CONSULTATION

10. 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 C)

11. The policy allows fourteen days from the date of application in which comments may be received.

12. The consultation period commenced on 19^th February 2007 and concluded on 6^th March 2007.

13. A letter (Appendix D) was sent to the following:

(a) Hampshire Constabulary: Police Sergeant Mudge; Simon Richardson

(b) All Local Councillors

(d) Business Associations

(e) Highways: Kevin Burton

(f) Cultural & Leisure: Sean Newton

(g) Revenues: Nikki Sampson

(h) Fire: Trevor Moyce

(i) Environmental Health

14. Observations (appendix E) have been received from the following:

a) Hampshire Constabulary – PS Mudge on behalf of Acting Inspector 5812 DAVIDSON has commented that some of the roads are not suitable for an ice-cream van to stop, e.g. Forest Road, Newport, and Medina Avenue, Newport, and has suggested that the applicant could review the list of roads and be more specific.

b) Ventnor Town Council – comment that the licence should not include the Eastern Esplanade or Esplanade Road in Ventnor as they are already served by existing premises.

c) Cllr Heather Humby believes that ice cream vans operating in so many roads within Sandown will pose a threat to schoolchildren.

d) Cllr John Effemey, Councillor for Cowes Castle West has commented that the application should not be granted at the expense of established outlets in Cowes and the vehicle should only operate away from these outlets.

e) Newport Town Management Committee have commented that they believe the proposed areas of trading need to be more specific for Newport.

f) Cllr Mike Cunningham comments that there are several roads on the list supplied by the applicant that are narrow and hazardous, and lists the footway between Upper St James Street and the new bus station, Little London, Trafalgar Lane, Burnt House Lane, Elm Grove and Laundry Lane as examples of places not suited to accommodate a parked ice cream van.

g) Niton and Whitwell Parish Council objects to streets in Niton by reason of concern about parking issues, road safety, and the potential effect on existing shops which already serve the village.

h) Brighstone Parish Council have commented that there is concerned about the vehicle stopping in narrow roads and lanes, and that 2200hrs is considered too late for trading.

i) The IW Council Events Manager has commented that should the application be granted the applicant would not have access to Cowes Parade during Cowes Week.

j) Bembridge Business Association comment that in principle there is no problem, but would prefer the hours of trading in Bembridge to be from 10am to 7pm, and would not want it to trade during Bembridge Street Fair, due to other traders selling ice cream at that event.

k) Cllr Wendy Arnold, Councillor for Chale, Niton and Whitwell comments that Niton is already well served and it is felt that another trader in Niton would be inappropriate, although there is no objection in respect of Chale.

l) Bembridge Parish Council has no objections provided that it is initially for a three-month period only.

m) Fishbourne Parish Council does not object as it is felt that it would have little impact within the parish. Yarmouth Town Council and Wootton Parish Council also have no objections.

FINANCIAL/BUDGET IMPLICATIONS

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.

LEGAL IMPLICATIONS

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 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.

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 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.

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 licensing permission, unless that opposition or support is based upon valid reasons and concerns, which can be sustained.

31. There is no right of appeal against the refusal to grant a consent or against the revocation or variation of a 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.

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. To grant the street trading consent as requested by the applicant.

37. To grant the street trading consent subject to conditions

38. To refuse to grant the street trading consent.

EVALUATION/RISK MANAGEMENT

39. The licensing committee should have regard to paragraph 9 (particularly sections a, c, d and f) and paragraph 12 of The Policy in considering the application.

40. The policy states that a consent will be issued for a maximum period of three months for the first year and thereafter for six months if there have been no problems. Schedule 4 of the Local Government (Miscellaneous Provisions) Act 1982 allows the street trading consent to be granted for a period of up to 12 months. If members are minded to deviate from the policy and grant the consent for a period exceeding three months, consideration should be given as to whether the reasons for so doing are reasonable and necessary in the circumstances.

41. The Policy requires an applicant to give 60 days notice of the application. If the licensing committee are minded to grant the application, the consent should not have effect before 14 April 2007 if it is to comply with the Policy.

42. The decision of the licensing committee may be capable of challenge by way of judicial review.

RECOMMENDATION

It is recommended that the consent be granted with conditions as the Committee deem reasonable and necessary for a period of three months commencing on a date to be determined.

APPENDICES ATTACHED

Appendix A Application form

Appendix B List of Streets

Appendix C IW Council Street Trading Policy

Appendix D Consultation letter

Appendix E Comments from consultees

BACKGROUND PAPERS

Minutes of a meeting of the Licensing panel held at County Hall, Newport, Isle of Wight on 20 April 2004 commencing at 10.00am.

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.