 |
FOR GENERAL RELEASE
1. SUMMARY AND POLICYCONTEXT:
1.1 This report sets out the proposedlicence fees and charges for 2023/24 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 6%:
·
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 2022-23 and proposed fees for 2023-24 is included in Appendices 1-2 & 5.
Note: If the above recommendations are not agreed, or if the committee wishes to amend the recommendations, then the item will normally need to be referred to the Policy & Resources Committee meeting on 9 February 2023 to be considered as part of the overall 2023/24 budget proposals. This is because the 2023/24 budget proposals are developed on the assumption that fees and charges are agreed as recommended and any failure to agree, or a proposal to agree different fees and charges, will have an impact on the overall budget proposals, which means it needs to be dealt with by Policy & Resources Committee as per the requirements of the constitution. This does not fetter the committee’s ability to make recommendations to Policy & Resources Committee.
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.
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 |
|
2021/22 Actual |
14 |
|
2022/23 Forecast |
6 |
|
2023/24 Budget |
-5 |
|
Total |
15 |
3.13 The current andproposed fees are set out in Appendix1.
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 |
|
2021/22 Actual |
-1 |
|
2022/23 Forecast |
-1 |
|
2023/24 Budget |
-1 |
|
Total |
-3 |
The proposed fees are set to rise by an average of 6%. Detailed TradingAccounts 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:-
3 pitches at 50 sq ft – all pay quarterly (2 trading, 1 vacant)
2 pitches at 42 sq ft – both vacant
Zone B:-
26 traders – 22 paid/5 unpaid)
Upper Gardner StreetSaturday Market:-
74 pitches available. 50 pitches currently allocated – 40 paid/10 unpaid
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.