BACKGROUND
6.
This
is an application for a new street trading consent.
7.
A Street trading consent was granted to Dr Beans
Flying Coffee Machine last year at Egypt Esplanade.
8.
The
street trading consent last year was issued for the period 29th July 2006 – 4th August 2006
and 21st August
2006 – 27th
August 2006. No objections were raised during the operating period
for this consent. Only one objection was received during the consultation
period for this consent, which was from a competitor and deemed not relevant to
the application.
9.
During
the period of trading as detailed above, no complaints were received of any nature.
STRATEGIC CONTEXT
10.
The decision to grant a street trading consent
accords with the Corporate Plan and the Environmental Health Service Plan
2006-2007.
CONSULTATION
11.
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
5)
12.
The policy allows fourteen days from the date of
application in which comments may be received.
13.
The consultation period commenced on 11th April 2007
and concluded on 25th
April 2007.
14.
A consultation letter was sent
to the following:
(a)
Police: Sergeant Mudge; Simon Richardson
(b)
Local Councillor: Cllr. A Wells
(c)
Cowes Town
Council; Mr R H Hendey
(d)
Cowes
Business Association; Mrs L Murford
(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
15.
No adverse comments were received from any of the
consultees as detailed above (a) to (i). One adverse comment was received from
a local resident (j).
16.
Observations have been received from the
following:
(a)
Objection.
Mrs
Zoë Langford, Local Resident.
East
Dormers, Egypt Esplanade, Cowes, Isle of Wight, PO31 8BP. States that litter in the area
is a problem, which would potentially be exacerbated by this street trading
consent. (Appendix 6).
Her
objection to litter is not listed specifically in the policy section 9, though
may be deemed a nuisance under 9 (c).
Contact
has been made with Mrs Langford, however she has not wished to discuss her
objection.
FINANCIAL/BUDGET
IMPLICATIONS
17.
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.
LEGAL
IMPLICATIONS
18.
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).
19.
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.
20.
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.
21.
Paragraph 7 of schedule 4 to the Local
Government (Miscellaneous Provisions) Act 1982 sets out the requirements in
respect of street trading consents.
22.
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
23.
Paragraph 7(2) Subject to paragraph (3) below,
the council may grant a consent if they see fit
24.
Paragraph 7(3) A street trading consent shall not
be granted
(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.
25.
Paragraph 7(4) when granting or renewing a
street trading consent, the council may attach such conditions to it as they
consider reasonably necessary.
26.
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).
27.
Paragraph 7(6) the council may at any time vary
the conditions of a street trading consent.
28.
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.
29.
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
30.
Paragraph 7(9) If they include such a permission,
they may make they 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.
31.
Paragraph 7(10) A street trading consent may be
granted for any period not exceeding 12 months but may be revoked at any time
32.
Local opposition or support (in whatever form)
for a proposal is not in itself grounds for refusing or granting a licensing permission, unless that opposition or
support is based upon valid reasons and concerns, which can be sustained.
33.
There is no right of appeal against the refusal
to grant or refuse a consent or against the revocation or variation of a
consent.
IMPLICATIONS UNDER THE CRIME
AND DISORDER ACT 1998
35.
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
36.
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.
37.
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.
38.
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
39.
Option 1: The licensing
committee may grant the street trading consent as requested by the applicant.
40.
Option 2: The licensing
committee may grant the street trading consent subject to conditions and/or
amendments.
41.
Option 3: The licensing
committee may refuse to grant the street trading consent.
EVALUATION/RISK
MANAGEMENT
42. The licensing
committee should have regard to paragraph 9 of The Policy when considering the
application. In particular members’
attention should be drawn to sub paragraphs 9(c) and 9(f).
|
RECOMMENDATION
It is recommended that the
consent be granted as per the application.
|
APPENDICES ATTACHED
Appendix 1 Application form
Appendix 2 Map of proposed site
Appendix 3 Plan of proposed site
Appendix 4 Copies of photographs of the Dr Beans
Vehicle.
Appendix 5 Isle of Wight Council Street Trading Policy
Appendix 6 Objection letter Mrs. Zoë Langford
BACKGROUND PAPERS
43.
Minutes
of a meeting of the Licensing panel held at County Hall, Newport,
Isle of Wight on 20 April 2004 commencing at
10.00am.
44.
Agenda
and papers for a meeting of the Licensing panel held at County Hall, Newport, Isle of Wight on
20 April 2004 commencing at 10.00am.
45.
Isle of Wight Fire & Rescue Service – Fire Safety Guidance for
Food/Concession Holders at Outside Events
ADDITIONAL
INFORMATION
46.
None
Contact Point: Claire Van Heerden
Licensing Officer Ext 5120
ROB OWEN
Head of Consumer Protection
