RELEVANT HISTORY
5.
Mr Phillips has operated the business known as The Jolly Fryer for the
last 13 years, making regular visits to villages on the same day of each week.
6. On 28 May 2004, a resolution came into
force that all current and future
streets, council car parks, recreation grounds, open spaces along with all
public parks, gardens, amenity areas, sports areas, play areas and parking bays
adopted by the Council, in the Isle of Wight, be designated as “consent streets”. This means that Mr Phillips now has to apply
for a Street Trading Consent.
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.
Under the Council’s Policy a mobile trader is defined as a trader who
moves from street to street but trades for less than 60 minutes at any one
point and does not return to a similar trading position within 2 hours
(Appendix 3). A copy of Condition number 30 relating to mobile trading is also
attached (Appendix 4).
9.
The applicant has been invited to attend the meeting to answer any
questions Members may have.
FORMAL CONSULTATION
10. The Hampshire
Constabulary have been consulted on this application and have confirmed that
they have no objections.
11. The Council’s Highways
Section, Wight Leisure, Revenues Section, Fire and Rescue and the Environmental
Health Food Section have been consulted on this application, however, no
comments were received by the closing date.
12. Local Councillors and
Parish Councils for the various areas have been consulted on this application,
however, no comments were received by the closing date.
THIRD PARTY REPRESENTATIONS
13. The
application has been advertised in the Isle of Wight County Press, and no
letters of objection have been received.
FINANCIAL IMPLICATIONS
14. Broadly, Council expenditure on Licensing
matters, and in particular those which are administered and enforced through
Consumer Protection, balances income received from licence fees.
15. A
fee of £600.00 has been paid for this consent, however, should the application
be refused the Council has a duty to refund part of the licence fee. It is recommended, in that event, that at
least £50.00 should be retained.
LEGAL IMPLICATIONS
16. Each
application should be considered individually so as to comply with the rules of
Natural Justice.
17. Street
Trading Consents are issued under the Local Government (Miscellaneous
Provisions) Act 1982, Schedule 4. The
relevant sections are listed below:
18. “
“Consent street” means a street in which street trading is prohibited without
the consent of the district council.
19. There is no right of appeal against the
refusal to grant or renew a consent or against the revocation or variation of a
consent.
20. 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.”
21. 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
22. 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
23. 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.
24. 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 Panel.
OPTIONS
25. To grant the application
as requested by the applicant.
26. To vary the hours
requested by the applicant
27. To vary the location.
28. To grant the consent for
a lesser period.
29. To refuse the
application.
30. To grant the Council’s Licensing Officer
delegated authority to amend Consent conditions if he considers it appropriate
after consultation with the Licensing Panel Chairman and the Ward Councillor.
EVALUATION/RISK MANAGEMENT
31. 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 have also been considered:
a) The value and service to the Community of granting the
request,
b) The possibility of problems with noise and/or smells,
c) The lack of objection from local residents or the Parish
Councils,
d) That Council records do not show any complaints in the last
13 years regarding this trader’s activities in the sites proposed.
e) The need to vary the Consent conditions
in cases such as this which permit activities which benefit the community as
well as the applicant,
32. Officers have therefore made a
recommendation which is felt to be reasonable, proportionate and in accordance
with the legitimate aim of the Council.
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RECOMMENDATIONS
33. a) To grant the application as
requested by the applicant.
b) To grant the Council’s
Licensing Officer delegated authority to amend Consent conditions if he considers it appropriate after
consultation with the Licensing Panel Chairman and the Ward Councillor.
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APPENDICES ATTACHED
34. Appendix 1: Mr A J Phillips’ Application
Appendix 2: Mr Phillips’ covering letter
Appendix 2: Definition of mobile trader – taken from Council Policy
Appendix 3: Condition No. 30 regarding mobile trading.
BACKGROUND PAPERS
35. As
attached.
ADDITIONAL INFORMATION
36. 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.
37. A district council is under no duty to
grant a street trading consent and need not specify statutory grounds for
refusal.
Contact Point: John Murphy, Licensing Officer ( 823152.
ROB OWEN
Head of Consumer Protection
