Purpose: For Decision




Date:               10 AUGUST 2004









1.         To consider an application for the grant of a Street Trading Consent for an application which does not meet the criteria contained within the Council’s Policy.




2.         An application has been received for the grant of a three-month Street Trading Consent for a mobile trader



trading as: THE JOLLY FRYER


a copy of which is attached (Appendix 1), together with a covering letter (Appendix 2).


3.         The applicant wishes to offer for sale Fish and Chips and related goods, and the premises are registered with the Council’s Food Section under the Food Premises (Registration) Regulations 1991.




4.                  Mr Phillips wishes to trade in the following places on the days and times listed:





Car Park rear of Youth Club, Niton


1130 - 1415

Spanners Close, Chale Green


1615 - 1845

Nettlestone Road, Nettlestone


1145 - 1345

School Crescent, Godshill


1630 - 1915

Car Park rear of Youth Club, Niton


1630 - 1915

Car Park, St Helens Green


1145 - 1400

Nettlestone Road, Nettlestone


1645 -1900


There are no similar facilities in any of the above villages.




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.




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.




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.




13.       The application has been advertised in the Isle of Wight County Press, and no letters of objection have been received.




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.




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.




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.




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.




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.




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.





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.





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.




35.       As attached.




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