PAPER B
Purpose: For Decision
Committee: LICENSING SUB COMMITTEE
Date: 8
MARCH 2007
Title: TO CONSIDER AN APPLICATION
FOR A STREET TRADING CONSENT FOR SANDOWN HIGH STREET
REPORT
OF THE HEAD OF CONSUMER PROTECTION
1.
To invite the Licensing Committee to consider an
application for a street trading consent for a Market to be situated in High
Street, Sandown, Isle of Wight.
2.
An application
(appendix 1) for the renewal of a street trading consent has been received
from:
Councillor Jacqueline
Mereweather and Councillor Gary Allan Young
Sandown Town Council
Broadway Centre
1 Broadway
Sandown
Isle of Wight
PO36 9GG
3.
The
application was received on 9 February 2007.
4.
The proposed
dates of trading are from 4 March 2007 until 23 December 2007.
5.
The proposed
operating times are:
Setting up from: 08:00hrs
To start trading from: 09:00hrs
End of trading: 16:00hrs
Cleared up by: 17:00hrs
6.
The site
requested is the north side of High Street, Sandown from its junction with
Victoria Road to its junction with Albert Road. (Appendix 2)
BACKGROUND
7.
Available
council records show that a street trading consent has been granted for the Sandown
Sunday Market at High Street, Sandown since 1997.
8.
The most
recent street trading consent for the Sandown Sunday Market was granted on 27
March 2006 for the period 1 April 2006 until 31 December 2006 (Appendix 3).
9.
The operating
times for the 2006 consent were:
Setting up from: 09:00hrs
To start trading from: 10:00hrs
End of trading: 16:00hrs
Cleared up by: 17:00hrs
10.
The consent
expired on 31 December 2006.
11.
A search of
the Environmental Health database reveals that no complaints were received
regarding the market or its operation during the period of the consent.
STRATEGIC CONTEXT
12.
The decision to grant a street trading consent accords
with the Corporate Plan and the Environmental Health Service Plan 2006-2007.
13.
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 4)
14.
The policy allows fourteen days from the date of application
in which comments may be received.
15.
The consultation period commenced on February 9
February 2007 and concluded on 27 February 2007.
16.
A letter (Appendix 5) was sent to the following:
(a)
Hampshire Constabulary: Police Sergeant Mudge; Simon
Richardson
(b)
Local Councillor: Cllr Heather Humby
(c)
Sandown Business Association: Culver Lodge Hotel, 17
Albert Road, Sandown
(d)
Highways: Kevin Burton
(e)
Cultural & Leisure: Sean Newton
(f)
Revenues: Nikki Sampson
(g)
Fire: Trevor Moyce
(h)
Environmental Health
(i)
Property owners within 100 metres of the proposed site
17.
Observations have been received from the following:
(a)
Mr Martin Carroll a resident, who states that he is
disturbed by the noise when the stalls are being set up. (Appendix 6)
(b)
M. Baxter a resident, who states that his/her sleep is
disturbed by the noise when the stalls are being set up and raises concerns
regarding litter. (Appendix 7)
(c)
Mrs A. H. Pain a resident provides a letter of support
and does not object to the application. (Appendix 8)
(d)
Hampshire Constabulary states there are no police
objections to the application. (Appendix 9)
(e)
Mr Nick Spyker, Sandown Hotel states:
(i)
the application should be refused for procedural
irregularity
(ii)
the location of the market is dangerous
(iii)
the noise caused by the market while setting up and
throughout the day is a nuisance.
(iv)
The market financially impacts on the business through
the annoyance of residents of the Sandown Hotel. (Appendix 10)
(f)
Mrs Jo Moorman, Sandringham Hotel states:
(i)
Objections to the grant of the consent on the grounds
of intolerable noise and nuisance.
(ii)
the location of the market is dangerous
(iii)
the application must comply with the Isle of Wight
Council’s street trading policy.
(iv)
The market financially impacts on the business through
the annoyance of residents of the Sandringham Hotel. (Appendix 11)
(g)
Mr Howell a resident does not object to the market
however raises concern over the music played throughout the day by the market
stall holders. (Appendix 12)
18.
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.
19.
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).
20.
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.
21.
On 28 May 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”.
22.
Paragraph 7 of schedule 4 to the Local Government
(Miscellaneous Provisions) Act 1982 sets out the requirements in respect of
street trading consents.
23.
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
24.
Paragraph 7(2) Subject to paragraph (3) below, the
council may grant a consent if they see fit
25.
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.
26.
Paragraph 7(4) when granting or renewing a street
trading consent, the council may attach such conditions to it as they consider
reasonably necessary.
27.
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).
28.
Paragraph 7(6) the council may at any time vary the
conditions of a street trading consent.
29.
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.
30.
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
31.
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.
32.
Paragraph 7(10) A street trading consent may be
granted for any period not exceeding 12 months but may be revoked at any time
33.
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 n or support is based upon valid reasons and
concerns, which can be sustained.
34.
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
41.
Option
3: The licensing committee may refuse to grant the street trading consent.
42.
The licensing committee should have regard to
paragraph 12 of The Policy in considering the application.
43.
Mr Spyker has raised a number of issues. These should
be considered by the licensing committee:
(a)
The application is made for the renewal of street
trading consent however officers are of the opinion that the application should
be treated as a new application. The reason for this opinion is the hours of
operation differ to those of the previous consent.
(b)
The application requests the consent to be granted for
a period of 9˝ months. 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.
(c)
The notification letter sent by the licensing section
refers to the application as a renewal and it is claimed that this may have
caused confusion to consultees. (Appendix 5). The letter does however state the
proposed operating times and members may wish to consider whether the use of
the word ‘renewal’ has unfairly prejudiced the consultation process.
(d)
The policy states that the council will send a copy of
the notice of the application to relevant property owners within the
consultation area. A copy of the application was not sent although the relevant
operating information was included in the letter. Again, members may wish to
consider whether this has unfairly prejudiced the consultation process.
(e)
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 3 April 2007 if it is to
comply with the Policy.
44.
The decision of the licensing committee may be capable
of challenge by way of judicial review if items (a) to (e) of paragraph 43 are
not considered during this hearing.
|
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 3 April 2007. |
APPENDICES ATTACHED
Appendix
1 Application form
Appendix
2 Plan of location
Appendix
3 Street trading consent 1/4/06 –
31/12/06
Appendix
4 Isle of Wight Council Street
Trading Policy
Appendix
5 Consultation letter
Appendix
6 Objection letter Mr. Carroll
Appendix
7 Objection letter M Baxter
Appendix
8 Support letter Mrs. Pain
Appendix
9 Letter Hampshire Constabulary
Appendix
10 Objection letter Mr. Spyker
Appendix
11 Objection letter Mrs. Moorman
Appendix
12 Objection letter Mr. Howell
BACKGROUND PAPERS
45.
Minutes of a
meeting of the Licensing panel held at County Hall, Newport, Isle of Wight on 20
April 2004 commencing at 10.00am.
46.
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.
47.
None
Contact Point: David Curtis-Botting
Senior Licensing Officer Ext
5155
ROB OWEN
Head of Consumer Protection