PAPER C
Purpose: For Decision
Committee: LICENSING SUB COMMITTEE
Date: 8
MARCH 2007
Title: TO CONSIDER AN APPLICATION FOR
A STREET TRADING CONSENT FOR VECTIS FOOD AND CRAFT, St JAMES’ SQUARE, NEWPORT
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 St
James’ Square, Newport, Isle of Wight.
2.
An
application (Appendix 1) for the grant of a street trading consent has been
received from:
Vectis Food and Craft
Middle Barn
Horringford
Nr Newport
Isle of Wight
PO30 3AP
3.
The
application was received on 5 January 2007.
4.
A letter to
amend the original application was received on 8 February 2007 (Appendix 2)
5.
The proposed
dates of trading are from Saturday 9 March 2007 and Saturday 16 March 2007.
6.
The proposed
operating times are:
Setting up from: 07:00hrs
To start trading from: 09:00hrs
End of trading: 14:00hrs
Cleared up by: 15:30hrs
7.
The site
requested is the east side of St James Square, Newport in the pedestrian area
south of the monument. (Appendix 3)
BACKGROUND
8.
This is an
application for a new street trading consent.
9.
A street
trading consent has not been previously been granted to Vectis Food and Craft
in respect of a market at St James Square.
10.
An existing
street trading consent has been granted to Mrs. Mare Case in respect of the
Island Farmers Market which operates on Fridays in St Thomas’ Square.
11.
The Island
Farmers Market operates to the following times:
Setting up from: 06:00hrs
To start trading from: 09:00hrs
End of trading: 14:00hrs
Cleared up by: 16:30hrs
12.
The market
offers and sells vegetables, fish, meat, honey, preserves, crafts and
horticultural products.
13.
Both markets
will be in competition by selling similar produce.
14.
A street trading
consent has been granted and is currently in existence for St James
Square. However the consent permits the
sale of hot and cold food and drinks and the hours of operation do not conflict
with this application.
15.
An
application has also been received for a street trading consent for St James
Square for ice cream sales. This application is due to be heard by the
licensing committee on 15 March 2007.
STRATEGIC CONTEXT
16.
The decision to grant a street trading consent accords
with the Corporate Plan and the Environmental Health Service Plan 2006-2007.
17.
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)
18.
The policy allows fourteen days from the date of
application in which comments may be received.
19.
The consultation period commenced on 9 February 2007
and concluded on 23 February 2007.
20.
A letter was sent to the following:
(a)
Police: Sergeant Mudge; Simon Richardson
(b)
Local Councillor: Cllr J A M D Whittaker (Newport
North)
(c)
Newport Management Committee: Maxine Yule (Clerk)
(d)
Newport Business Association
(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
(i)
The Blue Door, 18A St James Square
(ii)
The Early Learning Centre, 19 St James Square
(iii)
Top Shop, 20 St James Square
(iv)
Milletts, 21 St James Square
(v)
Age Concern, 22 St James Square
(vi)
Newport Photographic Ltd, 22A St James Square
(vii)
Alliance & Leicester plc, 23 St James Square
(viii)
Bitesize, 24A St James Square
(ix)
Capital Jewellers, 24 St James Square
21.
Observations have been received from the following:
(a)
Mr John Fleming, The Blue Door does not object in
principal however raises concerns that his outside seating area should not be
impinged upon.(Appendix 5)
(b)
Mr Colin Boswell objects on the grounds that the
proposed Vectis Food and Craft Market will affect the profitability and
credibility of the existing Farmers market which operates in St Thomas Square.
(Appendix 6)
(c)
Kathey and Mark Domaille object on the grounds that
the proposed Vectis Food and Craft Market will not assist the consumer’s choice
of buying locally produced food. (Appendix 7)
(d)
Stuart Pierce objects on the grounds that the proposed
Vectis Food and Craft Market will undermine the existing farmers market by
undercutting the existing prices (Appendix 9).
(e)
Graham Pearce objects to the proposed Vectis Food and
Craft Market on the grounds that another market on the same day will be
detrimental to the existing farmer’s market and will cause safety risks in the
street (Appendix 9).
(f)
Sue Brownrigg objects as the chair of the Island
Farmers’ Market objects on the grounds that there is already sufficient supply
of produce which this application proposes to supply. Furthermore issues
regarding loading and unloading of produce within a pedestrian area in
particular the safety aspects are raised (Appendix 10).
(g)
Hampshire Constabulary states there are no police
objections to the application. (Appendix 11)
22.
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.
23.
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).
24.
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.
25.
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.
26.
Paragraph 7 of schedule 4 to the Local Government
(Miscellaneous Provisions) Act 1982 sets out the requirements in respect of
street trading consents.
27.
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
28.
Paragraph 7(2) Subject to paragraph (3) below, the
council may grant a consent if they see fit
29.
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.
30.
Paragraph 7(4) when granting or renewing a street
trading consent, the council may attach such conditions to it as they consider
reasonably necessary.
31.
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).
32.
Paragraph 7(6) the council may at any time vary the
conditions of a street trading consent.
33.
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.
34.
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
35.
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.
36.
Paragraph 7(10) A street trading consent may be
granted for any period not exceeding 12 months but may be revoked at any time
37.
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.
38.
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
39.
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
40.
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.
41.
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.
42.
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
43.
Option
1: The licensing committee may grant the street trading consent as requested by
the applicant.
44.
Option
2: The licensing committee may grant the street trading consent subject to
conditions and/or amendments.
45.
Option
3: The licensing committee may refuse to grant the street trading consent.
46.
The licensing committee should have regard to
paragraph 12 of The Policy in considering the application.
47.
The Policy requires an applicant to give 60 days
notice of the application. The application was initially received on 5 January
2007 but amended on 8 February 2007. If the licensing committee are minded to
grant the application, it could be argued that the consent should not have
effect before 9 April 2007 if it is to comply with the Policy. Members may then
wish to seek advice if they wish to consider deviating from the policy.
48.
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. |
APPENDICES ATTACHED
Appendix
1 Application form
Appendix
2 Letter of amendment
Appendix
3 Plan of proposed area (2 pages)
Appendix
4 Isle of Wight Council Street
Trading Policy
Appendix
5 Objection letter Mr. John Fleming
Appendix
6 Objection letter Mr. Colin
Boswell (2 pages)
Appendix
7 Objection letter Mr. & Mrs.
Domaille
Appendix
8 Objection letter Mr. Stuart
Pierce
Appendix
9 Objection letter Mr. Graham
Pearce
Appendix
10 Objection letter Mrs. Sue
Brownrigg
Appendix
11 Letter Hampshire Constabulary
BACKGROUND PAPERS
49.
Minutes of a
meeting of the Licensing panel held at County Hall, Newport, Isle of Wight on
20 April 2004 commencing at 10.00 am.
50.
Agenda and papers
for a meeting of the Licensing panel held at County Hall, Newport, Isle of
Wight on 20 April 2004 commencing at 10.00 am.
51.
None
Contact Point: David Curtis-Botting, Senior Licensing Officer Ext 5155
ROB OWEN
Head of Consumer Protection