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.
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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
