FOR
GENERAL RELEASE
1.
SUMMARY AND POLICYCONTEXT:
1.1
This
report sets out the proposedlicence fees and charges for 2022/23
relatingto Street Trading, Sex Establishments and Sex Entertainment
Licences, Gamblingpremises, Taxi Licensing and Animal Activity
Licences.
2.
RECOMMENDATIONS:
2.1
That
the committee approvesthe following licencefees will increase by an
average of 2%:
·
Taxi
Licencefees - as set out in Appendix 1.
·
Sex
Entertainment Venues and Sex Establishments fees – as set out
in Appendix 2.
·
Street
Tradingfees – as set out in Appendix2.
·
All
GamblingAct 2005 fees – as set out in Appendix 2.
·
All
Animal Activity Licences fees - as set out in Appendix
5.
A list of agreed fees for
2021-22 and proposed fees for 2022-23 is included in Appendices 1-2
& 5.
3.
CONTEXT/ BACKGROUND INFORMATION
3.1
In
order to ensure that council tax payers are not subsidising work
concerning licensing administration, income is raised by licence
fees with the aim of covering the cost of administration of each
regime within the constraints of regulation. Licence fees should
not be used to raise surplus revenues. The regulation of setting
fees is detailed and changes as a result of legislation and cases;
outlined below. It is proposed to raise all fees by the corporate
rate of inflation (2%) for 2022/23 and as a minimum each year
thereafter. Given that our fees have been benchmarked and can
demonstrate they are set fairly, it is felt that this approach
helps provide more certainty for the trade and ensures that our
costs are fully recovered each year (taking account of inflationary
uplifts). If there were any
significant variations to the
costs, then these would be communicated to the tradeand clearly be
taken into account when setting the relevant fee/s.
Licence Fee Setting –
general principles
3.2
There
must be a proper determination of the authorisation fee (see
Hemming2015, 2017] UKSC.
3.3
A
clear understanding of the policy and objects of the regime in
question is required. It follows that the relevant considerations
for vetting an applicant for a street trading licence will be
different to those required for a sex establishment (see R v
Manchester City Council ex parte King (1991) 89 LGR 696; also R (on
the application of Davis & Atkin) v Crawley Borough Council
[2001] EWHC 854 (Admin)). Particular attention needs to be had to
those statutory provisions where a power is given to the local
authority for the determination of an authorisation fee and other
administrativefees.
3.4
Applicability of the European Services Directive (see
Hemming [2015, 2017] UKSC: The Directive applies to street trading
and sex licensing; not gambling or taxis. The UK left
the EU on 31 January 2020, and the transition period (during which
EU rules continued to apply in the UK) ended on 31 December 2020.
The Services Directive therefore no longer applies to the UK, or to
EEA businesses or individuals providing services in the UK.
However, the European Union (Withdrawal) Act
20183 preserved the Provision of Services Regulations 2009 (as
amended in 2014) for UK nationals and businesses established in the
UK and formed under UK law. Regulation 18(4) applies to fees in the
same way as the former Directive.
3.5
Different fee levels for different types of application. A
licensing authority is entitled to set either the same or different
fee levels for different types of applications: i.e. grant,
renewal, variation, alteration or transfer. R v Greater London
Council,ex parte Rank Organisation [1982] LS Gaz R 643.
3.6
Recovery of deficit. In R v Westminster City Council, ex
parteHutton (1985) 83
L.G.R. 461 it was held that
where the fee income generated in one year fails to meet the costs
of administering the licensing system, it is open to the local
authority to make a proportionate increase in the licence fee for
the followingyear so as to recoupthe cost of the shortfall (Hutton
at p 518). This longstanding principle was confirmed in Hemming
[2012].
3.7
Accounting for surplus. In Hemming [2012] EWHC 1260 (Admin)
and [2013] EWCA Civ 591 the court determined surpluses as well as
deficits are to be carried forward. The licensing authority is not
entitled to make a profit. (R v Manchester ex parte King 1991 89
LGR 696.
3.8
Rough
and ready calculations. In Hemming [2012] EWHC 1260 (Admin) and
[2013] EWCA Civ 591, the court did not require pin-point precision
year on year. The council does not have to adjust the licence fee
every year to reflect anyprevious deficit or surplus, so
long as it ‘all comes out in the wash’ eventually. And
the adjustment does not have to be precise: a rough and ready
calculation which is broadly correct will do.
3.9
Anticipated costs. Cases demonstrate that the fee level may
be fixed by reference to anticipated costs of administering the
authorisation scheme.
3.10
Over-estimation. If the fee levied in the event exceeds the
cost of operating the scheme, the original decisionwill remain
valid provided it can be said that the district council reasonably considered such fees
would be required to meet the total cost of operating the
scheme. R v M ex parte King.
Hackney Carriage &Private
Hire
3.11
The
Council must be able to show that it calculates hackney carriage
and private hire licensing fees in accordance with the specific
requirements of the Local Government (Miscellaneous Provisions) Act
1976. This requires that such fees have to be reasonable to recover
the cost of issue and administration of licences. They cannot be
used to raise revenue or fund activities such as taxis marshals.
This has been confirmed in a recent court case Cummings and Others
v Cardiff City Council which also confirmed that fees set must have
regard to any surplus or deficit in previous years for each regime
(hackney carriage or private hire).
The recent Court of Appeal case: R. (on
the application of Rehman) v Wakefield City Council, December 2019,
established that costs of administration under S53(2) of the above
act could include the costs of enforcement against drivers of
hackney carriages and private hire vehicles.
The Act allows the following costs to be
recovered in the fees:
·
The
reasonable cost of carryingout vehicle inspection to decide if a
licenceshould be granted
·
The
reasonable costs of providing hackneycarriage stands
·
Any reasonable administrative or other costs in
connection with vehicle inspection and providing hackneycarriage
stands and
·
Any
reasonable administrative or other costs in the controland
supervision of hackney carriage and private hire
vehicles.
3.12
A
trading position has been established, taking into account all
expenditure that the Council has incurred in administering the
service, including both direct and indirect costs. (Indirect costs
for example would include an element of management time to oversee
the activity, a legitimate expense in administering the licensing
function). The results are set out in thetable below.
|
Taxi
Licensing
|
|
Financial Year
|
£'000
(-
Surplus)/ Deficit
|
|
2020/21 Actual
|
1
|
|
2021/22 Forecast
|
1
|
|
2022/23 Budget
|
-1
|
|
Total
|
1
|
3.13
The
fee structure has been reviewed and simplified to help improve the
application process and allow payments to be made on-line.
The current and proposed fees
are set out in Appendix 1.
Detailed TradingAccounts are attachedin
Appendix 3.
Sex
Establishments and Street Trading
3.14
Sex Establishments: The administration of Sex
Establishments and Sex Entertainment venues(SEV)s is broken down as
follows:
There are 5 Sex Establishments
in total, for which renewal applications are processedannually,
including officerscarrying out annualinspections to
ensurecompliance with their licence. It is unlikely that a further
sex establishment licence would be granted as this would be contra
policy.
SEVS: There are 3 SEVs in
total. SEV fees are based on licence renewals. It is unlikely that
a further SEV licence would be granted as this would be contra
policy. Annual inspections are carried out to ensurecompliance with
their licence.
3.15
A
tradingposition has been established, takinginto account all
expenditure that the Council has incurred in administering the
service, including both direct and indirectcosts. The results are
set out in the table below.
|
Sex Establishments and Sex Entertainment
Venues
|
|
Financial Year
|
£'000
(-Surplus)/ Deficit
|
|
2020/21 Actual
|
-2
|
|
2021/22 Forecast
|
1
|
|
2022/23 Budget
|
1
|
|
Total
|
0
|
The proposed fees are set to
rise in line with the corporate rate of inflation at 2%.
DetailedTrading Accounts are attached in Appendix 4.
3.16
Following the same principles as stated previously, a
trading position has been established for Street Trading. During
2021/22, the majority of inspections carried out by officers were
recoverable. The administration of street trading is wholly
recoverable, broken down as follows:
Zone A:-
4 traders at 50 sq ft –
all pay quarterly 1 traders at 42 sq ft - both vacant
Zone B:-
38 traders – 27 paid/11
unpaid)
Upper Gardner
StreetSaturday Market:-
Total 43 pitches (total 74 available)
– 32 paid/5unpaid
3.17
Taking
into account all the council expenditure incurred in administering
the service including an element of management time to oversee the
activity, the results are setout in the table below.
Licence fees are set annuallyat
a level that it is reasonably believed will cover the costs of
providing the service, and in accordance with the legal principles
involved. This is necessary in order to ensure that council tax
payers are not subsidising work concerning licensing
administration.
Finance Officer Consulted: Michael
Bentley
Date: 14th Sept 2021
7.2
Legal Implications:
Legal constraints on setting
fees are as follows:
o
Fees must be charged in accordance with the
requirements of the legislation under which they are charged.Thus
for instance the Licensing Act 2003 gives the Council no discretion
as they are set centrally by the relevant government department.
Other legislation such as the Local Government (Miscellaneous
Provisions) Act 1982 which covers a whole raft of activities and
includes street trading and sex establishments simply states that
we may charge such fees as we consider reasonable.
The term
‘Reasonable’ however does not imply wide discretion but
incorporates important legal principles and constraints. These were
highlighted in the case of R v Manchester City Council ex parte
Kingconcerning street trading. This case held that the fees
charged must be related to the costs incurred in providing the
street trading service. They must not be used to raise revenue
generally. Fees must be proportionate. This principle is key and
applies to other licensing regimes such as sex
establishments.
o
This principle has been reinforced by the
introduction of the European ServicesDirective which took effect
from the end of 2009. The European Union (Withdrawal) Act 20183
preserved the Provision of Services Regulations 2009 (as amended in
2014) for UK nationals and businesses established in the UK and
formed under UK law. Regulation 18(4) applies to fees in the same
way as the former Directive.
o
o
The processes must be non-discriminatory,
justified, proportionate, clear, objective, made in advance,
transparent and accessible. Any fee charged for establishing a
service can only be based on cost recovery and cannot be set at an
artificial high level to deter service sectors from an area. The
applicability of the Directive has been discussed
in
the recent case of Hemming (and others) v Westminster City Council
(2015) (2017) UKSC. It is permissible for enforcement costs to be
included in a licence fee but this element of the fee must be
levied once the application has been granted. The Council should
scheduleregular fee reviews.
o
Therefore the trading accounts must be carefully
looked at in accordance with these principles. There is a risk of
challenge by way of Judicial Reviewin cases where fees are setat an
unreasonable or unlawful level.
Lawyer Consulted: Rebecca
Sidell
Date: 30/09/21
7.3
Equalities Implications:
There are no directequalities
implications.
7.4
Sustainability Implications:
here are no direct
sustainability implications. AnyOther Significant
Implications:
SUPPORTING
DOCUMENTATION
Appendices:
1-2
List of fees and charges.
3-4.
List of Trading accounts.
5.
Current and Proposed Fees for AnimalActivity Licensing
Documents in Members’
Rooms
1.
None.
2.
None.
Background Documents
None
