Street Includes:
(a)
any road, footway, beach or other area to which the public have access
without payment.
(b)
a service area as defined in section 329 of the Highways Act 1980,
and also includes any part
of a street.
Consent Street:- Means
a street in which street trading is prohibited without the consent of the Isle
of Wight Council.
Consent:- A
consent to trade on a street by the Isle of Wight Council.
Consent Holder:- The
person or company to whom the consent to trade has been granted by the Isle of
Wight Council.
Static Street Trader:- A trader granted permission by the Isle of Wight Council to trade
from a specified position.
Mobile Trader:- 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.
Authorises Officer An
officer employed by the Isle of Wight Council and authorised by the Council to
act in accordance with the provisions of the Local Government (Miscellaneous
Provisions) Act 1982.
6.
Procedure for determining Street Trading Consent applications.
The application and
approval procedure comprises of the stages as set out at Appendix 1. The descriptions on the side of the boxes
refer to the explanatory notes in the subsequent sections of this guide.
7. Submission of the application
An application for a Street
Trading Consent must be made to the Isle of Wight Council in writing. The application form and a Notice of
Application are included in this policy document at Appendix 2.
The following will be
required to be submitted with the application
(a)
A completed and signed Street Trading Consent application form and a
Notice of Application for a Street Trading Consent.
(b)
A deposit of 25% of the full fee.
Fees for periods of less than 15 days will require submission of the
full fee with the application.
(c)
Where the proposed street activity is from a fixed position, 5 copies of
a map of at least 1:1250 scale. The map
should clearly identify the proposed site position by marking the site boundary
with a red line.
(d)
Three colour photographs of the stall, van, barrow, cart etc that will
be used for the street trading activity.
(e)
An original copy of the certificate of insurance that covers the street
trading activity for third party and public liability risks.
Applications should be made
in person to the Council at its offices between the hours of 8:30 am and 4.00
pm.
An applicant for the
initial grant of a Street Trading Consent should give a minimum of 60 days
notice of the application.
8. Consultations on applications made
Before a Street Trading
Consent is granted or renewed the Council will carry out a consultation process
with various persons and groups. In
particular the following organisations or persons are consulted.
·
Highways
·
Property Services
·
Hampshire Constabulary
·
Isle of Wight Fire & Rescue Service
·
Local Councillor
·
The appropriate Parish or Town Council
·
The local Chamber of Trade or Commerce where relevant
For new applications, in
addition to the above, further consultations will be carried out with property
owners within 100 metres of the proposed site.
This consultation will be by the Council sending copies of the Notice of
Application to the relevant property owners.
Written observations from
the above organisations and occupiers of properties will be sought and taken
into consideration when determining an application.
9.
Site Assessment
Street Trading Consents
from static locations will not normally be granted where:
- A significant effect on road safety would arise either from the
siting of the trading activity itself, or from customers visiting or
leaving the site, or
- Where there are concerns over the recorded level of personal
injury accidents in the locality where the street trading activity will
be sited, or
- There would be a significant loss of amenity caused by traffic,
noise, odour or fumes, or
- There is already adequate like provision in the immediate vicinity
of the site to be used for street trading purposes, or
- There is a conflict with Traffic Orders such as waiting
restrictions, or
- The site or pitch obstructs either pedestrian or vehicular access,
or traffic flows, or places pedestrians in danger when in use for street
trading purposes, or
- The trading unit obstructs the safe passage of users of the
footway or carriageway, or
- The pitch interferes with sight lines for any road users such as
at road junctions, or pedestrian crossing facilities, or
- The site does not allow the Consent Holder, staff and customers to
park in a safe manner, or
- The street trading activity is carried out after dusk and the site
is not adequately lit to allow safe access and egress from the site for
both customers and staff.
10.
Inspection of the Street Trading Unit
The vehicle, van, trailer,
stall or other device to be used for the proposed street trading activity will
be inspected by an Authorised Officer of the Council, prior to the issue of any
Street Trading Consent, where this is reasonably practicable. The unit to be used for the street trading
activity shall comply in all respects with the legal requirements relating to
the type of street trading activity proposed.
In particular the unit to be used shall comply with the following
legislation:
·
Food Premises (Registration) Regulations 1991.
·
Food Safety Act 1990.
·
Food Safety (General Food Hygiene) Regulations 1995 (as amended).
·
The Food Safety (Temperature Control) Regulations 1995.
·
Health and Safety at Work etc Act 1974 and any Regulations made under
this Act.
·
Environmental Protection Act 1990.
Further advice on any of
the above requirements can be obtained by telephoning: 01983 823162.
11. Objections to the Application
If objections are received
against the granting of a Street Trading Consent from:
- Occupiers of property within 100 metres of the proposed site, or
- Isle of Wight Council Ward members, or
- Parish or Town Councils, or
- Police and/or Fire Authorities
the application will
normally be referred to the Council’s Licensing Panel for determination.
Before such a referral is
made officers will assess the objections according to the following criteria:
1.
Potential, or actual, nuisance to a property occupier from noise, fumes
or smells.
2.
Concern for public order problems resulting from the proposed street
trading activity.
3.
Any other valid reason raised that would affect the occupier of a
property as a result of the application made.
Where appropriate, the
application will be referred to the next available meeting of the Licensing
Panel for consideration and determination of the application. The applicant will be informed in writing
and notified of the date when the application will be considered.
Persons making written
objections will also be informed of a decision to refer an application to the
Licensing Panel and notified of the date of the hearing.
The appropriate Isle of
Wight Council Ward Members for the proposed street trading site will be
informed of a referral of an application to the Licensing Panel.
12. Determination
of the Application
The Licensing Panel and
delegated officers will use the criteria listed below in determining any Street
Trading Consents. All criteria should
normally be satisfied, and equal weight will be applied to the criteria
listed. Each case will be assessed on
its merits and individual circumstances, where appropriate, may be taken into
consideration.
a) Public Safety: The location of the proposed street trading
activity should not present a substantial risk to the public in terms of road
safety, obstruction and fire hazard.
The term “public” refers to both customers requesting the street trading
activity, and other members of the public using the street. In particular reference will be made to the
guidelines set out in section 5 on site assessment criteria.
b) Public Order: The street trading
activity should not present a risk to good public order in the locality in
which it is situated. Observations from
the Hampshire Constabulary will be taken into consideration.
c) Avoidance of Nuisance: The street trading activity should not
present a substantial risk of nuisance from noise, smells or fumes to
households and businesses in the vicinity of the proposed street trading
site. Observations from Council
Officers shall be taken into consideration.
d) Needs of the Area: The sufficiency of other trading outlets
will be taken into consideration in relation to:
1.
The presence of like outlets already existing in the immediate locality
of the proposed street trading site.
2.
The general needs of a locality, should no comparable outlets exist
Applicants will have to
demonstrate to the Council the need for the proposed street trading activity in
relation to either points 1 or 2 above, whichever applies.
e) Compliance with legal
requirements: The proposed street
trading activity should be carried out from a trading unit that complies with
the relevant legislation. Observations
from Council Officers on the compliance with the requirements of Food Safety
and Hygiene, Health and Safety and Environmental Protections legislation shall
be taken into consideration.
f)
Consultees Observations: In relation to points a) – d) above,
consideration will also be given to written observations from consultees. Any objections made to the proposed street
trading activity will be considered in terms of relevancy and appropriateness
to the application that has been made.
g)
Permitted Trading Hours: The
Council generally will only permit street trading between 6.00 am and Midnight
on any one day. Any trading outside
these hours will have to be approved by the Council. Street Trading outside the guideline hours will be assessed in
terms of the criteria detailed above.
The Council however retains
the right to specify permitted hours of trading that are less than those
specified above if local circumstances dictate
h)
Officer decisions on applications made:
If an Officer of the Licensing Section acting on a delegated basis is
unable to grant a Street Trading Consent the applicant will be offered a
meeting with the Licensing Officer to discuss the reasons for a potential
refusal of the application. At the
meeting the applicant will be informed of the criteria from these Guidelines
that have not been met. The applicant
will be given an opportunity to discuss any relevant matters in relation to the
application that has been made. If
after the meeting officers are still unable to proceed with the granting of a
Consent, and the applicant wishes to continue with the application, the
application will be referred to the Licensing Panel for determination.
The outcome of the meeting
with the applicant will be confirmed in writing within 5 working days of the
meeting taking place. If an applicant
refuses an offer of attending a meeting with officers, or fails to attend, a
letter will be sent to the applicant confirming the reasons for being unable to
proceed with the application.
13. Approval of Applications
The Council’s Licensing
Panel, or delegated officers (where appropriate) may approve applications
meeting the criteria contained within these guidelines.
On approving the
application the Council will issue a Street Trading Consent to which conditions
will be attached. The Consent will also
contain specific terms such as days and hours when street trading is permitted,
the goods that may be sold. A copy of
the Council’s standard conditions, which are attached to Street Trading
consents, are shown at Appendix 3. Additional conditions may be attached if
special circumstances apply to the Consent being granted by the Council.
The conditions attached to
the Consent form part of the approval to carry out street trading in the Isle
of Wight. They MUST be complied with at
all times and failure to do so could lead to the Consent being either revoked,
or not renewed.
Consent Holders are
therefore requested to familiarise themselves with the terms and conditions
attached to the Street Trading Consent and comply with the requirements.
14.
Issue of Street Trading Consents
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. Shorter term Consents may be
issued on a daily, weekly or monthly basis.
These particular Consents will expire, unless renewed, on the date
specified in the Consent.
In all cases when a Consent
has expired, and an application has not been submitted to the Council for
renewal, a new application will have to be made. In such cases the application will be required to go through the
full consideration process outlined in these guidelines.
If a cheque is dishonoured
by a bank this will result in the revocation of the Street Trading Consent
issued by the Council unless payment of the outstanding fees is made in cash
within 5 working days. In such cases an
administration charge will also be imposed on the Consent Holder.
Street Trading Consents
will be issued only at the Council Offices.
The applicant must attend in person to collect any documentation.
15.
Consideration of applications by the Licensing Panel
The Council’s Licensing
Panel has been established to consider applications and hear objections and
appeals in relation to licensing matters.
The Panel consists of elected members of the Isle of Wight Council who
have received specific training in licensing issues. The Panel is supported by a Committee Administrator and a
solicitor and meets on a regular basis.
Licensing Panel meetings are usually held in public unless there are
matters to be considered that are of a confidential nature.
The role of the Licensing
Panel is to:
1.
Determine applications to which objections, as defined in section 11
above, have been made, or
2.
Determine un-opposed referred applications that do not meet the criteria
contained within this Policy, or
3.
Hear appeals from applicants against the imposition of a condition on a
Consent by an officer on a delegated basis.
On receipt of a written
objection, or an unresolved application that does not meet the criteria in
these Guidelines, or an appeal against an officer’s decision, arrangements will
be made to have the appeal or application heard at the next available meeting
of the Licensing Panel.
Once arrangements have been
made for the application to be heard by the Licensing Panel, persons making the
objection, appeal or reference to the Panel will be advised in writing of the
date, time and place where the application will be heard.
The persons making an
application or an appeal to the Licensing Panel are expected to attend the
hearing. The applicant can be
represented by a solicitor, or supported by a friend or colleague. The Licensing Panel will follow a set
procedure that will be notified to the applicant in advance of the meeting, along
with any officer reports that will be presented at the meeting.
The decision of the
Licensing Panel will be confirmed in writing to the applicant within 5 working
days of the meeting at which the application was considered.
The Licensing Panel will always
adhere to the rules of natural justice when it is considering an application to
ensure that all persons get a fair hearing.
16. Refusal of Applications
Where the Council refuses
an application the applicant will be informed in writing. The decision of the Licensing Panel is
final.
The Local Government
(Miscellaneous Provisions) Act 1982 does not allow any legal appeals against
the decision of the Council in relation to the refusal of Street Trading
Consents. A person aggrieved against a
decision of the Licensing Panel may seek a Judicial Review of the decision of
the Licensing Panel, should it be felt necessary.
17. General Information on Street Trading
Consents
i)
Reimbursement of Fees: Fees will be reimbursed to Consent Holders where they cease to
trade and surrender their Consent to the Council. Any reimbursement will be strictly from the date the Consent is
surrendered to the Isle of Wight Council.
Refund of any fee paid in connection with the
granting of a Street Trading Consent will be based on the following formula:
Number of complete days
remaining divided by the fee paid less
the current administration fee.
ii)
Persons under the age of 17 years: The Council will not grant a Street Trading Consent to persons
under the age of 17 years.
iii)
Access by Council and Police Officers: Consent Holders should allow access to
Authorised Officers of the Council and Police Officers at all reasonable
times. Council Officers will carry with
them and produce on request official identity cards issued by the Isle of Wight
Council.
iv)
Street Trading Consents: The conditions attached to all Street
Trading Consents stipulate that a Consent Holder shall not assign, sub-let or
part with his
interest or possession of a Street Trading Consent.
The Consent granted is specific to the person to whom it is
issued and is non-transferable.
18.
Enforcement of Street Trading
The Isle of Wight Council
will actively enforce the provisions of the Street Trading legislation within
its area in a fair and consistent manner.
All enforcement activities will comply with the Departmental Enforcement
Policy, copies of which are available free of charge from the Licensing Office.
19. Complaints against the Service
The Licensing Section has an agreed procedure for dealing with
complaints. Any complaints should in
the first instance be sent to the Licensing Officer, 58 St Johns Road, Newport,
Isle of Wight, telephone 01983 823152.
If the matter cannot be
resolved advice will be given on how to further your complaint under the
Council’s Complaints Scheme.
FINANCIAL
IMPLICATIONS
20. Broadly,
Council expenditure on Licensing matters, and in particular those that are
administered and enforced through Consumer Protection, balances income received
from licence fees.
LEGAL IMPLICATIONS
21. Each application should
be considered individually so as to comply with the rules of Natural Justice.
IMPLICATIONS
UNDER THE CRIME AND DISORDER
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
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.
OPTIONS
24.
Take no
action.
25. To
approve and implement the Policy immediately.
EVALUATIONS/RISK
MANAGEMENT
26. Officers have considered the implications
and rules under the Local Government (Miscellaneous Provisions) Act 1982, Crime
and Disorder and Human Rights have been evaluated.
27. This Policy will ensure that applicants,
Island residents and all other interested parties are fully aware that the
Council is concerned about public safety.
Any resolution the panel makes is within it delegated powers.
|
RECOMMENDATIONS
28. That the option set out at paragraph 25
is approved.
|
APPENDICIES
ATTACHED
29. Appendix
1 – Application and approval procedure
Appendix 2 – Application form
Appendix 3 – Council’s standard
conditions.
BACKGROUND PAPERS
As attached.
Contact Point: John Murphy, 823152
ROB OWEN
Head of Consumer Protection
