Purpose: For Decision
Committee: LICENSING
COMMITTEE
Date: 5 APRIL 2005
Title: APPLICATION
FOR THE RENEWAL OF A STREET TRADING CONSENT
REPORT OF THE HEAD OF
CONSUMER PROTECTION
1. To consider an application for the
renewal of a Street Trading Consent
DETAILS OF THE APPLICATION/ORDER
2. An application has been
received for the renewal of a Street Trading Consent
from: Michael Tracey
4 Madeira Row
Binstead
Isle of Wight
trading as: Out to Lunch
for: 1 March 2005 – 28 February 2006
for the days and times: All days setting up from 2030 hours,
to commence trading 2100 hours – 0330 hours, to be cleared by 0345 hours
a copy of which is attached
(Appendix 1)
3. The applicant wishes to
offer for sale hot food and drinks and is registered with the Council’s Food
Section under the Food Premises (Registration) Regulations 1991.
4. The site requested is: South Street, Newport, just after the entrance to
Southern Vectis’s Bus Station on the same side of the road as the taxi
rank. The vehicle must be close to the
entrance of the Bus Station so as not to inhibit the free movement of the
taxis. (See Appendix 2 STC N1)
5. A Street Trading Consent for South
Street has been in existence since August 1997.
6. The Council’s Licensing Committee 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.
7. Copies of the objections and comments
have been sent to the applicant who has been invited to attend the meeting to
answer any questions Members may have.
FORMAL CONSULTATION
8. The
Hampshire Constabulary have been consulted on this application and have
objected to the renewal of the Consent due to major works to facilitate the new
bus station commencing in South Street.
A copy of their comments is attached (Appendix 3).
9. The Council’s Highways
and Transportation Department have been consulted on this application and have
also objected to the renewal of the Consent due to the impending development of
the bus station. A copy of their
comments is attached (Appendix
4).
10. The Local Business
Association, the Local Councillor, Revenues, Wight Leisure, Fire and Rescue and
Council’s Food Section have all been consulted on this application, however, no
comments were received by the closing date.
11 The application has been
advertised in the Isle of Wight County Press, and no letters of objection have
been received.
12 Broadly, Council
expenditure on Licensing matters, and in particular those which are
administered and enforced through Consumer Protection, balances income received
from licence fees.
13 A deposit of £500.00 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
14 Each application should be considered individually so as to comply with the rules of Natural Justice.
15 Street Trading Consents are issued under the Local Government (Miscellaneous Provisions) Act 1982, Schedule 4. The relevant sections are listed below:
16. “Consent street” means a street in which street trading is prohibited without the consent of the district council.
17. There is no right of appeal against the
refusal to grant or renew a consent or against the revocation or variation of a
consent.
18. 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.”
19. 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.
20. 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.
21. 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 Committee 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.
22. It
has to be appreciated that there is a difference between licenses 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 license is normally
deemed to be a possession.
OPTIONS
23. To renew the Consent.
24. To vary the hours.
25. To vary the location.
26. To renew the Consent for
a period up to commencement of construction works at Newport Bus Station and
advise the applicant that an application for another position, in consultation
with officers, should be submitted for consideration.
27. To refuse the
application.
28. 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:
(i) The comments from the Police and Highways & Transportation section of the Council.
29. Officers have therefore made a recommendation which is felt to be reasonable, proportionate and in accordance with the legitimate aim of the Council.
|
RECOMMENDATIONS 30. It is recommended that the Consent be
granted for a period up to commencement of construction works at Newport Bus
Station and advise the applicant that an application for another position, in
consultation with officers, should be submitted for consideration. |
31. Appendix
1 Application
Appendix
2 Plan of location
Appendix 3 Police comments
Appendix 4 Highways and Transportation comments
BACKGROUND PAPERS
32. As
attached.
ADDITIONAL INFORMATION
33. When determining the
application Members may wish to take into account the following:
(a) noise to local residents,
particularly late at night
(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.
34. 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