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PostPosted: Fri Jul 07, 2023 8:20 pm 
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This is a subject that is very close to my heart, controversial to some, and of high importance to others...

Below is an argument that I have presented to Sheffield City Council accusing them of maladministration through their failure to enforce vehicles that make themselves available within a controlled district when licensed by another authority.

I look forward to the responses and I am sure they will be varied.

Section 75 (1)(a) of the 76 Act states that any vehicle, licensed or not, if making itself available in a controlled district after it has completed a booking that started outside of that district shall come under the regulations as set out in the Local Government (Miscellaneous Provisions) Act 1976 (the 76 Act). It also excludes vehicles used for vehicles that carry passengers in relation to funerals, weddings from the need to be licensed as a private hire vehicle.

Section 75 (2) explains that a vehicle being used as a private hire vehicle in a controlled district, paragraphs (a), (b) and (c) of section 46(1) of the 76 Act shall not apply provided that it is licensed under s48 by another controlled district and the driver is licensed by the same council.

Section 75 (2A) and (2B) are related to drivers and vehicles licensed under the Scottish Act 1982 and the London Act 1998 and were added when the relative Acts came into force.

Both s75 (2A) and (2B) have the same intention as s75 (2) in that this allows a licensed vehicle to pick up, drop off or pass through another controlled district without the need to be licensed by that district and shall be referred to s75 (2) for the purpose of this document.

If a vehicle was allowed to sit and wait in one controlled district while licensed by another then s75 (2) would make an absurdity by not applying s46 (a), (b) and (c) to then state that the vehicle must be licensed under s48, which is licensing of private hire vehicles, and that the driver must also be licensed by the same authority, which is a requirement to drive a licensed vehicle.

Because every authority has now adopted the 76 Act the legislation is being read as a national rule, when it isn’t.

The 76 Act was written to account for districts that have not adopted the Act and districts that had adopted the Act and when writing it was very much a consideration that should a vehicle be licensed by one district then it must have an exception in place for when that vehicle entered, picked up or drove through another controlled district.

This is indeed why cross border has been accepted by authorities as being legal and possibly arouse from discussions at the trade events that officers attend, it most certainly has not been argued in court.

The simplest question to ask is if the Act did allow for vehicles and drivers to work intermittently, occasionally, or exclusively in another controlled district then why would the 76 Act allow authorities to set their own standards for vehicles, requirements for drivers and enforcement of both for the authorised officers in that district?

The common-sense answer would be that it wouldn’t.

The legal answer would be that s75 (1)(a) prevents them from waiting for another booking and that s75 (2), (2A) and (2B) allows them to pick up, drop off or pass through another controlled district.


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PostPosted: Fri Jul 07, 2023 9:00 pm 
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Quote:
look forward to the responses and I am sure they will be varied.

Section 75 (1)(a) of the 76 Act states that any vehicle, licensed or not, if making itself available in a controlled district after it has completed a booking that started outside of that district shall come under the regulations as set out in the Local Government (Miscellaneous Provisions) Act 1976 (the 76 Act). It also excludes vehicles used for vehicles that carry passengers in relation to funerals, weddings from the need to be licensed as a private hire vehicle.

Not sure I share your reading of that section.

7 5 Saving for certain vehicles etc
(I) Nothing in this Part of this Act shall —
(a) apply to a vehicle used for bringing passengers or goods within a controlled district in pursuance of a contract for the hire of the vehicle made outside the district if the vehicle is not made available for hire within the district;


My reading of that means that anyone doing what you have described above is exempt from any requirements of the act.

In other words provided the vehicle is fully licensed somewhere then they can pick up elsewhere without being licensed in the other area.

If your reading was correct, then everyone would license in Scotland or Plymouth.

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PostPosted: Fri Jul 07, 2023 9:08 pm 
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What you are saying is that sec 75 says the act doesn’t apply to vehicles if they don’t make themselves available.

Well actually you’re not saying it the act says it.

Thus vehicles dropping off out of area do come under the requirements of the 1976 act. But is anyone contesting that?

The act allows non local vehicles to pick up.

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PostPosted: Fri Jul 07, 2023 9:25 pm 
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and of course the fact that we have so many acts that apply to our trade instead of one unified one that makes these matters clear doesn't help either.

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PostPosted: Fri Jul 07, 2023 9:44 pm 
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I think we can all agree that the act is out of date and not fit for purpose, which leads to people coming to the conclusion Mr Wardy has posted above.

The cross border issue has been the subject of umpteen court cases, and it’s those cases which have clarified the act, when really the act should have done that itself.

I, like many, share Mr Wardy’s frustration at the weakness of the act, but we are where we are.

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PostPosted: Fri Jul 07, 2023 10:02 pm 
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Sussex wrote:
I think we can all agree that the act is out of date and not fit for purpose, which leads to people coming to the conclusion Mr Wardy has posted above.

The cross border issue has been the subject of umpteen court cases, and it’s those cases which have clarified the act, when really the act should have done that itself.

I, like many, share Mr Wardy’s frustration at the weakness of the act, but we are where we are.



Can you show me which case addressed the issue of a vehicle making itself available for hire in another controlled district and was deemed to be doing so legally?


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PostPosted: Fri Jul 07, 2023 10:06 pm 
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Sussex wrote:
Quote:
look forward to the responses and I am sure they will be varied.

Section 75 (1)(a) of the 76 Act states that any vehicle, licensed or not, if making itself available in a controlled district after it has completed a booking that started outside of that district shall come under the regulations as set out in the Local Government (Miscellaneous Provisions) Act 1976 (the 76 Act). It also excludes vehicles used for vehicles that carry passengers in relation to funerals, weddings from the need to be licensed as a private hire vehicle.

Not sure I share your reading of that section.

7 5 Saving for certain vehicles etc
(I) Nothing in this Part of this Act shall —
(a) apply to a vehicle used for bringing passengers or goods within a controlled district in pursuance of a contract for the hire of the vehicle made outside the district if the vehicle is not made available for hire within the district;


My reading of that means that anyone doing what you have described above is exempt from any requirements of the act.

In other words provided the vehicle is fully licensed somewhere then they can pick up elsewhere without being licensed in the other area.

If your reading was correct, then everyone would license in Scotland or Plymouth.


S75 (1)(a) refers to any vehicle, licensed or not, and allows them to drop off in a controlled district. The Act only comes into force if it makes itself available after it drops off.

S75 (2) and also 2A & B allow a licensed vehicle to pick up, drop off or travel through a controlled district (the right to roam), but if it drops off then s75 (1)(a) comes into force.


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PostPosted: Fri Jul 07, 2023 10:13 pm 
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46 Vehicle, drivers’ and operators’ licences.
(1)Except as authorised by this Part of this Act—
(a)no person being the proprietor of any vehicle, not being a hackney carriage [F1or London cab] in respect of which a vehicle licence is in force, shall use or permit the same to be used in a controlled district as a private hire vehicle without having for such a vehicle a current licence under section 48 of this Act;

Why would s75 (2),(2A) and (2B) exclude the above s46 (1)(a) as above?

I believe it is because s46 refers to locally issued licenses due to the fact that the 76 Act is an adoptive Act and localism was always at the heart of the matter when the Act was written.


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PostPosted: Fri Jul 07, 2023 10:31 pm 
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Your reading of the last sentence of sec 46 1 (a) appears to say a controlled vehicle licensed in that controlled district, whereas the act only say that the vehicle needs a licence under section 48.

Whilst I except the wording isn’t clear cut and can lead to people assuming otherwise, my view is that if the act meant a licensed vehicle licensed by the area to which they are dropping in, then it should have explicitly said so.

But it doesn’t.

And for good reason, IMO, as if the act was read the way you are interpreting it, in short it wouldn’t be workable.

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PostPosted: Fri Jul 07, 2023 10:41 pm 
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Wardy wrote:
Sussex wrote:
I think we can all agree that the act is out of date and not fit for purpose, which leads to people coming to the conclusion Mr Wardy has posted above.

The cross border issue has been the subject of umpteen court cases, and it’s those cases which have clarified the act, when really the act should have done that itself.

I, like many, share Mr Wardy’s frustration at the weakness of the act, but we are where we are.



Can you show me which case addressed the issue of a vehicle making itself available for hire in another controlled district and was deemed to be doing so legally?

The case most quoted most often is Dittah v Birmingham 1993, where the A, B, C trinity rules came it.

There have been a number of cases since then that has confirmed the view taken in Dittah. The latest one being the Skyline case in 2017.

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PostPosted: Fri Jul 07, 2023 10:48 pm 
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Sussex wrote:
Wardy wrote:
Sussex wrote:
I think we can all agree that the act is out of date and not fit for purpose, which leads to people coming to the conclusion Mr Wardy has posted above.

The cross border issue has been the subject of umpteen court cases, and it’s those cases which have clarified the act, when really the act should have done that itself.

I, like many, share Mr Wardy’s frustration at the weakness of the act, but we are where we are.



Can you show me which case addressed the issue of a vehicle making itself available for hire in another controlled district and was deemed to be doing so legally?

The case most quoted most often is Dittah v Birmingham 1993, where the A, B, C trinity rules came it.

There have been a number of cases since then that has confirmed the view taken in Dittah. The latest one being the Skyline case in 2017.


Both of those cases never discussed a vehicle making itself available in another controlled district?


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PostPosted: Fri Jul 07, 2023 10:54 pm 
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The operation is geographically fixed in the operator’s licensing area: that area must
be where the operator’s premises are located, bookings made and from which vehicles
are dispatched. (Windsor and Maidenhead Royal Borough Council v Khan [1994]
RTR 87, and Shanks).

This quote also supports my argument...

Vehicles MUST be in their own licensed area when they accept.a booking from the operator.

Think of the operator as a general, the command a booking and the drivers the army...

The general issues a command for the army to be dispatched from the garrison to do battle in a other area...

Well, I know what I mean :D


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PostPosted: Fri Jul 07, 2023 11:05 pm 
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Wardy wrote:
Both of those cases never discussed a vehicle making itself available in another controlled district?

If the PH vehicle is in another District other than its own, it is not making itself "available" unless it is "Touting" (which is illegal of course).

Should a booking be received by the Driver from the Drivers Operator (Licensed as such in the area in which the Car and Driver are Licensed) even if that is sub-contracted from an Operator within the area in which the booking takes place, that is legal.

A Hackney Carriage Licensed (with a Driver) anywhere is a PH everywhere (confess I don't know how Scotland fits in with that). As a Hackney Driver is his or her own Operator, I think a phoned booking, or email, or text, or Social Media, or even Royal Mail letter would qualify a legal booking out of area.

Sussex pointed out that Plymouth and London are not under the 76 Act. But the Hackney scenario in the paragraph above would, I believe, not affect 75 Act Plymouth, Metropolitan Act or the 76 Act areas. Hackney anywhere is PH everywhere.

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PostPosted: Fri Jul 07, 2023 11:35 pm 
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Chris the Fish wrote:
Wardy wrote:
Both of those cases never discussed a vehicle making itself available in another controlled district?

If the PH vehicle is in another District other than its own, it is not making itself "available" unless it is "Touting" (which is illegal of course).

Should a booking be received by the Driver from the Drivers Operator (Licensed as such in the area in which the Car and Driver are Licensed) even if that is sub-contracted from an Operator within the area in which the booking takes place, that is legal.

A Hackney Carriage Licensed (with a Driver) anywhere is a PH everywhere (confess I don't know how Scotland fits in with that). As a Hackney Driver is his or her own Operator, I think a phoned booking, or email, or text, or Social Media, or even Royal Mail letter would qualify a legal booking out of area.

Sussex pointed out that Plymouth and London are not under the 76 Act. But the Hackney scenario in the paragraph above would, I believe, not affect 75 Act Plymouth, Metropolitan Act or the 76 Act areas. Hackney anywhere is PH everywhere.


Hackneys are not relevant to this discussion mate.

Scotland has an exclusion under s75 (2A) - Plymouth doesn't have an exclusion for some reason.

A PHV makes itself available to the operator when it communicates this and is then making itself available in another district.

Why did the Deregulation Act modify the 76 Act to state that a.booking can be subbed to another operator in the same district or subbed to an operator Licensed in another district?


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PostPosted: Sat Jul 08, 2023 12:05 am 
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Wardy wrote:
Hackneys are not relevant to this discussion mate.

Scotland has an exclusion under s75 (2A) - Plymouth doesn't have an exclusion for some reason.

A PHV makes itself available to the operator when it communicates this and is then making itself available in another district.

Why did the Deregulation Act modify the 76 Act to state that a.booking can be subbed to another operator in the same district or subbed to an operator Licensed in another district?


Everything is relevant, you understand the Hackney position, others may not.

I am licensed PCC Act 1975, but I like to think that I understand the Misc Prov 1976 as well.

If a PH is by an electronic means, telephonic, or by carrier pigeon, informing its Operator that it is "Clear", that Operator may pass a legitimate booking to the Licensed Driver, by smoke signal, jungle drums or any other communication method. It may be that an individual PH Driver is also licensed as his or her own Operator - which muddies the water yet more.

Deregulation in this area is widely recognised as an error, by you, by me, many Licensees, Courts and MP's. The Courts may want to, but they can't go against the "Will of Parliament". MP's may want to correct the aberration, but Parliamentary time to do so looks unlikely.

What we have we are stuck with for possibly quite sometime to come.

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