PAPER B

Purpose: For Decision

 

Committee:    LICENSING SUB COMMITTEE

 

Date:               6 MARCH 2006

 

Title:                APPLICATION FOR THE GRANT OF A STREET TRADING CONSENT

 

REPORT OF THE HEAD OF CONSUMER PROTECTION

 

                                                                                                                                                 

PURPOSE/REASON

 

1.         To consider an application for the grant of a Street Trading Consent

 

DETAILS OF THE APPLICATION/ORDER

 

2.         An application has been received for the grant of a Street Trading Consent

 

from: Mr Michael Tracey

 

trading as: Out to Lunch

 

for: 12 Months

 

for the days and times: Monday – Saturday: setting up from 0800 hours, to commence trading 0830 hours, end of trading 1600 hours, to be cleared by 1630 hours

 

a copy of which is attached (Appendix 1)

 

3.         The applicant wishes to offer for sale hot and cold snacks, tea and coffee, and the premises are registered with the Council’s Food Section under the Food Premises (Registration) Regulations 1991.

 

LOCATION AND SITE CHARACTERISTICS

 

4.         The site requested is: Hurstake Road, Riverside Industrial Estate, Newport.  A Plan of the site is attached (Appendix 2)

 

RELEVANT HISTORY

 

5.         This is a new application and Mr Tracey has not held a Street Trading Consent for this site previously.

 

6.         Mr Tracey has held a Street Trading Consent for South Street, Newport since August 1997, which was transferred to St James Square, Newport when alterations were made to South Street.  There are no relevant recorded complaints.


COUNCIL POLICY

 

7.         The Council’s Licensing Panel will

 

i)          determine applications to which objections are received,

ii)         determine unopposed referred applications that do not meet the criteria contained within the policy

iii)        hear appeals from applicants against the imposition of a condition on a Consent by an officer on a delegated basis.

 

8.         A copy of the comments received has been sent to the applicant who has been invited to attend the meeting to answer any questions Members may have.

 

9.         Under Paragraph 11 of the Council’s Policy a Street Trading Consent for any particular site will be issued for a maximum period of 3 months for the first year and thereafter for 6 months providing there have been no problems.

 

FORMAL CONSULTATION

 

10.       The Hampshire Constabulary’s Licensing Sergeant has been consulted on this application and has confirmed that he has no objections to this application.

 

11.       The Hampshire Constabulary’s Traffic Management Officer has been consulted on this application; however, no comments were received by the closing date.

 

12.       The Environmental Health Department has been consulted on this application, and has confirmed that they have no objections to this application.

 

13.       The Council’s Highways and Transportation Department have been consulted on this application and have objected on the grounds of limited parking space and road safety.  A copy of their comments is attached (Appendix 3).

 

14.       The Local Councillor, the Business Association, Cultural and Leisure Services, Revenues, and Fire, have all been consulted on this application.  However, no comments were received by the closing date.

 

THIRD PARTY REPRESENTATIONS

 

15        The application has been advertised in the Isle of Wight County Press, and no letters of objection have been received.

 

16.       Property owners within 100 metres of the proposed site have been consulted on this application, and one letter of comment has been received, a copy of which is attached (Appendix 4).

 

17        The objector has been informed of the date and time of the meeting should he wish to attend.


FINANCIAL IMPLICATIONS

 

18        Broadly, Council expenditure on Licensing matters, and in particular those which are administered and enforced through Consumer Protection, balances income received from licence fees.

 

19        A deposit of £125.00 has been paid for this consent, however, should the application be refused the Council has a duty to refund part of the licence fee.  I recommend, in that event, that at least £50.00 should be retained.

 

LEGAL IMPLICATIONS

 

20        Each application should be considered individually so as to comply with the rules of Natural Justice.

 

21        Street Trading Consents are issued under the Local Government (Miscellaneous Provisions) Act 1982, Schedule 4.  The relevant sections are listed below:

 

22.       “Consent street” means a street in which street trading is prohibited without the consent of the district council.

 

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

 

24.       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.

 

(2)       Subject to sub-paragraph (3) below, the council may grant a consent if they think fit.

 

(3)       A street trading consent shall not be granted –

 

(a) to a person under the age of 17 years; 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.

 

(4)       When granting or renewing a street trading consent, the council may attach such conditions to it as they consider reasonably necessary.

 

(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).


(6)       The council may at any time vary the conditions of a street trading consent.

 

(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.

 

(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.

 

(9)       If they include such a permission, they may make the consent subject to conditions –

 

(a)   as to where the holder of the 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.

 

(10)     A street trading consent may be granted for any period not exceeding 12 months but may be revoked at any time.

 

(11)     The holder of a street trading consent may at any time surrender his consent to the council and it shall then cease to be valid.”

 

25.       Members are aware that 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.

 

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

 

26.       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 various 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

 

27.       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 on a democratic society in the interests of national security, public safety or the economic wellbeing 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 the 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 law and the general principles of international law.  The preceding provisions (of which articles 6 and 8 are but two) 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 Panel needs to be clear as 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.

 

Article 6 is particularly relevant to this application.

 

28.       It has to be appreciated that there is a difference between licences and consents, however, the Council would be prepared to err on the side of caution and accept that Article 1 should be considered by the Committee, as a licence is normally deemed to be a possession.  However, in this case, no consent for this street has been granted in the past to the applicant.

 

OPTIONS

 

29        To grant the application for Hurstake Road, for a period of 12 months, for the hours Monday – Saturday: setting up from 0800 hours, to commence trading 0830 hours, end of trading 1600 hours, to be cleared by 1630 hours, as requested.

 

30.       To vary the hours.

 

31.       To vary the location.

 

32.       To grant the consent for a lesser period.  It is recommended that a trial period of 3 months might be authorised, extending to 6 and then 3 if no problems occur, in line with the Council’s stated policy.

 

33.       To refuse the application.

 

EVALUATION/RISK MANAGEMENT

 

34.       Officers have considered the implications under the Human Rights Act, Crime and Disorder and the Local Government (Miscellaneous Provisions) Act 1982, Schedule 4 – Street Trading.  The following has also been considered:

 

The comments from the Highways and Transportation Department state that there is a danger of reducing parking in an area where parking is already at a premium.  Furthermore, there are road safety issues in that passing trade may be tempted to park along the carriageway upon which parking prohibitions are in force.

 

35.       Officers have therefore made a recommendation which is felt to be reasonable, proportionate and in accordance with the legitimate aim of the Council.

 

 

RECOMMENDATIONS

 

36.       It is recommended that the option at paragraph 33 be adopted – to refuse the application.

 

 

APPENDICES ATTACHED

 

37.       Appendix 1                Application

            Appendix 2                Plan

            Appendix 3                Highways and Transportation comments

            Appendix 4                Public comments on application

 

BACKGROUND PAPERS

 

38.       As attached.

 

ADDITIONAL INFORMATION

 

39.       There is no additional information

 

40.       When determining the application Members may wish to take into account the following:

 

(a)       noise to local residents.

(b)       litter

(c)        smell

(d)       road safety

(e)               comments from Members, Police, Parish or Town Councils and Business Associations

(f)                 the type of goods which are to be sold.

 

41.       A district council is under no duty to grant a street trading consent and need not specify statutory grounds for refusal.

 

Contact Point: Gareth Davies, Principal Environmental Health Practitioner ( 823169.

 

 

 

 

 

 

ROB OWEN

Head of Consumer Protection