PAPER B
Committee
: LICENSING (DETERMINATIONS) SUB
COMMITTEE
Date : 11
JUNE 2007
Title : TO CONSIDER AN
REPORT
OF THE HEAD OF CONSUMER PROTECTION
1.
To invite the
2.
An
application (Appendix 1) for the grant of a
street trading consent has been received from:
Miss Nina Elphick
PO31 7ES
3.
The
application was received on 25/04/07.
4.
The
proposed dates of trading are Monday - Sunday for a three month period from
date of grant.
5.
The
proposed operating times are:
Setting up from: 08:30 hours
To start trading from: 09:30 hours
End of trading: 16:30 hours
Cleared up by: 17:30 hours
This trader shall sell a range
of chocolate bars, crisps, carbonated cans, ice pops and penny sweets. Copies of photographs of the Snack Attack Vehicle are
attached (Appendix 2).
6.
The
requested roads in
Love Lane, Ash Grove, Elm Grove,
BACKGROUND
7.
This
is an application for a new street trading consent.
STRATEGIC CONTEXT
8.
The decision to grant a street trading consent accords with the
Corporate Plan and the Environmental Health Service Plan 2007-2008.
9.
The Isle of Wight Council Street Trading Policy
(The Policy) outlines the groups of people who should be consulted in respect of
an application for a
street trading consent. (Appendix 3)
10.
The
policy allows fourteen days from the date of application in which comments may
be received.
11.
The consultation period commenced on 1ST May 2007 and
concluded on 15th May 2007
12.
A consultation letter was sent to the following:
(a)
Police: Sergeant Mudge;
(b)
Local Councillor: Cllr. Lora Peacey-Wilcox
(c)
(d)
(e)
Highways: Kevin Burton
(f)
Cultural & Leisure: Sean Newton
(g)
Revenues: Nikki Sampson
(h)
Fire: Trevor Moyce
(i)
Environmental Health
(j)
Property owners within 100 metres of the
proposed site
13.
No
adverse comments were received from the consultees as detailed above (a), (b),
(f) and (i). No responses have been received from (d), (e), (g) and (h).
Three
adverse comments were received as detailed in (14) below.
14.
Objections have
been received from the following:
(a)
Objection -
The
Town Council are no longer prepared to support ventures which encourage
children to buy food and drinks which are high in fats and additives and low in
nutritional value. (Appendix 4)
(b) Objection - Thelma
Howland, Northwood Primary Headteacher (j)
Northwood
Primary holds the National Health Schools Aware, which places emphasis on Healthy
eating. The availability and promotion of unhealthy choices would send out the
wrong message to children, and add extra pressure to parents who are wishing to
maintain a healthy balance of only 20% treats. (Appendix 5)
(c) Objection -
This
application would be inconsistent with the local ethos promoting healthy
living. Concerns over childhood obesity,
tooth decay and infant diabetes.
The objector
also has concerns that the van would be directly targeting children, operating
adjacent to children’s park and sale of pocket money sweets. (Appendix 6)
The
objections are not specifically listed in section 8 of the policy (Appendix 3)
but may be described in section 8 (3). ‘Any other valid reason that would
affect the occupier of a property as a result of the application made.’
15.
Broadly, Council expenditure on Licensing
matters and specifically those matters administered and enforced through
Consumer Protection, balances income generated from fees. This arrangement is not expected to change by
virtue of the grant of a street trading consent. From the information received,
it does appear public safety/public order nuisance issues are a likely outcome
from this application.
16.
An application for the grant of a street trading
consent is made under Schedule 4 of the Local Government (Miscellaneous
Provisions) Act 1982 (The Act).
17.
Paragraph 1 of Schedule 4 defines a “consent
street” as a street in which street trading is prohibited without the consent
of the district council.
18.
On 20 April 2004 Isle of Wight Council resolved
that for the purposes of street trading all current and future streets, council
car parks, recreation grounds and open spaces along with public parks, gardens,
amenity areas, sports areas, play areas and parking bays adopted by the council
in the Isle of Wight be adopted as “consent streets” with effect from 28 May
2004.
19.
Paragraph 7 of schedule 4 to the Local
Government (Miscellaneous Provisions) Act 1982 sets out the requirements in
respect of street trading consents.
20.
Paragraph 7(1): An application for a street
trading consent or the renewal of such a consent shall be made in writing to
the district council
21.
Paragraph 7(2) Subject to paragraph (3) below,
the council may grant a consent if they see fit
22.
Paragraph
(a)
To a person under the age of 17 years of age; or
(b)
For any trading in a highway to which a control
order under section 7 of the Local Government (Miscellaneous Provisions) Act
1976 is in force, other than trading to which the control order does not apply.
23.
Paragraph 7(4) when granting or renewing a
street trading consent, the council may attach such conditions to it as they
consider reasonably necessary.
24.
Paragraph 7(5) Without prejudice to the
generality of sub paragraph (4) above, the conditions that may be attached to a
street trading consent by virtue of that sub-paragraph include conditions to
prevent
(a)
Obstruction of the street or danger to persons
using it; or
(b)
Nuisance or annoyance (whether to persons using
the street or otherwise).
25.
Paragraph 7(6) the council may at any time vary
the conditions of a street trading consent.
26.
Paragraph 7(7) Subject to sub-paragraph (8)
below, the holder of a street trading consent shall not trade in a consent
street from a van or other vehicle or from a stall, barrow or cart.
27.
Paragraph 7(8) The council may include in a
street trading consent permission for its holder to trade in a consent street
(a)
From a stationary van, cart, barrow or other
vehicle, or
(b)
From a portable stall
28.
Paragraph 7(9) If they include such a
permission, they may make the consent subject to conditions
(a)
As to where the holder of a street trading
consent may trade by virtue of the permission; and
(b)
As to the times between which or periods for
which he may so trade.
29.
Paragraph 7(10) A street trading consent may be granted
for any period not exceeding 12 months but may be revoked at any time
30.
Local opposition or support (in whatever form)
for a proposal is not in itself grounds for refusing or granting a
31.
There is no right of appeal against the refusal
to grant or refuse consent or against the revocation or variation of consent.
IMPLICATIONS
UNDER THE CRIME AND DISORDER ACT 1998
32.
Members are advised that without prejudice to
any other obligation imposed on it, it shall be the duty of each authority to
which this section applies to exercise its functions with due regard to the
likely effect of the exercise of those functions on, and the need to do all
that it reasonably can to prevent crime and disorder in its area.
IMPLICATIONS UNDER THE HUMAN
RIGHTS ACT 1998
33.
Members are advised that this application must
be considered against a background of the implications of the Human Rights Act
1998.
There are
three convention rights, which need to be considered in this context:
(a)
Article 6 – Right to a fair trial
In the
determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law.
(b)
Article 8 – Right to respect for private and
family life
Everyone
has the right to respect for his private and family life, his home and his
correspondence. In the case of article 8 there shall be no interference by a
public authority with the exercise of this right except as such in accordance
with the law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of the country, for
the prevention of disorder and crime, for the protection of health or morals or
for the protection of the rights and freedoms of others.
(c)
Article 1 of the first protocol – protection of
property
Every
natural or legal person is entitled to peaceful enjoyment of his possessions.
In the case of article 1 of the first protocol it states that “no one shall be
deprived of his possessions except in the public interest and subject to the
conditions provided for by the law and the general principles of international
law. The preceding provisions (of which articles 6 and 8 are but 2) shall not
however in any way impair the right of the state to enforce such laws as it
deems necessary to control the use of the property in accordance with general
interest or to secure the payment of taxes or other contributions or penalties.
(d)
The
Licensing Authority acknowledges the right of business in its area to operate,
but equally acknowledges the fact that this must be balanced against the rights
of residents not to be disturbed by unreasonable noise and nuisance caused by
licensed premises. The
committee needs to be clear as to the rights granted and the need to ensure
that the reasons given for any interference are proportionate and in accordance
with the council’s legitimate aim.
34.
It has to be appreciated that there is a
difference between licences and consents; however the members may wish to err
on the side of caution and accept that the committee should consider Article 1
because a licence is normally deemed to be a possession.
35.
The
Freedom of Information Act 2000 requires public authorities to disclose certain
information they hold if it is requested subject to specified exemptions. This
includes information contained in responses to consultations.
OPTIONS
36.
Option 1: The Licensing (Determinations) Sub Committee may grant
the street trading consent as requested by the applicant.
37.
Option 2: The Licensing (Determinations) Sub Committee may grant
the street trading consent subject to conditions and/or amendments.
38.
Option 3: The Licensing (Determinations) Sub Committee may refuse
to grant the street trading consent.
39. The Licensing (Determinations) Sub
Committee should have regard to paragraph 9 of The Policy when
considering the application. In
particular members’ attention should be drawn to sub paragraph 9(d). The
general objections are about the need for ‘snack attack’ which would make it
more convenient for children to source snack foods and sweets.
The Licensing (Determinations) Sub
Committee may wish to distinguish between this application
which has provoked objections and similar applications from ‘ice cream vans’
whose goods have equally poor nutritional value. Snack Attack wishes to serve
the young people using the recreation ground with snacks, sweets and drinks at
low prices affordable from their pocket money. This also includes ‘penny sweets’.
Members may wish to consider whether this changes the van from providing an
occasional ‘treat’ to providing a source of daily snack food. The applicant has
made no mention of healthy alternatives.
The objector
highlights the balance required in a child’s diet, 80% healthy and only 20%
treats. Councillors may wish to consider
whether this application provides children with a treat or promotes an everyday
food, and whether that is relevant to the decision to grant a street trading
consent.
APPENDICES ATTACHED
Appendix 2 Copies of photographs of the Snack Attack
Vehicle.
Appendix
3 Isle of Wight Council Street Trading
Policy
Appendix 4 Objection Letter – Mr. R Hendey, Cowes Town
Council
Appendix 5 Objection
Letter – Thelma Howland (Head teacher Northwood Primary)
Appendix 6 Objection Letter – Northwood Village
Management Committee
Appendix 7 Isle of Wight Council Standard Street Trading Conditions
BACKGROUND PAPERS
47. Minutes of a meeting of the
48. Agenda and papers for a meeting of the
49.
50. A copy of the
Contact Point: Claire Van Heerden
Licensing Officer Ext 5120
ROB OWEN
Head of Consumer Protection