Chris wrote:
Could i ask John Davies,is Manchester Council satisfying the goverment and for that matter the courts by having unmet demand surveys every two years.
The purpose of a regular survey is to help councils withstand the challenge of an applicant who feels aggrieved at being refused a licence and then pursues his grievance through a court of law.
The survey is not there to satisfy the courts or the Government, it is merely a tool to aid Councils in retaining a restrictive numbers policy.
A Survey complies with section sixteen of the 1985 Transport act, which allows a Council to refuse an applicant a licence if they can prove there is no significant demand in the area that remains unmet.
Section sixteen is ambiguous because it does not define how unmet demand shall be measured. It was left to the courts and the Ministry of Transport to guide Local Authorities on an accepted policy for measuring unmet demand. The way that guidance has evolved over the years has led to a stable set of criteria that is now accepted under normal circumstances in a court of law.
In a court of Law a survey is only as good as the content within. There has never ever been an "in depth" challenge to the contents of a survey in any court case appertaining to licence refusal that I know of. I specifically said “in depth”.
It is my opinion, that surveys in large Towns or Cities can never adequately give a true account of unmet demand. They concentrate their resources in the most populated public places and neglect the area as a whole. Therefore in most cases less than five percent of the whole licensed area is being properly surveyed.
In the case of Manchester the bulk of the survey takes place in the City centre, yet that is only a very small part of the Authorities area as a whole. Every survey that has ever been produced for Manchester has been flawed; if you have the knowledge, determination and the wherewithal you can easily pull the Manchester surveys to pieces. The fact is “no one has ever tried”.
Since the early nineties here in Manchester It has always been accepted by most people that a survey was good enough to thwart any challenge in a court of law.
The courts realised from an early stage that measuring demand is nigh on impossible and that councils were placed in the unenviable position of having to do this.
An accepted legal criteria was established when Lord Justice Woolf stated that a council who has not measured demand can withhold the issuing of licences until such demand had been measured. In another case it was established that measuring demand could take place every one or two years but more than two years would be challengeable.
Therefore, we have the situation where surveys have become acceptable in a court of law. However, surveys have never really had an in depth challenge so until such a challenge is forthcoming surveys will no doubt be accepted unconditionally.
In answer to your Question is Manchester Satisfying the Government and the courts I would have to say this, seeing as how Manchester has never been challenged in a court of Law, It would be folly to say that a survey would definitely secure Manchester’s position of restricting numbers. As I have previously pointed out a survey is only as good as its contents and if an experienced clever applicant decided to challenge that survey with his or her own data, including video evidence collected over a period of time and not just two weeks in one section of the Licensing area, then I think any Authority including Manchester would have a very difficult job in just relying on a limited survey to secure their numbers policy.
With regard to the Government, They are on record as saying that they disagree with the current practice of restricting numbers because they see it as a barrier for entrance into the trade. However under current legislation there is not a lot the Government can do, we have in place legislation that allows councils to restrict numbers if they can prove there is no demand which remains unmet.
The goal posts have moved somewhat in the last few months because the Government have voiced strong opinion that Councils can no longer just rely on a survey that states there is no unmet demand. Councils in future will have to tell the public why they believe restricting licences will supply a better service.
The Governments advice for Councils has yet to be delivered but it is strategy that will put councils in a very precarious situation. If a court challenge is made by an aggrieved applicant the advice given by the Government will have to be interpreted by a court of law. What you have to realise is that a Judge is obliged to interpret the meaning of the advice and instruction being stated by the Government. It places the same onus on the Judge as if it was legislation.
Judges interpret legislation as to the meaning of the act as parliament meant it to be. They would place the same interpretation on any clear instructions handed down to Councils from the Government.
So there you have it. I hope I have been able to answer your Question in the way you wanted. Of course we have to wait until the Governments advice is forthcoming but when it does the picture should be a lot clearer.
Best Wishes
John Davies