflicting. The applicant considered that there had been no effective pressure applied by the CRA to the landowner to provide justification of its objection.

 

The applicant believed that the CRA had not acted as required (seeking to arrive at an impartial decision) and referred to paragraph 4.7 of the Inspector’s advice which stated "...It is critical that in circumstances where application land is owned by the same public body which is also the registration authority that the two different elements of that body remain at arm’s length and that the discussions do not take place between the two to which the applicant is not also a party." The applicant believed that the CRA had not honoured this duty.

 

The applicant highlighted that the Inspector had mentioned information and letters exchanged between the landowner and CRA and, as explained in 4.9 of her advice, it became clear that her instructions included issues that were only relevant to the landowner. The applicant stated that they had been refused sight of this information and felt this was unfair.

 

The applicant made reference to a document on dealing with village green applications, compiled by Vivian Chapman QC. The applicant stated that the applicants had written to the CRA stating that they were not confident that their application would be considered impartially and had supported this by providing numerous examples of collusion between the CRA and landowner and requested that the determination of the application be delegated to another authority. The applicant stated that no response was received in relation to this request and that the request was not referred to within the Inspector’s advice and that he was unsure as to whether it had simply been omitted by the Inspector or whether it was not included within the paperwork passed to the Inspector.

 

The applicant expressed concerns in relation to the delays incurred with dealing with the application and advised that he had emailed the CRA several times with requests for information and that it had taken months for replies to be received.

 

The applicant stated that they were advised of a Hearing date with the Inspector in July 2013 and had put a great deal of work into preparing their submission, only to be advised one month prior to the Hearing date that there would be no need for a Hearing as the objection had been withdrawn. The applicants were subsequently advised that registration of the land would follow within the next few weeks. The one-year delay in the withdrawal of the objection proved critical as the Inspector had taken into account Barkas case law which had affected the legal basis on which the current application was determined. The Inspector advised that any decision made in relation to an application must be made on the basis of the law as it now stood at the date of decision.

 

The applicant reiterated that the residents of Marton Avenue had used the land on a regular basis for more than 20 years and wanted to continue to enjoy the use of the land without fear of it being developed, hence the application to register it as a village green. The landowner had since withdrawn the objection and the applicant had been advised that the land would be registered, however, this had not happened.

 

A discussion ensued and the following issues were raised:-

  • In response to a query, the applicant confirmed that the activities and use of the land by the residents continued, to date, and that residents had not been prevented from using the land.
  • The applicant provided information in relation to the location and size of the land and confirmed that it would still be open for public access even if it was registered as a village green.
  • The Head of Legal Services clarified that there was no dispute over the type of use of the land, the length of time it had been used or the number of users. Paragraph 5.19 of the Inspector’s report set out the permission for the land use in detail. It was a key point that the land was not being used in a qualifying way which meant that it was not legally qualified to be a village green. It was highlighted that there had been delays incurred on the part of the Inspector.
  • The Head of Legal Services responded to a point made previously by the applicant regarding a request for the application to be determined by another authority and clarified that the Council did not have the legal powers to do such a thing.
  • The applicant referred to the Council’s minutes from the 1970s determining that the land be retained as an informal children’s play area and pointed out that the Council then advised they intended to build on it in 2011.
  • The applicant also suggested that the CRA had a duty to ensure that the submitted objection, leading to the 12 month delay, had some substance. In addition, the applicant considered that the CRA should have referred the application to the Planning Inspectorate for determination as the CRA had an interest in the outcome of the application. The applicant felt strongly that after the 12 month period, it was clear there was no impartiality and felt that there had been collusion between both arms of the Council - the CRA and the landowner.
  • The Head of Legal Services wished to record that the applicant appeared to be suggesting that the Officer acting on behalf of the CRA had deliberately worked with the land owner, which was not the case, and that this was a serious allegation bringing the officer’s integrity and professionalism into question. The applicant withdrew the use of the word 'collusion' and confirmed that he had no evidence of contact between the CRA and the landowner and was not questioning the officer’s integrity.
  • Several Members of the Committee commended the residents of Marton Avenue for their efforts in continuing to promote community spirit and their perseverance during the application process.

It was confirmed that there were no further questions and the applicant, members of the public and officers of the Council, other than representatives of the Council’s Legal Services and Members’ Office, withdrew whilst the Committee sought several points of clarification.

 

All interested parties returned and the Chair invited the Committee’s comments on the application. It was subsequently moved and seconded that the application for Village Green status be granted and a vote was taken.

 

ORDERED that the application, to register land at Marton Avenue, be granted.
 

15/3 APPLICATION FOR VILLAGE GREEN STATUS - HEMLINGTON LANE END.

The Assistant Director of Organisation and Governance submitted a report informing Members of the findings of the Inspector appointed by the Council regarding the application to register land at Hemlington Lane End, Middlesbrough, as a village green and to seek a decision as to whether or not to register the land as a village green.

 

The Head of Legal Services presented the report setting out the circumstances of the case.

 

As Commons Registration Authority (CRA) for Middlesbrough, the Council received an application to register land at Hemlington Lane End as a village green, on 1 November 2013. The Council was also the landowner of the site.

 

In accordance with the relevant Regulations, the CRA published notice of the receipt of the application and invited comments from all affected persons. One letter of objection was received from estates managers acting for the landowner and two further objections were received from third parties.

 

In view of this position, the CRA decided to hold a non-statutory Public Inquiry into the application and appointed an impartial Inspector. The application was considered at the Public Inquiry on 15 March 2015 and the Inspector considered the evidence presented on behalf of the applicants and the objectors.

 

The Inspector duly submitted his report detailing his advice and findings in relation to the matter. This was attached at Appendix 1 to the submitted report. The Inspector’s recommendation was as follows: "The claim is fundamentally flawed for the reasons stated and it is my respectful recommendation that the application be rejected."

 

Members were asked to note that the CRA could not lawfully abrogate its decision-making duty to a third party and consequently Members were required to consider the report and background papers and decide whether or not the land should be registered as a village green.

 

Following discussion of the submitted information, a vote was taken on the proposed motion to reject the application.

 

ORDERED that the application, to register land at Hemlington Lane End, be refused.

 

The applicants would be advised of their right to appeal the decision by way of an application for a Judicial Review.
 

15/4 EXCLUSION OF PRESS AND PUBLIC.

ORDERED that the press and public be excluded from the meeting for the following items on the grounds that, if present, there would be disclosure to them of exempt information as defined in Paragraphs 1, 2, 3 and 7 of Part 1 of Schedule 12A of the Local Government Act 1972 and that the public interest in maintaining the exemption outweighed the public interest in disclosing the information.

EXEMPT
Report of Assistant Director Improving Public Health
15/5 REVIEW OF COMBINED PRIVATE HIRE VEHICLE/HACKNEY CARRIAGE DRIVER LICENCE: REF NO: 015/15

The Assistant Director of Improving Public Health submitted an exempt report in connection with the review of Combined Hackney Carriage/Private Hire Vehicle Driver Licence, Ref: 15/15, where circumstances had arisen which required special consideration by the Committee.

 

The Senior Licensing Officer advised that the driver was not in attendance and confirmed that the driver had not contacted the Licensing Section to advise that he would not be able to attend.

 

ORDERED that consideration of the review in respect of Combined Hackney Carriage/Private Hire Vehicle Driver Licence, Ref 15/15, be deferred to the next Licensing Committee in order to afford the driver a further opportunity to attend.

 

The Committee requested that the driver be notified that the matter would be heard in his absence should he fail to attend the next meeting without good reason.
 

15/6 APPLICATION FOR PRIVATE HIRE VEHICLE DRIVER LICENCE: REF NO: 016/15

The Assistant Director of Improving Public Health submitted an exempt report in connection with an application for a Private Hire Vehicle Driver Licence, Ref: 16/15, where circumstances had arisen which required special consideration by the Committee.

 

The Chair introduced those present and outlined the procedure to be followed. The applicant, who was in attendance at the meeting, verified his name and address and confirmed that he had received a copy of the report.

 

The Senior Licensing Officer presented the report setting out the circumstances of the case in relation to the offences detailed at 1) and 4) in the submitted report.

 

Council records indicated that the applicant was first licensed with Middlesbrough Council in 2007, however, the applicant advised that he had held a Private Hire Vehicle driver licence for some time prior to this period. Council records for that period had now been destroyed.

 

The applicant had surrendered his Private Hire Vehicle driver licence in 2011 following his disqualification from driving as a result of the offence at 1). He appeared before Members July 2014 with an application for a Private Hire Vehicle driver licence and was refused on that occasion.

 

The applicant now appeared before Members with a fresh application. He was interviewed by the Senior Licensing Officer on 1 June 2015 at which time he confirmed that there were no outstanding matters of which the Council was unaware and confirmed his previous explanations in relation to the offences at 1) to 4).

 

The applicant confirmed that the report was an accurate representation of the facts and was invited to address the Committee.

 

The applicant presented the case in support of his application and responded to questions from Members.

 

It was confirmed that there were no further questions and the applicant, and officers of the Council, other than representatives of the Council’s Legal Services and Members’ Office, withdrew whilst the Committee determined the application.

 

Subsequently all interested parties returned and the Chair announced the Committee’s decision.

 

ORDERED that the application for a Private Hire Vehicle Driver Licence, Ref 16/15, be refused as the Committee did not consider the applicant to be a fit and proper person to hold a licence for the following reasons:-

  1. In January 2012, the applicant was convicted of committing an act with intent to pervert the course of justice for which he received a sentence of four months imprisonment, suspended for 24 months and an unpaid work requirement of 250 hours. The Council’s Policy Guidance on Convictions stated that where an applicant was convicted of an isolated offence involving dishonesty, an application would normally be refused unless a period of at least 3-5 years free from conviction had elapsed since the date of conviction or the completion of any sentence imposed, whichever was the later. In this case, the completion of the applicant’s suspended sentence was January 2014 which meant that he did not meet the guidance criteria.
  2. In addition, the applicant had committed two further offences, in October 2012 and May 2013, of driving a licensed private hire vehicle without holding a private hire vehicle driver’s licence.

The applicant was reminded of his Right of Appeal to the Magistrates Court within 21 days of the date of the decision.
 

15/7 APPLICATION FOR PRIVATE HIRE VEHICLE DRIVER LICENCE: REF NO: 017/15

The Assistant Director of Improving Public Health submitted an exempt report in connection with an application for a Private Hire Vehicle Driver Licence, Ref: 17/15, where circumstances had arisen which required special consideration by the Committee.

 

The Chair introduced those present and outlined the procedure to be followed. The applicant, who was in attendance at the meeting, verified his name and address and confirmed that he had received a copy of the report.

 

The Senior Licensing Officer presented the report setting out the circumstances of the case in relation to the offences detailed at 1) to 5) in the submitted report.

 

The applicant was interviewed by the Principal Licensing Officer on 23 April 2015, at which time he confirmed that there were no outstanding matters of which the Council was unaware, confirmed that he had undertaken all community work assigned to him and was in the process of paying off his fines. The applicant also offered explanations in relation to the offences detailed at 1) to 5).

 

The applicant confirmed that the report was an accurate representation of the facts and was invited to address the Committee in support of his application.

 

The applicant presented the case in support of his application and responded to questions from Members.

 

It was confirmed that there were no further questions and the applicant and officers of the Council, other than representatives of the Council’s Legal Services and Members’ Office, withdrew whilst the Committee determined the application.

 

Subsequently all interested parties returned and the Chair announced the Committee’s decision.

 

ORDERED that the application for a Private Hire Vehicle Driver Licence, Ref 17/15, be granted.
 

15/8 APPLICATION FOR PRIVATE HIRE VEHICLE DRIVER LICENCE: REF NO: 018/15

The Assistant Director of Improving Public Health submitted an exempt report in connection with an application for a Private Hire Vehicle Driver Licence, Ref: 18/15, where circumstances had arisen which required special consideration by the Committee.

 

The Chair introduced those present and outlined the procedure to be followed. The applicant, who was in attendance at the meeting accompanied by a former employer, verified his name and address and confirmed that he had received a copy of the report.

 

The Senior Licensing Officer presented the report setting out the circumstances of the case in relation to the offences detailed at 1) and 2) in the submitted report.

 

The applicant was first licensed as a Private Hire Vehicle driver in March 2012. At that time, officers considered 11 offences detailed on the applicant’s criminal record disclosure and deemed them to be too old to be relevant to the application as the last offence had occurred in 1998. In September 2014, the applicant appeared before Members in relation to the offences detailed at 1) and 2) and his failure to declare the offence at 1) on his application form to renew his licence. Members decided to revoke his licence on that occasion.

 

The applicant now appeared before Members with a fresh application and was interviewed by the Senior Licensing Officer on 14 May 2015 at which time he confirmed that there were no outstanding matters of which the Council was unaware and confirmed his previous explanations in relation to the offences at 1) and 2).

 

The applicant confirmed that the report was an accurate representation of the facts and was invited to address the Committee.

 

The applicant presented the case in support of his application and responded to questions from Members. The applicant’s former employer also spoke in support of the applicant and responded to questions from Members.

 

It was confirmed that there were no further questions and the applicant, his former employer and officers of the Council, other than representatives of the Council’s Legal Services and Members’ Office, withdrew whilst the Committee determined the application.

 

Subsequently all interested parties returned and the Chair announced the Committee’s decision.

 

ORDERED that the application for a Private Hire Vehicle Driver Licence, Ref 18/15, be refused as the Committee did not consider the applicant to be a fit and proper person to hold a licence for the following reason:-

  1. The Council’s Policy Guidance on convictions stated that a licence would not normally be granted for offences involving dishonesty unless a period of at least 3-5 years free from conviction had elapsed since the date of conviction or the completion of any sentence imposed, whichever was the later. The applicant was convicted of an offence involving dishonesty in January 2012 and had failed to declare that conviction to the Council on previous occasions and had misled the Council when applying for his Private Hire Vehicle licence previously. The Committee considered that not enough time had elapsed since that conviction.

The applicant was reminded of his Right of Appeal to the Magistrates Court within 21 days of the date of the decision.
 

15/9 APPLICATION FOR PRIVATE HIRE VEHICLE DRIVER LICENCE: REF NO: 019/15

The Assistant Director of Improving Public Health submitted an exempt report in connection with an application for a Private Hire Vehicle Driver Licence, Ref: 19/15, where circumstances had arisen which required special consideration by the Committee.

 

The Chair introduced those present and outlined the procedure to be followed. The applicant, who was in attendance at the meeting, verified his name and address and confirmed that he had received a copy of the report.

 

The Senior Licensing Officer presented the report setting out the circumstances of the case in relation to the offences detailed at 1) in the submitted report.

 

The applicant was interviewed by the Senior Licensing Officer on 21 May 2015 at which time he confirmed that there were no outstanding matters of which the Council was unaware, confirmed that the fines in relation to the offences had been paid in full and offered explanations in relation to the offences at 1).

 

The applicant confirmed that the report was an accurate representation of the facts and was invited to address the Committee.

 

The applicant presented the case in support of his application and responded to questions from Members.

It was confirmed that there were no further questions and the applicant and officers of the Council, other than representatives of the Council’s Legal Services and Members’ Office, withdrew whilst the Committee determined the application.

 

Subsequently all interested parties returned and the Chair announced the Committee’s decision.

 

ORDERED that the application for a Private Hire Vehicle Driver Licence, Ref 18/15, be granted.
 

The Committee reminded the applicant of the importance of ensuring that any vehicle he drove was appropriately insured.

15/10 APPLICATION FOR PRIVATE HIRE VEHICLE DRIVER LICENCE: REF NO: 020/15

The Assistant Director of Improving Public Health submitted an exempt report in connection with an application for a Private Hire Vehicle Driver Licence, Ref: 20/15, where circumstances had arisen which required special consideration by the Committee.

 

The Chair introduced those present and outlined the procedure to be followed. The applicant, who was in attendance at the meeting accompanied by a prospective employer, verified his name and address and confirmed that he had received a copy of the report.

 

The Senior Licensing Officer presented the report setting out the circumstances of the case in relation to the offences detailed at 1) and 2) in the submitted report.

 

The applicant was interviewed by the Senior Licensing Officer on 21 May 2015 at which time he confirmed that there were no outstanding matters of which the Council was unaware, confirmed that the fines and costs in relation to the offences had been paid in full and offered explanations in relation to the offences at 1) and 2).

 

The applicant confirmed that the report was an accurate representation of the facts and was invited to address the Committee.

 

The applicant presented the case in support of his application and responded to questions from Members. The applicant’s prospective employer also spoke in support of the applicant.

 

It was confirmed that there were no further questions and the applicant, prospective employer and officers of the Council, other than representatives of the Council’s Legal Services and Members’ Office, withdrew whilst the Committee determined the application.

 

Subsequently all interested parties returned and the Chair announced the Committee’s decision.

 

ORDERED that the application for a Private Hire Vehicle Driver Licence, Ref 20/15, be granted.
 

15/11 REVIEW OF COMBINED HACKNEY CARRIAGE/PRIVATE HIRE VEHICLE DRIVER LICENCE, REF 21/15.

The Assistant Director of Improving Public Health submitted an exempt report in connection with the review of Combined Hackney Carriage/Private Hire Vehicle Driver Licence, Ref: 21/15, where circumstances had arisen which required special consideration by the Committee.

 

The Senior Licensing Officer advised that the driver was not in attendance and confirmed that the driver had not contacted the Licensing Section to advise that he would not be able to attend.

 

ORDERED that consideration of the review in respect of Combined Hackney Carriage/Private Hire Vehicle Driver Licence, Ref 21/15, be deferred to the next Licensing Committee in order to afford the driver a further opportunity to attend. The Committee requested that the driver be notified that the matter would be heard in his absence should he fail to attend the next meeting without good reason.
 

15/12 ANY OTHER URGENT ITEMS WHICH IN THE OPINION OF THE CHAIR MAY BE CONSIDERED.

There were no urgent issues to be considered.

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