Licensing

Option: Restrict fast food vans using local street trading powers 

• The law

• Case study

The Law

Mobile traders are not governed by the planning regime. The Local Government (Miscellaneous Provisions) Act
1982^[1] gives local authorities the option to regulate street trading in their area by designating streets as prohibited, consent or licence streets^[2]. The two possibilities for restriction of unhealthy street trade and promotion of healthy alternatives are outlined below: 

1. Preventing street trading on ‘prohibited streets’. - A local authority may pass a resolution prohibiting all trade on defined streets in its area. This may only be challenged by judicial review.
   

2. Restricting street trading on ‘license streets’ & ‘consent streets’ 

By designating streets as license or consent streets, a local authority can control the number and type of street traders in the area. This gives considerable scope to prevent unhealthy street trade and to promote healthier street trade, either by refusing consent to trade to fast food vans or, by favouring traders who offer healthy options, fruit and vegetables and healthier food.

Taking a positive approach would reasonably require the authority to set out a policy that it will place an emphasis on the health impact of the proposed trade and that it will favour traders in healthier foods. Authorities in England and Wales could follow the New York ‘Green Cart’ example and make licenses or consents available to traders in fresh produce where access to fruit and vegetables is currently reduced. This could include a greatly reduced fee or even a free license/consent for traders in healthy ‘articles’^[3] .

Currently, there does not appear to be a UK local authority that has such a policy but a number do control fast-food vans (for various reasons including safety and amenity) and recommend ‘healthy options’ to traders. See case studies below

Detail

The difference between a licence and consent relates to the level of formal procedure involved and legal protection offered to the trader. Generally a licence is more suitable for a fixed, market-type trading environment. It provides greater protection to the trader and consequently less freedom to a local authority. Consents provide a more flexible means of controlling street trade and are not limited by statute in their refusal or revocation.

Differences between licence and consent for street trade:

Designating streets as consent streets provides a more flexible way of controlling fast-food vans and other unhealthy foods traders than opening streets to licensed trade; A licence street may be re-designated a consent or prohibited street through a new resolution.

a) A local authority can still restrict street trade in unhealthy food on licence streets:

Refusal of a licence to sell unhealthy food on the street

A licence may not be refused simply because the proposed trade is unhealthy but may be refused where there are already “enough” fast-food outlets in an area; A licence may be refused only on seven statutory grounds, including^[4]:

• that there is not enough space in the street for the applicant to engage in the trading in which he desires to engage without causing undue interference or inconvenience to persons using the street;

• that there are already enough traders trading in the street from shops or otherwise in the goods in which the applicant desires to trade;

It is within the local authority’s discretion to determine what constitutes ‘enough’ in the circumstances, subject to a limited level of judicial scrutiny on procedural fairness and rationality.

Restricting location, hours of trade and articles of trade

Where a licence cannot reasonably be refused, the principle terms of the licence may restrict the location and hours of trade^[5] and the articles in which he is permitted to trade^[6] . The terms of a licence might

• restrict fast food vans from trading near schools and other sensitive areas

• restrict fast food vans from trading during the period that students are travelling to and from school, or during lunch-break

• restrict street vendors from selling certain unhealthy foods

There is no statutory right of appeal (were a license has not been previously granted to that applicant). An applicant may challenge the procedural fairness and rationality of a decision through judicial review.

b) Restricting unhealthy food on consent streets

Refusal of consent to trade on the street.

A council may grant or refuse a consent as they think fit^[7] _. This should be a reasonable decision subject to judicial review.

Conditions on time, location and articles of trade

The council may attach such conditions as they consider ‘reasonably necessary’^[10]. These could include conditions on hours of trade, location and types of food permitted for sale.

Leicester City Council have chosen to restrict street trading using consent powers, in particular to restrict trade around schools (see below)

Refusal of consent or conditions to consent may only be challenged through judicial review.  A decision will only be overturned if it is so unreasonable that no licensing authority could reasonably make that decision.  This gives a great deal of discretion to the decision-maker within the bounds of procedural fairness and rationality.

Enforcement of street trading restrictions

Without adequate enforcement, restrictions on unhealthy street trade will be ineffective.   

Currently the only option available in England and Wales for addressing street trading offences is prosecution through the courts with liability to pay a fine of up to £1000. However, a report has found that costs to local authorities typically outweighed those of defendants’ by more than 10:1, with average costs up to £7000 in taking a street trading case to court^[8]. Some local authorities therefore feel that prosecution was a disproportionate and ineffective deterrent for street trading offences.

The Department of Business Innovation and Skills has recently consulted on options to improve enforcement mechanisms for street trading offences^[9]. They suggest the use of Fixed Penalty Notices as quicker and less costly sanction, coupled with a power to seize goods with forfeiture by order of the courts but they are yet to publish their consultation response.