Pease, Chitty and Cousins: Law of Markets and Fairs 9781526511287, 9781526511317, 9781526511300

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PEASE, CHITTY AND COUSINS

Law of Markets and Fairs

PEASE, CHITTY AND COUSINS

Law of Markets and Fairs Edward F Cousins BA BL LLM Former Adjudicator to HM Land Registry and principal Judge of First-tier Tribunal (Property Chamber) (Land Registration Division) Chief Commons Commissioner Deputy Chancery Master Bencher of Lincoln’s Inn Associate Member of Radcliffe Chambers Of Gray’s Inn and King’s Inns, Dublin, Barrister Graham Wilson OBE

Seventh Edition

BLOOMSBURY PROFESSIONAL Bloomsbury Publishing Plc 50 Bedford Square, London, WC1B 3BP UK BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc Copyright © Edward Cousins 2020 First published 1899 by Charles Knight & Co entitled a Treatise on the Law of Markets and Fairs Second edition 1958 entitled Pease and Chitty’s Law of Markets and Fairs Third edition 1984 Fourth edition 1993 published by Butterworths Fifth edition 1998 Formerly published by LexisNexis Butterworths and reprinted by Tottel Publishing Ltd 2006 Sixth edition published by Bloomsbury Professional Publishing Ltd 2012 Seventh edition published by Bloomsbury Professional Publishing Ltd 2020 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-governmentlicence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2020. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN:

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Preface to the Seventh Edition In their Preface to the First Edition of this work Mr J G Pease and Mr Herbert Chitty stated that their aim had been ‘to state in a book of moderate size the whole of the English law of markets and fairs.’ The authors then went on to state that they hoped that this work would prove to be both a concise treatise on a branch of the law about which but little had been written at that time, and a practical handbook for ‘clerks of urban authorities and other persons concerned in the management of markets.’ It is a continuing tribute to Messrs Pease and Chitty that owing to their perspicacity, erudition and insight one hundred and twenty years ago, this work still remains of considerable relevance and value today. It is relied upon by many. They include all those in local authorities who deal with markets; lawyers, both in private practice and in commercial enterprises; and members of the public; all of whom share a common interest in markets, and who have the occasional need to delve into this somewhat esoteric area of law. Of particular current relevance in the months leading up to the publication of this latest Edition is the impact of the previously unforeseen factor of Covid-19. As a subsequence of this pandemic, the world has had to confront the enormous challenge of dealing with its devasting effect. This appalling virus has caused us to question so many different aspects of the way we live and go about our daily routines. Markets have not been immune to this terrible affliction. A survey recently conducted by the National Association of British Market Authorities (NABMA) has identified that around 400 Markets in the UK are at risk of closure arising from the impact of its tentacles. To assist in combatting the effects of the virus on the operation of markets in this country, and the grave threat posed to their continued existence, the Government has introduced some measures designed to assist in enabling them to continue to flourish for the benefit of the public. These measures include various compensation packages, and temporary changes to legislation making it easier to close streets and to hold market events. On 25  June 2020 the Government announced that the number of occasions in each year that markets, car boot sales and summer fairs can be held under Permitted Development without requiring planning approval is also being increased ‘for the current calendar year only’ from 14 days to 28 days. The somewhat controversial and incomprehensible statement was also made in this announcement that the Government is ‘..removing the requirement for councils to get planning permission to set up new markets, supporting a revival of markets and helping to transform the way people shop and socialise’. As a matter of principle, generally planning permission is not required for the establishment of new markets under Charter rights if there is power so to do, or under the provisions of s 50 of the Food Act 1984, or their regulation, by councils. It is also uncertain whether this is intended to be a temporary measure ‘for the current calendar year only’. Furthermore, although somewhat peripheral to the law of Markets and Fairs, in a separate announcement also made on 25 June 2020, the Government announced a set of measures as part of the Business and Planning Bill 2020, inter alia, to facilitate the consumption of food and drink outside by authorising the placing of tables, chairs and other items on streets by the grant of licences, together with changes to the planning system by authorising temporary extensions. The former is particularly intended to help the food, drink and hospitality industry. On 25 July 2020 this Bill gained Royal Assent, and these aspects are enshrined as ‘Part 1: Consumption of food and drink outside’, and ‘Part 3: Planning’. v

Preface to the Seventh Edition However, we wait to see whether the impact of these, and other measures, will be entirely beneficial for the markets industry. Finally, I  particularly wish to pay tribute to Graham Wilson in this endeavour. Without his continued support in its production this Seventh Edition might well have not seen the light of day. Edward F Cousins Hampstead London NW3 October 2020

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Preface to the Sixth Edition A new edition of this work is long overdue, the last edition having been published over 14 years ago. Since then there have been a number of developments in the field of market law which have provided the incentive for this Sixth Edition. Of particular importance to note is the judgment in the leading case of Leeds City Council v Watkins and Whiteley [2003] UKCLR 469 which was the first occasion for the courts in the United Kingdom to consider substantively the applicability of Articles 30, 81 and 82 of the Treaty of Rome to market law. Until this judgment there had been no decision as to whether or not a court could be persuaded to uphold the contentions that these provisions of the Treaty of Rome apply to private market rights. There have also been other developments in England and Wales such as the European Services Directive 2006 and its implementation by the Provision of Services Regulations 2009 which came into effect on 28 December 2009. Also of considerable importance is the fact that there have been a number of judgments in the Irish courts relating to market rights and the interpretation of the Casual Trading Act 1995 which required detailed consideration, as did the Report of the Irish Competition Authority on casual trading in Ireland. Having regard to these developments I therefore considered that a separate chapter on the Irish Dimension should be included in this work on market law. Market law therefore still continues to be of considerable relevance to buyers and sellers of commodities in markets not only throughout the United Kingdom, but also in Ireland. This work, therefore, has been produced with the intention of providing assistance to those who have to grapple with the various legal problems which occur in relation to market law. Finally, I  wish to thank Graham Wilson, the legal adviser to the National Association of British Market Authorities, who has provided useful assistance in relation to certain aspects of market law particularly insofar as they concern local authorities and Theo Honohan for invaluable research done in The National Archives of Ireland in Dublin insofar as Irish market rights are concerned. I have endeavoured to state the law as existing at 1 June 2012. Edward F Cousins Hampstead London NW3

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Preface to the First Edition Our aim has been to state in a book of moderate size the whole of the English law of markets and fairs. Most of the materials were collected by one of us more than ten years ago, but their arrangement for the press was postponed upon the appointment of the Royal Commission on Market Rights and Tolls. he first Report of the Commissioners was published in 1889. It contains materials for a history of markets and fairs, prepared by Mr Elton, QC, and Mr. B F C Costelloe, from which we have derived assistance. In the final Report, published in 1891, considerable alterations in the law were recommended; but Parliament has shown no inclination to carry them out. This book consists of an Introduction and two Parts, with an Appendix. Part I contains the common law of markets and fairs, and shows how it has been modified by statute. In Part II we have set out and commented on the enactments under which in recent times markets have usually been established. The common law seems to be applicable to markets established under statutory powers, except in so far as it is inconsistent with those powers. Part II, therefore, does not contain the whole law of statutory markets, but only such additions and modifications as are contained in the Markets and Fairs Clauses Act, 1847, and the general enactments conferring on local authorities power to establish or regulate markets. It is hoped that the crossreferences and explanations will be sufficient to enable the reader to discover to what classes of markets the various provisions of the law apply. The Appendix consists of the principal Acts whereby the common law has been modified other than those set out in Part II. We have endeavoured to refer to every reported case on the law of markets decided in the English Courts since the seventeenth century. Earlier cases, including those in the Year Books, have been utilised somewhat more sparingly, but all have been noticed which seem to be still useful to lawyers. The printed volumes of early records, such as the Placita de Quo Warranto and the Abbrevatio Placitorum, contain many cases upon markets and fairs, but most of these are only summaries of the pleadings and the findings of juries, and are of little importance as legal authorities, however valuable they may be to the antiquary or to the historian of particular franchises. From these records we have only cited typical cases to illustrate the law as understood in the thirteenth and fourteenth centuries. After the Introduction had been printed our attention was drawn to the passages in Professor Maitland’s ‘Domesday Book and Beyond’, in which the origin of marketrights is explained. We are glad to find that the views we have adopted do not differ widely from those of Professor Maitland, and we refer our readers to his learned discussion of the subject. We hope that this work will prove to be both a concise treatise on a branch of the law about which but little has been written in recent years, and a practical handbook for clerks of urban authorities and other persons concerned in the management of markets. We desire to acknowledge our indebtedness to Mr. Stuart Moore, of the Inner Temple, for advice and information readily given to us. JGP HC December, 1898. ix

Contents Table of UK and Irish Statutes Table of UK and Irish Statutory Instruments Table of Cases

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Chapter 1 Introduction Chapter 2 Creation and Acquisition of Markets and Fairs Chapter 3 The Market Place and the Place for Holding Fairs Chapter 4 The Days and Hours for Holding Markets and Fairs Chapter 5 Toll and Stallage Chapter 6 Disturbance Chapter 7 Sales in Markets and Fairs Chapter 8 Forfeiture and Extinction of Markets and Fairs Chapter 9 Regulation, Administration and Control Chapter 10 Accounts, Rates and Taxes Chapter 11 Practice, Procedure and Evidence Chapter 12 Public Law – Judicial Review Chapter 13 Market Toolkit Chapter 14 The Irish Dimension

1 15 33 53 59 77 101 103 113 149 159 193 203 209

Appendix 1 – UK and Irish Statutes Appendix 2 – Precedents Appendix 3 – Other Materials

243 521 563

Index 601

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Table of UK and Irish Statutes References in the right-hand column are to page number. References in bold type refer to where the Statute is set out in part or in full.

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page

Abergevenny Improvement Act 1854 . 199 Access to Neighbouring Land Act 1992 . . . . . . . . . . . . . . . . . . . . . . 576 Act containing divers orders for Artificers, Labourers, Servants of Husbandry and Apprentices 1562 . . . . . . . . . . . . . . . . . . . . . . 3 Administration of Estates Act 1925 s 1(1), (3) . . . . . . . . . . . . . . . . . . . . . 28 3(1) . . . . . . . . . . . . . . . . . . . . . . . . 28 46(1)(vi) . . . . . . . . . . . . . . . . . . . . 28 Administration of Justice (Miscel­ laneous Provisions) Act 1938 s 9(1) . . . . . . . . . . . . . . . . . . . . . 105, 161 Administration of Justice Act 1977 . . . 9 s 23 . . . . . . . . . . . . . . . . . . . . . . . . . 9 Sch 1 Pt I (paras 1–3) . . . . . . . . . . . . . . 9 Pt II (para 4) . . . . . . . . . . . . . . . . 9 Animal Health Act 1981 . . . . 22, 24, 27, 29, 34, 54, 58, 71, 115, 116, 126, 129, 131, 143, 149, 556 s 1 . . . . . . . . . . . . . . . . . . . . . . . 130, 301 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 301 7 . . . . . . . . . . . . . . . . . . . . 34, 130, 301 (1)(a) . . . . . . . . . . . . . . . . . . . . . . 130 8 . . . . . . . . . . . . . . . . . . . . . . . 130, 302 (1)(e) . . . . . . . . . . . . . . . . . . . . . . 130 25 . . . . . . . . . . . . . . . . . . . . . . 130, 302 (a) . . . . . . . . . . . . . . . . . . . . . . . 130 26 . . . . . . . . . . . . . . . . . . 130, 302, 303 37 . . . . . . . . . . . . . . . . . . . . . . 130, 303 (1) . . . . . . . . . . . . . . . . . . . . . . . 130 (1) . . . . . . . . . . . . . . . . . . . . . . . 27 50 . . . . . . . . . . . . . . . . . . . . . . 303, 304 51–53 . . . . . . . . . . . . . . . . . . . . . . 304 54 . . . . . . . . . . . . . . . . . . . . . . . . . 305 (1) . . . . . . . . . . . . . . . . . 28, 116, 149 (2) . . . . . . . . . . . . . . 54, 58, 126, 149 (3) . . . . . . . . . . . . . . . . . . . . . 28, 149 (b) . . . . . . . . . . . . . . . . . . . . . 116 (4) . . . . . . . . . . . . . . . . . . . . 116, 149 (5), (6) . . . . . . . . . . . . . . . . . . . . 149 55 . . . . . . . . . . . . . . . . . . . . . . 305, 306 58 . . . . . . . . . . . . . . . . . . . . . . . . . 306 59 . . . . . . . . . . . . . . . . . . . . . . 306, 307

Animal Health Act 1981 – contd s 72, 73, 75 . . . . . . . . . . . . . . . . . . . 132 77, 81 . . . . . . . . . . . . . . . . . . . . . . 307 86 . . . . . . . . . . . . . . . . . . 129, 307, 308 (1)(b) . . . . . . . . . . . . . . . . . . . . . 116 87 . . . . . . . . . . . . . . . . . . . . . . 308, 309 (1)–(3) . . . . . . . . . . . . . . . . . . . . 130 (4) . . . . . . . . . . . . . . . . . . . . . . . 130 88 . . . . . . . . . . . . . . . . . . . . . . . . . 130 89 . . . . . . . . . . . . . . . . . . . . . . . . . 309 91 . . . . . . . . . . . . . . . . . . . . . . . . . 310 (5) . . . . . . . . . . . . . . . . . . . . . . . 132 97 . . . . . . . . . . . . . . . . . . . . . . 310, 311 Animal Health and Welfare (Scotland) Act 2006 s 52 . . . . . . . . . . . . . . . . . . . . . . . . . 130 Sch 2 para 8(2) . . . . . . . . . . . . . . . . . . . 130 Animal Welfare Act 2006 s 65 . . . . . . . . . . . . . . . . . . . . . . . . . 130 Sch 4 . . . . . . . . . . . . . . . . . . . . . . . . 130 Animals Act 1971 . . . . . . . . . . . . . . . . 102 Apprentices Act 1814 . . . . . . . . . . . . . 3 Bournemouth Borough Council Act 2010 . . . . . . . . . . . . . . . . . . . . . . 145 Calendar (New Style) Act 1750 . . . . . 54, 55 s 3, 4 . . . . . . . . . . . . . . . . . . . . . . . . 55 Cambridge City Council Act 1985 . . . 22, 23 Casual Trading Act 1980 . . . . . 24, 218, 219, 220, 222, 225, 231, 234 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 230 2(2) . . . . . . . . . . . . . . . . . 219, 230, 234 (h) . . . . . . . . . . . . . . . . . . . 219, 230 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 219 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 231 (6) . . . . . . . . . . . . . . . . . . . . . . . . 231 5 . . . . . . . . . . . . . . . . . . . . . . . 219, 231 7(8) . . . . . . . . . . . . . . . . . . . . . . . . 225 9 . . . . . . . . . . . . . . . . . . . . . . . 219, 231 Casual Trading Act 1995 . . . . . . 1, 2, 24, 25, 40, 110, 113, 217, 219, 223, 224, 225, 226, 230, 232, 233, 234, 235, 237, 498, 499 s 1 . . . . . . . . . . . 1, 2, 218, 232, 499, 500 2 . . . . . . . . . . . . . . . 218, 500, 501, 502 3 . . . . . . . . . . . 219, 225, 502, 502, 503

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Casual Trading Act 1995 – contd s 4 . . . . . . . . . . . . . . . 503, 504, 505, 506, 507, 508, 509 (1) . . . . . . . . . . . . . . . . . . . . . . . . 233 5 . . . . . . . . . . . . . . . . . . . . . . . 220, 509 6 . . . . . . . . . . . . . . . 218, 220, 222, 232, 509, 510, 511, 512 (4) . . . . . . . . . . . . . . . . . . . . . . . . 225 (6) . . . . . . . . . . . . . . . . . . . . . . . . 233 6A . . . . . . . . . . . . . . . . . . 220, 222, 512 7 . . . . . . . . . . . . . 2, 105, 220, 232, 513 (1) . . . . . . . . . . . . . . . . . . . . . 104, 217 (4) . . . . . . . . . . . . . . . . . 104, 105, 217 8 . . . . . . . . . . . . . 2, 105, 219, 226, 232, 513, 514, 515 9 . . . . . . . . . . . . . . . . . . . . . . . 222, 515 10 . . . . . . . . . . . . . . . 222, 515, 516, 517 11 . . . . . . . . . . . . . . . . . . . . . . 222, 517 12 . . . . . . . . . . . . . . . . . . 222, 517, 518 13 . . . . . . . . . . . . . . . . . . . . . . 222, 518 14 . . . . . . . . . . . . . . . . . . 222, 518, 519 15 . . . . . . . . . . . . . . . . . . . . . . 222, 519 16 . . . . . . . . . . . . . . . . . . 222, 519, 520 17 . . . . . . . . . . . . . . . . . . . . . . 222, 520 18 . . . . . . . . . . . . . . . . . . . . . . . . . 520 Children and Young Persons Act 1933 544 City of London (Various Powers) Act 1965 s 21 . . . . . . . . . . . . . . . . . . . . . . . . . 124 City of London (Various Powers) Act 1987 s 6 . . . . . . . . . . . . . . . . . . . . . . . 124, 337 7 . . . . . . . . . . . . . . . . . . . 124, 337, 338 8 . . . . . . . . . . . . . . . . . . . 124, 338, 339 9 . . . . . . . . . . . . . . . . . . . . . . . 124, 339 10 . . . . . . . . . . . . . . . . . . 124, 339, 340 11 . . . . . . . . . . . . . . . . . . . . . . 124, 340 11A . . . . . . . . . . . . . . . . . 124, 340, 341 11B . . . . . . . . . . . . . . . . . . . . . 124, 341 12 . . . . . . . . . . . . . . . . . . 124, 341, 342 13–15 . . . . . . . . . . . . . . . . . . . 124, 342 16, 16A . . . . . . . . . . . . . . . . . . 124, 343 16B . . . . . . . . . . . . . . . . . 124, 343, 344 16C . . . . . . . . . . . . . . . . . . . . . 124, 344 16D . . . . . . . . . . . . . . . . . 124, 344, 345 16E . . . . . . . . . . . . . . . . . 124, 345, 346 16F . . . . . . . . . . . . . . . . . 124, 346, 347 16G . . . . . . . . . . . . . . . . . 124, 347, 348 16H, 16I, 17, 18 . . . . . . . . . . . 124, 348 19 . . . . . . . . . . . . . . . . . . 124, 348, 349 20–24 . . . . . . . . . . . . . . . . . . . 124, 349 25 . . . . . . . . . . . . . . . . . . 124, 349, 350 26 . . . . . . . . . . . . . . . . . . 124, 350, 351 City of London (Various Powers) Act 2013 . . . . . . . . . . . . . . . . . . . . . . 124 s 1, 2 . . . . . . . . . . . . . . . . . . . . . . . . 487 3 . . . . . . . . . . . . . . . . . . . 124, 487, 488

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City of London (Various Powers) Act 2013 – contd s 4–6 . . . . . . . . . . . . . . . . . . . . . 124, 488 7 . . . . . . . . . . . . . . . . . . . 489, 490, 491, 492, 493, 494 8 . . . . . . . . . . . . . . . . . . . . . . . 494, 495 9 . . . . . . . . . . . . . . . . . . . . . . . . . . 495 City of Newcastle upon Tyne Act 2000 . . . . . . . . . . . . . . . . . . . . . . 145 City of Westminster Act 1999 . . . . 124, 145 Civil Partnership Act 2004 . . . . . . . . . 575 Clean Neighbourhoods and Environ­ ment Act 2005 s 18 . . . . . . . . . . . . . . . . . . . . . . . . . 139 20 . . . . . . . . . . . . . . . . . . . . . . . . . 139 Clerk of the Market Act 1640 . . . . . . . 12 Coal Industry Act 1994 s 38, 49, 51 . . . . . . . . . . . . . . . . . . . 576 Commons Registration Act 1965 . . . . 573 Competition Act 1998 . . . . . . . . . . . . . 187 Pt 1Ch 1 (ss 1–16) . . . . . . . . . . . 186, 205 s 11 . . . . . . . . . . . . . . . . . . . . . . . . . 223 Pt 1 Ch 2 (ss 17–24) . . . . . . . . . 186, 205 Competition Act 2002 . . . . . . . . . . . . . 219 Consumer Protection Act 2007 . . . . . . 222 s 98 . . . . . . . . . . . . . . . . . . . . . . . . . 220 Continuance of Acts etc 1623 s 11 . . . . . . . . . . . . . . . . . . . . . . . . . 109 Control of Horses Act 2015 . . . . . . 34, 102 Control of Pollution Act 1974 s 62 . . . . . . . . . . . . . . . . . . . . . . . . 44, 526 Conveyancing Act 1881 s 6(3) . . . . . . . . . . . . . . . . . . . . . . . . 589 Copyhold Act 1894 s 23 . . . . . . . . . . . . . . . . . . . . . . . . . 585 Corporation Tax Act 2009 s 2, 3 . . . . . . . . . . . . . . . . . . . . . . . . 156 8(1), (3)–(5) . . . . . . . . . . . . . . . . . 156 35 . . . . . . . . . . . . . . . . . . . . . . . . . 156 39(4)(e) . . . . . . . . . . . . . . . . . . . . . 156 46–55 . . . . . . . . . . . . . . . . . . . . . . 156 Countryside and Rights of Way Act 2000 s 64(1) . . . . . . . . . . . . . . . . . . . . . . . 49 (2) . . . . . . . . . . . . . . . . . . . . . . . 49 103(2) . . . . . . . . . . . . . . . . . . . . . . 49 County Courts Act 1846 s 14 . . . . . . . . . . . . . . . . . . . . . . . . . 9 County Courts Act 1867 s 28 . . . . . . . . . . . . . . . . . . . . . . . . . 9 County Courts Act 1888 . . . . . . . . . . . 8 County Courts Act 1984 s 15(1) . . . . . . . . . . . . . . . . . . . . . . . 72 (2)(b) . . . . . . . . . . . . . . . . . . . . . 72 38 . . . . . . . . . . . . . . . . . . . . . . . . . 162 County of South Glamorgan Act 1976 . . . . . . . . . . . . . . . . . . . . . . 120

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Defective Premises Act 1972 . . . . . . . 550 Documentary Evidence Act 1882 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Dublin Improvement Act 1849 s 71 . . . . . . . . . . . . . . . . . . . . . . . . . 226 79 . . . . . . . . . . . . . . . . . . . . . . . 33, 226 80 . . . . . . . . . . . . . . . . . . . . 33, 226, 227 Education Act 1944 . . . . . . . . . . . . . . . 544 Education (Miscellaneous Provisions) Act 1948 . . . . . . . . . . . . . . . . . . . 544 Employment of Children Act 1973 . . . 544 Employment Rights Act 1996 . . . . . . . 551 s 36 . . . . . . . . . . . . . . . . . . . . . . 408, 409 37 . . . . . . . . . . . . . . . . . . . . . . . . . 409 38 . . . . . . . . . . . . . . . . . . . . . . 409, 410 39, 40 . . . . . . . . . . . . . . . . . . . . . . 410 41 . . . . . . . . . . . . . . . . . . . . . . 410, 411 41A . . . . . . . . . . . . . . . . . . . . . 411, 412 41B, 41C . . . . . . . . . . . . . . . . . . . . 412 41D . . . . . . . . . . . . . . . . . . . . . 412, 413 42 . . . . . . . . . . . . . . . . . . . . . . 413, 414 43 . . . . . . . . . . . . . . . . . . . . . . . . . 414 43ZA . . . . . . . . . . . . . . . . . . . . 414, 415 43ZB . . . . . . . . . . . . . . . . . . . . . . . 415 Environmental Protection Act 1990 s 79 . . . . . . . . . . . . . . . . . . . . . . . . . 139 80, 80A, 81, 82 . . . . . . . . . . . . . . . 51 87 . . . . . . . . . . . . . . . . . . . . . . . . . 139 92A . . . . . . . . . . . . . . . . . . . . . . . . 139 92C . . . . . . . . . . . . . . . . . . . . . . . . 139 162(2) . . . . . . . . . . . . . . . . . . . . . . 51 Sch 3 . . . . . . . . . . . . . . . . . . . . . . . . 51 Sch 16 Pt III . . . . . . . . . . . . . . . . . . . . . . 51 Equality Act 2010 . . . . . . . . . . . . . 199, 525 Equal Pay Act 1970 . . . . . . . . . . . . . . . 551 Evidence Act 1845 s 1, 3 . . . . . . . . . . . . . . . . . . . . . . . . 189 Evidence Act 1851 s 14 . . . . . . . . . . . . . . . . . . . . . . . . . 189 Fairs Act 1871 . . . . . . . . . . . . 111, 112, 143 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 268 2 . . . . . . . . . . . . . . . . . . . . . . . . 111, 268 3 . . . . . . . . . . . . . . . . . . . . . . . 111, 268 4 . . . . . . . . . . . . . . . . . . . . . . . 111, 268 Fairs Act 1873 . . . . . . . . . . . . . . . . . 56, 143 s 1, 2 . . . . . . . . . . . . . . . . . . . . . . . . 276 3 . . . . . . . . . . . . . . . . . . . . . . . . 57, 276 4, 5 . . . . . . . . . . . . . . . . . . . . . . . . 276 6 . . . . . . . . . . . . . . . . . . . . . . . . 56, 57, 276, 277 7 . . . . . . . . . . . . . . . . . . . . . . . . . . 277 Fairs and Market Act 1850 . . . . . . . . . 55 Family Law Act 1996 s 31(10) . . . . . . . . . . . . . . . . . . . . . . 575 Finance Act 1998 Sch 18 . . . . . . . . . . . . . . . . . . . . . . . 156

Courts Act 1971 s 43 . . . . . . . . . . . . . . . . . . . . . . . . . 8 56(4) . . . . . . . . . . . . . . . . . . . . . . . 160 Courts Act 2003 . . . . . . . . . . . . . . . . . 56 s 109(1) . . . . . . . . . . . . . . . . . . . . . . 56 Sch 8 para 53(a), (b) . . . . . . . . . . . . . . . 56 Courts and Legal Services Act 1990 . . . . . . . . . . . . . . . . . . . . . . 72 s 2(1) . . . . . . . . . . . . . . . . . . . . . . . . 72 Courts of Pyepowder Act 1477 . . . . . . 8 preamble . . . . . . . . . . . . . . . . . . . . . 7 Courts of Pyepowder Axt 1483 . . . . . . 7 Covent Garden Market Act 1961 s 18(1)(f) . . . . . . . . . . . . . . . . . . . . . 197 Crime and Courts Act 2013 Sch 9 para 10(1) . . . . . . . . . . . . . . . . . . 72 Criminal Justice Act 1982 s 35, 36 . . . . . . . . . . . . . . . . . . . . . . 173 37 . . . . . . . . . . . . . . . . . . . . . . . . . 173 (1) . . . . . . . . . . . . . . . . . . . . . . . 124 38 . . . . . . . . . . . . . . . . . . . . . . 128, 173 39 . . . . . . . . . . . . . . . . . . . . . . . . . 173 40–45 . . . . . . . . . . . . . . . . . . . . . . 173 46 . . . . . . . . . . . . . . . 58, 115, 128, 173 47, 48 . . . . . . . . . . . . . . . . . . . . . . 173 Criminal Justice Act 1991 s 17(1) . . . . . . . . . . . . . . . . . . . . . . . 115 101(1) . . . . . . . . . . . . . . . . . . . . . . 115 Sch 12 para 6 . . . . . . . . . . . . . . . . . . . . . . 115 Criminal Law Act 1967 . . . . . . . . . . . . 102 s 10(2) . . . . . . . . . . . . . . . . . . . . . . . 102 Sch 3 Pt I . . . . . . . . . . . . . . . . . . . . . . . . 102 Pt III . . . . . . . . . . . . . . . . . . . . . . 102 Criminal Law Act 1977 s 31(6) . . . . . . . . . . . . . . . . . . . . . . . 58 Sch 12 . . . . . . . . . . . . . . . . . . . . . . . 102 Crown Estate Act 1956 . . . . . . . . . . . . 107 Crown Estate Act 1961 . . . . . . . . . 107, 108 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 107 (2) . . . . . . . . . . . . . . . . . . . . . . . . 107 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Sch 3 Pt II . . . . . . . . . . . . . . . . . . . . . . . 107 Crown Lands Act 1829 . . . . . . . . . . . . 107 Crown Lands Act 1852 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Crown Lands Act 1885 . . . . . . . . . . . . 107 Crown Proceedings Act 1947 . . . . . . . 159 s 13 . . . . . . . . . . . . . . . . . . . . . . . . . 159 38(2) . . . . . . . . . . . . . . . . . . . . . . . 159 Sch 1 para 1(3) . . . . . . . . . . . . . . . . . . . 159

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Fire and Rescue Services Act 2004 Sch 1 para 56 . . . . . . . . . . . . . . . . . . . . . 116 Fisheries Act 1981 s 19(1), (3) . . . . . . . . . . . . . . . . . . . . 132 25(5) . . . . . . . . . . . . . . . . . . . . . . . 132 Food Act 1984 . . . . . . 15, 24, 27, 29, 54, 56, 58, 70, 71, 88, 90, 113, 115, 127, 129, 143, 168, 184, 556 Pt III (ss 19–30) . . . . . . . . . . . . . . . 127 s 40 . . . . . . . . . . . . . . . . . . . . . . . . . 72 50 . . . . . . . . . . . 22, 23, 24, 29, 40, 70, 92, 136, 166, 193, 196, 203, 325, 326, 327 (1) . . . . . . . . . . . . . . . . . . . . . . . 115 (a) . . . . . . . . . . . . . . . . . . . . . 23, 24 (b) . . . . . . . . . . . . . . . . . . . . . 23, 24 (i), (ii) . . . . . . . . . . . . . . . 24 (2) . . . . . . . . . . . . . . . . . 24, 71, 79, 92 (3) . . . . . . . . . . . . . . . . . . 24, 92, 168 51 . . . . . . . . . . . . . . . . . . . . . . . . . 327 (1), (2) . . . . . . . . . . . . . . . . . . . . 30 52 . . . . . . . . . . . . . . . . . . . . 54, 58, 328 53 . . . . . . . . . . . . . . . . . . . . . . 328, 329 (1) . . . . . . . . . . . . . . . . . . . . . . . 70 (2) . . . . . . . . . . . . . . . . . . . . . 71, 129 (3) . . . . . . . . . . . . . . . . . . . . . . . 71 54 . . . . . . . . . . . . . . . . . . . 71, 329, 330 (3) . . . . . . . . . . . . . . . . . . . 24, 63, 71 (4) . . . . . . . . . . . . . . . . . . . . . . . 71 55 . . . . . . . . . . . . . . . . . . . 71, 168, 330 56 . . . . . . . . 98, 99, 100, 121, 330, 331 (1), (2) . . . . . . . . . . . . . . . . . . . . 116 57 . . . . . . . . . . . . . . . . . . . . . . . . . 331 (2) . . . . . . . . . . . . . . . . . . . . . . . 129 57A . . . . . . . . . . . . . . . . . . . . . 331, 332 58, 59 . . . . . . . . . . . . . . . . . . . . . . 332 60 . . . . . . . . . . 29, 113, 116, 203, 332, 525, 528 61 . . . . . . . . . . . . 23, 24, 29, 30, 54, 70, 115, 332, 333 93 . . . . . . . . . . . . . . . . . . . . . . 333, 334 (1) . . . . . . . . . . . . . . . . . . . . . . . 116 (3)(g) . . . . . . . . . . . . . . . . . . . . . 116 94, 95 . . . . . . . . . . . . . . . . . . . . . . 334 110 . . . . . . . . . . . . . . . . . . 24, 334, 335 121, 131 . . . . . . . . . . . . . . . . . . . . 335 132 . . . . . . . . . . . . . . . . . . . . . . . . 335 (1) . . . . . . . . . . . . . . . . . . . . . . 129 134 . . . . . . . . . . . . . . . . . . . . . 121, 335 136 . . . . . . . . . . . . . . . . . . . . . . . . 336 Sch 10 para 34 . . . . . . . . . . . . . . . . . . . . . 121 Food and Drugs Act 1938 . . . . . . 23, 24, 193 Food and Drugs Act 1955: 23, 24, 168, 193 Pt III (ss 49–61) . . . . . . . . . . . . . . . 127

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Food and Drugs Act 1955 – contd s 49 . . . . . . . . . . . . . . . . . . . . . . . . . 40 (2) . . . . . . . . . . . . . . . . . . . . . . . 40 (3) . . . . . . . . . . . . . . . . . . . . . . . 168 52(1) . . . . . . . . . . . . . . . . . . . . . . . 70 Food Safety Act 1990 . . . . . . . . . . . 133, 168 s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . 133 10 . . . . . . . . . . . . . . . . . . . . . . . . . 134 11 . . . . . . . . . . . . . . . . . . . . . . . . . 133 35 . . . . . . . . . . . . . . . . . . . . . . . . . 134 Sch 2 para 2 . . . . . . . . . . . . . . . . . . . . . . 24, 98 3 . . . . . . . . . . . . . . . . . . . . . . 98 4, 5 . . . . . . . . . . . . . . . . . . . . 98 6 . . . . . . . . . . . . . . . . . . . . . . 98 7 . . . . . . . . . . . . . . . . . . . . . . 98 8 . . . . . . . . . . . . . . . . . . . . . . 98 9 . . . . . . . . . . . . . . . . . . . . . . 98 10 . . . . . . . . . . . . . . . . . . . . . 98 11 . . . . . . . . . . . . . . . . . . . . . 24, 98 Forestalling, Regrating, etc Act 1844: 96 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 35 2 . . . . . . . . . . . . . . . . . . . . . . . 105, 133 Government of Wales Act 1998 s 22 . . . . . . . . . . . . . . . . . . . . . . . . . 115 Government of Wales Act 2006 . . 115, 149 s 58 . . . . . . . . . . . . . . . . . . . . . . 115, 149 Greater London Authority Act 1999 s 323 . . . . . . . . . . . . . . . . . . . . . . 58, 112 Greater Manchester Act 1981 . . . . . . 22, 23, 40 Great Seal (Offices) Act 1874 s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Hawkers Act 1888 . . . . . . . . . . . . . . . . 233 Hay and Straw Act 1796 . . . . . . . . . . . 102 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Hay and Straw Act 1834 . . . . . . . . . . . 102 Hay and Straw Act 1856 . . . . . . . . . . . 102 Health and Safety at Work etc Act 1974 . . . . . . . . . . . . . . . . . . . . . . 551 Highways Act 1959 s 34(1) . . . . . . . . . . . . . . . . . . . . . . . 50 121(1) . . . . . . . . . . . . . . . . . . . . . . 48, 49 127 . . . . . . . . . . . . . . . . . . . . . . . . 50 Highways Act 1980 . . . . . . . . . . 45, 46, 105 s 31 . . . . . . . . . . . . . . . . 26, 45, 106, 136 (1) . . . . . . . . . . . . . . . . . . . . . . 50, 106 41 . . . . . . . . . . . . . . . . . . . . . . . . . 46 Pt VIIA (ss 115A–115K) . . . . . . . . 123 s 137 . . . . . . . . . . . . . . . . . . . . . . . 46, 298 (1) . . . . . . . . . . . . . . . . . 48, 49, 106 137ZA . . . . . . . . . . . . . . . . . . . . . 49, 298 (3) . . . . . . . . . . . . . . . . . . . 49 148 . . . . . . . . . . . . . . . . . . . 46, 50, 299 149 . . . . . . . . . . . . . . . . . . . 51, 299, 300 310, 328 . . . . . . . . . . . . . . . . . . . . 300 329 . . . . . . . . . . . . . . . . . . . . . . . . 120

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Holy Days and Fasting Days Act 1551 . . . . . . . . . . . . . . . . . . . . . . 54, 55 Housing Act 1966 . . . . . . . . . . . . . . . . 220 Human Rights Act 1998 . . . . . . . . . . . 162 s 6 . . . . . . . . . . . . . . . . . . . 193, 194, 416 (3)(b) . . . . . . . . . . . . . . . . . . . . . . 197 Income Tax Act 2007 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 155 838(1) . . . . . . . . . . . . . . . . . . . . . . 156 Income Tax (Trading and Other Income) Act 2005 . . . . . . . . . . . . 153 s 7(1) . . . . . . . . . . . . . . . . . . . . . . . . 155 (2) . . . . . . . . . . . . . . . . . . . . . . . . 155 8 . . . . . . . . . . . . . . . . . . . . . . . . . . 155 12(4)(e) . . . . . . . . . . . . . . . . . . . . . 155 25–35 . . . . . . . . . . . . . . . . . . . . . . 155 198–202 . . . . . . . . . . . . . . . . . . . . 156 Inheritance (Provision for Family and Dependants) Act 1975 s 24 . . . . . . . . . . . . . . . . . . . . . . . . . 28 Interpretation Act 1889 . . . . . . . . . . . . 80 Interpretation Act 1978 . . . . . . . . . . . . 80 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 189 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 115 8 . . . . . . . . . . . . . . . . . . . . . . . . . . 80 17(2)(b) . . . . . . . . . . . . . . . . . . . . . 130 22(1) . . . . . . . . . . . . . . . . . . . . . . 29, 189 Sch 1 . . . . . . . . . . . . . . . . . . . . . . . . 115 Sch 2 para 2 . . . . . . . . . . . . . . . . . . . . . . 189 5(b) . . . . . . . . . . . . . . . . . . . 29 Intestate Estates Act 1884 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Jurisdiction in Liberties Act 1535 s 10 . . . . . . . . . . . . . . . . . . . . . . . . . 12 Kilkenny Markets Act 1861 . . . 26, 98, 110, 234 s 28 . . . . . . . . . . . . . . . . . . . . 26, 110, 234 Land Charges Registration and Searches Act 1888 . . . . . . . . . . . . 589 Landlord and Tenant Act 1954 . . . 138, 139 Pt II (ss 23–46) . . . . . . . . . . . . . 138, 140 Landlord and Tenant (Covenants) Act 1995 . . . . . . . . . . . . . . . . . . . . . . 576 Land Registration Act 1925 . . . . 572, 575, 576 s 70(1)(g) . . . . . . . . . . . . . . . . . . . . . 575 (k) . . . . . . . . . . . . . . . . . . . . . 574 75 . . . . . . . . . . . . . . . . . . . . . . . . . 577 Land Registration Act 2002 . . 30, 572, 573, 574, 577, 588, 593 s 3(1)(c) . . . . . . . . . . . . . . . . . . . . . . 31 (3), (4) . . . . . . . . . . . . . . . . . . . . . 31 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 578 (1) . . . . . . . . . . . . . . . . . . . . . . . . 31 (d)–(f) . . . . . . . . . . . . . . . . . . . 574 (2) . . . . . . . . . . . . . . . . . . . . . . . . 31

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Land Registration Act 2002 – contd s 4(5A) . . . . . . . . . . . . . . . . . . . . . . 574 11(4) . . . . . . . . . . . . . . . . . . . . . . . 572 (c) . . . . . . . . . . . . . . . . . . . . . 577 12(4) . . . . . . . . . . . . . . . . . . . . . . . 572 (d) . . . . . . . . . . . . . . . . . . . . . 577 15(1)(b) . . . . . . . . . . . . . . . . . . . . . 593 16 . . . . . . . . . . . . . . . . . . . . . . . . . 593 18(3) . . . . . . . . . . . . . . . . . . . . . . . 593 27(1) . . . . . . . . . . . . . . . . . . . . . . . 583 (2)(a) . . . . . . . . . . . . . . . . . . . . . 583 (b) . . . . . . . . . . . . . . . . . . . . . 574 (c) . . . . . . . . . . . . . . . . . . . . . 583 29 . . . . . . . . . . . . . . . . . . 583, 594, 595 (2) . . . . . . . . . . . . . . . . . . . . . . . 572 (3) . . . . . . . . . . . . . . . . . . . . 584, 586 30(2) . . . . . . . . . . . . . . . . . . . . . . . 572 32 . . . . . . . . . . . . . . . . . . . . . . . . . 585 (1) . . . . . . . . . . . . . . . . . . . . . . . 579 33 . . . . . . . . . . . . . . . . . . . . . . . . . 573 36 . . . . . . . . . . . . . . . . . . . . . . . . . 592 37 . . . . . . . . . . . . . . . . . . . . . . . . . 573 73 . . . . . . . . . . . . . . . . . . . . . . . . . 582 (5) . . . . . . . . . . . . . . . . . . . . . . . 582 (6) . . . . . . . . . . . . . . . . . . . . . . . 592 (7) . . . . . . . . . . . . . . . . . . . . . . . 583 77 . . . . . . . . . . . . . . . . . . . . . . 586, 593 87(3) . . . . . . . . . . . . . . . . . . . . . . . 575 90 . . . . . . . . . . . . . . . . . . . . . . 573, 577 (4) . . . . . . . . . . . . . . . . . . . . . . . 573 (5) . . . . . . . . . . . . . . . . . . . . . . . 574 117 . . . . . . . . . . . . . 573, 579, 584, 590 (1), (2) . . . . . . . . . . . . . . . . . . . 31 132(1) . . . . . . . . . . . . . . . . . . . . . . 574 (3)(b) . . . . . . . . . . . . . . . . . . . . 579 Sch 1 . . . . . . . . . . . . . . . . . . . . . . . . 31 para 1 . . . . . . . . . . . . . . . . . . . . . . 574 2 . . . . . . . . . . . . . . . . . . . . . 575, 577 3 . . . . . . . . . . . . . . . . . . . . . . 576 10 . . . . . . . . . . . . . . . . . . . . . 582 Sch 2 para 4, 5 . . . . . . . . . . . . . . . . . . . . 583 Sch 3 . . . . . . . . . . . . . . . . . . . . . . . . 31 para 1 . . . . . . . . . . . . . . . . . . . . . . 574 2 . . . . . . . . . . . . . . . . . . . . . 574, 577 (a)–(d) . . . . . . . . . . . . . . . . 575 3 . . . . . . . . . . . . . . . . . . . . . . 576 10 . . . . . . . . . . . . . . . . . . . 31, 582 Sch 11 para 8(2)(a) . . . . . . . . . . . . . . . . . 575 18(10) . . . . . . . . . . . . . . . . . 576 26(4) . . . . . . . . . . . . . . . . . . 576 30(3) . . . . . . . . . . . . . . . . . . 576 Sch 12 para 7 . . . . . . . . . . . . . . . . . . . . . . 577 8 . . . . . . . . . . . . . . . . . . . 575, 577 9, 10 . . . . . . . . . . . . . . . . . . . 576

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Land Registration Act 2002 – contd Sch 12 – contd para 11 . . . . . . . . . . . . . . . . . . . . . 577 12 . . . . . . . . . . . . . . . . . . . . . 575 Land Registration Act 2003 . . . . . . . . 32 Law of Property Act 1922 s 128(1), (2) . . . . . . . . . . . . . . . . . . . 8 138(12) . . . . . . . . . . . . . . . . . . . . . 8 188(6) . . . . . . . . . . . . . . . . . . . . . . 9 Sch 12 . . . . . . . . . . . . . . . . . . . . . . . 585 para 5, 6 . . . . . . . . . . . . . . . . . . . . 589 Law of Property Act 1925 s 62(3) . . . . . . . . . . . . . . . . . . . . . . . 589 201 . . . . . . . . . . . . . . . . . . . . . . . . 283 (1) . . . . . . . . . . . . . . . . . . . . . . 9 205(1)(ix) . . . . . . . . . . . . . . . . . . . 29 Laws in Wales Act 1542 s 47 . . . . . . . . . . . . . . . . . . . . . . . . . 101 Leasehold Reform Act 1967 . . . . . . . . 575 Leasehold Reform, Housing and Urban Development Act 1993 . . . 576 Leicester City Council Act 2006 . . . . . 145 Licensing Act 2003 . . . . . . . . . . . . . . . 570 Limerick Markets Act 1852 . . . . . 232, 233 s 32 . . . . . . . . . . . . . . . . . . . . . . 232, 233 74 . . . . . . . . . . . . . . . . . . . . . . . . . 232 Limerick Markets Act 1992 . . . . . 232, 233 Limitation Act 1980 . . . . . . . . . 29, 83, 577 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 97 15 . . . . . . . . . . . . . . . . . . . . . . . . . 97 38(1) . . . . . . . . . . . . . . . . . . . . . . . 97 Limitation of Time Act 1844 . . . . . . . . 78 Liverpool City Council Act 2006 . . . . 145 Local Government Act 1894 s 21(3) . . . . . . . . . . . . . . . . . . . . . 56, 111 27(1)(e) . . . . . . . . . . . . . . . . . . . 56, 111 Local Government Act 1933 s 276 . . . . . . . . . . . . . . . . . . . . . . . . 174 Sch 11 Pt II . . . . . . . . . . . . . . . . . . . . . . . 76 Local Government Act 1972 . . . . 27, 29, 30, 40, 115 s 1(10) . . . . . . . . . . . . . . . . . . . . . 56, 111 (11) . . . . . . . . . . . . . . . . . . . . . . . 30 20(6) . . . . . . . . . . . . . . . . . . . . . . . 30 111 . . . . . . . . . . . . . . . . . . . . . . . . 288 (1) . . . . . . . . . . . . . . . . . . . . . . 29 123 . . . . . . . . . . . . . . . . . . 29, 288, 289 131(1)(a) . . . . . . . . . . . . . . . . . . . . 29 172 . . . . . . . . . . . . . . . . . . . . . . . . 27 179(3) . . . . . . . . . . . . . . . . . . . . 56, 111 180(1), (3) . . . . . . . . . . . . . . . . . . . 113 222 . . . . . . . . . 163, 175, 178, 179, 180 (1) . . . . . . . 163, 173, 174, 177, 178, 179, 180 235(1) . . . . . . . . . . . . . . . . . . . . . . 113 236 . . . . . . . . . . . . . . . . . . . . . 113, 116

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Local Government Act 1972 – contd s 236A, 236B . . . . . . . . . . . . . . . . . 113 237 . . . . . . . . . . . . . . . . . . . . . . . . 116 245(5) . . . . . . . . . . . . . . . . . . . . . . 30 253(1)–(4) . . . . . . . . . . . . . . . . . . . 30 262 . . . . . . . . . . . . . 289, 290, 291, 292 (9) . . . . . . . . . . . . . . . . . . . . . . 6 (12)(c)(ii) . . . . . . . . . . . . . . . . 6 (13) . . . . . . . . . . . . . . . . . . . . . 6 270 . . . . . . . . . . . . . 292, 293, 294, 295 (1) . . . . . . . . . . . . . . . . . . . . . . 30 Sch 13 Pt I (paras 1–22) . . . . . . . . . . . . . 27 Local Government and Housing Act 1989 s 33 . . . . . . . . . . . . . . . . . . . . . . . . . 196 Local Government Finance Act 1988 s 43, 44, 44A, 45 . . . . . . . . . . . . . . . 150 Local Government (Miscellaneous Provisions) Act 1976 . . . . . . . . . . 115 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . 122 36 . . . . . . . . . . . . . . . . . . . . . . . . . 296 (1) . . . . . . . . . . . . . . . . . . 54, 58, 114 (2) . . . . . . . . . . . . . . . . . . . . . . . 70 42 . . . . . . . . . . . . . . . . . . . . . . . . . 54 44 . . . . . . . . . . . . . . . . . . . . . . . . . 296 83 . . . . . . . . . . . . . . . . . . . . . . . . . 297 Local Government (Miscellaneous Provisions) Act 1982 . . . . . . 6, 71, 115, 120, 123, 146, 204 Pt III (ss 3) . . . . . . . . . . . . . . . . . . . 556 s 3 . . . . . . . . . . . . . . 36, 71, 92, 120, 315 Pt XII (ss 33–46) . . . . . . . . . . . . . . . 556 s 37 . . . . . . . . . . . . . 124, 134, 315, 316, 570, 571 (1) . . . . . . . . . . . . . . . . . . . . . . . 124 (2)–(5) . . . . . . . . . . . . . . . . . . . . 125 (6) . . . . . . . . . . . . . . . . . . . . . . . 124 (7) . . . . . . . . . . . . . . . . . . . . . . . 125 (8) . . . . . . . . . . . . . . . . . . . . . . . 124 Sch 4 . . . . . . . . . . . . . . . . . . . 48, 92, 120 para 1 . . . . . . . . . . . . . . . . . . . 316, 317 (1) . . . . . . . . . . . . . . . . . . . 120 (2) . . . . . . . . . . . . . . . . . . . 120 (a) . . . . . . . . . . . . . . . . . 121 (b) . . . . . . . . . . . . . . . 36, 121 (f) . . . . . . . . . . . . . . . . . 121 (3) . . . . . . . . . . . . . . . . . . . 120 2 . . . . . . . . . . . . . . . . . . . 317, 318 (1)(a) . . . . . . . . . . . . . . . . . 120 (3), (4) . . . . . . . . . . . . . . . . 120 (13) . . . . . . . . . . . . . . . . . . 122 3 . . . . . . . . . . . . . . . . . . . 318, 319 (4) . . . . . . . . . . . . . . . . . . . 122 (6) . . . . . . . . . . . . . . . . . . . 122 (b) . . . . . . . . . . . . . . . . . 204 (8) . . . . . . . . . . . . . . . . . . . 120

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Local Government (Miscellaneous Provisions) Act 1982 – contd Sch 4 – contd para 4 . . . . . . . . . . . . . . . . . . . . . . 320 (1)–(6) . . . . . . . . . . . . . . . . 122 5 . . . . . . . . . . . . . . . . . . . . . . 320 6 . . . . . . . . . . . . . . . 320, 321, 322 (5) . . . . . . . . . . . . . . . . . . . 122 7 . . . . . . . . . . . . . . . 133, 322, 323 (2) . . . . . . . . . . . . . . . . . . . 122 (3)(b) . . . . . . . . . . . . . . . . . 122 (4)–(6) . . . . . . . . . . . . . . . . 122 (8) . . . . . . . . . . . . . . . . . . . 120 (9), (10) . . . . . . . . . . . . . . . 122 8 . . . . . . . . . . . . . . . . . . . . . . 323 9 . . . . . . . . . . . . . . . 71, 323, 324 (1), (2), (4) . . . . . . . . . . . 71, 122 (6), (9)–(11) . . . . . . . . . . . . 71 10 . . . . . . . . . . . . . . . . . . 121, 324 11 . . . . . . . . . . . . . . . . . . . . . 324 (a), (b) . . . . . . . . . . . . . . . 121 Local Government (No 2) Act 1960: . 220 Localism Act 2011 . . . . . . . . . . . . . . . 146 Pt 5 (ss 72–108) . . . . . . . . . . . . . . . 146 s 87 . . . . . . . . . . . . . . . . . . . . . . . . . 146 157(3) . . . . . . . . . . . . . . . . . . . . . . 574 London Central Markets Act 1875 . . . 40, 44 London County Council (General Powers) Act 1947 . . . . . . . . . . . . 122 Pt IV (ss 14–35) . . . . . . . . . . . . . . . 122 London County Council (General Powers) Act 1957 . . . . . . . . . . . . 122 Pt VII (ss 62–77) . . . . . . . . . . . . . . . 122 London Government Act 1963 . . . . . . 40 s 2(1) . . . . . . . . . . . . . . . . . . . . . . . . 47 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 47 76 . . . . . . . . . . . . . . . . . . . . . . . . . 58 (1) . . . . . . . . . . . . . . . . . . . . . . . 47 93(1) . . . . . . . . . . . . . . . . . . . . . . . 127 Sch 18 Pt II . . . . . . . . . . . . . . . . . . . . . . . 127 London Local Authorities Act 1990: . 6, 122, 143 s 3 . . . . . . . . . . . . . . . . . . . . . . . 122, 123 Pt III (ss 21–41) . . . . . . . . . . . . . 48, 123 s 21 . . . . . . . . . . . . . . . . . . 352, 353, 354 (1) . . . . . . . . . . . . . . . . . . . . . . . 123 (2)(f) . . . . . . . . . . . . . . . . . . . . . 123 22 . . . . . . . . . . . . . . . . . . . . . . 123, 354 23 . . . . . . . . . . . . . . . . . . . . . . . . . 354 24 . . . . . . . . . . . . . . 122, 123, 354, 355 25 . . . . . . . . . . . . . . 123, 355, 356, 357 26 . . . . . . . . . . . . . . . . . . 123, 358, 359 27 . . . . . . . . . . . . . . . . . . . . . . 123, 359 28 . . . . . . . . . . . . . . . . . . 123, 360, 361 29 . . . . . . . . . . . . . . . . . . . . . . 123, 361 29A . . . . . . . . . . . . . . . . . . . . . . . . 361

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London Local Authorities Act 1990 – contd s 30 . . . . . . . . . . . . . . . . . . 361, 362, 363 (1), (4) . . . . . . . . . . . . . . . . . . . . 123 30A . . . . . . . . . . . . . . . . . . . . . 363, 364 31 . . . . . . . . . . . . . . . . . . 123, 364, 365 32 . . . . . . . . . . . . . . . . . . 123, 365, 366 33 . . . . . . . . . . . . . . . . . . 124, 366, 367 34 . . . . . . . . . . . . . . . . . . . . . . 124, 367 35 . . . . . . . . . . . . . . . . . . . . . . . . . 367 36 . . . . . . . . . . . . . . . . . . . . . . 124, 367 37 . . . . . . . . . . . . . . . . . . . . . . 367, 368 38 . . . . . . . . . . . . . . 123, 124, 368, 369, 370, 371 (2), (5) . . . . . . . . . . . . . . . . . . . . 123 38A . . . . . . . . . . . . . . . . . . . . . 371, 372 38B . . . . . . . . . . . . . . . . . . . . . 372, 373 38C . . . . . . . . . . . . . . . . . . . . . 373, 374 39 . . . . . . . . . . . . . . . . . . . . . . 124, 374 40 . . . . . . . . . . . . . . . . . . 122, 123, 374 41 . . . . . . . . . . . . . . . . . . 124, 374, 375 Sch 1 . . . . . . . . . . . . . . . . . . . . . 123, 375 Sch 2 . . . . . . . . . . . . . . . . . 122, 123, 376 London Local Authorities Act 1994 . . 123, 143, 204 s 1–3 . . . . . . . . . . . . . . . . . . . . . . . . 387 6 . . . . . . . . . . . . . . . . . 6, 48, 387, 388, 389, 390, 391 Schedule . . . . . . . . . . . . . . . . . . . . . 48 para 21 . . . . . . . . . . . . . . . . . . 391, 392 22, 23 . . . . . . . . . . . . . . . . . . 392 24 . . . . . . . . . . . . . . 392, 393, 394 25 . . . . . . . . . . . . . . 394, 395, 396 (6)(a) . . . . . . . . . . . . . . . . 204 26 . . . . . . . . . . . . . . . . . . 205, 396 27 . . . . . . . . . . . . . . 396, 397, 398 28 . . . . . . . . . . . . . . . . . . . . . 398 29 . . . . . . . . . . . . . . . . . . 398, 399 30 . . . . . . . . . . . . . . 399, 400, 401 31 . . . . . . . . . . . . . . . . . . . . . 401 32 . . . . . . . . . . . . . . 401, 402, 403 33, 34 . . . . . . . . . . . . . . . . . . 403 35 . . . . . . . . . . . . . . . . . . 403, 404 36, 37 . . . . . . . . . . . . . . . . . . 404 38 . . . . . . . . . . . . . . 404, 405, 406 39 . . . . . . . . . . . . . . . . . . . . . 406 40, 41 . . . . . . . . . . . . . . . . . . 407 London Local Authorities Act 2004 . . 143, 145 London Local Authorities Act 2007 . . 123 Pt 3 Ch 2 (ss 36–59) . . . . . . . . . . . . 6 s 36 . . . . . . . . . . . . . . . . . . . . . . . . . 417 37 . . . . . . . . . . . . . . . . . . . . . . 417, 418 38 . . . . . . . . . . . . . . . . . . 123, 418, 419 39, 40 . . . . . . . . . . . . . . . . . . . . . . 419 41 . . . . . . . . . . . . . . . . . . . . . . 419, 420 42, 43 . . . . . . . . . . . . . . . . . . . . . . 420

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London Local Authorities Act 2012 – contd Sch 2 – contd para 3 . . . . . . . . . . . . . . . . . . . 462, 463 4 . . . . . . . . . . . . . . . . . . . . . . 463 5 . . . . . . . . . . . . . . . . . . . . . . 464 6 . . . . . . . . . . . . . . . . . . . 464, 465 7, 8 . . . . . . . . . . . . . . . . . . . . 465 9 . . . . . . . . . . . . . . . . . . . 465, 466 10 . . . . . . . . . . . . . . . . . . 466, 467 11 . . . . . . . . . . . . . . . . . . 467, 468 12 . . . . . . . . . . . . . . . . . . . . . 468 13 . . . . . . . . . . . . . . . . . . 468, 469 14 . . . . . . . . . . . . . . . . . . . . . 469 15 . . . . . . . . . . . . . . . . . . 460, 470 16 . . . . . . . . . . . . . . . . . . . . . 470 17 . . . . . . . . . . . . . . . . . . 470, 471 17A . . . . . . . . . . . . . . . . . . . 471 18 . . . . . . . . . . . . . . . . . . 471, 472 19 . . . . . . . . . . . . . . . . . . . . . 472 20 . . . . . . . . . . . . . . . . . . 472, 473 21 . . . . . . . . . . . . . . . . . . 474, 475 22 . . . . . . . . . . . . . . . . . . 475, 476 23 . . . . . . . . . . . . . . . . . . . . . 476 24 . . . . . . . . . . . . . . . . . . 476, 477 25, 26 . . . . . . . . . . . . . . . . . . 477 27 . . . . . . . . . . . . . . . . . . 477, 478 27A . . . . . . . . . . . . . . . . . . . 478 27B . . . . . . . . . . . . . . . . 478, 479 27C . . . . . . . . . . . . . . . . . . . 480 27D . . . . . . . . . . . . . . . . 480, 481 27E . . . . . . . . . . . . . . . . . . . 481 27F . . . . . . . . . . . . . . . . 481, 482 27G . . . . . . . . . . . . . . . . 482, 483 27H . . . . . . . . . . . . . . . . 483, 484 27I . . . . . . . . . . . . . . . . . 484, 485 28–31 . . . . . . . . . . . . . . . . . . 485 32 . . . . . . . . . . . . . . . . . . 485, 486 Louth Market Improvement Act 1849 23, 40 Luton Corporation Act 1911 . . . . . . . . 23, 40 Maidstone Borough Council Act 2006 . . . . . . . . . . . . . . . . . . . . . . 145 Manchester City Council Act 2010 . . . 145 Manchester Markets Act 1846 . . . . . . 109 Marine and Coastal Access Act 2009 Sch 22 Pt 5 . . . . . . . . . . . . . . . . . . . . . . . 133 Markets and Fairs Clauses Act 1847 . . 6, 22, 24, 69, 70, 71, 110, 114, 115, 116, 126, 143, 149, 226, 556, 599 s 1 . . . . . . . . . . . . . . . . . . . . 22, 126, 255 2 . . . . . . . . . . . . . . . . . 22, 69, 70, 114, 126, 255 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 256 6–9 . . . . . . . . . . . . . . . . . . . . . . . . 149 12 . . . . . . . . . . . . . . . . . . . . . . . . . 256

London Local Authorities Act 2007 – contd s 44 . . . . . . . . . . . . . . . . . . . . . . 420, 421 45 . . . . . . . . . . . . . . . . . . . . . . 421, 422 46 . . . . . . . . . . . . . . . . . . . . . . 422, 423 47 . . . . . . . . . . . . . . . . . . . . . . 423, 424 48, 49 . . . . . . . . . . . . . . . . . . . . . . 424 50 . . . . . . . . . . . . . . . . . . . . . . 424, 425 51–53 . . . . . . . . . . . . . . . . . . . . . . 425 54 . . . . . . . . . . . . . . . . . . . . . . 425, 426 55 . . . . . . . . . . . . . . . . . . . . . . . . . 426 56 . . . . . . . . . . . . . . . . . . . . . . 426, 427 57 . . . . . . . . . . . . . . . . . . . . . . 427, 428 58 . . . . . . . . . . . . . . . . . . . . . . . . . 428 59 . . . . . . . . . . . . . . . . . . . . . . 430, 431 Sch 3 . . . . . . . . . . . . . . . . . . . . . . . . 6, 123 para 21 . . . . . . . . . . . . . . . . . . 430, 431 22 . . . . . . . . . . . . . . . . . . . . . 431 23 . . . . . . . . . . . . . . . . . . . . . 432 24 . . . . . . . . . . . . . . . . . . 432, 433 25 . . . . . . . . . . 433, 434, 435, 436 26 . . . . . . . . . . . . . . . . . . . . . 436 27 . . . . . . . . . . . . . . . . . . 436, 437 28 . . . . . . . . . . . . . . . . . . . . . 438 29 . . . . . . . . . . . . . . . . . . 438, 439 30 . . . . . . . . . . . . . . 439, 440, 441 31 . . . . . . . . . . . . . . . . . . 441, 442 32 . . . . . . . . . . . . . . 442, 443, 444 33–35 . . . . . . . . . . . . . . . . . . 444 36 . . . . . . . . . . . . . . . . . . . . . 444 37 . . . . . . . . . . . . . . . . . . . . . 445 38 . . . . . . . . . . 445, 446, 447, 448 38A . . . . . . . . . . . . . . . . 448, 449 38B . . . . . . . . . . . . . . . . 449, 450 38C . . . . . . . . . . . . . . . . . . . 450 39–41 . . . . . . . . . . . . . . . . . . 451 London Local Authorities Act 2012 Pt 4 (ss 8–16) . . . . . . . . . . . . . . . . . 6 s 8, 9 . . . . . . . . . . . . . . . . . . . . . . . . 452 10 . . . . . . . . . . . . . . 452, 453, 454, 455 11, 12 . . . . . . . . . . . . . . . . . . . . . . 455 13 . . . . . . . . . . . . . . . . . . . . . . 124, 455 14 . . . . . . . . . . . . . . . . . . 124, 455, 456 15 . . . . . . . . . . . . . . . . . . 124, 456, 457 16 . . . . . . . . . . . . . . . . . . 124, 457, 458 17–19 . . . . . . . . . . . . . . . . . . . . . . 458 Sch 1 . . . . . . . . . . . . . . . . . . . . . . . . 6 para 1 . . . . . . . . . . . . . . . . . . . . . . 458 2 . . . . . . . . . . . . . . . . . . . 458, 459 3, 4 . . . . . . . . . . . . . . . . . . . . 459 5 . . . . . . . . . . . . . . . . . . . 459, 460 6 . . . . . . . . . . . . . . . . . . . . . . 460 7 . . . . . . . . . . . . . . . . . . . 460, 461 8 . . . . . . . . . . . . . . . . . . . . . . 461 Sch 2 . . . . . . . . . . . . . . . . . . . . . . . . 6 para 1 . . . . . . . . . . . . . . . . . . . . . . 461 2 . . . . . . . . . . . . . . . . . . . 461, 462

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Markets and Fairs Clauses Act 1847 – contd s 13 . . . . . . . . . . . . . . 89, 90, 98, 99, 100, 127, 256, 257, 258 14 . . . . . . . . . . . . . . . . 54, 56, 259, 260 21 . . . . . . . . . . . . . . . . . . . . . . . . . 126 22, 24 . . . . . . . . . . . . . . . . . . . 126, 127 31–33 . . . . . . . . . . . . . . . . . . . . . . 70 34 . . . . . . . . . . . . . . . . . . . . . . . . 70, 126 35 . . . . . . . . . . . . . . . . . . . . . . . . . 70 36 . . . . . . . . . . . . . . . . . . . . 60, 128, 260 (1) . . . . . . . . . . . . . . . . . . . . . . . 56 37 . . . . . . . . . . . . . . . . . . . . 70, 128, 599 38–41 . . . . . . . . . . . . . . . . . . . . 70, 128 42 . . . . . . . . . . . . 57, 58, 114, 260, 261 43 . . . . . . . . . . . . . . . . . . 115, 261, 262 44–46 . . . . . . . . . . . . . . . . . . . . . . 115 47–49 . . . . . . . . . . . . . . . . . . . . . . 115 50 . . . . . . . . . . . . . . . . . . . . . . . . . 149 52 . . . . . . . . . . . . . . . . . . . . . . 115, 149 53–59 . . . . . . . . . . . . . . . . . . . . . . 149 Markets and Fairs (Weighing of Cattle) Act 1887 . . . . . . 71, 127, 128, 129, 143 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 280 2 . . . . . . . . . . . . . . . . . . . 127, 128, 280 3 . . . . . . . . . . . . . . . . . . . . . . . 129, 280 4 . . . . . . . . . . . . . . . . . . . . . . . 127, 128 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 127 8 . . . . . . . . . . . . . . . . . . . . 71, 127, 128 9 . . . . . . . . . . . . . . . . . . . . . . . 127, 128 Schedule . . . . . . . . . . . . . . . . . . . . . 128 Markets and Fairs (Weighing of Cattle) Act 1891 . . . . . . . . . . 71, 127, 129, 143 s 1 . . . . . . . . . . . . . . . . . . . . . . . 128, 281 2 . . . . . . . . . . . . . . . . . . . . . . . 128, 281 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 281 4 . . . . . . . . . . . . . . . . . . . 128, 281, 282 (1), (3) . . . . . . . . . . . . . . . . . . . . . 129 5, 6 . . . . . . . . . . . . . . . . . . . . . . . . 282 Schedule . . . . . . . . . . . . . . . . . . . . . 282 Markets and Fairs (Weighing of Cattle) Act 1926 . . . . . . . . . 71, 127, 128, 143 s 1 . . . . . . . . . . . . . . . . . . . . . . . 129, 284 (1) . . . . . . . . . . . . . . . . . . . . . . . . 129 (3) . . . . . . . . . . . . . . . . . . . . . 127, 129 (4) . . . . . . . . . . . . . . . . . . . . . . . . 129 2 . . . . . . . . . . . . . . . . . . . 128, 284, 285 3, 4 . . . . . . . . . . . . . . . . . . . . . . . . 285 Schedule . . . . . . . . . . . . . . . . . . 128, 285 Measures Act 1670 s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Measures and Weights Act 1340 . . . . . 12 Medway Council Act 2004 . . . . . . . . . 145 Metropolitan Fairs Act 1868 . . . . . . . . 112 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 266 2 . . . . . . . . . . . . . . . . . . . . . . . 112, 266

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Metropolitan Fairs Act 1868 – contd s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 266 4, 5 . . . . . . . . . . . . . . . . . . . . . . . . 267 Metropolitan Markets (Fish etc) Act 1882 . . . . . . . . . . . . . . . . . . . . . . 44 Metropolitan Meat and Poultry Market Act 1860 . . . . . . . . . . . . . . . 23, 40, 44 Metropolitan Paving Act 1817 s 65 . . . . . . . . . . . . . . . . . . . . . . . . . 48 Metropolitan Police Act 1839 . . . . . 47, 50, 58, 112 s 38 . . . . . . . . . . . . . . . . . 2, 58, 112, 247 39 . . . . . . . . . . . . . . . . . . 112, 247, 248 40 . . . . . . . . . . . . . . . . . . . . . . 112, 248 54 . . . . . . . . . . . . . . . . . . . 47, 249, 250 (6) . . . . . . . . . . . . . . . . . . . . . . . 44, 50 60 . . . . . . . . . . . . . . . . . 47, 49, 250, 251 Metropolitan Streets Act 1867 . . . . . . 48 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 48 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 264 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 48 6 . . . . . . . . . . . . . . . . . . . . . . . . . 48, 264 Metropolitan Streets Act 1885 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Metropolitan Streets Amendment Act 1867 . . . . . . . . . . . . . . . . . . . . . . 48 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 265 Municipal Corporations Act 1882 . . . . 30, 76 s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . 76 7(1) . . . . . . . . . . . . . . . . . . . . . . . . 30, 76 136 . . . . . . . . . . . . . . . . . . . . . . . . 30 (1)–(3) . . . . . . . . . . . . . . . . . . . 30 201 . . . . . . . . . . . . . . . . . . . . . . . . 76 208(2) . . . . . . . . . . . . . . . . . . . . . . 76 Nuisances Removal and Diseases Prevention Consolidation and Amendment Act 1855 . . . . . . . . . 51 Occasional Trading Act 1979 . . . . . . . 222 Pedlars Act 1871 . . . . . . . . . . . . . . 121, 141, 143, 146 s 1, 2 . . . . . . . . . . . . . . . . . . . . . . . . 269 3 . . . . . . . . . . . . . . . . . . . . . . . 141, 269 4 . . . . . . . . . . . . . . . . . . . 141, 269, 270 5 . . . . . . . . . . . . . . . . . . . . . . . 270, 271 6–9 . . . . . . . . . . . . . . . . . . . . . . . . 271 10 . . . . . . . . . . . . . . . . . . . . . . 271, 272 11–14 . . . . . . . . . . . . . . . . . . . . . . 272 15 . . . . . . . . . . . . . . . . . . . . . . 272, 273 16–18 . . . . . . . . . . . . . . . . . . . . . . 273 19–22 . . . . . . . . . . . . . . . . . . . . . . 274 23 . . . . . . . . . . . . . . . . . . . . . . . . . 274 (1), (2) . . . . . . . . . . . . . . . . . . . . 141 24, 25 . . . . . . . . . . . . . . . . . . . . . . 275 45 . . . . . . . . . . . . . . . . . . . . . . . . . 143 Sch 2 . . . . . . . . . . . . . . . . . . . . . . . . 275 Pedlars Act 1881 . . . . . . . . . . . . . . . . . 146 s 1, 2 . . . . . . . . . . . . . . . . . . . . . . . . 279

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Petty Bag Act 1849 s 29, 30 . . . . . . . . . . . . . . . . . . . . . . 160 Pillory Abolition Act 1816 . . . . . . . . . 105 Planning and Compensation Act 1991 s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . 138 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Police Act 1964 s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Police and Criminal Evidence Act 1984 s 26(1) . . . . . . . . . . . . . . . . . . . . . . . 58 119(2) . . . . . . . . . . . . . . . . . . . . . . 58 Sch 7 Pt I . . . . . . . . . . . . . . . . . . . . . . . . 58 Police and Magistrates’ Courts Act 1994 s 14 . . . . . . . . . . . . . . . . . . . . . . . . . 58 Powers of Criminal Courts (Sentenc­ ing) Act 2000 s 165, 168 . . . . . . . . . . . . . . . . . . . . 102 Sch 11 para 1, 2 . . . . . . . . . . . . . . . . . . . . 102 Sch 12 Pt I . . . . . . . . . . . . . . . . . . . . . . . . 102 Prescription Act 1832 . . . . . . . . . . . . . 20, 97 Prevention of Corruption Act 1916 . . . 559 Public Bodies Corrupt Practices Act 1889 . . . . . . . . . . . . . . . . . . . . . . 559 Public Health Act 1875 . . . . . . 24, 47, 193, 599, 600 s 171 . . . . . . . . . . . . . . . . . . . . . . . . 278 Public Health Act 1936 . . . . . . . . . . . . 51 s 92, 93 . . . . . . . . . . . . . . . . . . . . . . 51 Public Health Act 1961 . . . . . . . . . 113, 556 s 2(3) . . . . . . . . . . . . . . . . . . . . . . . . 113 75 . . . . . . . . . . . . . . . . . . 113, 286, 287 Public Health (Ireland) Act 1878 . . 24, 110 s 103 . . . . . . . . . . . . . . . . . . . . . 220, 497 104 . . . . . . . . . . . . . . . . . . . . . . . . 497 Public Health (London) Act 1936 . . . . 51 Public Health (Recurring Nuisances) Act 1969 . . . . . . . . . . . . . . . . . . . 51 Public Records Act 1958 s 9, 10 . . . . . . . . . . . . . . . . . . . . 189, 190 Race Relations Act 1976 . . . . . . . . . . . 551 s 71(1) . . . . . . . . . . . . . . . . . . . . . . . 199 Railways Clauses Consolidation Act 1845 s 145 . . . . . . . . . . . . . . . . . . . . . 115, 252 141, 142 . . . . . . . . . . . . . . . . . . . . 252 143–154 . . . . . . . . . . . . . . . . . . . . 253 155–161 . . . . . . . . . . . . . . . . . . . . 254 Real Property Limitation Act 1833 s 36 . . . . . . . . . . . . . . . . . . . . . . . . . 9 Regulatory Enforcement and Sanc­ tions Act 2008 . . . . . . . . . . . . 125, 126 Pt 1 (ss 1–21) . . . . . . . . . . . . . . . . . 125

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Regulatory Enforcement and Sanc­ tions Act 2008 – contd s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Pt 2 (ss 22–35) . . . . . . . . . . . . . . . . 125 Pt 3 (ss 36–71) . . . . . . . . . . . . . . . . 126 Pt 4 (ss 72, 73) . . . . . . . . . . . . . 125, 126 Sch 3 . . . . . . . . . . . . . . . . . . . . . . . . 114 Repeal of Certain Laws Act 1772 . . . . 96 Republic of Ireland Act 1948 . . . . . . . 215 Road Traffic Act 1961 . . . . . . . . . . . . . 216 s 89 . . . . . . . . . . . . . . . . . . 227, 228, 229 90 . . . . . . . . . . . . . . . . . . 227, 228, 229 92 . . . . . . . . . . . . . . . . . . 217, 228, 229 (1) . . . . . . . . . . . . . . . . . . . . . . . 230 Sale of Goods Act 1893 . . . . . . . . . . . 101 s 21 . . . . . . . . . . . . . . . . . . . . . . . . . 101 22(2) . . . . . . . . . . . . . . . . . . . . . . . 102 24 . . . . . . . . . . . . . . . . . . . . . . . . . 101 Sale of Goods Act 1979 s 2(4), (5) . . . . . . . . . . . . . . . . . . . . . 132 21 . . . . . . . . . . . . . . . . . . . . . . . . . 102 (1) . . . . . . . . . . . . . . . . . . . . . . . 101 22(1) . . . . . . . . . . . . . . . . . . . . . . . 101 (3) . . . . . . . . . . . . . . . . . . . . . . . 102 61(1) . . . . . . . . . . . . . . . . . . . . . . . 101 (3) . . . . . . . . . . . . . . . . . . . . . . . 101 63(3) . . . . . . . . . . . . . . . . . . . . . . . 101 Sch 1 para 3 . . . . . . . . . . . . . . . . . . . . . . 102 Sch 4 para 3 . . . . . . . . . . . . . . . . . . . . . . 101 Sale of Goods (Amendment) Act 1994 s 1 . . . . . . . . . . . . . . . . . . . . . 39, 57, 101 Sale of Horses Act 1555 . . . . . . . . . . . 102 Sale of Horses Act 1588 . . . . . . . . . . . 102 Salmon Act 1986 s 16, 17 . . . . . . . . . . . . . . . . . . . . . . 133 31, 32 . . . . . . . . . . . . . . . . . . . . . . 133 Salmon and Freshwater Fisheries Act 1975 . . . . . . . . . . . . . . . . . . . . . . 133 s 22 . . . . . . . . . . . . . . . . . . . . . . . . . 133 24 . . . . . . . . . . . . . . . . . . . . . . . . . 133 (1)–(3), (5), (6) . . . . . . . . . . . . . 133 41(1) . . . . . . . . . . . . . . . . . . . . 132, 133 Scotland Act 1998 s 53 . . . . . . . . . . . . . . . . . . . . . . 116, 129 Sea Fish (Conservation) Act 1967 . . . 132 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 132 16 . . . . . . . . . . . . . . . . . . . . . . . . . 133 (1)(c) . . . . . . . . . . . . . . . . . . . . . 132 (3) . . . . . . . . . . . . . . . . . . . . . . . 132 17 . . . . . . . . . . . . . . . . . . . . . . . . . 133 22(1) . . . . . . . . . . . . . . . . . . . . . . . 132 37 . . . . . . . . . . . . . . . . . . . . . . . . . 133 41(1) . . . . . . . . . . . . . . . . . . . . . . . 133 Sch 4 para 7 . . . . . . . . . . . . . . . . . . . . . . 133

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Sea Fisheries (Shellfish) Act 1967 s 16, 17 . . . . . . . . . . . . . . . . . . . . . . 133 Sex Discrimination Act 1975 . . . . . . . 551 Sheriffs Act 1887 . . . . . . . . . . . . . . . . . 10 s 18 . . . . . . . . . . . . . . . . . . . . . . . . . 13 40(1) . . . . . . . . . . . . . . . . . . . . . . . 9 Shops Act 1950 . . . . 88, 164, 165, 166, 173, 174, 175, 177, 181, 182 s 47 . . . . . . . . . . . 165, 178, 179, 182, 183 53 . . . . . . . . . . . . . . . . . . . . . . . . . 178 59 . . . . . . . . . . . . . . . . . . . . . . 173, 182 71(1) . . . . . . . . . . . . . . . . 164, 178, 179 Sch 5 . . . . . . . . . . . . . . . . . . . . . 173, 182 Statute Law (Ireland) Revision Act 1872 . . . . . . . . . . . . . . . . . . . . . . 3 Statute Law (Repeals) Act 1969 . . . . . 8, 55 s 1 . . . . . . . . . . . . . . . . . . . . . . 43, 53, 55 4(1) . . . . . . . . . . . . . . . . . . . . . . . . 55 Schedule Pt II . . . . . . . . . . . . . . . . . . . . . . . 43 Pt IV . . . . . . . . . . . . . . . . . . . . . . 55 Pt VII . . . . . . . . . . . . . . . . . . . . . . 53 Statute Law (Repeals) Act 1993 . . . . 43, 115 Statute Law Revision Act 1863 . . 3, 10, 12, 13, 191 Statute Law Revision Act 1875 . . . . . . 55 Statute Law Revision Act 1892 . . . . . . 35 Statute Law Revision Act 1948 . . . . . . 7 Statute of Labourers 1351 . . . . . . . . . . 3 Statute of Northampton 1328 . . . . . . . 53 Statute of Westminster 1275 . . . . . 2, 63, 73, 104, 108 Statute of Westminster II 1285 . . . . . . 2 Statute of Winchester 1285 . . . . . . . . . 2, 78 Street Trading Act 1926 . . . . . . . . . . . 233 Summary Jurisdiction Act 1848 . . . . . 9 Sunday Fairs Act 1448 . . . . . . . . . . . . 54 Sunday Trading Act 1994 . . . . . . . . 55, 140 s 1, 2 . . . . . . . . . . . . . . . . . . . . . . . . 377 3, 4 . . . . . . . . . . . . . . . . . . . . . 55, 377 5–9 . . . . . . . . . . . . . . . . . . . . . . . . 378 Sch 1 para 1 . . . . . . . . . . . . . . . . . . . 140, 379 2 . . . . . . . . . . . . . . . 140, 379, 380 3 . . . . . . . . . . . . . . . . . . . 140, 380 4, 5 . . . . . . . . . . . . . . . . . . . . 380 6–9 . . . . . . . . . . . . . . . . . . . . 381 Sch 2 . . . . . . . . . . . . . . . . . . . . . . . . 140 para 1–3 . . . . . . . . . . . . . . . . . . . . 381 4–7 . . . . . . . . . . . . . . . . . . . . 382 8 . . . . . . . . . . . . . . . 382, 383, 384 9, 10 . . . . . . . . . . . . . . . . . . . 384 Sch 3 para 1, 2 . . . . . . . . . . . . . . . . . . . . 384 3–10 . . . . . . . . . . . . . . . . . . . 385 Sch 4 . . . . . . . . . . . . . . . . . . . . . . . . 386 Sch 5 . . . . . . . . . . . . . . . . . . . . . . . . 386

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Senior Courts Act 1981 s 30 . . . . . . . . . . . . . . . . . . 105, 161, 312 31 . . . . . . . . . . . . . . 161, 193, 194, 312, 313, 314 (2) . . . . . . . . . . . . . . . . . . . . . . . 194 (2A) . . . . . . . . . . . . . . . . . . 194, 202 37 . . . . . . . . . . . . . . . . . . . . . . 161, 314 Settled Land Act 1925 . . . . . . . . . . 573, 575 Sunday Fairs Act 1448 . . . . . . . . . . . . 54, 55 Supreme Court Act 1981 see Senior Courts Act 1981 Supreme Court of Judicature (Con­ solidation) Act 1925 s 19(2) . . . . . . . . . . . . . . . . . . . . . . . 112 45 . . . . . . . . . . . . . . . . . . . . . . . . . 161 Suppression of Monasteries Act 1540 s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Taxes Management Act 1970 Pt VI (ss 60–70A) . . . . . . . . . . . . . . 156 s 46–55 . . . . . . . . . . . . . . . . . . . . . . 156 Theft Act 1968 . . . . . . . . . . . . . 67, 73, 101 s 28 . . . . . . . . . . . . . . . . . . . . . . . . . 102 31(2) . . . . . . . . . . . . . . . . . . . . . . . 101 33(3) . . . . . . . . . . . . . 63, 101, 102, 104 35(1) . . . . . . . . . . . . . . . . . . . . . . . 101 36 . . . . . . . . . . . . . . . . . . . . . . . . . 63 Sch 3 Pt I . . . . . . . . . . . . . . . . . . . . . 63, 104 Pt II . . . . . . . . . . . . . . . . . . . . 101, 102 Pt III . . . . . . . . . . . . . . . . . . . . . . 101 Torts (Interference with Goods) Act 1977 s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 73 Town and Country Planning Act 1947 . . . . . . . . . . . . . . . . . . . . 134, 135 Town and Country Planning Act 1971 175 s 22 . . . . . . . . . . . . . . . . . . . . . . . . . 135 Town and Country Planning Act 1990 . . . . . . . . . . . . . . . . 125, 134, 135 s 55 . . . . . . . . . . . . . . . . . . . . . . . . . 135 57 . . . . . . . . . . . . . . . . . . . . . . . . . 134 172 . . . . . . . . . . . . . . . . . . . . . . . . 137 (6) . . . . . . . . . . . . . . . . . . . . . . 137 183 . . . . . . . . . . . . . . . . . . . . . . . . 137 (3) . . . . . . . . . . . . . . . . . . . . . . 137 186 . . . . . . . . . . . . . . . . . . . . . . . . 137 187B . . . . . . . . . . . . . . . . . . . . . . . 138 293 . . . . . . . . . . . . . . . . . . . . . . . . 135 335, 336 . . . . . . . . . . . . . . . . . 134, 135 Town Police Clauses Act 1847 . . . . . . 47 s 28 . . . . . . . . . . . . . . . . . . 47, 48, 49 263 171 . . . . . . . . . . . . . . . . . . . . . . . . 47 Value Added Tax Act 1994 Sch 9 Group 1 . . . . . . . . . . . . . . . . . . . . 157 Wales Act 2017 . . . . . . . . . . . . . . . 115, 149 Weights and Measures Act 1392 . . . . . 12

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Weights and Measures Act 1878 s 69 . . . . . . . . . . . . . . . . . . . . . . . . . 13 Weights and Measures (Purchase) Act 1892 . . . . . . . . . . . . . . . . . . . . . . 13

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West Yorkshire Act 1980 . . . . . . . . . . . 22, 23 Wigan Improvement Act 1874 . . . . . . 23 Pt VII . . . . . . . . . . . . . . . . . . . . . . . . 40

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Byelaws (Alternative Procedure) (England) Regulations 2016, SI 2016/165 . . . . . . . . . . . . . . . . . 116 Casual Trading Act 1995 (Com­ mencement) Order 1995, SI 267/ 1995 . . . . . . . . . . . . . . . . . . . . . . 218 Casual Trading Act 1995 (Section 2(3)) Regulations 2004, SI  191/ 2004 . . . . . . . . . . . . . . . . . . . . . . 219 Civil Procedure Rules 1998, SI 1998/3132 . . . . . . . . . . . . . . . . 162 Pt 25 . . . . . . . . . . . . . . . . . . . . . 162, 166 r 25.1 . . . . . . . . . . . . . . . . . . . . . . . . 162 40.20 . . . . . . . . . . . . . . . . . . . . . . . 161 Pt 54 . . . . . . . . . . . . . . . . . . . . . 193, 194 r 54.1(2)(a) . . . . . . . . . . . . . . . . . . . 194 Courts and Legal Services Act 1990 (Commencement No  5) Order 1991, SI 1991/1364 art 2 . . . . . . . . . . . . . . . . . . . . . . . . . 72 Schedule . . . . . . . . . . . . . . . . . . . . . 72 Food Safety (General Food Hygiene) Regulations 1995, SI 1995/1763 . 133 Food Safety (Temperature Control) Regulations 1995, SI 1995/2200 . 133 High Court and County Courts Jurisdiction Order 1991, SI 1991/724 . . . . . . . . . . . . . . . . . 72 Land Registration Rules 2003, SI 2003/1417 . . . . . 572, 573, 579, 593 r 5 . . . . . . . . . . . . . . . . . . . . . . . . . . 579 10(1)(b) . . . . . . . . . . . . . . . . . . . . . 594 28 . . . . . . . . . . . . . . . . . . . . . . . . . 574 (2) . . . . . . . . . . . . . . . . . . . . . . . 573 (b) . . . . . . . . . . . . . . . . . . . . . 574 35 . . . . . . . . . . . . . . . . . . . . . . . . . 594 42 . . . . . . . . . . . . . . . . . . . . . . . . . 594 57 . . . . . . . . . . . . . . . . . . . . . . . . . 574 (2) . . . . . . . . . . . . . . . . . . . . . . . 573 (4) . . . . . . . . . . . . . . . . . . . . . . . 574 81(1) . . . . . . . . . . . . . . . . . . . . . . . 588 86 . . . . . . . . . . . . . . . . . . . . . . . . . 592 78 . . . . . . . . . . . . . . . . . . . . . . . . . 593 94(2), (3) . . . . . . . . . . . . . . . . . . . . 581 196(2) . . . . . . . . . . . . . . . . . . . . . . 583 196B . . . . . . . . . . . . . . . . . . . . . . . 579 197 . . . . . . . . . . . . . . . . . . . . . . . . 593

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Land Registration Rules 2003, SI 2003/1417 – contd r 198, 199 . . . . . . . . . . . . . . . . . . . . 587 203(2) . . . . . . . . . . . . . . . . . . . . . . 587 217(1) . . . . . . . . . . . . 32, 579, 581, 588 Land Registration Act 2002 (Transitional Provisions) (No  2) Order 2003, SI 2003/2431 r 2 . . . . . . . . . . . . . . . . . . . . . . . . . . 584 Local Authorities etc (Miscellaneous Provision) (No  4) Order 1974, SI 1974/1351 . . . . . . . . . . . . . . . . 76 Local Better Regulation Office (Dis­ solution and Transfer of Func­ tions etc) Order 2012, SI 2012/246 . . . . . . . . . . . . . . . . . 125 art 3, 4 . . . . . . . . . . . . . . . . . . . . . . . 125 National Assembly for Wales (Transfer of Functions) Order 1999, SI 1999/672 . . . . . . . . . 115, 129 art 2, 3 . . . . . . . . . . . . . . . . . . . . . . . 115 Sch 1 . . . . . . . . . . . . . . . . . . . . . . . . 115 National Assembly for Wales (Transfer of Functions) Order 2004, SI 2004/3044 . . . . . . . . 115, 129 art 2, 3 . . . . . . . . . . . . . . . . . . . . . . . 115 Sch 1 . . . . . . . . . . . . . . . . . . . . . . . . 115 Provision of Services Regulations 2009, SI 2009/2999 . . . . . . . . 143, 181 Registration of Fish Buyers and Sellers and Designation of Fish Auction Sites Regulations 2005, SI 2005/1605 . . . . . . . . . . . . . . . . 133 Regulatory Reform (Fire Safety) Order 2005, SI 2005/1541 . . . . . . 116 Rules of the Supreme Court 1965, SI 1965/1776 Order 15 r 11 . . . . . . . . . . . . . . . . . . . . . . . 160 16 . . . . . . . . . . . . . . . . . . . . . . . 161 Order 29 r 1 . . . . . . . . . . . . . . . . . . . . . . . . 162 Statutory Nuisance (Appeals) Regu­ lations 1990, SI 1990/2276 . . . . . 51 Statutory Nuisance (Appeals) (Amend­ment) Regulations 1990, SI 1990/2483 . . . . . . . . . . . . . . . . 51

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Town and Country Planning (Control of Advertisements) Regulations 1992, SI 1992/666 . . . . . . . . . . . . 138 Sch 3 Class 3B . . . . . . . . . . . . . . . . . . . 138 Town and Country Planning (General Permitted Development) (Amend­ ment) (England) Order 2010, SI 2010/654 . . . . . . . . . . . . . . . . 125, 137 art 4 . . . . . . . . . . . . . . . . . . . . . . . . . 137 Town and Country Planning (General Permitted Development) Order 1995, SI 1995/418 art 5(4)–(6) . . . . . . . . . . . . . . . . . . . 137 Pt 4 Class B . . . . . . . . . . . . . . . . . 136, 137 Welfare of Animals at Markets Order 1990, SI 1990/2628 . . . . 130, 132, 526 art 2(a) . . . . . . . . . . . . . . . . . . . . . . . 130 3(1) . . . . . . . . . . . . . . . . . . . . 130, 131

page

Welfare of Animals at Markets Order 1990, SI 1990/2628 – contd art 4 . . . . . . . . . . . . . . . . . . . . . . . . . 130 5–9 . . . . . . . . . . . . . . . . . . . . . . . 131 10 . . . . . . . . . . . . . . . . . . . . . . . . 131 11 . . . . . . . . . . . . . . . . . . . . . . . . 132 12 . . . . . . . . . . . . . . . . . . . . . . . . 131 13(1), (2) . . . . . . . . . . . . . . . . . . 131 14 . . . . . . . . . . . . . . . . . . . . . . . . 132 (5), (6) . . . . . . . . . . . . . . . . . . 131 (7) . . . . . . . . . . . . . . . . . . . . . . 132 (8)(a) . . . . . . . . . . . . . . . . . . . 131 16 . . . . . . . . . . . . . . . . . . . . . . . . 131 17 . . . . . . . . . . . . . . . . . . . . . . . . 132 18 . . . . . . . . . . . . . . . . . . . . . . . . 132 19 . . . . . . . . . . . . . . . . . . . . . . . . 131 20 . . . . . . . . . . . . . . . . . . . . . . . . 130 Welfare of Horses at Markets (and Other Places of Sale) Order 1990, SI 1990/2627 . . . . . . . . . . . 132

xxvi

Table of Cases References in the right-hand column are to page number.

A A-G v Ashborne Recreation Ground Co [1903] 1 Ch 101 . . . . . . . . . . . . . . . . . . . . 166, 175 A-G v Bastow [1957] 1 QB 514, [1957] 2 WLR 340, [1957] 1 All ER 497 . . . . . . . . . 175 A-G v Brecon Corpn (1878–79) LR 10 Ch D 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 A-G v Chaudry [1971] 1 WLR 1614, [1971] 3 All ER 938, 70 LGR 22 . . . . . . . . . 166, 175 A-G v Colchester Corpn [1952] Ch 586, [1952] 2 All ER 297, [1952] 2 TLR 49 . . . . 63, 65, 67, 68, 69, 70, 118, 119, 201 A-G v Great Eastern Rly Co (1879–80) LR 5 App Cas 473 . . . . . . . . . . . . . . . . . . . . . . 28 A-G v Harris [1961] 1 QB 74, [1960] 3 WLR 532, [1960] 3 All ER 207 . . . . . . . . . . . 175 A-G v Horner (1884–85) LR 14 QBD 245 . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 26, 32, 36, 43, 44, 45, 53, 579 A-G v Horner (1885) LR 11 App Cas 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 33, 36, 46, 65 A-G v Horner (No 2) [1913] 2 Ch 140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20, 21, 36, 45, 64, 72 A-G v Kerr & Ball (1915) 79 JP 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 A-G v Lord Mayor of Leeds [1929] 2 Ch 291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 A-G v Smethwick Corpn [1932] 1 Ch 562 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 A-G v Smith [1958] 2 QB 173, [1958] 3 WLR 81, [1958] 2 All ER 557 . . . . . . . . . . . . 175 A-G v Tynemouth Corpn (1900) 17 TLR 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 112 A-G (at the relation of Allen) v Colchester Corpn (or BC) [1955] 2 QB 207, [1955] 2 WLR 913, [1955] 2 All ER 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159, 161 AG v Paperlink [1983] IEHC 1, [1984] ILRM 373 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 Abbot of Abingdon’s case (Trin 14 John) Abb Plac . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Aberdare Markets & Town Hall Co v Bolwell Hayward Ltd 1992) 90 LGR 613 . . . . . 64 Abergavenny Improvement Comrs v Straker (1889) LR 42 Ch D 83 . . . . . . . . . . . 98, 100 Addington v Clode (1775) 2 Wm Bl 989, 96 ER 581 . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Agar v Lisle (1613) Hob 187, 80 ER 334 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Aiton v Stephen (1875–76) LR 1 App Cas 456, (1876) 3 R (HL) 4 . . . . . . . . . . . . . . . . 41 American Cyanamid Co v Ethicon Ltd (No  1) [1975] AC  396, [1975] 2 WLR  316, [1975] 1 All ER 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162, 163 Anderson v Anderson [1895] 1 QB 749 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Ashby v White (1703) 6 Mod Rep 45, 87 ER 808 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1  KB  223, [1947] 2 All ER 680, (1947) 63 TLR 623 . . . . . . . . . . . . . . . . . . . . 28, 118, 179, 194 Aston Cantlow & Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546, [2003] 3 WLR 283 . . . . . . . . . . . . . . . . . 591 Austin v Whittred (1746) Willes 623, 125 ER 1353 . . . . . . . . . . . . . . . . . . . 33, 34, 42, 60, 65

B Bailey v Appleyard (1838) 8 Ad & El 161, 112 ER 798 . . . . . . . . . . . . . . . . . . . . . . . . 21 Ball v Ward (1875) 33 LT 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Barking & Dagenham London Borough Council v Home Charm Retail Ltd see Stoke on Trent City Council v B & Q (Retail) Ltd [1984] Ch 1, [1983] 3 WLR 78, [1983] 2 All ER 787 Barking & Dagenham London Borough Council v Essexplan Ltd (1983) 81 LGR 408 177 Barraclough v Johnson (1838) 8 Ad & El 99, 112 ER 773 . . . . . . . . . . . . . . . . . . . . . . . 190

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Barton’s Case YB 9 Hen IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Basset v Corpn of Torrington (1568) Dyer 276, 73 ER 617 . . . . . . . . . . . . . . . . . . . . . . 159 Bassetlaw District Council v Zaccaria [1980] CLY 300 . . . . . . . . . . . . . . . . . . . . . . 169, 176 Basset’s Case see Basset v Corpn of Torrington (1568) Dyer 276, 73 ER 617 Bath Market Case (1377) Rot Parl Edw III vi ii p347 . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Bealey v Shaw (1805) 6 East 208, 102 ER 1266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Beaufort (Duke) v Smith (1849) 4 Exch 450, 154 ER 1290 . . . . . . . . . . . . . 62, 189, 190, 191 Bedford (Duke) v Emmett (1820) 3 B & Ald 366, 106 ER 696 . . . . . . . . . . 59, 64, 66, 68, 72 Bedford (Duke) v Overseers of St Pauls Covent Garden (1881) 51 LJMC 41 . . . 59, 66, 127, 150, 153, 154 Belfast Corpn v Daly [1963] NI 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Benjamin v Andrews (1858) 5 CBNS 299, 141 ER 119 . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21 Bennington v Taylor (1701) 2 Lut 1517 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 64, 66, 67, 73 Birmingham City Council v Anvil Fairs [1989] 1  WLR  312, [1989] 1 All ER  147, 87 LGR 394 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80, 103, 578 Birmingham City Council v In Shops plc [1992] NPC 71 . . . . . . . . . . . . . . . . . 170, 184, 185 Birmingham Corpn v Foster (1894) 70 LT 371 . . . . . . . . . . . . . . . . . . . . . . . 25, 98, 99, 100 Birmingham Corpn v Perry Barr Stadum Ltd [1972] 1 All ER 725, 70 LGR 191, (1971) 116 SJ 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77, 82, 83, 97, 98, 99, 167, 171, 189, 190 Bishopsgate Motor Finance Corpn v Transport Brakes Ltd [1949] 1 KB 322, [1949] 1 All ER 37, 65 TLR 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Blaker v Herts & Essex Waterworks Co (1889) LR 41 Ch D 399 . . . . . . . . . . . . . . . . . 28 Blakey v Dinsdale et al (1777) 2 Cowp 661, 98 ER 1294 . . . . . . . . . . . . . . . . . . . . . . . 73, 93 Bolton MBC  v Secretary of State for the Environment [2017]  PTSR  1063, [1990] 7 WLUK 354, (1991) 61 P & CR 343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 Bourgin SA  v Ministry of Agriculture, Fisheries & Food [1986]  QB  716, [1985] 3 WLR 1027, [1985] 3 All ER 585 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Brackenborough v Spalding UDC [1942] AC 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 65 Brandon v Barnes [1966] 1 WLR 1505, [1966] 3 All ER 296, (1966) 130 JP 389 . . . 45, 46, 47, 50 Brecon Markets Co v Neath Rly Co (1871–72) LR 7 CP 555 . . . . . . . . . . . . . . . . . . . . 59 Brecon Markets Co v St Mary’s, Brecon (1877) 36 LT 109 . . . . . . . . . . . . . . . . . . . . . . 153 Brett v Beales (1829) Mood & M 416, 173 ER 1208 . . . . . . . . . . . . . . . . . . . . . . . . 189, 190 Bridgeman v Limerick Corpn [2001] 2 IR 517 . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 226, 232 Bridgland v Shapter (1839) 5 M & W 375, 151 ER 159 . . . . . . . . . . . . . . . . . . . . . . . . 27, 93 Brisco v Lomax (1833) 8 Ad & El 198, 112 ER 812, [1838] 5 WLUK 8 . . . . . . . . . . . 191 Bristow v Comican (1877–78) LR 3 App Cas 641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 British Car Auctions Ltd v Wright [1972] 1  WLR  1519, [1972] 3  All ER  462, [1972] RTR 540 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128, 132 Brook (Valuation Officer) v Greggs plc [1991] RA 61, [1991] EG 27 (CS) . . . . . . . . . 152 Brune v Thompson (1843) 4 QB 543, 114 ER 1003 . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Bryant v Foot (1867–68) LR 3 QB 497 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Burdett’s Case (1709) 1 Salk 327, 91 ER 289, [1709] 1 WLUK 35 . . . . . . . . . . . . . . . . 12 Butler’s (Sir Oliver) Case (1680) 2 Vent 344, 86 ER 477; aff’d sub nom R v Sir Oliver Butler in the House of Lords (1685) 3 Lev 220, 83 ER 659 . . . . . . . . . . . . 159, 160 Bynner v R (1846) 9 QB 523, 115 ER 1373 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 Byrne v Ireland [1972] IR 241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215, 216 Byrne v Tracey & Wicklow Corpn [2001] IEHC 239 . . . . . . . . . . . . . . . . . . . . 225, 227, 230

C Cadbury Bros Ltd v Sinclair see Sinclair (Inspector of Taxes) v Cadbury Bros Ltd [1934] 2 KB 389 Caernarvon (Earl) v Villebois (1844) 13 M & W 313, 153 ER 130 . . . . . . . . . 108, 190, 191 Cambridgeshire & Isle of Ely County Council v Rist [1972] 2  QB  426, [1972] 3 WLR 226, [1972] 3 All ER 232 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

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Camden London Borough Council v Paddock [1996] CLY 3691 . . . . . . . . . . . . . . . . . 119 Campbell v Wilson (1803) 3 East 294, 102 ER 610 . . . . . . . . . . . . . . . . . . . . . . 18, 20, 21, 97 Carnarvon (Earl) v Villebois (1844) 13 M & W 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Cayne v Global Natural Resources plc [1984] 1 All ER 225 . . . . . . . . . . . . . . . . . . 163, 164 Celsteel Ltd v Alton House Holdings Ltd [1985] 1 WLR 204, [1985] 2 All ER 562, [1984] 6 WLUK 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576 Chafin v Betsworth (1684) 3 Lev 190, 83 ER 644 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Chapman v Smith (1754) 2 Ves Sen 506, 28 ER 324 . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Chichester District Council v Wood [1997] COD 240 . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Cirencester UDC  v Chichester Town AFC & Aketwise Merchants Ltd (1973) 137 LGR 515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 City of Edinburgh v Secretary of State for Scotland [1997] 1 WLR 1447, [1998] 1 All ER 174, 1998 SC (HL) 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 City of London v Vanacre (1704) 12 Mod Rep 269, 88 ER 1314 . . . . . . . . . . . . . . . . . 103 Clifton v Holborn Borough Council (1929) 27 LGR 658 . . . . . . . . . . . . . . . . . . . . . . . . 54 Coleman v Howard (1860) 2 LT 463 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Collins v Cooper (1893) 9 TLR 250 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 58 Collins v Wells Corpn (1885) 1 TLR 328 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 118 Comerford v O’Malley [1987] IRLM 595 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 Comyns v Boyer (1596) Cro Eliz 485, 78 ER 736 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Cooper v Whittingham (1880) LR 15 Ch D 501 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Cork Corpn v Shinkwin (1825) Sm & Bat 395 . . . . . . . . . . . . . . . . 55, 81, 82, 84, 85, 89, 92 Cork County Council & Burke v Commissioners of Public Works [1945] IR 561 . . . . 216 Crane v Lawrence (1890) LR 25 QBD 152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 Crease v Barrett (1835) 1 Cr M & R 919, 149 ER 1353 . . . . . . . . . . . . . . . . . . . . . . . . 190 Criminal Proceedings against Keck (Case C-267/91) sub nom Criminal Proceedings against Mithouard (Case C-268/91) [1993] ECR I-6097, [1995] CMLR 101 . 185 Crosby v Delap [1992] ILRM 564 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 Crown Estate Comrs v City of London Corpn (The Times, 11 May 1992) . . . . . . . . . . 18, 44 Cundy v Lindsay (1877–78) LR 3 App Cas 459, [1874–80) All ER Rep 1149, (1878) 42 JP 483 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Curtis v Embery (1871–72) LR 7 Exch 369 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48 Curwen v Salkeld (1803) 3 East 538, 102 ER 703 . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41, 42

D DPP v Hutchinson sub nom DPP v Smith (Georgina) [1990] 2 AC 783, [1990] 3 WLR 196, (1991) 155 JP 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 DPP v Jones (Margaret) [1999] 2 AC 240, [199] 2 WLR 625, [1999] 2 All ER 257 . . . 43 DPP (Long) v McDonald & O’Mahoney v Biggs [1983] ILRM 223 . . . . . . . . . 216, 226, 227 Davidson v Strong (The Times, 20 March 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 Davies v Williams (1851) 16 QB 546, 117 ER 988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 De Chaunce v De Twenge & de Ros (1337) YB 11 Edw III . . . . . . . . . . . . . . . . . . . . . 96 Delyn Borough Council v Solitaire (Liverpool) Ltd (1995) 93  LGR  614, (1995) 159 LG Rev 449, [1995] EG 11 (CS) . . . . . . . . . . . . . . . . . . . . . . . . 24, 92, 136, 166 Denesham’s (Abbot) Case (1355) YB 29 Edw III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Dent v Oliver (1607) Cro Jac 122, 79 ER 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96, 97 De Rutzen (Charles Frederick) & Mary Dorothea, his wife v Lloyd (1836) 5 Ad & El 456, 111 ER 1238 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41 De Rutzen (Charles Frederick) & Mary Dorothea, his wife v Farr (1835) 4 Ad & El 53, 111 ER 707 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189, 190 Devizes Corpn v Clarke (1835) 3 Ad & El 506, 111 ER 506, [1835] 6 WLUK 14 . . . . 89 De Winton v Brecon (Borough) (1859) 26 Beav 533, 53 ER 1004 . . . . . . . . . . . . . . . . 28 Dimes v Grand Junction Canal (1852) 3 HL Cas 759, 10 ER 301, [1853] 1 WLUK 17 195 Divito v Stickings [1948] 1 All ER 207, 64 TLR 92, (1948) 112 JP 166 . . . . . . . . . . . . 50 Dixon v Robinson (1686) 3 Mod Rep 107, 7 ER 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Dodd v Venner (1922) 20 LGR 574 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

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Doe d on the demise of the Earl of Ashburnham v Michael (1851) 17  QB  276, 117 ER 1286 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Doe d St Julian (Minister etc of) v Cowley (1823) 1 C & P 123 . . . . . . . . . . . . . . . . . . 66 Doe d Tatum v Catomore (1851) 16 QB 745, 117 ER 1066 . . . . . . . . . . . . . . . . . . . . . . 108 Doe d on the several demises of Webber & the Dean & Chater of Exeter v Thynne (1808) 10 East 206, 103 ER 753 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Doe d on the demise of His late Majesty King William IV & of John Jones v Roberts (1844) 13 M & W 520, 153 ER 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Dorchester Corpn v Ensor (1868–69) LR 4 Exch 335 . . . . . . . . . . . . . . . . . . . 40, 81, 82, 85 Downshire (Marquis) v O’Brien (1887) 19 LR Ir 380 . . . . . . . . . . . 1, 85, 86, 97, 103, 105, 213, 217, 233 Draper v Sperring (1861) 10 CBNS 113, 142 ER 392 . . . . . . . . . . . . . . . . . . . . . . . . . . 51, 65 Drewry v Barnes (1826) 3 Russ 94, 38 ER 511 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Drinkwater v Porter (1835) 7 Car & P 181, 173 ER 80 . . . . . . . . . . . . . . . . . . . . . . . . . 190 Duffy v Dublin Corpn [1974] IR 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 36, 98, 226 Du Jardin v Beadman Bros [1952] 2  QB  712, [1952] 2  All ER  160, [1952] 1 TLR 1601 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Dumpor’s Case (1603) 4 Co Rep 119b, 76 ER 1110 . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 Dyson v London & North Western Rly Co (1880–81) LR 7 QBD 32 . . . . . . . . . . . . . . 117

E E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] QB 1044, [2004] 2 WLR 1351 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 East Lindsey District Council v Hamilton (The Times, 2 April 1984) . . . . . . . . . . . . . . 98 East Staffordshre County Council v Windridge Pearce (Burton-upon-Trent) Ltd [1993] EG 186 (CS), [1993] NPC 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 90 Egremont (Earl) v Keene (1837) 2 Jo Ex IR 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 191 Egremont (Earl) v Saul (1837) 6 Ad & El 924, 112 ER 353 . . . . . . . . . . . . . . . . . . . . . 60 Ellis v Mayor & Burgessesof the Borough of Bridgnorth (1863) 15  CBNS  52, 143 ER 702 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 75, 100, 109 Elwes v Payne (1879) LR 12 Ch D 468 . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 82, 85, 97, 171 Elwood v Bullock (1844) 6 QB 383, 115 ER 147 . . . . . . . . . . . . . . . . . . 44, 45, 46, 113, 117 Escot v Lanreny (1594) Owen 109, 74 ER 936 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Everett v Griffiths (No 4) [1924] 1 KB 941 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 Exeter Corpn v Warren (1844) 5 QB 773, 114 ER 1441, [1844] 2 WLUK 41 . . . . . . . . 190

F Fearon v Mitchell (1871–72) LR 7 QB 690 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Fitzgerald v Connors (1871) 5 IR 5 CL 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Fowkes v Joyce (1689) 3 Lev 260, 83 ER 680 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Freeman v Phillips (1816) 4 M & s 486 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Fripp v Chard Rly Co (1854) 11 Hare 241, 68 ER 1264 . . . . . . . . . . . . . . . . . . . . . . . . 28

G Gard v Collard (1817) 6 M & S 69, 105 ER 1169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Gardiner v Williamson (1831) 2 B & Ad 336, 109 ER 1168 . . . . . . . . . . . . . . . . . . . . . 27 Gardner v London, Chatham & Dover Rly Co (No 1) (1866–67) LR 2 Ch App 201 . . 28 Gentel v Rapps [1902] 1 KB 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Gerring v Barfield (1864) 16 CBNS 597, 143 ER 1261 . . . . . . . . . . . . . . . . . . . . . . . . . 46 Gibson v Doeg (1857) 2 Hurl & N 615, 157 ER 253 . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Gingell, Son & Foskett Ltd v Stepney Borough Council [1908] 1 KB 115; aff’d sub nom Stepney Corpn v Gingell, Son & Foskett Ltd [1909] AC 245 . . . . . . . . . 40, 45

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Gloucester City Council v Williams (1991) 88 LGR 853, 155 LG Rev 348 . . . . . . . . . 118 Gloucester Grammar School Case (1410) YB 11, Hen IV . . . . . . . . . . . . . . . . . . . . . . . 96 Gloucestershire County Council v Farrow [1984] 1 WLR 262, [1983] 2 All ER 1031, 81 LGR 621 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 26, 33, 45, 46, 103, 106, 136, 189 Goldsmid v Great Eastern Rly (1883) LR 25 Ch D 511 . . . . . . . . . . . . . . . . . . . . . . . . . 37, 46 Goodson v Duffield (1612) Cro Jac 313, 79 ER 268 . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 108 Gouriet v Union of Post Office Workers [1978] AC 435, [1977] 3 WLR 300, [1977] 3 All ER 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174, 178 Graysim Holdings Ltd v P & O Property Holidngs Ltd [1994] 1 WLR 992, [1994] 3 All ER 897, 92 LGR 598 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 Great Eastern Rly Co v Goldsmid (1883–84) LR 9 App Cas 927 . . 18, 19, 22, 44, 78, 80, 82, 85, 86, 89, 91, 92, 93, 94, 97, 134, 159 Great Western Rly Co v Swindon & Cheltenham Extension Rly Co (1883–84) LR 9 App Cas 787 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Greenwood v Whelan [1967] 1 QB 396, [1967] 2 WLR 289, [1967] 1 All ER 294 . . . 90

H Hailsham Cattle Market Co v Tolman [1915] 1 Ch 360 . . . . . . . . . . 25, 63, 98, 99, 100, 168 Hall v Nottingham (1875–76) LR 1 Ex D 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Halliday v Phillips (1889) LR 23 QBD 48; aff’d sub nom Phillips v Halliday [1891] AC 228 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Halton Borough Council v Cawley [1985] 1  WLR  15, [1985] 1  All ER  278, 83 LGR 250 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99, 100 Hammersmith & City Rly Co v Brand (1869–70) LR 4 HL 171 . . . . . . . . . . . . . . . . . . 92 Hammerton v Earl of Dysart [1916] 1 AC 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 78, 81 Hammerton v Honey (1876) 24 WR 603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105, 109 Hampshire County Council v Shonleigh Nominees Ltd [1970] 1  WLR  865, [1970] 2 All ER 144, 68 LGR 625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 Hampstead & Suburban Properties Ltd v Diomedous [1969] 1 Ch  248, [1968] 3 WLR 990, [1968] 3 All ER 545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Hand v Dublin Corpn [1991] ILRM 556 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219, 225, 226 Haringey London Borough Council v Michniewicz [2004]  EWHC  1728 (Admin), (2004) 101 (27) LSG 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Harris v Hawkins (1662) 1 Keb 342, 83 ER 983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Haynes v Ford [1911] 1 Ch 375 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Heddy v Wheelhouse (1597) Cro Eliz 591, 78 ER 834 . . . . . . . . 28, 60, 61, 63, 73, 107, 127 Heilbuth appeal, Re (VO) (1999) RA 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Hertfordshire County Coucil v Bolden (1986) 151 JP 252, (1987) 151 LG Rev 290 . . 49 Hickman’s Case (1598) Noy 37, 74 ER 1006 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 68, 73 Higham v Ridgway (1808) 10 East 109, 103 ER 717 . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Hill v Hank (1614) 2 Bulst 201, 1 Roll Rep 44, 80 ER 1066 . . . . . . . . . . . . . . . . . . . . . 59 Hill v Hawkur (1615) Moore KB 835 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 64, 68 Hill v Priour (1679) 2 Show KB 34, 89 ER 775 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Hill v Smith (1809) 10 East 476, 103 ER 856 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 64, 68 Hinchon v Briggs (1963) 61 LGR 315, [1963] Crim LR 357, 61 LGR 315 . . . . . . . . . 47, 49 Hirst v Chief Constable of West Yorkshire [1986] 11 WLUK  65, (1986) 85 Cr App R 143, (1987) 151 JP 304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 HItchman v Watt (1894) 58 JP 720 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Hobbs v Midland Rly Co (1881–82) LR 20 Ch D 418 . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Hoffmann-La Roche & Co AG v Secretary of State for Trade & Industry [1975] AC 295, [1974] 3 WLR 104, [1974] 2 All ER 1128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Hofner v Macrotron GmbH (Case C-41/90) [1991] ECR I-1979, [1993] 4 CMLR 306, (1991) SJLB 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 Holcroft v Heel (1799) 1 Bos & P 400, 126 ER 976 . . . . . . . . . . . . . . . . . . . . . . . . 18, 20, 97

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Holloway v Smith (1742) 2 Stra 1171, 93 ER 1106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 Hopkins v Worcester & Birmingham Canal Properties (1868)  LR  6 Eq 437, (1868) 37 LJ Ch 729 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Horada v Secretary of State for Communities & Local Government [2016] EWCA Civ 169, [2017] 2 All ER 86, [2016] PTSR 1271 . . . . . . . . . . . . . . . . . . . . . . . . . . 199 Horner v Freeman [1884] WN 223 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Horner v Stepney Assessment Committee (1908) 24 TLR 500 . . . . . . . . . . . . . . . . . . . 154 Horner v Whitechapel District Board of Works (1885) 53 LT 842 . . . . . . . . . . . . . . . . . 96 Howard v Commissioners of Public Works [1994] 1 IR 101 . . . . . . . . . . . . . . . . . . 215, 216 Howel v Johns (1600) Cro Eliz 773, 78 ER 1004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Hungerford Market Co v City Steamboat Co (1860) 3 El & El 365, 121 ER 479 . . . . . 69 Hunt v Burn (1701) 1 Salk 57, 91 ER 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

I In Shops Centres plc v Derby City Council (1996) 95 LGR 161 . . . . . . . . . . . 1, 88, 90, 161 Islington Market Bill, Re (1835) 3 Cl Fin 513, 6 ER 1530 . . . . . . . . . . 18, 19, 37, 38, 39, 78, 80, 81, 91, 92, 94 Iveagh (Earl) v Martin [1961] 1 QB 232, [1960] 3 WLR 210, [1960] 2 All ER 668 . . . 74

J Jenkin v Pharmaceutical Society of Great Britain [1921] 1 Ch 392 . . . . . . . . . . . . . . . . 159 Jenkins v Harvey (1835) 1 Cr M & R 877, 149 ER 1336 . . . . . . . . . . . . . . . . . . . . . . . . 20 Jewel v Stead (1855) 6 El & B 350, 119 ER 895 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Jewel’s Case (1588) 5 Co Rep 3, 77 ER 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Jones v Bath & North East Somerset Council [2012] EWHC 1361 (Admin) [2012] All ER (D) 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Jones v Lewis (The Times, 14 June 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 121 Jones v Matthews (1885) 1 TLR 482 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

K Kearton v Robinson (1965) 63 LGR 341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 64, 65 Keating v Horwood (1926) 135 LT 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130, 132 Keep v Vestry of St Mary Newington [1894] 2 QB 524 . . . . . . . . . . . . . . . . . . . . . . . . . 48 Kempin (t/a British Bulldog Ice Cream) v Brighton & Hove Council [2001] EWHC Admin 140, [2001] EHLR 19, [2001] All ER (D) 125 (Feb) . . 121 Kent County Council v Batchelor (No 1) (1976) 75 LGR 151, (1977) 3 P & CR 185, (1976) 242 EF 287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166, 177 Kent County Council v Batchelor (No 2) [1979] 1 WLR 213, [1978] 3 All ER 980, [1977] 12 WLUK 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166 Kerby v Whichelow (1700) 2 Lut 1498 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 64 Kingston-upon-Hull v Greenwood (1984) 82 LGR 586 . . . . . . . . . . . . . 85, 86, 87, 88, 90, 92 Kingston-Upon-Thames Royal Borough Council v Sherman & Waterman Associates Ltd (unreported, 6 July 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 20, 78, 171 Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227, [1992] 3 All ER 717 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164, 172 Knight’s case (1588) 5 Co Rep 54, 77 ER 137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Knott v Stride (1913) 11 LGR 534 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Kruse v Johnson [1898] 2 QB 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117, 118

L La Banque d’Hochelaga v Murray (1850) LR 15 App Cas 414 . . . . . . . . . . . . . . . . . . . 159

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Laing (J) & Son v Kingswood Assessment Committee [1949] 1  KB  344, [1949] 1 All ER 224, 65 TLR 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151, 152 Lancum v Lovell (1832) 6 Car & P 437, 172 ER 1310 . . . . . . . . . . . . . . . . . . . . . . . . . 61, 69 Lane’s Case (1586) 2 Co Rep 16b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Laurentiu v Minister for Justice [1999] 4 IR 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 Lawnson’s (Mayor) Case (1587) Cro Eliz 75, 78 ER 336 . . . . . . . . . . . . . . . . . . . . . . . 34, 66 Lawrence v Hitch (1867–68) LR 3 QB 521 . . . . . . . . . . . . . . . . . . . . . . . 60, 62, 63, 67, 189 Lax v Darlington Corpn (1879–80) 5 Ex D 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 Leeds City Council v Watkins [2003]  EWHC  598 (Ch), [2003]  UKCLR  467, [2003] Eu LR 490 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77, 184, 186, 203 Leicester City Council v Oxford & Bristol Stores Ltd (unreported, 21 December 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 25, 88, 90, 98, 170 Leicester Corpn v Maby (1971) 70 LGR 209 . . . . . . . . . . . . . . . . . . 82, 83, 97, 98, 167, 168, 171, 172, 189, 190 Leicester Forest Case (1607) Jenk 316, 145 ER 230 . . . . . . . . . . . . . . . . . . . . . . . . 103, 108 Leicester Town Case (1585) 2 Leon 190, 74 ER 468 . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Leicester Urban Sanitary Authority v Holland (1888) 57 LJMC 75 . . . . . . . . . . . . . . . 48 Leight v Pym (1687) 2 Lutw 1329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63, 64, 73 Leominster Fair Case (1285) Abb Plac 206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Lewis v Hammond (1818) 2 B & Ald 206, 106 ER 342 . . . . . . . . . . . . . . . . . . . . . . . . . 73 Lewis v Price (1761) 2 Wms Saund 175a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Lightfoot v Lenet (1617) Cro Jac 421, 79 ER 360 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 61 Listowel Livestock Mart Ltd v William Bird & Sons Ltd [2009] 4 IR 631 . . . . . 1, 15, 18, 19, 33, 36, 43, 216, 226, 234 Llandaff & Canton District Market Co v Lyndon (1860) 8 CBNS 515 . . . . . . . . . . . . . 126 Lockwood v Wood (1841) 6 QB 31, 115 ER 12 . . . . . . . . . . . . . . . . . . . 42, 59, 65, 66, 72, 75 Loftos v Gleave (1891) 55 P 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 London & North Eastern Rly Co (LNER) v Berriman [1946] AC 278 . . . . . . . . . . . . . 118 London Borough of Croydon v Bundon [2002] EWHC 1961 (Admin), [2003] EHLR 1 . 121 London Borough of Southwark v Transport for London & Corpn of London [2018] UKSC 63, [2018] 3 WLR 2059, [2019] 2 All ER 271 . . . . . . . . . . . . . 46, 47 London Corpn v Assessment Committee of Greenwich Union (1883) 48 LT 437 . . 150, 154, 155 London Corpn v Low (1879) 49 LJQB 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 London Corpn v Lyons, Son & Co (Fruit Brokers) Ltd [1936] Ch 78 . . . . . . . . 33, 34, 39, 85, 86, 94 London Corpn v Lynn Regis Corp (1796) 1 Bos & P 487, 126 ER 1026 . . . . . . . . . . . 75 London Corpn v Overseers of St Sepulchre (1871) LR 7 QB 333n . . . . . . . . . . . . . . . . 154 Londonderry Corpn v Osborne [1926] NI 58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 Loose v Lynn Shellfish Ltd [2016] UKSC 14, [2017] AC 599, [2017] 1 All ER 677 . . 32, 580 Loughrey v Doherty [1928] IR 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77, 95, 96, 97, 217 Lowden v Hierons (1817) Holt NP 647, 171 ER 372 . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 61 Lucan (Earl) v Gildea (1831) 2 Hud & B 635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Ludgate House Ltd v Ricketts (Valuation Officer) [2019]  UKUT  278 (LC), [2019] 9 WLUK 257, [2019] RA 423 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 Lyons v Kilkenny Corpn (unreported, 13 February 1987) . . . . . . . . . . . . . . . . . . . . . . . 225

M McHole v Davies (1875–76) LR 1 QBD 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 McIntosh v Romford Local Board (1889) 60 LT 185 . . . . . . . . . . . . . . . . . . . . . . . . . 127, 128 Macclesfield Corpn v Chapman (1843) 12 M & W 18, 152 ER 1093 . . . . . . . . . . . . . . 88, 89 Macclesfield Corpn v Pedley (1833) 4 B & Ad 397, 110 ER 504 . . . . . . . . . . . . . . . . . 88, 89 Malcolmson v O’Dea (1863) 10 HL Cas 593, 11 ER 1155 . . . . . . . . . . . . . . . . . . . . 189, 190 Manchester City Council v Walsh (1985) 84 LGR 1, (1985) 50 P & CR 409, (1985) 82 LSG 171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 80, 88, 90, 98, 100, 140 Manchester Corpn v Connolly [1970] Ch 420, [1970] 2 WLR 746, [1970] 1 All ER 961 163

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Manchester Corpn v Lyons (1882) LR 22 Ch D 287 . . . . . . . . . . . . . . 15, 25, 56, 88, 89, 98, 103, 109, 110, 578 Manchester Corpn v Peverley (1876) 22 Ch D 294 . . . . . . . . . . . . . . . . . . . . . . 103, 109, 110 Marquis of Downshire v O’Brien see Downshire (Marquis) v O’Brien Maskell v Horner [1915] 3 KB 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Mayor, Aldermen & Burgesses of the Royal Borough of Kingston upon Thames v Sherman & Waterman Associates Ltd (unreported, 6 July 1976) . . 82, 97, 169, 189 Mayor of Kingston-upon-Hull v Horner (1774) 1 Cowp 102, 98 ER 989 . . . . . . . . . . . 20 Mayor, Aldermen & Burgesses of Yarmouth v Groom (1862) 1  H  & C  102, 158 ER 818 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Mayor, Alderman & Burgesses of the Borough of Brecon v Edwards (1862) 1 Hurl & C 51, 158 ER 797 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93, 95 Mayor, Aldermen & Burgesses of the Borough of Reading v Clarke (1821) 4 B & Ald 268, 106 ER 936 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Mayor & Burgesses of Truro v Reynalds (1832) 8 Bing 275, 131 ER 407 . . . . . . . . . . 75 Mayor of Carlise v Wilson (1804) 5 East 2, 102 ER 969 . . . . . . . . . . . . . . . . . . . . . . . . 64 Mayor of Dorchester v Ensor (1868–69) LR 4 Exch 335 . . . . . . . . . . . . . . . . . . . . 86, 89, 97 Mayor of London v Assessment Committee of Greenwich Union (1883) 48 LT 437 . . 150 Mayor of Norwich v Swann (1777) 2 Wm Bl 1116, 96 ER 659 . . . . . . . . . . . . . . 34, 65, 66 Mayor, Aldermen & Burgesses of Newport v Saunders (1832) 3  B  & Ad 411, 110 ER 148 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 72 Medicaments & Related Classes of Goods (No  2), Re [2001] 1  WLR  700, [2000] 12 WLUK 687, [2001] UKCLR 550 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 Mercer v Woodgate (1869–70) LR 5 QB 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Meters Ltd v Metropolitan Gas Meters Ltd (1911) 28 RPC 157 . . . . . . . . . . . . . . . . . . 83 Middleton (Lord) v Lambert (1834) 1 Ad & El 401, 110 ER 1260 . . . . . . . . . . . . . . . . 74, 75 Middleton (Lord) v Power (1886) 19 LR Ir 1 . . . . . . . . . . . . . . . . . . 41, 56, 92, 105, 106, 217 Miller-Mead v Minister of Housing & Local Government [1963] 2  QB  196, [1963] 2 WLR 225, [1963] 1 All ER 459 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Mills v Colchester Corpn (1867–68) LR 3 CP 575 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Minister of Agriculture Fisheries & Food v Jenkins [1963] 2  QB  317, [1963] 2 WLR 906, [1963] 2 All ER 147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Mischeff v Springett [1942] 2 KB 331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Mogul Steamship Co v McGregor, Gow & Co (1889) LR 23 QBD 598 . . . . . . . . . . . . 35 Morpeth Corpn v Northumberland Farmers’ Auction Mart Co Ltd [1921] 2 Ch 154 . 81, 82, 83, 84, 85, 97, 171 Moseley v Chadwick (1782) 3 Doug KB 117, 99 ER 568, [1782] 6 WLUK 13 . . . . . . 85 Mosely v Pierson (1790) 4 Term Rep 104, 100 ER 918 . . . . . . . . . . . . . . . . . . . . . . . . . 64, 95 Mosley (Sir Oswald) v Walker (1827) 7 B & C 40, 108 ER 640 . . . . . . 36, 37, 38, 39, 40, 41, 89, 189, 190, 191 Mouflet v Cole (1871–72) LR 7 Exch 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 Mountjoy (Lord) & Huntingdon’s (Earle) Case (1589) 5 Co Rep 3, 77 ER 52 . . . . . . . 27 Mulliner v Midland Rly Co (1879) LR 11 Ch D 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Munnich v Godstone RDC  [1966] 1  WLR  427, [1966] 1  All ER  930, (1966) 130 JP 202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Muspratt v Gregory (1836) 1 M & W 633, 150 ER 588 . . . . . . . . . . . . . . . . . . . . . . . . . 35

N Nadarajah & Abdi v Home Secretary [2005] EWCA Civ 1363, [2005] 11 WLUK 580: 195 Nagy v Weston [1965] 1 WLR 280, [1965] 1 All ER 78, (1965) 129 JP 104 . . . . . . . . . 50 Neaverson v Peterborough Rural DC [1902] 1 Ch 557 . . . . . . . . . . . . . . . . . . . . . . . . . 21 Newcastle City Council v Noble (1990) 89 LGR 618 . . . . . . . . . . . . . . . . 77, 80, 91, 98, 141 Newcastle (Duke) v Worksop UDC [1902] 2 Ch 145 . . . . . . . 2, 53, 56, 60, 63, 69, 104, 108 Newman v Lipman [1951] 1 KB 333, [1950] 2 All ER 832, (1950) 114 JP 561 . . . . . . 130 New Windsor Corpn v Taylor [1899] AC 41 . . . . . . . 15, 21, 25, 98, 103, 108, 109, 110, 111 Newington Fair Case (1608) 2 Roll Abr 123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

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Newtownards Town Comrs v Wood (1877) IR 11 CL 506 . . . . . . . . . . . . . . . . . . . . . . . 99 Nicholls v Tavistock UDC [1923] 2 Ch 18 . . . . . . . . . . . . . . . . . . . . . . 33, 34, 117, 118, 235 Norman v Bell (1831) 2 B & Ad 190, 109 ER 1114 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68, 73 Normand v Alexander 1994 SLT 274, 1993 SCCR 351 . . . . . . . . . . . . . . . . . . . . . . . . . 121 Northampton Borough Council v Midland Development Group of Companies Ltd (1978) 76 LGR 750, [1978] JPL 543 . . . . . . . . . . . . . . . . . 78, 84, 88, 89, 90, 98, 171 Northampton Corpn v Ward (1746) 2 Stra 1238, 93 ER 1154 . . . . . . . . 34, 35, 59, 65, 66, 67 Norwich City Council v B & Q plc (No 2) [1991] Ch 48, [1991] 2 WLR 42, [1991] 4 All ER 221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Nugent v Kirwan (1838) 1 Jebb & S 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Nuneaton & Bedworth Borough Council v Russell (unreported, 17 April 1986) . . . . . 90

O O’Gorman v Brent London Borough Council (1993) 91  LGR  555, [1993] Crim LR 960 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Onasanya v Newham London Borough Council; Newham London Borough Council v Onadanya [2006] EWHC 1775 (Admin), [2006] 4 All ER 459 . . . . . . . . . . . . 123 Osbuston v James (1688) 2 Lut 1377 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 75 Oswestry Corpn v Hudd (Valuation Officer) [1966] 1 WLR 363, [1966] 1 All ER 490, (1966) 130 JP 171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59, 153, 154, 155

P Parker v Bournemouth Corp (1902) 86 LT 449 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Parry v Berry (1717) 1 Com 269, 92 ER 1066 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Partridge v Crittendon [1968] 1 WLR 1204, [1968] 2 All ER 421, (1968) 132 JP 367 . 128 Payne v Wilson [1895] 1 QB 653 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Pearson v Rose & Young Ltd [1951] 1 KB 275, [1950] 2 All ER 1027, 66 TLR (Pt 2) 886 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Penryn Corpn v Best (1877–78) LR 3 Ex D 292 . . . . . . . . . . . . . . . 20, 56, 88, 89, 189, 190 Percy v Ashford Union (1876) 34 LTNS 579 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 Peter v Kendal (1827) 6 B & C 703, 108 ER 610 . . . . . . . . . . . . . . . . . . . . . . . . . . . 105, 159 Phillips v Homfray (No 2) (1883) LR 24 Ch D 439 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 Pim v Currell (1840) 6 M & W 234, 151 ER 395 . . . . . . . . . . . . . . . . . . . . . . . . . . . 190, 191 Pitcher v Lockett (1966) 64 LGR 477, [1966] Crim LR 283 . . . . . . . . . . . . . . . . . . . . . 50 Plaxten v Dave (1829) 10 B & C 17, 109 ER 357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Player v Jenkins (1666) 1 Sid 284, 82 ER 1108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Poole Borough Council v B & Q (Retail) Ltd (The Times, 29 January 1983) . . . . . . . . 178 Pope v Whalley (1865) 34 LJMC 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89, 90 Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, [2002] 2 WLR 37 . . . . . . . . . . . . 196 Practice Direction (Queen’s Bench Division: Administrative Court: Establishment) [2000] 1 WLR 1654, [2000] 4 All ER 1071, [2000] 2 Lloyd’s Rep 445 . . . . . . 160 Prestatyn UDC  v Prestatyn Raceway Ltd [1970] 1 WLR  33, [1969] 3 All ER  1573, 68 LGR 609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 Prince v Lewis (1826) 5 B & C 363, 108 ER 135 . . . . . . . . . . . . . . 36, 37, 38, 40, 41, 92, 94 Prince’s Case (1605) 8 Co Rep l, 77 ER 481 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22 Prior of Dunstable’s Case YB 11 Hen VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88, 89, 94 Procureur du Rio v Dassonville (Case 8/74) [1974]  ECR  837, [1974]  ECR  837, [1975] FSR 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

R R v ________ (1682) 2 Show 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 R v Aires sub nom R v Eyre (1714) 10 Mod 258, 88 ER 718 . . . . . . . . . . . . . . . 19, 82, 159

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R v Barnard Castle Inhabitants (1863) 27 JP 534 . . . . . . . . . . . . . . . . . . . . . . . 150, 153, 154 R v Barnsley Metropolitan Borough Council, ex p Hook [1976] 1 WLR 1052, [1976] 3 All ER 452, 74 LGR 493 . . . . . . . . . . . . . . . . . . . . . . 71, 116, 119, 197, 206, 231 R v Basildon District Council, ex p Brown (1981) 79 LGR 655 . . . . . . . . . . . . 22, 119, 198 R v Bell (1816) 5 M & S 221, 105 ER 1032 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 154 R v Birmingham City Council, ex p Dredger (1993) 91 LGR 532 . . . . . . 119, 200, 201, 206 R v Bliss (1837) 7 Ad & El 550, 112 ER 577 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 R v Boucher (1842) 3 QB 641, 114 ER 653 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 R v Braintree District Council, ex p Willingham (1982) 81 LGR 70 . . . . . . . . . . . . . 164, 180 R v Brent London Borough, ex p Gunning [1985] 4 WLUK 200, 84 LGR 168 . . . . 119, 201 R v Bristol City Council, ex p Pearce (1984) 83 LGR 711 . . . . . . . . . . . . . . . . . . . . . . 122 R v Bungay Justices, ex p Long (1959) 123 JP 315 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 R v Burdett (1697) 1 Ld Raym 148, 91 ER 996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 67 R v Butler (1685) 3 Lev 220, 83 ER 659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19, 159 R v Casswell (1871–72) LR 7 QB 328 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127, 154 R v City of London Corpn, ex p Brewster [1993] EGCS 20 . . . . . . . . . . . . . . . . . . . 197, 200 R v Cotterill (1817) 1 B & Ald 67, 106 ER 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41 R v Cotton (1813) 3 Camp 444, 170 ER 1440 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 R v Crawley (1862) 3 F & F 109, 176 ER 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 R  v Crown Court at Southwark, ex p Watts (1989) 153  JP  666, 88  LGR  86, (1989) 153 JPN 756 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123, 184 R v Derby Justices (1856) 28 LTOS 89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 R v Eastern Archipelago Co (1853) 1 El & B 310; aff’d sub nom Eastern Archipelago Co v R (1853) 2 E & B 856 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159, 160 R v Elmbridge Borough Council, ex p Wendy Fair Markets Ltd [1994] EG 159 (CS), [1996] JPL 928 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 R v Farringdon Inhabitants (1788) 2 Term Rep 466, 100 ER 251 . . . . . . . . . . . . . . . . . 190 R v Haynes (1815) 4 M & S 214, 105 ER 814 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 R v Hughes (1865–67) LR 1 PC 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 R v Jarvis (1862) 3 F & F 108, 176 ER 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 R v Joliffe (1823) 2 B & C 54, 107 ER 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 R  v London Borough of Tower Hamlets, ex p Tower Hamlets Combined Traders Association (unreported, 19 July 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 R v London Corpn (1682) 2 Show 263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 R v Maidenhead Corpn (1620) Palm 76, 81 ER 986 . . . . . . . . . . . . . . . . 60, 61, 63, 64, 104 R v Manchester City Council, ex p King (1991) 89 LGR 696, [1991] COD 422 . . 71, 122 R v Marsden et al (1765) 3 Burr 1812, 97 ER 1113 . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 65 R v Miles (1797) 7 Term Rep 367, 101 ER 1024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 R v Mosley, Bart (1823) 2 B & C 226, 107 ER 367, [1823] 1 WLUK 169 . . . . . . . . . . 150 R  v North & East Devon Health Authority, ex p Coughlan [2001]  QB  213, [2000] 2 WLR 622, [2000] 3 All ER 850 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 R v Passmore (1789) 3 Term Rep 199, 100 ER 531 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 R v Prosser (1848) 11 Beav 306, 50 ER 834 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 R v Smith (1802) 4 Esp 111, 170 ER 659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 R v Starkey (1837) 7 Ad & El 95, 112 ER 406 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 41 R v Stevenson (1862) 3 F & F 106, 176 ER 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 R v Sutton (1816) 4 M & S 532, 105 ER 931 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189, 190 R v St Pancras Assessment Committee (1876–77) LR 2 QB 581 . . . . . . . . . . . . . . . . . 151 R v Treeve 2 East PC 821 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 R v Wear Valley District Council, ex p Binks [1985] 2 All ER 699 . . . . . . . . . . . . . 119, 198 R v Westminster City Council, ex p Elmasoglu [1996] COD 357 . . . . . . . . . . . . . . 121, 123 R v Wheeler (1991) 92 Cr App Rep 279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 R v Young (1883) 52 LJMC 55 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 R (on the application of Angello) v London Borough of Hounslow (2004) LLR 268: 199, 206 R (on the application of Beer t/a Hammer Trout Farm) v Hampshire Farmers Markets Ltd [2003] EWCA Civ 1056, [2004] 1 WLR 233, [2003] 7 WLUK 553 . . . . . 196

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R (on the application of Bibi) v Newham LBC (No 1) [2001] EWCA Civ 607, [2002] 1 WLR 237, [2001] 4 WLUK 438 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 R (on the application of Corpn of London) v Secretary of State for the Environment, Food & Rural Affairs & the Covent Garden Market Authority [2006] UKHL 30, [2006] 1 WLR 1721, [2006] 3 All ER 1130 . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 R (on the application of Cotham School) v Bristol City Council [2018] EWHC 1022 (Admin), [2018] 5 WLUK 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 R (on the application of Davies) v Crawley Borough Council [2001] EWHC Admin 854, [2001] 46 EG 178 (CS), (2001) 98 (44) LSG 37 . . . . . . . . . . . . . . . . . . . . 120 R (on the application of Harris), Haringey London Borough Council (Equality & Human Rights Commision intervening) [2010]  EWCA  Civ 703, [2011]  PTSR  931, [2010] 6 WLUK 485 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 R (on the application of Harvey) v Leighton Linslade Town Council [2019] EWHC 760 (Admin), [2019] 2 WLUK 241, [2019] LLR 564 . . . . . . . . . . . . 67, 68, 69, 119, 200 R (on the application of Islington London Borough Council) v Jordan [2002] EWHC 2645 (Admin), (2003) 167 JP 1, [2002] All ER (D) 81 . . . . . . . . . . . . . . . . . . . . . . . 123 R (on the application of Kennedy) v County Cork Justices (1911) 45 ILT 217 . . . . 46, 217 R (on the application of Long) v Monmouthshire CC [2012] EWHC 3130 (Admin), [2012] 11 WLUK 209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 R (on the application of West End Traders Association) v Westminster City Council [2004] EWHC 1167 (Admin), [2005] BLGR 143, [2004] ACD 73 . . . . . . . . . 122 Reading Borough Council v Payless DIY  Ltd (Case C-304/90) see Stoke on Trent City Council v B & Q plc (Case C-169/91) [1993] 2 WLR 730, [1993] 1 All ER 481, [1992] ECR I-6635 Redbridge London Borough v Jaques [1970] 1  WLR  1604, [1971] 1  All ER  260, [1971] RTR 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Reed v Jackson (1801) 1 East 355, 102 ER 137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Reid v Metropolitan Police Comr [1973] 1 QB 551 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 Richard v Forest Heath District Council (unreported, 1 May 1991) . . . . . . . . 118, 119, 200 Ricketts v Havering London Borough Council (1981) 79 LGR 146 . . . . . . . . . . 67, 119, 201 Rivers (Lord) v Adams (1877–78) LR 3 Ex D 361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Roberts v Hopwood [1925] AC 578 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Roberts v Overseers of Aylesbury (1853) 1 El & Bl 423, 118 ER 495 . . . . 150, 152, 153, 155 Rochdale Borough Council v Anders (Case C-306/88) [1988] 3 All ER  490, [1988] 3 CMLR 431, (1988) NLJ Rep 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Roe on the demise of Beebee v Parker (1792) 5 Term Rep 26, 101 ER 15 . . . . . . . . . . 190 Rolls v St George the Martyr, Southwark Vestry (1880) LR 14 Ch D 785 . . . . . . . . . . . 46 Rowe v Brenton (1828) 8 B & C 737, 108 ER 1217, (1828) 2 St Tr (NS) 251 . . . . . . . 191 Runnymede Borough Council v Ball [1986] 1 WLR 353, [1986] 1 All ER 629, (1987) 53 P & CR 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176, 179 Rutherford v Straker (1887) 42 Ch D 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

S Salisbury Rly & Market House Co Ltd [1969] 1 Ch 349, [1967] 3 WLR 651, [1967] 1 All ER 813 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Savage v Brook (1863) 15 CBNS 264, 143 ER 785 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Savery v Smith (1686) 2 Lut 1144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74, 75 Sawyer v Wilkinson (1598) Cro Eliz 627, 78 ER 868 . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 66 Scott v Glasgow Corpn [1899] AC 470, (1899) 1 F (HL) 51, (1899) 7 SLT 166 . . . . 34, 117, 118 Scott v Westminster City Council [1995] RTR 327, 93 LGR 370, (1995) 92 (8) LSG 41 . . 51 Scott Markets Ltd v Waltham Forest London Borough Council (1979) 77 LGR 565, (1979) 38 P & CR 597, [1979] JP 392 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134, 137 Scottish Co-operative Wholesale Society Ltd v Ulster Farmers’ Mart Co Ltd [960] AC 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 77, 85, 86, 87, 93

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Seddon Properties v Secretary of State for the Environment [1978] 5  WLUK  182, (1981) 42 P & CR 26, (1978) 248 EG 951 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201 Seekings v Clarke [1961] 1 WLUK 20, 59 LGR 268, (1961) 105 SJ 181 . . . . . . . . . . . 49 Sevenoaks District Council v Pattullo & Vinson Ltd [1984] Ch 211, [1984] 2 WLR 479, [1984] 1 All ER 544 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 26, 32, 40, 78, 81, 82, 85 Seward v Baker (1787) 1 Term Rep 616, 99 ER 1283 . . . . . . . . . . . . . . . . . . . . . . . . . . 72 Shanley v Galway Corpn [1995] 1 IR 396 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225 Shepherd v Payne (1864) 16 CBNS 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Shepway District Council v Vincent [1994] COD 451 . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Shillito v Thompson (1875–76) LR 1 QBD 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Simmonds v Cork County Council [2002] IEHC 17 . . . . . . . . . . . . . . 40, 216, 221, 226, 233 Simmonds v Kilkenny Borough Council [2007] IEHC 2 . . . . . . . . 15, 25, 98, 103, 109, 111, 219, 226, 230, 234 Simplex GE (Holdings) v Secretary of State for the Environment [2017] PTSR 1041, [1988] 5 WLUK 68, [1988] 3 PLR 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 Simpson v A-G [1904] AC 476 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Simpson v Wells (1871–72) LR 7 QB 214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 46 Sinclair (Inspector of Taxes) v Cadbury Bros Ltd sub nom Cadbury Bros Ltd v Sinclair [1934] 2 KB 389 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 Siskina, The (Owners of Cargo Lately Laden on Board) v Distos Compania Naviera SA [1979] AC 210, [1977] 3 WLR 818, [1977] 3 All ER 803 . . . . . . . . . . . . . 162 Six Carpenters’ Case (1610) 8 Co Rep 146a, 77 ER 695 . . . . . . . . . . . . . . . . . . . . . . . . 34 Skibbereen UDC v Quill [1986] 1 IR 123 . . . . . . . . . . . . . . . 19, 33, 60, 104, 105, 108, 216, 219, 220, 226, 235, 237 Slade v Drake (1617) Hob 295, 80 ER 439 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 100 Smith v Shepherd (1599) Cro Eliz 710, 78 ER 945 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Smith (WH) Do-It-All Ltd v Peterborough City Council, Payless DIY Ltd v Peterborough City Council [1991]1 QB 304, [1991] 4 All ER 193, [1991] 3 WLR 1131 . . . . . 182 Solihull Metropolitan Borough Council v Maxfern Ltd [1977] 1 WLR 127, [1977] 2 All ER 177, 75 LGR 327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 Solihull Metropolitan Borough Council v Maxfern Ltd (No 2) (1977) 75 LGR 392 . . . 174 Somerford PC v Cheshire East BC [2016] EWHC 619 (Admin), [2016] 3 WLUK 571 195 Somerset (Duke) v Fogwell (1826) 5 B & C 875, 108 ER 325 . . . . . . . . . . . . . . . . . . . 27 South Bucks District Council v Porter (No  1) [2003]  UKHL  26, [2003] 2 AC  558, [2003] 2 WLR 1547 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162, 195 South Buckinghamshire District Council v Secretary of State for the Environment (1989) 58 P & CR 121, [1989] 1 PLR 69, [1989] JPL 351 . . . . . . . . . . . . . . 136, 137 South Pembrokeshire District Council v Wendy Fair Markets Ltd [1994] 1 CMLR 213, [1993] NPC 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185, 186 South Tyneside MBC v Jackson [1998] EHLR 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Spear v Guardians of Bodmin Union (1880) 49 LJMC 69 . . . . . . . . . . . . . . . . . . . . 150, 152 Specot v Carpenter (1682) T Jones 207, 84 ER 1219 . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Spice v Peacock (1875) 39 JP 581 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 Spook Erection Ltd v Secretary of State for the Environment [1989] QB 300, [1988] 3 WLR 291, 86 LGR 736 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 135, 136, 578 Sprosley v Evans 1 Roll Abr 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Stafford Borough Council v Elkenford [1977] 1 WLR 324, 75 LGR 337, [1977] JPL 1 . 166, 175, 179 Staffordshire & Worcester Canal Navigation v Birmingham Canal Navigations (1866) LR 1 HL 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Stamford Corpn v Pawlett (1830) 1 Cr & J 57, 148 ER 1334 . . . . . . . . . . . . . . . . 60, 61, 72 Stevenage Borough Council v Wright (1996) 95 LGR 404 . . . . . . . . . . . . . . . . . 48, 121, 152 Stevens v Bromley London Borough Council [1972] Ch  400, [1972] 2  WLR  605, [1972] 1 All ER 712 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 Stevens v Chown, Stevens v Clark [1901] 1 Ch 894 . . . . . . . . . . . . . . . . . . . . . . . . . . . 98, 99 Stevens v Gourley (1859) 7 CBNS 99, 141 ER 752 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

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Stoke on Trent City Council v B & Q plc (Case C-169/91) [1993] 2 WLR 730, [1993] 1 All ER 481, [1992] ECR I-6635 sub nom Reading BC v Payless DIY Ltd Case C-304/90) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164, 166, 173, 174, 175, 176, 177, 179, 183, 184, 188 Stoke-on-Trent City Council v Saxon Scaffolding Ltd (unreported, 26 October 1979) . 177 Stoke-on-Trent City Council v WJ Wass Ltd (unreported, 4 March 1997) . . 24, 29, 79, 103 Stoke-on-Trent City Council v WJ  Wass Ltd (1994) 6 Admin LR  553, [1993] COD 340 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67, 70, 71 Stoke-on-Trent City Council v WJ Wass Ltd (1989) 87 LGR 129 . . . . . . . 77, 80, 81, 82, 83, 84, 85, 172 Stoke-on-Trent City Council & Norwich City Council v B & Q plc (Case C-169/91) [1993] 2 WLR 730, [1993] 1 All ER 481, [1992] ECR I-6635 . . . . . . . . . . . . . 183 Strand Electric & Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246, [1952] 1 All ER 796, [1952] 1 TLR 939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Strandmill v Secretary of State for the Environment & South Buckinghamshire District Council [1988] 2 PLR 1, [1988] JPL 491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 Strata Mercella (Abbot of) Case (1591) 9 Co Rep 24, 77 ER 765 . . . . . . . . . . . . . . . 28, 107 Street v Mountford [1985] AC 809, [1985] 2 WLR 877, (1985) 274 EG 821 . . . . . . . . 151 Strickland v Hayes [1896] 1 QB 290 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Strike v Collins (1886) 55 LT 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Summers v Holborn Distrct Board of Works [1893] 1 QB 612 . . . . . . . . . . . . . . . . . . . 48 Sutton Harbour Improvement Co v Foster (1920) 89 LJKB 829 . . . . . . . . . . . . . . . . . . 117 Sutton Harbour Improvement Co v Foster (No 2) (1920) 89 LJ Ch 540 . . . . . . . . . . . . 117 Swindon Central Market Co Ltd v Panting (1782) 27 LT 578 . . . . . . . . . . . . . . . . . . . . 64, 66

T Talbot v Lewis (1834) 1 Cr M & R 495, 149 ER 1175 . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Tameside Metropolitan Borough Council v C & E Comrs [1979] VATTR 93 . . . . . . . . 156 Tamworth Borough Council v Fazeley Town Council (1979) 77  LGR  238, (1978) 122 SJ 699 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 81, 91, 92 Taunton Market v Kimberley (1777) 2 Wm Bl 1120, 96 ER 662 . . . . . . . . . . . . . . . . . . 67 Taylor v New Windsor Corpn [1898] 1 QB 186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 Tewkesbury (Baliffs etc) v Bricknell (1809) 2 Taunt 120, 127 ER 1022 . . . . . . . . . 64, 75, 95 Tewkesbury Corpn v Diston (1805) 6 East 438, 102 ER 1355 . . . . . . . . . . . 64, 72, 93, 95, 96 Thanet District Council v Ninedrive Ltd [1978] 1 All ER 703, (1978) 76 LGR 320, [1977] JPL 718 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134, 137 Thatcher v Douglas (1996) 146 NLJ 282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576 Thomas v Jenkins (1837) 6 Ad & El 525, 112 ER 201 . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Thompson v Gibson (1841) 7 M & W 456, 151 ER 845 . . . . . . . . . . . . . . . . . . . . . . . . 96 Tidswell v Secretary of State for the Environment & Thurrock Borough Council (1977) 34 P & CR 152, (1976) 241 EG 83, [1977] JPL 104 . . . . . . . . . . . . . . . . . . 134, 136 Tithe Redemption Committee v Runcorn UDC  [1954] Ch  383, [1954] 2 WLR  518, [1954] 1 All ER 653 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47 Tod v Armour (1882) 9 R 901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Toronto (City) Municipal Corpn v Virgo [1896] AC 88 . . . . . . . . . . . . . . . . . . . . . . . . . 117 Tortfaen Borough Council v B & Q plc (Case C-145/88) [1990] 2 QB 19, [1990] 1 All ER 129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182, 183 Tottenham UDC v Williamson & Sons Ltd [1896] 2 QB 353 . . . . . . . . . . . . . . . . . . . . 174 Tower Hamlets London Borough Council v Reitzman (1984) 83  LGR  72, (1984) 148 JPN 590 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Towers & Co Ltd v Gray [1961] 2 QB 351, [1961] 2 WLR 553, [1961] 2 All ER 68 . . 132 Townend v Woodruff (1850) 5 Exch 506, 155 ER 221 . . . . . . . . . . . . . . . . . . . . . . . . . . 66 Tuck & Sons v Priester (1887) LR 19 QBD 629 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 Tunbridge Wels Borough Council v Dunn (1996) 95 LGR 775 . . . . . . . . . . . . . . . . . . . 121 Turner v Sterling (1672) 2 Vent 25, 86 ER 287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Tutton v Drake (1860) 5 Hurl & N 647, 157 ER 1338 . . . . . . . . . . . . . . . . . . . . . . . . . . 57

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Tyson v Smith (1838) 9 Ad & El 406, 112 ER 1265 . . . . . . . . . . . . . . . . . . . . . . . . 65, 66, 73

U United States Securities & Exchange Commission v Manterfield [2009] EWCA Civ 27, [2010] 1 WLR 172, [2009] Bus LR 1593 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164

V Vines v Reading Corpn (1826) 12 Moore CP 201, 148 ER 563, 1 Y & J 4 . . . . . . . . . . 64 Voisey v Cardiff City Council (1981) 79 LGR 185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

W Wakefield City Council v Box [1982] 3 All ER 506 . . . . . . . . . . . . . . . . . . . . . . . . . 84, 98, 99 Walker v Murphy [1914] 2 Ch 293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Waller v Hardy [1972] Crim LR 329, 12 KIR 331, (1972) 116 SJ 237 . . . . . . . . . . . . . 170 Waltham Forest London Borough Council v Mills [1980]  RTR  201, 78  LGR  248, [1980] Crim LR 243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Wander v Cooper [1970] Ch 495, [1970] 2 WLR 975, [1970] 1 All ER 1112 . . . . . . . . 163 Wandsworth London Borough Council v Rosenthal [1997] COD 63, (1996) 160 JP Rep 734 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 Ward v Knight (1591) Cro Eliz 227, 78 ER 483 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Warner v Metropolitan Police Comr [1969] 2 AC  256, [1968] 2 WLR  1303, [1968] 2 All ER 356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Warwick Corpn v Maby (No 2) (1971) 116 Sol Jo 137 . . . . . . . . . . . . . 82, 83, 97, 168, 189 Waterhouse v Keen (1825) 4 B & C 200, 107 ER 1033 . . . . . . . . . . . . . . . . . . . . . . . . . 64, 73 Watson v Coupland [1945] 1 All ER 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 Watson v Molloy [1935] 3 All ER 459 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 121, 141 Webb v Ireland [1988] IR 353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214, 215, 216 Wells v Miles (1821) 4 B & Ald 559, 106 ER 1041 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 West Berkshire District Council v Paine [2009] All ER (D) 55, [2009]  EWHC  422 (Admin) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 Westminster City Council v Jones (1981) 80 LGR 241, [1981] JPL 750 . . . . . . . . . . 166, 177 Westminster City Council v Southern Rly Co [1936] AC 511, [1936] 2 All ER 322, 34 LGR 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151, 152 Whitstable Free Fishers & Dredgers Co v Gann (1861) 11 CB NS 387, 142 ER 847 . . 73 Whistler’s Case (1613) 10 Co Rep 63, 77 ER 1021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Whitaker v Rhodes (1881) 46 JP 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 White v Morley [1899] 2 QB 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Whitham v Westminster Brymbo Coal & Coke Co [1896] 2 Ch  538, (1896) 65 LJ Ch 741 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Whittle (Hy) Ltd v Stalybridge Corpn (1967) 65 LGR 344, (1967) 111 SJ 477 . . . . . . 64 Wigley v Peachy, Keddon & others (1732) 2 Ld Raym 1589, 92 ER 527 . . . . . . . . 23, 66, 73 Wilcox v Steel [1904] 1 Ch 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85, 92, 97 Wilkinson v Nethersol (1596) Cro Eliz 530, 78 ER 777 . . . . . . . . . . . . . . . . . . . . . . . . 7 Williams v Wednesbury & West Bromwich Churcwardens & Overseers Union Assessment Committee (1890) Ryde Rat App (1886–1890) 327 . . . . . . . . . 150, 152 Willingale v Maitland (1866–67) LR 3 Eq 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Wing v Earl (1591) Cro Eliz 212, (1592) Cro Eliz 267, 78 ER 522 . . . . . . . . . . . . . . . . 80 Winkworth v Christie, Manson & Woods Ltd [1980] Ch  496, [1980] 2  WLR  937, [1980] 1 All ER 1121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 Winsford Entertainments Ltd v Winsford UDC (1924) 23 LGR 254 . . . . . . . . . . . . . . . 81, 82 Wolverhampton Borough Council v B & Q (Retail) Ltd (1983) 127 SJ 68 . . . . . . . . . . 178 Wolverhampton New Waterworks Co v Hawkesford (1859) 28 LJCP 242 . . . . . . . . . . 98, 99

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Wolverton UDC  v Willis (t/a SG  Willis & Sons) [1962] 1  WLR  205, [1962] 1 All ER 243, (1962) 126 JP 84 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 49 Wood v Hawkshead (1602) Yelv 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Woolwich Corpn v Gibson (1905) 3 LGR 961 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 Worcester Corpn v St Clements Overseers (1858) 22 JP Jo 319 . . . . . . . . . . . . . . . . . . 153 Wortley v Nottingham Local Board (1869) 21 LT 582 . . . . . . . . . . . . . . . . . . 26, 34, 40, 117 Wright v Bruister (1832) 4 B & Ad 116, 110 ER 399 . . . . . . . . . . . . . . . . . . . . 60, 62, 63, 67 Wrotham Park Estate Co v Parkside Homes Ltd [1974] 1  WLR  798, [1974] 2 All ER 321, (1974) P & CR 296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Wychavon District Council v Midland Enterprises (Special Events) Ltd (1988) 86 LGR 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179, 181 Wyld v Silver [1962] Ch 561, [1961] 3 WLR 1303, [1961] 3 All ER 1014 . . . . . . . . . . 2 Wyld v Silver [1963] 1 QB 169, [1963] Ch 243, [1962 3 WLR 841 . . . . . . 3, 17, 20, 29, 97, 103, 105, 106, 109, 168, 188, 189, 190, 235, 236, 237, 578 Wynne v Martin Batty’s Reports 110 (Ireland) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96, 217 Wynne v Tyrwhitt (1821) 4 B & Ald 376, 106 ER 975 . . . . . . . . . . . . . . . . . . . . . . . . . 190

Y Yard v Ford (1670) 2 Saund 172, 85 ER 922 . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 82, 85, 97 Yarmouth Corpn v Ward (1746) 2 Stra 1238 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35, 66 Yeates v Cardiff City Council (1981) 79 LGR 577 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 York’s (Archbishop) Case (1574) 4 Leon 168, 74 ER 799 . . . . . . . . . . . . . . . . . . . . . . . 75

Z Zombory-Moldovan (t/a Craft Carnival) v R  & C  Comrs [2016]  UKUT  433, [2016] STC 2436 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

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CHAPTER 1

Introduction 1 NATURE OF MARKETS AND FAIRS A Origins A market1 at common law is the franchise2 right of having a concourse of buyers and sellers to dispose of commodities in respect of which the franchise is given3. No one can have, in law, a franchise of market, or ‘a free market’, as it is sometimes called4, without a grant from the Crown5 or the authority of Parliament6. The franchise gives the holder the sole and exclusive right of holding markets within certain limits7; and although any person, provided he does not interfere with existing market rights, may make provision for a concourse of buyers and sellers upon his land, such a concourse, if not held under franchise or statute, is not a market in law and will not enjoy the privileges of a franchise market8. Thus, an area designated for casual trading under the scheme enacted in Ireland under the Casual Trading Act 1995 for the control and regulation of such trading does not create a franchise market within

1 From the Latin mercatus: buying and selling, trade. 2 See p 15, below. 3 Downshire (Marquis) v O’Brien (1887) 19 LR Ir 380, 390 per Chatterton VC. This is perhaps the happiest definition of a market to come from the Bench, but see also per Bruce J in Collins v Cooper (1893) 9  TLR  250. Although properly applicable to the right itself, the term is also often applied to the concourse of buyers or sellers, or to the place or day of holding the market. For example, in Scottish Co-operative Wholesale Society Ltd v Ulster Farmers’ Mart Co Ltd [1960] AC 63 at 86, Lord Somervell defined a market as a place to which sellers who have not found buyers take their goods in the hope of finding buyers and to which buyers resort in the hope of finding the goods they want. See also p 87, below and R v Bungay Justices, ex p Long (1959) 123 JP 315 (where it was held that a meeting of people in public houses could not constitute a market). It is not essential that the owner of the franchise should own the land on which the market or fair is held except that without ownership or exclusive occupation of the soil he cannot charge stallage. In the case of Listowel Livestock Mart Ltd v William Bird and Sons Ltd [2009] 4 IR 631 it was held that the entitlement to hold a market or fair, not defined by metes and bounds, ‘does not attach to any particular portion of land’, per Clarke J, and see pp 59, 66, below. However, it is essential for there to be a concourse of buyers and sellers, see In Shops Centres plc v Derby City Council (1996) 95 LGR 161, ie an assemblage of people buying and selling their wares. In this context it is to be noted that in Ireland there is now a statutory definition of ‘market right’ contained in s  1 (Interpretation) of the Casual Trading Act 1995. This statute was enacted in Ireland to control and manage casual trading in the State. A market right is defined as meaning ‘…a right conferred by franchise or statute to hold a fair or market, that is to say, a concourse of buyers and sellers to dispose of commodities.’ 4 A ‘free market’ appears to mean, not a market free to the public, or free of toll, but a franchisemarket, a market belonging entirely to the lord, free from the control of other persons; compare the terms ‘free court’, ‘free fishery’, ‘freehold’, ‘free warren’, and the other comprehensive expressions ‘liberties’ and ‘franchises’. 5 Or the State in Ireland as the successor in title to the Crown. ‘It was not suggested in these proceedings that there is anything inconsistent with the constitutional framework of this [Irish] jurisdiction in the continued existence of such rights and entitlements derived from preindependence royal grant’, per Clarke J in Listowel Livestock Mart Ltd v William Bird & Sons Ltd 4 IR [2009] 631, at [27]. 6 See pp 15, 16, 21, below. The distinction between a Crown grant and a statute was not always clear in early days: see p 21, below. 7 See pp 77–79, below. 8 See p 77, below. The so-called street markets in London are not franchise markets: see p 6, below.

1

Chapter 1 Introduction the definition of ‘Casual Trading’ in the Act, and it has been stated that it was not the intention of the legislature to do so9. Markets and fairs, although probably of different origins10, have always been treated in law as possessing almost the same incidents. Indeed, the word ‘market’11 is sometimes employed to include ‘fair’12. Coke said that whilst every fair is a market, not every market is a fair13. The chief distinction between markets and fairs at common law appears to be connected with frequency and duration and the type of commodity offered for sale. Markets were essentially local and provided an outlet for the surrounding countryside for the sale of mainly agricultural produce. They were held once or twice a week and were normally of a day’s duration. Fairs were seasonal, held two or three times a year and each was usually of several days’ duration. Fairs attracted merchants and traders from further afield who brought goods and services not available locally. Rural — often isolated — communities were thereby provided with an important link with the outside world. A fair has been described as a great sort of market14; the two franchises are, however, historically separate and distinct although of equal dignity, and often exist together in the same locality15. A further, lesser, historical distinction concerns the ancillary activities found in a fair. Amusements have a recognised place in a fair16; but a market is given over entirely to business. Amusements appear not, however, to constitute a legal incident of a fair and there cannot be any franchise for a fair devoted merely to amusements.

9

10 11 12

13 14 15 16

This is confirmed by the wording of ss 7 and 8 of the Casual Trading Act 1995 which expressly empowers a local authority to acquire and extinguish market rights, as defined in s 1 of the Act, per Keane CJ in Bridgeman v Limerick Corporation [2001] 2 IR 517, affirming the decision of Finnegan J at first instance [2000] IEHC (2 June 2000). ‘I do not think that it was the intention of the Oireachtas, in enacting the Act of 1995 and enabling bye-laws to be made, designating areas in which casual trading could take place, to create a “market” as thus defined [as quoted in Halsbury’s Laws of England (3rd Ed.) Vol 25, at p 381. That view is confirmed by the wording of the Act of 1995 which expressly empowers a local authority, in ss  7 and 8 to acquire and extinguish a “market right” and defines such a right as ‘a right conferred by franchise or stature to hold a fair or market, that is to say, a concourse of buyers and sellers to dispose of commodities’. Those provisions are patently inapplicable to the casual trading licences which the local authority is empowered to grant under the Act, and in respect of which, a self contained statutory scheme is provided for their grant and revocation’ (ibid pp 524–525); and see below Chapter 14. Suggestions concerning their origins may be found in the First Report of the Royal Commission on Market-Rights & Tolls (1889), by C I Elton, QC and B F C Costello; see also the judgment of Bruce J in Collins v Cooper (1893) 9 TLR 250, and footnote 12, below. See footnote 1, above. From the Latin feria, holiday; also an ecclesiastical term for a saint’s day. The earliest fair charters are to abbeys and priories; that of St Bartholomew to the prior in 1133; and that of Stourbridge granted by King John in 1211 to the lepers of the Hospital of St Mary. Where tolls are mentioned in the charters, they are granted for the purposes of religion and charity. The gatherings at such festivals were not only for religious purposes, but also for pleasure and business. They were often held in churchyards until forbidden by Statute of Winchester 1285 (13 Edw I, c 1) (repealed). The word ‘nundinae’ is sometimes used to describe a fair: originally it signified a weekly market; in later times it was used to describe any periodical trading assembly. 2 Inst 406; construing Statute of Westminster II 1285 (13 Edw I, c 24) (repealed). See also Statute Westminster I 1275 (3 Edw I, c 31) (repealed): ‘marche: this word doth here include a fair, as well as a market’ (2 Inst 221). See 15 Vin Abr 244, Market (A3); Collins v Cooper (1893) 68 LT 450. Newcastle (Duke) v Worksop UDC [1902] 2 Ch 145 at 155, 156; and see Gloucestershire County Council v Farrow [1984] 1 WLR 262 at 269 per Goulding J (at first instance). The existence of amusements accompanying a fair is recognised in the Metropolitan Police Act 1839, s 38. In Wyld v Silver [1962] Ch 561 at 570 Lloyd-Jacobs J held that the word ‘fair’ is a term of art and connotes a concourse of buyers and sellers for the purchase and sale of commodities pursuant to a franchise with an optional addition of provision for amusement. See also on appeal: [1963] Ch 243 at 261.

2

Nature of Markets and Fairs Consequently, there is no right or obligation under a franchise to hold a fair of this nature17. A ‘mart’ seems to be the same as a fair; Coke called it ‘a great fair holden every year’18. The term is commonly applied today to a livestock market. A ‘wake’ was a concourse for the purposes of pleasure held usually on a feast day following after a vigil connected with the local patron saint or some religious purpose19. No marketing took place and its origin lies not in a franchise but in customary law20. ‘Statute sessions’ were formerly held in the spring and autumn and were called hiring fairs or statute fairs, or sometimes hiring mops. At these gatherings labourers were hired for the ensuing season and they owed their origins to the Statutes of Labourers, the first of which was passed in the reign of Edward III, and which regulated the rate of wages of labourers21. This statute, together with a Statute of Labourers enacted the following year22, was passed in response to the outbreak of the Black Death in England which occurred between 1348 and 1350. These measures were the first attempts to regularise and stabilise the labour market and wage inflation at a time when there was a dramatic decline in the supply of labour owing to the death of between 30% to 40% of the population. Wages and prices were fixed and collective bargaining made illegal. The last statute on the subject was 5 Eliz I c 4 (XLVIII)23 which provided that it should be lawful: ‘..to the High Constables of Hundreds in every Shire, to hold, keep and continue PettySessions, otherwise called Statute-Sessions, within the Limits of their authorities within all Shires wherein such Sessions have been used to be kept, in such Manner and Form as heretofore hath been used and accustomed…’.

Stalls from which goods were sold were frequently found at statute sessions but this did not make them franchise markets or fairs24. A market or fair created solely by statute may have the incidents of a franchise market or fair, except so far as the incidents are inconsistent with the statute25. As mentioned above, the incident which constitutes the chief distinction between a franchise market and a mere concourse of buyers and sellers is that the owner of the former enjoys protection, and has, within certain limits, something akin to a monopoly, that is to say, the sole and exclusive right in law of holding markets26. He has the right to prevent the establishment, within 6⅔ miles of his own market, of any rival market which will draw customers away from his own. However a franchise market was originally much more than a right to provide for a concourse of buyers and sellers and to prevent others from doing the same; and the principle that no-one can hold a market without the authority of the Crown is more fundamental than the principle that when the Crown has granted a market to one subject it cannot afterwards derogate from its grant by authorising the establishment of a rival. The monopoly is the consequence of the grant. 17 See Walker v Murphy [1914] 2 Ch 293 at 302 (affd [1915] 1 Ch 71) where the dissenting judgment of Bruce J in Collins v Cooper (1893) 68 LT 450, that the word ‘fair’ signified more than an event devoted solely to amusements, was preferred. 18 2 Inst 221. 19 Wyld v Silver [1963] Ch 243 at 261, 262 per Harman LJ. 20 Ibid at 269, per Russell LJ. 21 The Statute of Labourers 23 Edw 3 (1349). 22 25 Edw 3 Stat 1 (1350). These statutes were repealed in England by the Statute Law Revision Act 1863, and in Ireland by the Statute Law (Ireland) Revision Act 1872. 23 An Act containing divers orders for Artificers, Labourers, Servants of Husbandry and Apprentices 1562, repealed by the Apprentices Act 1814. 24 See per Blackburn J in Simpson v Wells (1872) LR 7 QB 214. 25 See pp 25, 26, below. ‘Statute’ or ‘hiring’ fairs are not legal fairs: see p 2, above. 26 See p 77, below.

3

Chapter 1 Introduction Many markets originated, or were established, in the Anglo-Saxon period but numbers grew impressively in the 250 years following the Norman Conquest, a period during which population and agricultural output increased as more land was taken into cultivation. The granting of a market charter in itself stimulated agricultural production by providing an outlet for surplus produce, and the upsurge of trade during the Middle Ages encouraged the transformation of communities from the semi-rural to the wholly urban. New towns began to develop. The sale of wood and grain was vital to this process and the high cost of transport of bulk products like grain gave an added impetus to the development of those local markets not enjoying the advantages of easy access to sea or river routes. The creation, or recognition, of markets by the King, coupled with the granting of borough status (the two not infrequently went together), were, therefore, crucial elements in the process of urbanisation; and the existence of trade and the presence of craftsmen were factors more significant than size in determining whether a settlement was a town or a village27. Furthermore, the development of centres for the sale of surplus produce and supply of specialised services probably was more responsible than anything else for breaking down the isolation of rural communities in the 13th century. However, these newly acquired rights and privileges had to be protected. A town expanded with its market, drawing in settlers from the surrounding countryside who developed specialist skills which contributed enormously to the economy of the town. By the late 13th century, stimulated by the grant of borough status, towns were often self-governing, and could implement and enforce economic policies and their own rules and regulations. The new rights were jealously guarded against the lord, and against rival towns. Each town’s economic objectives were to protect the flow of trade to its own market; ensure a regular supply and a fair distribution of foodstuffs and raw materials within the town through prevention of the manipulation of food prices (forestalling, engrossing, regrating), and uphold the privileges in buying and selling enjoyed by townspeople or burgesses over strangers. The grant of a market franchise could, therefore, be very profitable to the grantee, and to the town burgesses, who often regulated the buying and selling. It was a coveted privilege, and one which gave rise to frequent disputes28. This process of urbanisation continued until the middle of the 14th century when plague and (particularly in Wales) insurrection checked both population growth and agricultural output. Many markets without the natural advantage of location on coast or river or main traffic route declined during this period, some to disappear entirely. Others more favourably sited survived, grew and flourished, and flourish to this day. It is probable that the operation of a legal market was made dependent on a grant to secure revenue to the Crown and to ensure control and good order in the market place. It was important that trade should be carried on only in places where it could be conducted under proper regulations, where law and order could be enforced, and where publicity of sales (which was considered essential to their validity) could be secured. Anglo-Saxon laws confined buying and selling to cities and towns and required the presence of witnesses29. The laws of William I showed a similar concern:

27 28 29

See, for example, Platt, The English Medieval Town (1976), c 3; Lloyd, The Making of English Towns (1984), c 4; Girouard, The English Town (1990), c 1. For a lively account of the 13th century dispute between the towns of Welshpool and Montgomery over their respective markets see R Morgan, The Montgomeryshire Collections Vol 65, pp 7–23. See Laws of Edward the Elder (901–924); Laws of Athelstan (circ 925); Laws of Edgar (959– 975); Laws of Canute (circ 1017); Laws of Edward the Confessor (1043–1066); printed in The Ancient Laws and Institutes of England (1840), pp 68, 88, 90, 117, 167.

4

Nature of Markets and Fairs ‘We forbid also that any live cattle be sold or bought except within cities, and then before three faithful witnesses. Likewise let no market or fair be, or be permitted to arise, except in the cities of our kingdom, and in boroughs enclosed and walled, and in castles and in very secure places where the customs of our kingdom and our common law and the dignities of our Crown, which have been constituted by our good predecessors, cannot perish, or be defrauded or violated; and all things ought to be done regularly and openly and by judgment and justice’30.

To permit or encourage irregular buying and selling of commodities was in direct violation of such a system, and accordingly it was necessary to obtain the King’s licence before promoting concourses of buyers and sellers — at any rate where they were to be held outside established towns. The grantees of such licences became market owners, charged with ensuring due observance of the law. The witnessing of sales would be one of the matters for which the lord would have to provide; and disputes arising out of such sales would, not unnaturally, be referred to him or his deputy. To this may be ascribed the origin of courts of pie powder (see below); and there would thus be most intimately connected with the holding of a market the exercise in it of civil jurisdiction. By the 13th century the mere gathering together of buyers and sellers had ceased to be unlawful; but by this time the holding of a court had become incident to every market or fair. The assumption of civil jurisdiction without a grant from the Crown was unlawful: no one could hold a court except by virtue of a franchise or the tenure of lands31. Hence, at this period also, a grant from the King was necessary for the holding of a market or fair, and these franchises were thenceforth treated on the same footing as the many other liberties, the possession of which entitled the holder to a definite jurisdiction. It was laid down that where there was no attempt to exercise such jurisdiction the promotion of a gathering of buyers and sellers was not to be regarded as the assumption of a franchise. There are several cases in the Placita de Quo Warranto32 which show that such gatherings at stated times were not necessarily considered to be markets. They were sometimes called wakes33, and were not usurpations of franchise, at any rate when no toll was taken. These cases were followed in the 18th century in R v Marsden34, where it was held that the mere promotion or encouragement of a concourse of buyers and sellers at stated times was not the usurpation of a franchise, there being no holding of a court of pie powder, nor taking of toll. In this case Wilmot J said that: ‘the reason why a fair or market cannot be otherwise claimed [than by grant or prescription] is not merely for the sake of promoting traffic and commerce, but also for the like reason as in Roman law, for the preservation of order and prevention of irregular behaviour: unbid est multitudo, ibi debet esse rector’.

30 See The Ancient Laws and Institutes of England, p 212. Cf ibid, p 209. 31 See Prof Maitland’s introduction to Select Pleas in Manorial and other Seignorial Courts, Selden Soc, vol i, where the difference between feudal or manorial jurisdictions and those which were regarded as regalities or franchises is discussed. The lord of the manor, as such, had no right to market jurisdiction. He only obtained it by charter; so that the market jurisdiction belongs rather to the class of franchise jurisdictions than to that of manorial or feudal jurisdictions. See also footnote 60, below. 32 See pp 115 (Crosthwaite), 801 (Ramesbury), 212 (Emmeseye), 321 (Canterbury). In the last case the place seems to have been open, not to the public, but only to the tenants of the manor. The judges said that this is ‘non regale, nee libertas: immo potius debet dici liberum tenementum.’ See also Abbot of Abingdon’s case (Trin 14 John), Abb Plac, p 54. 33 See p 3, above. 34 (1765) 3 Burr 1812; see also R v —— (1682) 2 Show 201.

5

Chapter 1 Introduction It was, and is, an essential condition of holding a market or fair that it should be open for all persons to frequent it for the purpose of buying and selling, ie for the benefit of the public 35. In consideration of the provision of land for the benefit of the public the Crown frequently granted to lords of markets and fairs the right to take toll upon goods sold in them. However, no toll could be taken without a grant. Toll was not incident to a market or fair, and many of them were toll-free. To take a toll in a toll-free market, or to take an excessive toll in any market, is unlawful and a ground of forfeiture of the franchise. The market must be kept open to all to buy and sell there freely, subject only to the payment of such tolls as have been duly authorised by the Crown or Parliament36. Where there is no market or fair there is nothing illegal in demanding payments resembling toll from persons admitted to buy and sell upon one’s land. A  person may, as a rule, throw open a building or make available a piece of land to buyers and sellers, and may stipulate whatever payment he pleases. If, however, he holds a market or fair, he must admit the public free of charge unless he has also a grant of toll. Such payments, when demanded without any franchise, cannot be recovered as toll, nor can they be distrained for or, in the absence of a contract, be recovered by action37. The taking of toll has been treated either as indicating that a gathering was in fact a market, or evidence of usurpation of a franchise38. Probably it should be regarded only as evidence that the person who takes the toll is purporting to do so under a franchise.

B Street markets In some towns, usually those without a market charter, there are streets in which traders are accustomed to put up stalls and sell their goods. This activity may be regulated under the Local Government (Miscellaneous Provisions) Act 198239, and in the case of the London authorities the London Local Authorities Act 199040. Each statute introduced a code which may be adopted by a local authority41. Many of the provisions were found previously in local Acts42. There are many so-called street markets in London. No tolls are taken and they are not franchise markets. It is possible that in some cases they are held where markets formerly existed, but they appear to be simply gatherings of sellers at places chosen by them for their own convenience.

35 36 37 38 39 40 41 42

The concept that markets were held for the benefit of the public was enshrined as a principle governing market operations from an early stage in the process of their evolution. See pp 18, 28, 33 and 34, below. See p 59 below. See pp 72, 73, below. Lord Mansfield, in R v Marsden (1765) 3 Burr 1812, said: ‘There are no marks of a fair or market, no toll taken.’ See also R v —— (1682) 2 Show 201; and the cases from the Plac Quo Warr, cited in footnote 32, above. For street trading outside London. See also the London Local Authorities Act 1994, s 6, Sch 4, as amended by the London Local Authorities Act 2007, Pt 3, Ch 2, Sch 3, and the London Local Authorities Act 2012, Pt 4, and Schs 1, 2. For the relevant parts of these statutes, see Appendix 1. See pp 119 et seq, below. Local Acts of Parliament and other provisions were repealed by the Local Government Act 1972, s 262(9). Orders were made with effect from the end of 1979 in the case of metropolitan counties, and elsewhere with effect from the end of 1984. However, by virtue of saving clauses contained in s 262(12)(c)(ii) and (13) of that Act provisions relating to statutory undertakings, which included any market undertaking, were expressly preserved. Examples of such market undertakings expressly preserved include those markets established under local Acts, which in many cases incorporated the provisions of the Markets and Fairs Clauses Act 1847.

6

Nature of Markets and Fairs In the metropolis, costermongers may carry on business in the streets provided that they comply with the regulations from time to time made by the Commissioner of Police with the approval of the Home Secretary and are licensed or registered43.

C Courts of pie powder Courts of pie powder (or pie poudre44) were formerly incident to every market and fair granted by the Crown45, and might exist by grant, prescription or custom independently of any market or fair46. The law administered derived from the custom of merchants so that the existence of these courts was of prime importance to the development of English mercantile law. The statute 17 Edward IV c 247 recites that: ‘Whereas divers Fairs be holden and kept in this Realm, some by prescription allowed before the Justices in eyre, and some by the Grant of our Lord the King that now is, and some by the Grant of his Progenitors and Predecessors; and to every of the same Fairs is of right pertaining a Court of Pipowders, to minister in the same due Justice in this Behalf; in which Court it hath been at all Times accustomed, that every Person coming to the said Fairs, should have lawful Remedy of all Manner of Contracts, Trespasses, Covenants, Debts and other Deeds made or done within any of the same Fairs, during the Time of the same Fairs, and within the Jurisdiction of the same, and to be tried by merchants being of the same fair …’

The court was a court of record, held before the steward (seneschal) appointed by the lord48, or (by special custom) before the mayor or his deputy and two bailiffs of the borough or citizens49. In some boroughs, merchants sat also as assessors. At Stourbridge fair, which belonged to the Corporation of Cambridge, the court was held before the mayor and bailiffs of Cambridge50. In earlier times, the court had jurisdiction in matters arising both within and outside the limits of the fair or market and this jurisdiction extended to pleas in respect of contracts, covenants, debts, deeds, trespasses, batteries or disturbances made, done or arising in the fair or market51. The court, perhaps, dealt with slanders spoken in the fair or market concerning goods exposed there52, but not with slanders of the person which did not touch any matters of contract made there, nor with any actions concerning land. The court had no jurisdiction in penal matters53. The

43 44

45 46 47 48 49 50 51 52 53

See p 48, footnote 127, below. ‘Court of Pepoudres, vulgarly piepowders’; 4 Inst 272. A corruption of OF ‘pied pouldre’, Lat ‘curia pedis pulverisati’; so called from the dusty feet of the suitors; see Shorter Oxford Eng Dict. In Wilkinson v Nethersol (1596) Cro Eliz 530, Anderson CJ said that these courts had this name ‘because they are there to hold pleas only of things parvi pouderis’. Stat 17 Edw IV, c 2, preamble, and I Rich III, c 6 (both repealed with savings by SLR Act 1948); 4 Inst 272; Howel v Johns (1600) Cro Eliz 773; Goodson v Duffield (1612) Cro Jac 313, 2 Bulst 21; YB 8 Hen VII, 4b, 12 Hen VII, 16b. Goodson v Duffield, above footnote 45; YB 13 Edw IV, 8b; 4 Inst 272. For Courts of Pipowder, 1477, repealed by the Statute Law Revision Act 1948. YB 6 Edw IV, 3b; 3 Black Comm 32. Goodson v Duffield, above footnote 45; see also Com Dig, Market, G  1; Bac Abr, Court of Pipowders; 4 Inst 272. Dyer, 132b, pi 80. Goodson v Duffield (1612) Cro Jac 313, 2 Bulst 21; Howel v Johns (1600) Cro Eliz 773, 774; Statutes 17 Edw IV, c 2, and I Rich III, c 6 (repealed with savings by Statute Law Revision Act 1948). Howel v Johns, above; see 10 Cro 73b. Wilkinson v Nethersol (1596) Cro Eliz 530. The Record of the Court of the Fair of St Ives (1275), extracts from which have been published by the Selden Society in vol ii of Select Pleas in Manorial Courts, presents a vivid picture of the procedure in the court of a fair. It is not clear, however, that all the matters dealt with by the steward of the fair came before him in the exercise of his jurisdiction as judge of a Court of Pie Powder. (See Prof Maitland’s introduction).

7

Chapter 1 Introduction jurisdiction was contemporaneous with the holding of the fair or market, and a court held at one fair could not decide questions arising on a contract made at a preceding fair54. Procedure was simple and expeditious: pleas were begun without a writ and an answer had to be made within a day and in many cases within an hour. Cases could be adjourned from hour to hour and were often concluded on the same day as they had begun although judgment might be deferred to the time of another fair or market55. From the middle of the 15th century the common law began to secure a hold over the further development of mercantile law and the influence of merchants in the settlement of their disputes declined. The statute of 147756 restricted the jurisdiction of the courts to matters arising in the fair or market and which occurred during the time the fair or market was held. Defendants were thus enabled to escape the jurisdiction of the local court by removing themselves outside the borough limits. This, coupled with the possibility of appeal to the common law courts, and the expense that that implied, resulted in a decline in the popularity of the courts, a decline hastened by a general decrease in itinerant trading as roads and communications improved57. The necessity for immediate hearing of disputes was thereby rendered nugatory. By the 17th century, the local courts were in a condition of terminal decline and, in the following century, Blackstone remarked that they were ‘in a manner forgotten’58. Their demise, however, proved to be surprisingly protracted. The County Courts Act 188859 enabled the lord of any hundred, honour, manor or liberty, having any court in right thereof in which debts or demands might be recovered, to surrender to the Crown the right of holding such court for any such purpose, provided that such surrender should not be deemed to imply the surrender or loss of any other franchise incident to the lordship60. The same Act enabled the Crown, by order in council, to exclude from the jurisdiction of a court of local jurisdiction causes of which a county court had cognisance, if a petition, praying for such order, were presented to the Crown by the council of any city or borough, or a majority of the ratepayers of any parish, within which the local court was established61. The jurisdiction was finally abolished in 197162.

D Manorial courts Although not directly relevant to the control of markets and fairs by the courts of pie powder; parallel with the decline of such courts was the decline in the jurisdiction of the manorial courts over, for instance, commons management63. The 19th century saw a steady erosion in the use and effectiveness of these manorial courts. Neither 54 55 56 57 58 59 60

61 62

63

Goodson v Duffield, above footnote 45; Dyer, 132b, pl 80. Selden Soc, vol xxiii, pp xxv–xxvi. 17 Edw IV, c 2. See Potter: Historical Introduction to English Law (1962) p 189. See 8 Co Rep 383. 51 & 52 Vict, c 43. Section 6 (repealed). The repealed 9 & 10 Vict, c 95, s  14 was to the like effect. See Law of Property Act 1922, Sch  12, para  5, preserving the rights of the lord of the manor to franchise rights in respect of fairs and markets on the abolition of copyholds, and see ss 128(1), (2), 138(12) and Sch 12, paras 4 and 6. The relevant parts of the 1922 Act were repealed by the Statute Law (Repeals) Act 1969. Section 7 (repealed). By the Courts Act 1971, s 43, as from 1 January 1972. The Report of the Royal Commission, vol iii, p 102, referred to a pie powder court as still held at Hemel Hempstead. Until abolition, such a court still existed at Bristol (the Bristol Tolzey and Pie Poudre Courts). With regard to the latter court see the Orders in Council, dated 16 May 1871, 26 June 1873, 19 July 1883, and the orders and rules for that court, dated 20 June 1878. For a fuller exposition of the subject, see Gadsden and Cousins, The Law of Commons and Greens, (3rd edn, Sweet and Maxwell, 2020) at paras 8.98–8.99.

8

Nature of Markets and Fairs manors, as institutions, nor manorial courts as administrative organisations for the manors, have in fact been abolished64, and in theory the courts may still be held. Their jurisdiction, however, has been so restricted as to make most of them obsolete in practical terms. Real property actions were abolished by the Real Property Limitation Act 1833, s 36. Under the County Courts Act 1846, s 14, lords were entitled to surrender to a county court the right of holding any court where debts and demands might be recovered. Further, the County Courts Act 1867, s 28 provided that henceforth no action or suit which could be brought in any county court shall be commenced in any hundred or other inferior court not being a court of record. The criminal jurisdiction seems to have withered away following the increased jurisdiction of justices of the peace after the enactment of the Summary Jurisdiction Act 1848. By the Law of Property Act 1922, s 188(6), the jurisdiction for enforcing a liability arising under a court leet regulation, or otherwise, for such matters as the maintenance of dykes, ditches, sea walls and ways was transferred to the county courts or High Court. Nevertheless, courts leet and courts baron were saved expressly by the Sheriff’s Act 1887, s  40(1), and customary courts were not abolished under the 1925 property legislation. Following a Law Commission Report65, the Administration of Justice Act 1977, s  23 was enacted in order to restrict the jurisdiction of most remaining manorial courts. The general scheme contained in the section was to recognise that a number of courts apparently still continued to retain the jurisdiction to hear and determine legal proceedings but this was largely unexercised. It was therefore provided that such courts should cease to hold this jurisdiction, but at the same time such courts to continue to sit and transact such other business, if any, as was customary immediately before the section came into force. Three categories of court still continue to be recognised and dealt with in different ways. These include the following: (a)

the Estray Court for the Lordship of Denbigh and the court leet for the manor of Laxton are excluded from the provisions of s 23;

(b) courts of certain descriptions which include courts baron, courts leet and customary courts of the manor (Part I of Schedule 4 to the 1977 Act) together with a named list of courts (Part II of Schedule 4) were subject to abolition of jurisdiction but are allowed to continue the business, if any, as was customary; and (c)

a third list of courts (Part III of Schedule 4) were also deprived of jurisdiction and the business that is to be treated as customary is that specified in column 2 of that part of Schedule 4.

Apart from the two courts excluded from the effect of the section the general result is that a number of courts can point to the Administration of Justice Act 1977 as evidence of the customary business which they are entitled to transact albeit that they have no jurisdiction to hear and determine legal proceedings. All other courts, of the types specified in the Act, are also deprived of jurisdiction but are not abolished and if they wish to transact business they will have to provide evidence that it was customary for them to do so immediately prior to the passing of the Act.

64 65

Cf. LPA 1925, s 201(l) which provides for the express application of provisions contained in the statute to apply to incorporeal hereditaments which include manors, reputed manors and lordships. Law Commission Report No. 72, Jurisdiction of Certain Ancient Courts, Cmnd. 6385, (1976).

9

Chapter 1 Introduction

2 CORRECTION OF THE MARKET Lords of markets and fairs, as such, appear not to have enjoyed any general jurisdiction over matters of a criminal nature. Market offences such as the sale of unwholesome meat, or the use of false weights and measures, mentioned in the Judicium Pillorie66, came more properly within the jurisdiction known as view of frankpledge (visus franci plegii) or court leet, or that of sheriff’s tourn; and the records of courts leet provide many examples of the punishment of offences of this nature67. The right to punish forestallers was either a separate franchise68, or part of the jurisdiction of frankpledge69. Very often the lord of the market or fair possessed also the view of frankpledge, and in such cases the same authority which had the market jurisdiction, also had criminal jurisdiction over market offences. In some places, the town burgesses were able to exercise control through the enforcement of regulations. For example, the burgesses of Newport were authorised by Earl Hugh of Stafford on 14 April 1535 to form a guild which was to determine weights and measures, set standards for victuallers and craftsmen, control all borough ordinances and regulations and hold the annual 15 day fair to which was attached a pie powder court under the presidency of the Reeve of Newport. The burgesses of Newport were thus empowered to maintain firm control of the economic, legal and political life of the town70. Whilst the lord of a market, as such, had no general criminal jurisdiction, it nevertheless seems fairly clear that he had the right and duty of enforcing the Assize of Bread and Ale on market and fair days within the market, and that this right was incident to a market or fair, and followed from the grant71. The Assize of Bread and Ale72 fixed the price of bread in relation to that of wheat, and the price of beer or ale in relation to those of wheat, barley and oats. Bakers and brewers convicted of not observing the assize were to be fined for the first three offences, but if the offence was ‘grievous and often’ they were to be sentenced; the baker to the pillory, and the brewer to the tumbrel. For the punishment of offenders against the assize, the market owner was bound to have in the market place his pillory and tumbrel, and to use them73. Many markets were forfeited because the lord took fines when he ought to have had recourse to these devices. This administration was referred to as the correction of the assize or the correction of the market74, and the lord’s officers for enforcing it were called correctors. So far as the lord of the market or fair was concerned, this right did not, it seems, carry with it any general right of correcting the Assize of Bread and Ale, but extended only to breaches in the market or fair. Apart from the foregoing, there appears not to have been any general right in a market owner to exercise criminal jurisdiction. No safe conclusion can be drawn from a reading of the records of the fair courts as to the extent of market jurisdiction, except, perhaps, that the market owner did not also possess view of frankpledge. Moreover, it cannot be assumed that jurisdiction in fact exercised in any such court 66 67 68 69

51 Hen III, st 6, Ruff (repealed by the Statute Law Revision Act 1863). See, for instance, the Court-Leet Jurisdiction in Norwich, Selden Soc, vol v. See Plac Quo Warr, Northolm, p 556. For the statute for View of Frankpledge, see 18 Edw II, Ruff (repealed by 50 & 51 Vict, c 55, but without prejudice to any court-leet, &c, then still held; see s 40). 70 See Griffiths (ed), Boroughs of Medieval Wales (1978) pp 208–209. 71 See Plac Quo Warr, Ormskirk (p 370), Wigan (p 371), Hovingham (p 219). 72 Assiza Panis et Cervisiae (51 Hen III, st I, Ruff); see also Judicium Pillorie (51 Hen III, st 6, Ruff). These statutes were repealed by the Statute Law Revision Act 1863. 73 Stat Judicium Pillorie (above); see also Plac Quo Warr, Northolm (pp 551–557), Seton (p 123), Wahull (p 36), Ireby (p 124), Ilkeston (p 137), Suthyevele (p 75). 74 YB II Hen VI, f 19; see also per Littledale J in R v Starkey (1837) 7 Ad & El 95, 107.

10

The Clerk of the Market was always rightfully exercised, but nor should it be forgotten that a town had a reputation to maintain and that reputation could be damaged and traders coming to the market deterred if the quality of goods and services was not upheld. It was thus in a town’s interests that ordinances regulating the conduct of, or correcting, the market be enforced.

3 EXTRAORDINARY JURISDICTION – FAIRS In some cases, lords of fairs claimed very extensive jurisdiction by special grant or prescription. An example of this claim can be found in the case of St Giles’ Fair at Winchester. There a charter of Edward III75 (confirming and enlarging previous charters) granted to the Bishop, who was the lord of the fair, that the keys of the city should be given up to him before the fair: ‘… and the Bishop from the time that the keys and custody of the gates have been delivered to him shall, by his justicaries and other ministers, have the custody of the whole city and cognisance of all pleas between the men and tenants of the city, and all other persons within a circuit of seven leagues round the fair, regarding breaches of law, debts, and all contracts whatsoever … And the said justicaries shall hold all the pleas of the Crown, whether by appeals or by indictments arising out of the facts, within the aforesaid precinct, shall pass judgment thereon, and take execution during the fair, as our justicaries do in like cases elsewhere in our realm of England.’

Similarly, the Archbishop of York had a fair there by prescription, and at the time of the fair the city bailiffs handed their staves over to the Archbishop’s bailiffs, ‘who shall during the fair keep the peace of the city, and collect the tolls, and take all other profits, as the city bailiffs do at other times’76. Again, at Hereford, the Bishop claimed by charter ‘the whole care and custody of the city at the time of the fair,’ and ‘to have all attachments and power over all merchandise, as well, in houses as without; and that all plaints of all manner of forfeitures are to come before the bailiffs of the Bishop, and they are to do justice to all complainants, and are to receive the amercements thereon during the fair’77.

4 THE CLERK OF THE MARKET The franchise of a market or fair did not carry with it the right to keep standards and hold assizes of weights and measures. Where the lord of a market possessed this right, he had it as a separate and independent franchise78. Any general history of the law of weights and measures would be out of place in this work79, but it seems proper, on account of his name and office, to make some reference to the Clerk of the Market of the King’s Household (Clericus mercati hospitii regis). It has been said that the duties of this ancient officer of the Crown originally consisted in the regulation of a continual market kept at the gate of the King’s court80. However, in the time of Edward I and afterwards, when this method of supplying 75 76 77 78 79 80

Edited by G W Kitchin DD, formerly Dean of Winchester, and printed in the Report of Royal Commission, vol i, p 91. The citizens of Winchester were granted a separate annual fair by the Crown in the fifteenth century. Plac Quo Warr, 222–223; Drake’s History of the City of York (1736), pp 218, 256. Abb Plac, p 113; Duncombe’s History of Hereford (1804), p 293. See, for example, Plac Quo Warr, Standford (p 395), Catthorp (p 395), Stanewyg (p 70). The present law on the subject, so far as it relates particularly to markets and fairs, is dealt with at pp 126 et seq, below. 4 Inst 273; 2 Inst 543.

11

Chapter 1 Introduction the royal table had been abandoned, his duties were somewhat different. He was entrusted with standards and samples of the King’s weights and measures; and with these he travelled from place to place and held his courts at all markets within the verge81. He examined the weights and measures used in the market, burned such as were false, and fined offenders82. The refusal of the bailiff of a market to submit to his jurisdiction was a ground for seizure of the franchise into the King’s hands83. In some cases, he may have had power to inquire into the jurisdiction of the lord of the market, and to ascertain whether the Assize of Bread and Ale had been duly kept84. By the retention of fines which ought to have been paid into the Exchequer85 and the exaction of bribes and illegal fees, the office was made very profitable; and in 1389 and 1392 the abuses of the office attracted the attention of Parliament86. Another matter of complaint about the same period was that the officer acted outside his jurisdiction, and refused to recognise the charters which the Crown from time to time granted to cities and other places exempting them from his control87. Such exemptions seem to have been granted freely down to the reign of Henry VIII. However, two of his statutes provided that, notwithstanding any grant to the contrary, the King’s Clerk of the Market, and none other, should exercise the office within the verge in places where the King from time to time tarried in person88. ‘The Description of England’ in Holinshed’s Chronicles contains an interesting exposition on fairs and markets89. The ‘covetousness’ of the clerks of the market is there lamented, and it is stated that at each view of measures they had a trick of providing business for the next. By 1640 further abuses had arisen. The clerks had assumed jurisdiction both within and without the verge90, and the office was usually farmed out in each county at a sum which the lessee could make up only by extortion. To remedy this, the 16 Cha I c 1991, was passed, which again confined the jurisdiction of the Crown official within the verge of the King’s court, and entrusted the execution of the office outside, in cities and boroughs to the mayor or other head officer, and in liberties and franchises to the lord or his deputy. All these persons were subsequently empowered and required to seal or mark measures of corn and 81 82 83 84

85 86 87

88 89 90 91

The verge extended to within 12 miles from the place where the king was keeping his court. Fleta, bk 2, c 20; Britton, bk I, c 31, ff 75b, et seq; 4 Inst 273. See Britton, loc cit, above; cf per Brian CJ, YB 2 Hen VII, f II. Ibid. In 1406 the clerk of the market was ordered ‘to do his office as in the time of Edward I  ordained and used’; see Rot Parl 8 Hen IV, No  82. The extent of his jurisdiction must have depended in each case upon the terms and validity of the letters patent appointing him; see Burdett’s Case (1709) 1 Salk 327, which seems to be the latest reported case in which this officer’s powers were considered in a court of law. This royal officer must not be confused with the clerk or bailiff of a market appointed by the lord to regulate it on the lord’s behalf. The accounts of the clerks of the market from 25 Edw I to 36 Eliz are kept in the National Archives; see 19th Report of the Deputy Keeper of the Public Records, p 7 (1858), and 20th Report, p xiii (1859). See 15 Rich II, st I, c 4, and 16 Rich II, c 3 (repealed Statute Law Revision Act 1863). See also Rot Parl 18 Edw III, No 12(4), and 50 Edw III, Nos 87 and 152. See Rot Parl 51 Edw III, No 53; 1 Rich II, Nos 75 and 128. Under the charters of 1327, 1462 and 1550, the exclusive right of performing all that appertained to the office within the City of London and the Borough of Southwark was conferred upon the Lord Mayors and their deputies, who thus acquired authority to regulate the weights and measures used in the London markets (see Birch, Historic Charters of London (1887) pp 55, 82, 122; Royal Commission, 1893, City of London, Statement by the Corporation, p 272). In the Duchy of Lancaster the Duke acquired by charter the like exclusive right (see Hardy’s Charters of the Duchy (1845)). 27 Hen VIII, c 24, s 10; 32 Hen VIII, c 20, s 7. The franchise rights of London and certain other places were preserved. Bk 2, ch 18 (2nd ed, 1587). Relying, possibly, on the 14 Edw III, st 1, c 12; ‘And it is not the king’s mind but that the clerk of the market shall do his office where he will, according as he was wont to do in times past’. An Act for the better ordering and regulation of the Office of the Clerk of the Market, 1640.

12

The Clerk of the Market salt when brought to them for that purpose92. It was further provided93 that in places where there was no clerk of the market this duty should be performed by ‘the person having the benefit of the market’. These seem to be the latest statutes in which the Clerk of the Market of the King’s Household is referred to by name94. Blackstone says that ‘the court of the clerk of the market is incident to every fair and market in the kingdom, to punish misdemeanours therein’95; but at the time when he wrote, the court of this officer of the King’s household was, in all probability, almost obsolete96. Indeed, even in Coke’s day there was ‘no great need for him, for the justices of assize, the justices of oyer and terminer, the justices of the peace, the sheriffs in their tourns, and the lord in their leets, may so inquire of false weights and measures’97. It has been stated that one of the recorded instances of a clerk of the market exercising powers as a King’s officer was in Middlesex, in 1738, when such an officer was authorised by letters patent to inspect all weights and measures within the ‘little verge’.

92 93 94

95 96 97

22 Cha II, c 8, s 4. 22 & 23 Cha II, c 12, s 4. The repeal of these statutes by the Statute Law Revision Act 1863 was without prejudice to established jurisdictions or existing franchises or offices, although derived from those statutes. The Weights and Measures Act 1878, s 69 (repealed), preserved existing franchises to examine, and verify or destroy, weights and measures; and the Weights and Measures (Purchase) Act 1892 (repealed) authorised county and borough councils to purchase such franchises by agreement. 4 Bl Com 275. Blackstone was misled by a passage in Nathaniel Bacon’s Law of English Government (bk I, c 8) into stating that the court derived its jurisdiction from the bishop. See 4 Inst 273. The sheriff’s tourn was abolished by 50 & 51 Vict, c 55, s 18.

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CHAPTER 2

Creation, Acquisition, Transfer and Registration of Markets and Fairs 1 TITLE TO THE FRANCHISE A Nature The right of holding a market or fair is well known to the common law. It is an incorporeal hereditament and is one of those incorporeal hereditaments which are called franchises1. A franchise is usually defined as a royal privilege or branch of the Crown’s prerogative subsisting in the hands of a subject2, either by virtue of a grant or by prescription. A franchise not only authorises something to be done, but also gives the owner the right of preventing others from interfering with it3. The right of creating a franchise to hold a market or fair has, from time immemorial, been annexed to the Crown as part of the prerogative4. Thus, no market or fair in the hands of a subject can have a legal origin or legal existence unless established by the royal prerogative5, or by the authority of an Act of Parliament6. The Crown, indeed, may create a market or fair ‘by ordinance without granting it unto any’7. In other words, the Crown may, by virtue of the prerogative, establish a market or fair to subsist in the hands of the Crown, and the formal instrument providing for its establishment is called an ordinance. The early records contain

1

Finch, L 164; 2 Bl Com 36–38; 3 Cru Dig, 4th ed, vol xxvii 267. For an example of a franchise other than a market or fair franchise, see the grant of the Liberty of St Edmund, below at p 16. 2 Ibid. 3 See below p 77; A-G v Horner (1885) 11 App Cas 66 at 80. 4 Bracton, bk 3, tract 2, c 1, s 3, f 117; Bac Abr, Fairs and Markets (A 1); notes to 2 Wms Saund 501n(b). 5 As to the rare case of the valid creation of a franchise by a subject having jura regalia, see Grant on Corporations, 11. Durham market seems to have originated in a grant in 1180 to the Corporation of Durham by the then Bishop of Durham: see Report of Royal Commission, vol xiii, part ii, p 176; vol iv, p 384. For a claim by a lord of Powys (Gruffydd ap Gwenwynwyn) in the 13th century that every lord having a town in the Welshry was permitted by Welsh law to hold a market and fair in his land, see the Welsh Assizes Roll, 1277–84 ed JC Davies, PRO, pp 148–149, 235–236. Richard Morgan gives an account in the Montgomeryshire Collections, Vol 65, pp 7–23 of the dispute between Gruffydd and Henry III over their respective markets at Welshpool and Montgomery. 6 In New Windsor Corpn v Taylor [1899] AC  41, Watson LJ was of the opinion (at 48) that the legislature alone cannot create a franchise. This was doubted by Megarry VC in Leicester City Council v Oxford and Bristol Stores Ltd (21 December 1978, unreported), who could not see why, if the statute were clear, it should be said that Parliament has no power to create a franchise or any other common law right by Act of Parliament. Compare also the observations of Bowen LJ in Manchester Corpn v Lyons (1882) 22 Ch D 287 at 310. For statutory markets established or acquired under the Food Act 1984 and common law incidents, see below pp 25, 109 et seq. For an Irish case on the extinction of charter market rights by a subsequent statute, see Simmonds v Kilkenny Borough Council [2007] IEHC 2,. For observations as to the role of the State in Ireland since 1922 as successor in title to the Crown as the grantor of the franchise of market, see the case of The Listowel Livestock Mart Ltd v William Bird and Sons Ltd [2009] 4 IR 631. ‘It was not suggested in these proceedings that there is anything inconsistent with the constitutional framework of this [Irish] jurisdiction in the continued existence of such rights and entitlements derived from pre-independence royal grant’, per Clarke J. 7 Hob 15, the source of the statements to the same effect in 2 Roll Abr 197; 17 Vin Abr 145; Chitty’s Prerogatives of the Crown, p 193.

15

Chapter 2  Creation, Acquisition, Transfer and Registration of Markets and Fairs several references to markets and fairs subsisting in the hands of the Crown8, and also examples of ordinances for their creation9; but few, if any, remain in the ownership of the Crown10. The ‘King’s markets’ and the ‘King’s fairs’ of former times have been either granted away to subjects11, or discontinued. In early times the franchise of holding markets and fairs was normally granted to the lord of the manor within which they were to be held, or, where they were to be held within a city or borough, to the city or borough corporation. Charters incorporating inhabitants of towns often contained grants of markets and fairs to the new corporations; and, indeed, sometimes the inhabitants were incorporated for no other purpose than that the body incorporate might hold a market or fair. This was the case at Hemel Hempstead under a Charter of 153912. Sometimes the inhabitants were not incorporated, but a body corporate was created to hold fairs in trust for them. Thus, at Hungerford the franchise was granted in 1432 to the then lords of the manor, and the grant incorporated them and made them trustees of the franchise for the inhabitants13. In the case of the grant of the Liberty of St Edmund in Suffolk14 a unique development occurred in that the Liberty was a temporal jurisdiction whose origins derive from religious and ultimately royal patronage granted by Edward the Confessor to Abbot Baldwin of Bury St Edmunds Abbey in the 11th Century. It was a separate franchise granted by the Crown. The office holder of the title was and continues to be known as the ‘High Steward of the Liberty’15. The title to the Liberty was subsequently confirmed by William the Conqueror and thereafter by successive Kings to the Abbots of Bury St Edmunds Abbey. Prior to the Reformation the Liberty formed part of the extraordinary and powerful ecclesiastical rule over the greater part of the hundreds of Suffolk and included a large number of manors or townships held by the Church in Suffolk, and market rights deriving therefrom. The effect of the grant of royal charters to the Abbey was to replace the courts of the King, and many of the manorial courts, by those of the Abbot throughout the Liberty. It is said that this jurisdiction involved the Abbey in disputes with the officers of the Crown, and that there was a continual tension between the Crown and the Abbot involving case in the Abbot’s Court. In the reign of Queen Anne there were instances of grants to individual persons in fee in trust for the inhabitants, in which neither the inhabitants nor their trustees were incorporated16; and in one case the trust was for the poor of the parish17. Markets and fairs at one time existed at Skipsea and Withernsea under grants simply ‘to the men of the vill their heirs and successors’18. The difficulties, both legal and practical, 8 9 10 11 12 13 14 15 16 17 18

See, for example, Rot Hundred, vol i, p ii (Sallingford fair), p 13 (Wycombe fair), p 18 (Windsor fair), p 70 (Exeter fair, a moiety of which was in the hands of the king and the citizens); Abb Plac, p 206b (Hereford fair), p 246 (Marlborough market); Plac Quo Warr, p 185 (Bridport market). See, for example, Rot Chart, p 77 (2 John, Portsmouth), p 135 (6 John, Marlborough). See the Parliamentary Return on Market Rights and Tolls, 1886; 74th Report of the Commissioners of Woods 1896; and the Final Report of the Royal Commission on Market Rights & Tolls, pp 18 et seq. Thus, the Crown sold Romford Market in 1829: see Report of Royal Commission, vol iii, p 53; and see ibid as to Hitchin. See Report of Royal Commission, vol iii, p 102. Ibid, vol iv, p 173. Originally known as the ‘Eight and a Half Hundreds’, the Liberty encompassed a large swath of what is now the administrative County of West Suffolk. The office of High Steward to the Liberty still exists, although its powers are much truncated and now are merely honorific. It forms part of the title of the Marquessate of Bristol, and the current holder of the office is Frederick Hervey, 8th Marquess of Bristol. Pat 8 Anne, p 5, No 13 (Chagford); Pat 5 Anne, p 2, No 18 (Wincalton[Wincanton]). See Report of Royal Commission (1888), vol i, pp 133, 134. Pat 4 Anne, p 3, No 9 (St Udy). See Report of Royal Commission, vol i, p 132. See Cal Rot Chart, p 174, 12 Edw III, Nos 29, 30. Poulson (Hist of Holderness, vol i, p 445) sets out the grant to the men of Skipsea.

16

Creation or Acquisition of Market Rights in the way of the franchise being exercised by the inhabitants of a place when not incorporated were probably met, in these cases, by the fact that the manors were in the hands of the King, whose bailiffs seem to have regulated these markets and fairs19; and accordingly grants of this kind should, perhaps, be described as ordinances. There is authority, however, for the view that a grant by the Crown to the inhabitants of a particular parish or vill for such a specific purpose as the holding of a market has the effect of incorporating them so as to facilitate the carrying into effect of that purpose20. In more recent times, markets and fairs have generally been established by special or general Acts of Parliament, and in many cases old markets have been modified by statute21. How far a statutory market has the incidents of a common law market and how far an old market modified by a statute retains such incidents depends on the terms of the statute22.

B The owner as market authority An individual grantee of a market or fair is generally called the lord or the owner of the market or fair. However, this is, perhaps, not an altogether convenient expression where a market or fair is in the hands of a body of persons, such as trustees or a district council. ‘The market authority’ is a term which is generally used to include every kind of market owner.

2 CREATION OR ACQUISITION OF MARKET RIGHTS A Acquisition by charter and letters patent (1) Nature The instruments by which the Crown grants rights and privileges to subjects are known as charters, letters patent and letters close23. From the end of the twelfth century to the year 1516, all grants of markets and fairs were made by charter24. After that date, grants were made by letters patent25. Since 1846 very few grants of market rights have been made by the Crown26.

19 See Poulson, Hist of Holderness, vol i, p 398, vol ii, p 458. 20 See Rivers (Lord) v Adams (1878) 3 Ex D 361, 366, per Kelly CB, who cites the early authorities; and Willingale v Maitland (1866) LR 3 Eq 103, 109. But in Wyld v Silver [1963] Ch 243 (see below, p 107), a prescriptive right to hold a fair or wake was held to be vested in the inhabitants of a parish: ‘… the present right … is a right in each member of the fluctuating body of inhabitants from time to time to offer goods for sale or to disport himself in manner consistent with the law. It seems to me that it is quite incapable of resting in anyone except the inhabitants. How could the sum of their rights vest in the churchwardens and overseers (or in any trustee)?’ (per Russell LJ at 271). 21 Below, pp 21 et seq. 22 Below, p 25. 23 As to proof of grants, see p 188. ‘Charters are donations of the sovereign; and not laws, but exemption from law’ (Hobbes). 24 Introduction to Rotuli Chartarum, by Sir Thos Duffus Hardy, vol i, pt i, pp 1, 11. 25 Introduction to Rotuli Litterarum Patentium, vol i, p  11. Grants have generally been made in perpetuity but occasionally have been limited in time, eg for a term of 40 or 95 years or with a clause determining the grant upon a certain event: see Pat 6 Anne, p 4, No 8; 9 Anne, p 3, No 7; 4 Anne, p 4, No 21; Report of Royal Commission, vol i, pp 132–134. 26 Walton J in Kingston-Upon-Thames Royal Borough Council v Sherman and Waterman Associates Ltd (6 July 1976, unreported) said that he was not aware of any suggestion that the power of the Crown to grant franchises of markets is any the less exercisable now than it ever was. His remarks were, however, obiter and the charter in question (granted by Elizabeth II on 10  March 1964) was, in effect, confirmatory of earlier charters on the occasion of the reorganisation of London Government in 1964.

17

Chapter 2  Creation, Acquisition, Transfer and Registration of Markets and Fairs The difference between charters and letters patent is mainly one of form, charters being documents of a more strictly formal nature27. If the charter or letters patent is expressed as having been granted by the Crown ‘with Parliament’s assent’, or similar words, strictly this is in the nature of a grant of a private or local and personal Act of Parliament and should be construed and receive effect according to its nature28. (2) Crown cannot derogate from grant The essential feature of a market franchise is that the holder has the sole and exclusive right of holding markets within the common law distance of 6⅔ miles29, the justification for which, it has been said, is for the benefit of the public30. This exclusive right is, however, private in nature and the market owner does not act on behalf of the Crown in the exercise of the latter’s prerogative, notwithstanding the duties towards members of the public imposed on the market owner by the grant of the franchise31. Many of the rules which have grown up under the common law for the purpose of regulating rights and duties of market franchises were formulated with the public interest in mind32. This principle affects the power of the Crown to grant market rights: the Crown may not, except with the consent of the owner of the existing market rights33, grant new market rights which would be injurious to the earlier grant34. An Act of Parliament is the only instrument which can infringe or detract from a previous grant. The rule is recognised by the common inclusion in a grant of a clause to the effect that the grant is made unless it is to the injury of neighbouring markets and fairs35. But the omission of such a clause from a grant will not benefit the grantee since it is implied by law36.

27

Many examples of grants of markets and fairs may be found in the Rotuli Chartarum. See, for example, the grant by Edward I dated 16 January 1280 in respect of Newtown, Powys in Rot Chart 8 Edw 1, m 11 no 73 (translation in Mont Colls vol 32, p 188). 28 Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927 per Selborne LC at 934 and 936. See p 134, below. 29 See pp 77 et seq, below. 30 ‘The justification for the grant of a monopoly of market is that the existence of the market is for the benefit of the public. If the market keeper is not to get his outlay back and something more, he will give up the market, and where will the public be then?’ per Hamilton LJ in A-G v Horner (No 2) [1913] 2 Ch 140 at 198 (referring also to the observations of Lord Macnaghten in Simpson v A-G [1904] AC 476 at 483). See also the remarks of Slade LJ in Sevenoaks District Council v Pattullo and Vinson Ltd [1984] 1 All ER 544 at 551. In the case of The Listowel Livestock Mart Ltd v Bird [2009] 4 IR 631 it was held that the grant of a market at common law was made for the benefit of the public as well as for the benefit of the grantee, and that certain obligations lay upon the grantee including one to hold the market or fair concerned, per Clarke J; see also p 234, below. 31 Spook Erection Ltd v Secretary of State for the Environment [1989] QB 300, 86 LGR 736; and see p 135, below. 32 Ie, for the benefit of the public; see also pp 28, 33, 34. 33 Consent may be presumed from long user without objection: Holcroft v Heel (1799) 1 Bos & P 400; Campbell v Wilson (1803) 3 East 294; Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927. See also p  134, below. For a modern case involving the construction of ancient charters governing Smithfield Market, see Crown Estate Comrs v City of London Corpn (1992) Times, 11 May (judgment handed down on 6 May 1992 – Case No 1987 C No 8285); on.appeal 13 May 1994 Vice-Chancellor, Mann and Evans LJs (Case No 93/0303/B). 34 Such grant would be void as against the owner of the existing market rights. See Bracton, lib ii, c 24, f 56b; Vin Abr ‘Franchise’ (G)9; Re Islington Market Bill (1835) 3 Cl Fin 513. 35 ‘Ita ut non sit ad nocumentum vicinorum mercatorum’. 36 R v Butler (1685) 3 Lev 220.

18

Creation or Acquisition of Market Rights However, it has been said that a prior grantee loses the benefit of his priority by not making use of his grant37, but not by merely failing to provide proper accommodation for the public38. Failure by a grantee to provide proper accommodation will not entitle the Crown to derogate from the grant previously made by granting a new charter whilst the old remains unrepealed39. A  new grant may, nevertheless, be justified where the prior grant is so limited by metes and bounds or by the district that accommodation sufficient for the needs of the public cannot be provided. The new market must, however, provide sufficient additional accommodation to remedy the inconvenience, without affecting the existing market40. If a grant by the Crown of market rights purports to give greater protection than that given by the common law, the grant is void41. (3) Inquisition under writ of ad quod damnum In order to guard against the making of improper grants, it was the practice of the Crown not to make a grant until an inquisition had been held under a writ of ad quod damnum and a jury had found, by their return to the writ, that the proposed market or fair would not be to the damage of the Crown or any subject42. However an invalid grant derives no validity from the fact that such inquisition was held. If it should appear, after the grant has been made, that it caused an injury to the earlier grant, or that the Crown was otherwise deceived in making it43, that is a ground for its repeal by scire facias44. Moreover, the grantee of a market or fair injured by a later grant may bring an action for damages at once and without waiting until the later grant has been repealed45.

B Acquisition by prescription or usage A claim to hold a market or fair, or to take tolls, as of right, can be supported at common law only on the ground that the Crown has granted a franchise to the claimant or his predecessors in title46; but it by no means follows that inability to produce such a grant is fatal to the claim. ‘Prescription and antiquity of time fortifies all titles, and supposeth the best beginnings the law can give them’47.

37

38 39 40 41 42

43 44 45 46 47

Bracton, lib ii, c 24, ff 56b, 57. However, mere non-user, as a matter of common law, does not extinguish a public right to a market or fair, see Wyld v Silver [1963] 1 QB 169; and see Skibbereen UDC  v Quill [1986] 1  IR  123 where it was held that a franchise created by charter cannot be extinguished by non-user which remains in existence for the benefit of the community, but may be a cause for forfeiture of the franchise, per Lynch J; followed in The Listowel Livestock Mart Ltd v Bird [2009] 4 IR 631. The remedy is to sell out of the market; see p 37, below. Re Islington Market Bill (1835) 3 CI & Fin 513. Ibid, and see pp 89, 90, below. Re Islington Market Bill (1835) 3 CI & Fin 513. FNB 225F. In 1252, Henry III ordered the Sheriff of Shropshire to investigate ‘by proof of oath and of lawful men of his county, if the market of Griffin son of Wenunwin of la Pole [see footnote 5, above] is to the damage of the … King’s market of Montgomery’ and that, if so, it should be forbidden: Close Rolls, VII, m 23, p 55. For a more recent example (1683), see Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927 at 939, 940. The writ has now fallen into disuse. 17 Vin Abr 102, ‘Prerogative’ (Ob) 14. R v Aires (1717) 10 Mod 258, 354, sub nom R v Eyre 1 Stra 43; R v Butler (1685) 3 Lev 220; Re Islington Market Bill (1835) 3 CI & Fin 513; and see Great Eastern Railway Co v Goldsmid (1884) 9 App Cas 927 and pp 159 et seq, below. 2 Inst 406; and see pp 159 et seq, below. See p 15, above. Slade v Drake (1618) Hob 295. See pp 188 et seq, below.

19

Chapter 2  Creation, Acquisition, Transfer and Registration of Markets and Fairs (1) Immemorial user A market or fair is said to have been held from time immemorial or, to use the traditional phrase, from time ‘whereof the memory of man runneth not to the contrary’, whenever it has been held from before legal memory, that is, the beginning of the reign of Richard I in 118948. If the possessor of a market or fair can show that he and his predecessors in title held it openly, uninterruptedly and as of right49 from time immemorial, the law will presume that the market or fair had a lawful origin in an ancient grant, which, owing to the vicissitudes of history50, has been lost forever51. In such circumstances, the owner of the market or fair is said to have a title by prescription to the franchise. (2) Long user Positive evidence that the market or fair has been held ever since the commencement of legal memory is not, however, essential to secure a title by prescription. It would seldom be possible in practice to produce such evidence. Thus, whenever evidence is given of uninterrupted modern user, a presumption is raised of enjoyment from time immemorial which may be rebutted by evidence to the contrary52. A user for 20 years, if uncontradicted and unexplained, is sufficient to raise such a presumption53. If, however, it is shown that the user arose within legal memory, then, however long the modern user, a claim to a title by prescription will fail54. (3) Lost modern grant The doctrine of lost modern grant developed55 as a result of the ease with which claims to prescription could be defeated by showing that the right did not exist at some time subsequent to the commencement of legal memory. Accordingly, even if it is shown that there was a time within legal memory at which the market or fair did not exist, reliance can be placed upon the concept referred to as ‘the presumption of regularity’56. The presumption derives from the Latin maxim – ‘omnia praesumuntur rite et solemniter esse acta’. In such a case the court will presume a legal origin in a grant, now lost, if a user for any considerable length of time has been open, uninterrupted and as of right57, and such legal origin is possible. 48 49 50 51 52 53

54 55 56 57

Co Litt 114b, 215a; 2 Roll Abr 268, 269; Chapman v Smith (1754) 2 Ves Sen 506 at 514. … and not by violence, stealth, or entreaty (nec vi, nec clam, nec precario). Not excluding, thought Walton J, the depredations of rats and mice: Kingston-upon-Thames Royal Borough Council v Sherman and Waterman Associates Ltd (6 July 1976, unreported). Co Litt 114b; Wyld v Silver [1963] Ch 243. Jenkins v Harvey (1835) 1 Cr M & R  877 at 894, per Parke, B; Shephard v Payne (1864) 16 CBNS 132 at 135, per Blackburn J; Penryn Corpn v Best (1878) 3 Ex D 292; A-G v Horner (No 2) [1913] 2 Ch 140. R v Joliffe (1823) 2 B & C 54; Bealey v Shaw (1805) 6 East 208, per Lord Ellenborough CJ. The period of 20 years is, however, merely a convenient guide and not a fixed rule; but obviously the longer the period the harder it ought to be to rebut the presumption of immemorial user. Market franchises are not easements or profits à prendre within the Prescription Act 1832, and must still be prescribed for at common law: Benjamin v Andrews (1858) 5 CBNS 299; and see p 98, below. Co Litt 115a; Kingston-upon-Hull Corpn v Horner (1774) 1 Cowp 102, 108. The earliest reported decision is Lewis v Price (1761) 2 Wms Saund 175a. It is a rule of evidence that a public law action is to be presumed to have a lawful origin, unless and until the contrary is proved. ‘It is a maxim of the law of England to give effect to everything which appears to have been established for a considerable time, and to presume that what has been done has been done of right and not of wrong’: per Pollock CB, Gibson v Doeg (1857) 2 H & N 615. ‘It is a most convenient thing that every supposition not wholly irrational, should be made in favour of long continued enjoyment’: per Bramwell B, Penryn Corpn v Best (1878) 3 Ex D 292. See also: Kingston-uponHull Corpn v Horner (1774) 1 Cowp 102; Holcroft v Heel (1799) 1 Bos & P 400; Campbell v Wilson (1803) 3 East 294; Halliday v Phillips (1889) 23 QBD 48; affd sub nom Phillips v Halliday [1891] AC 228; A-G v Horner (1884) 14 QBD 245; affd (1885) 11 App Cas 66; A-G v Horner (No 2) [1913] 2 Ch 140 at 176–177, per Buckley LJ; Hammerton v Earl of Dysart [1916] 1 AC 57.

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Creation or Acquisition of Market Rights The court will not, however, infer an origin which involves illegality or impossibility. Thus, the court will not presume a lost modern grant which, had it existed, would have contravened a public statute58; nor will the court make a presumption not in accordance with the right claimed59.

ILLUSTRATIONS In A-G v Horner60, it was considered that a long usage to hold markets on certain week days arose out of a grant from James II which was subsequently made void by statute. And, in Benjamin v Andrews61, no legal origin could be presumed for a market held on a Saturday for 25 years since it was considered to be an abuse of an existing grant to hold one on Fridays. In both these cases, therefore, the claim failed.

(4) Nature of user To establish a claim to a market or fair by prescription, or under a lost grant, it is necessary to show a usage which, as regards such details as time and place, is in accordance with the right claimed. If the claim is to hold a market on Saturdays, it is useless to prove that it is sometimes held on Saturdays, and sometimes on Wednesdays; and if it is to hold a fair in one place, it is useless to give evidence that it has sometimes been held elsewhere. Such evidence, as a rule, tends to defeat the asserted claim. However, a claim may be established by proving a larger right which includes the lesser right claimed62. A claim to hold a market at a particular spot within a manor will be sustained by proving a right to hold it anywhere within the manor; and proof of a right to hold a market on Wednesdays and Saturdays is sufficient to establish a claim to hold a market on Saturdays.

C Creation by statute (1) General The privilege of holding a market or fair may be created by statute, and rights so created are much less likely to be called into question than franchise rights created by charter63. The Crown has no power to grant a market to the disturbance of another market previously granted64, nor can it authorise unreasonable tolls65; but Parliament is not bound to respect existing rights66, and the reasonableness of tolls specifically authorised by Parliament cannot be questioned. Further, a statutory market is not liable to forfeiture to the Crown, nor can it be repealed by writ of scire facias67. In early times, there was often no very great difference, as regards the general form of the instrument, between an Act of Parliament and a charter; and it may be difficult to establish to which category a particular document belongs. If, however, the charter 58 59 60 61 62 63 64 65 66 67

Neaverson v Peterborough RDC [1902] 1 Ch 557 at 573; A-G v Horner (1884) 14 QBD 245. Benjamin v Andrews (1858) 5 CBNS 299; Campbell v Wilson (1803) 3 East 294; A-G v Horner (No 2) [1913] 2 Ch 140 at 169–170, per Cozens-Hardy MR. (1884) 14  QBD  245. In A-G  v Horner (No  2) [1913] 2 Ch  140, the Court of Appeal was not prepared to presume a legal origin for a ‘private market’ held on days other than the charter days, which was a usage inconsistent with the rights claimed. (1858) 5 CBNS 299. Per Coleridge J, Bailey v Appleyard (1838) 8 Ad & El 161. New Windsor Corpn v Taylor [1899] AC 41 at 50, per Lord Davey. See p 18 above. See p 61 below. A statute may ‘cross and change the common law, which a charter alone cannot do’: Prince’s Case (1606) 8 Co Rep la. New Windsor Corpn v Taylor [1899] AC 41 at 45, 48, 50 and see pp 159 et seq, below.

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Chapter 2  Creation, Acquisition, Transfer and Registration of Markets and Fairs conferring market rights is expressed as having been made with the authority of Parliament, or words to that effect, then it has the force of an Act of Parliament68. Nevertheless, clear and express words are necessary to authorise the establishment of a statutory market, and to ‘… delineate the privileges and obligations of the market owner.’69. (2) Local or special Acts Many Acts of Parliament have been passed for the establishment or regulation of markets and fairs; and these frequently incorporate the whole or part of the Markets and Fairs Clauses Act 184770. This measure was enacted in Great Britain and Ireland to reduce repetition and ensure greater uniformity by consolidating in one Act provisions frequently found in earlier local Acts for constructing or regulating markets and fairs. The 1847 Act now affects all markets and fairs the construction or regulation of which is authorised by a local Act71 (‘the special Act’72) which declares that the 1847 Act is to be incorporated with it73. The special Act may incorporate the whole of the 1847 Act. Alternatively, it may incorporate a portion of it either by incorporating the Act with the exception of specified clauses, or by incorporating specified clauses of it. The 1847 Act, or the specified portion incorporated, forms part of the special Act as if it were set out at length, subject to any express variations or exceptions in the special Act74. At the date of the enactment of the 1847 Act, it may well have been considered that it would provide a complete code for market authorities. However, experience has shown that the code is incomplete. In practice special Acts for the establishment of markets usually contain more extensive provisions for regulating markets and keeping order in them. Many market authorities include provisions relating to markets in their General Powers Act. There are many examples of recent local Acts enacted to regularise or consolidate local legislation. Such examples are the Greater Manchester Act 1981, the West Yorkshire Act 1980, and the Cambridge City Council Act 1985. Such enactments usually contain a common ‘deeming’ provision designed to regularise market operations in a local authority’s area75. The ‘deeming provision’ In several modern local Acts of Parliament, a common standard form ‘deeming provision’ is often inserted into the statute in the following terms: ‘Any market owned or operated by the Council within [the city] which was not established or acquired under section 50 of the Food Act1984 [or its statutory predecessors] shall be deemed to have been acquired by the Council under the said section 50.’

The purpose of the deeming provision is to seek to regularise market operations in local authority areas, and to provide the necessary powers for a local market authority 68 69 70 71 72 73 74 75

Prince’s Case (1606) 8 Co Rep 1a, 20a; Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927; and see pp 134, 135, below. Per Templeman LJ in R v Basildon District Council, ex p Brown (1981) 79 LGR 655, at 666 and also at 673 per Dunn LJ. Quaere whether a statutory market can be created by estoppel: ibid. (Compare the remarks of Dunn LJ at ibid p 674, and Lord Denning MR at 662–663). The Act is set out in Appendix 1, below. See also p 114, below. And not only local Acts: see the Animal Health Act 1981, p 116 and Appendix 1, below. 1847 Act, s 2. Ibid, ss 1, 2. As to the power of a municipal corporation to oppose a bill for establishing a market in a borough, see A-G v Brecon Corpn (1878) 10 Ch D 204. 1847 Act, s 1. For an example of an express variation in a special Act, see Rutherford v Straker (1887) 42 Ch D 85n, and paragraph 5 on p 100, below, and the cases there cited. See pp 22 et seq, below.

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Creation or Acquisition of Market Rights to deal effectively with its market operations. Once enacted, the local authority is then able to make the necessary resolutions to give effect to its desire to promote what is perceived to be the more efficient future management of its market operations. including the removal of the existing market from its current site to another more favourable location76. By virtue of the deeming provision the local market authority is also then enabled to pass new byelaws under s 61 of the Food Act 1984. There are a number of examples of such Acts, such as the West Yorkshire Act 1980, Greater Manchester Act 1981, and the Cambridge City Council Act 1985. The reason for the inclusion of this provision in a local Act is that it had become apparent that in a number of cases a council’s market operation may have obscure roots or doubtful origins. Sometimes reliance could be placed upon a Charter, or Charters, or letters patent, or under the doctrine of lost modern grant. In other cases, the origins of the market operation may have more dubious or doubtful legality. Thus, once enacted it is no longer necessary to rely upon earlier and possibly questionable historic market rights. In the case of some local authorities a local Act historically may have been enacted, usually in the 19th Century, in order to provide a new regulatory framework for market and fair rights, and the market place, within77 a local authority’s area. In many cases such local Acts still remain in force78, and the enactment of a new local Act containing the deeming provision would be superfluous, unless the decision is taken that the existing local Act is inadequate for current purposes. In which case the historic local Act would be the subject of repeal, and the deeming provision would be included in a new local Act in order to provide the basis for a more modern regulatory framework. However, it is to be stressed that, the deeming provision is just that. Thus, that any market owned or operated by a local authority which was not established or acquired under s  50 of the Food Act 1984 (or its predecessor legislation) within its area is deemed to have been acquired at the date of the enactment of the local Act. On a true construction of the provision it is probable that any pre-existing, and perhaps unexercised, franchise, or statutory rights governed by an earlier local Act which a council is deemed to have acquired are restricted to the days on which the market could be held as specified in the franchise or earlier statute. This interpretation rises by virtue of the true construction of the words ‘shall be deemed to have been acquired…’ which appear in s 50(1)(b) of the Food Act 1980, and in preceding legislation, such as the Food and Drugs Acts 1938 and 1955. The word ‘acquired’ therefore has a restricted meaning. This word precedes the words ‘by agreement’ and is directed to the purchase by agreement (‘but not otherwise’) of a market undertaking whether it be a franchise market established under Charter or established pursuant to a previous statute. The concept of acquisition in these circumstances is to be contrasted with the concept of the market authority seeking to ‘establish’ a market within its area pursuant to s 50(1)(a) of the 1984 Act. There is case law which pronounces that if a statutory market authority wishes to go beyond those powers given to it, eg by altering the market days, then the franchise rights would merge into the statutory rights. However, if the market authority wishes to increase its market rights by removing the market to another site or to alter the

76 77 78

For the market authority’s powers of removal of the market, see p 29, below. Ie, the Wigan Improvement Act 1874 the provisions of which were repealed by the Greater Manchester Act 1981, into which the deeming provision governing Wigan’s markets was inserted. Ie, the Louth Market Improvement Act 1849, and the Luton Corporation Act 1911. See also the 19th Century legislation enacted by the City Corporation to regularise and manage Smithfield Market and its historic Charter market rights commencing with The Metropolitan Meat and Poultry Market Act 1860.

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Chapter 2  Creation, Acquisition, Transfer and Registration of Markets and Fairs days upon which the market is specified, then its powers under s 50 of the 1984 Act could be invoked in order to do so. Proper procedures would need to be undertaken to do so, such as a resolution made pursuant to s 50. (3) Public Acts79 The Food Act 198480 — A council of a local authority may either establish a market within its area81, or acquire by agreement (but not otherwise), by purchase or on lease, the whole or part of an existing market undertaking within its area, and any rights enjoyed by any person within its area in respect of a market and of tolls82. In either case, a local authority may provide a market place with convenient approaches to it, and a market house and other buildings convenient for the holding of a market83. A  market cannot, however, be established under this Act which would interfere with any market rights, powers or privileges enjoyed within the area by any person without that person’s consent84. Further, a grant of planning permission will not confer on the owner of land a market right sufficient to create a fetter on the market authority from setting up a rival market, or otherwise85. It is also to be noted that a local authority86 which has already established a market under this Act, or under the Acts preceding and replaced by this Act87, is not protected as against another local authority seeking to establish a market88; although a franchise market acquired by a local authority under these powers would enjoy protection. A local authority which has established or acquired a market under this Act, or preceding legislation, is a market authority89. The Animal Health Act 198190 — Certain local authorities are empowered under the Animal Health Act 198191 to provide, erect and fit up wharves, stations, lairs, sheds and other places for the landing, reception, sale, etc of imported or other animals, carcases, fodder, etc92. A wharf or other place so provided is a market within the Markets and Fairs Clauses Act 184793 and that Act is incorporated, with certain exceptions, with the 1981 Act94. The Casual Trading Act 1995 — The purpose of this statute enacted in Ireland was to decentralise to local authorities the control and regulation of casual trading in Ireland. It was enacted on 18 July 1995 and repealed previous legislation including the Casual Trading Act 1980. There have been a number of reported and unreported cases in the Irish courts notably being challenges to the provisions of both statutes

79 80 81 82 83 84

See p 239, below. The Act is set out in Appendix 1, below. 1984 Act, s 50(l)(a). NB: This does not apply to fairs. Ibid, s 50(l)(b). 1984 Act, s 50(l)(b)(i) and (ii). For these purposes, land may be acquired compulsorily: ibid, s 110. 1984 Act, s 50(2). For a discussion of the interpretation of this subsection, see Stoke-on-Trent City Council v WJ Wass Ltd (4 March 1997, unreported) at first instance, (1989) 87 LGR 129, CA. For disturbance, see Chapter 6, below. 85 Delyn Borough Council v Solitaire (Liverpool) Ltd (1995) 93 LGR 614; and p 136, below. 86 ‘Local authority’ means a district council, a London borough council or a parish or community council: 1984 Act, s 61; Food Safety Act 1990, Sch 2, paras 2, 11. 87 That is, the Food and Drugs Acts 1955 and 1938 and the Public Health Act 1875: see 1984 Act, s 50(3). NB: In Ireland the relevant provisions of the Public Health (Ireland) Act 1878 are still in force, subject to amendments, see Appendix 1, below. 88  Ibid. 89 1984 Act, s 61. 90 The Act is set out in Appendix 1, below. 91 See 1981 Act, s 50. 92 Ibid, s 54(1). 93 1981 Act, s 54(3). 94 Ibid, s 54(2); and see footnote 71, above.

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Creation or Acquisition of Market Rights where local authorities have sought to control market rights in Ireland by the imposition of byelaws passed under these statutory provisions95. (4) Statutory markets and the common law incidents When a statutory market has been established under a local or public Act, the question may arise as to whether the whole law of the market must be sought for in the Act and any Acts incorporated with it, or whether the statutory market can have any incidents of a common law market in addition to the rights expressly attached to it by such Acts. It now appears to be settled that all the incidents of a common law market are incidents of a statutory market except in so far as they are varied or taken away by the statutes96. There is no reason to suppose that when, as a matter of historical constitutional development, the grant of a market franchise passed from one authority to another, namely, from the Crown to Parliament, the nature of the rights incidental to the franchise should have altered97. How will a new enactment affect an existing franchise market? A franchise market is subject to the common law rights and duties98, but when a special Act is passed for its regulation, the question may arise as to whether rights formerly enjoyed in connection with the market remain intact. In the case of Manchester Corporation v Lyons99, Bowen LJ said: ‘When there is a franchise created by charter, and the legislature afterwards operates upon it, it is obvious that the legislature can do exactly what it pleases. It can either leave the old franchise standing, and place a new parliamentary right beside it, or it may leave the old franchise standing and incorporate certain statutory incidents into the old franchise, provided it makes its intention clear; or it may extinguish the old franchise, expressly or by implication, and substitute in its place, not a franchise properly so called, but parliamentary rights and obligations as distinct from a franchise …’

It is necessary in each case to look at the terms of the statute itself in order to ascertain precisely what the legislature has chosen to do; and it must be considered as a whole in determining whether the rights given by that Act are intended to supersede those which previously existed100. An instance of where it has been held that a statute expressly provided for the discontinuance and extinguishment of a previous charter market granted by the Royal Charters of James I  of 1608/09 can be found in the Irish case of Simmonds v Kilkenny Borough Council101. There it was held that the market franchise created by the Crown had been extinguished by the provisions of 95 96 97

98 99 100

101

For an exposition of the Irish dimension and market rights, see below Chapter 14. Manchester City Council v Walsh (1985) 84 LGR 1 and see pp 98 et seq, below, in relation to disturbance, and the cases there cited. Manchester City Council v Walsh (1985) 84 LGR 1 at 10, per Griffiths LJ. In New Windsor Corpn v Taylor [1899] AC 41, Watson LJ expressed the view (at 48) that it was beyond the powers of the legislature to create a franchise. This was doubted by Sir Robert Megarry VC in Leicester City Council v Oxford and Bristol Stores Ltd (21 December 1978, unreported). See p 15, above, and pp 33, 54, 61, 77, 101 and 109, below. (1882) 22 Ch D 287 at 310. Manchester Corpn v Lyons (1882) 22 Ch D 287 at 307, per Cotton LJ; Birmingham Corpn v Foster (1894) 70 LT 371; Taylor v New Windsor Corpn [1898] 1 QB 186; affd sub nom New Windsor Corpn v Taylor [1899] AC 41. In the case of a new statutory market, an intention may more readily be implied to negative or limit the monopoly that would otherwise attach to the franchise than in the case where a statute continues an existing market: Hailsham Cattle Market Co v Tolman [1915] 1 Ch 360 at 367–368, per Sargant J; affd [1915] 2 Ch 1. [2007] IEHC 208 per Smyth J who expressly adopted the reasoning in Manchester Corpn v Lyons [1882] 22 Ch D 287, and New Windsor Corpn v Taylor [1899] AC 41. A further point was taken by the plaintiff in this case in that a distinction was sought to be drawn between a market right and casual trading established pursuant to byelaws made under the Irish Casual Trading Act 1995 (see pp 109 et seq and 234, below).

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Chapter 2  Creation, Acquisition, Transfer and Registration of Markets and Fairs the Kilkenny Markets Act 1861, and in particular s  28 thereof. This provided for the construction of a new general market in Kilkenny for the sale of fruit and other agricultural produce and other items. It was specifically provided by the statute that as soon the new market was open and constructed it was lawful for the Corporation to remove the existing market and market places to the new purpose-built general market whereupon the existing markets would be extinguished. Accordingly, it was held that there was no longer an extant market right to trade at the Parade in Kilkenny, or any other place in the Borough, under the Charter, as asserted by the plaintiff.

3 TRANSFER AND DEVOLUTION OF MARKET RIGHTS A Market franchise and market place A market franchise must be distinguished from the place where the market is held. A conveyance or lease of the market place will not normally transfer the franchise, for market place and franchise are distinct properties102. The owner of the franchise need not even own the land upon which the market is held103; and if he owns both franchise and market place, he may convey the former to one person and the latter to another. A  franchise owner may also validly sever the rights of market by conveying the rights to hold a general market whilst reserving the right to hold a livestock market104; but he is not entitled to sever the right of market for a particular locality so as to enable the holding, in that locality, of two or more markets dealing wholly or in part in the same commodity in different places on the same day105. A reservation or retention which purported to have this effect would be a legal impossibility106. B Mode of transfer (1) Conveyance and lease Historically, there are many instances where market franchises have been sold or transferred to a third party such as a local authority. In such cases the local authority may still continue to operate the markets in accordance with the terms of the

102 103

104

105

106

A-G v Horner (1884) 14 QBD 245 at 254, per Brett MR; affd (1885) 11 App Cas 66. Ibid. But a market owner may lose the right to hold a market in a particular locality, even if he owns the soil of the market place: see Gloucestershire County Council v Farrow [1983] 2 All ER 1031; affd [1985] 1 All ER 878 (see pp 105, 106, below), where it was held that use by the public of the market square as a highway for a period of 20 years continuously and without interruption gave rise to a re-dedication, under the Highways Act 1980, s 31, of the square as a highway freed from the right to hold a market on it. This would not have the effect, however, of preventing proper exercise of the franchise rights on other land within the market area albeit subject to the need to obtain planning permission in appropriate circumstances: see pp 134 et seq, below. As in Sevenoaks District Council v Pattullo and Vinson Ltd [1984] 1  All ER  544 (see case illustration, p 82, below). Also, it was suggested in Tamworth Borough Council v Fazeley Town Council (1979) 77 LGR 238 at 266 that concurrent market rights may be granted to two separate grantees by the Crown, or by statute. Sevenoaks District Council v Pattullo and Vinson Ltd [1984] 1 All ER  544 at 550, 551. The court distinguished the right of a market owner to transfer the market itself, or part of the market dealing in one commodity, from one place to another within the manor or the market area for the convenience of the public (see Curwen v Salkeld (1803) 3 East 538; Wortley v Nottingham Local Board (1869) 21 LT 582; and p 40 et seq, below). The court declined to decide, however, whether a franchise of market is capable in law of being severed by reference to market days, so as to allow conduct of a market in one place on one day of the week and in another place on another day; and this must await judicial consideration. Ibid at p 551, per Slade LJ.

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Transfer and Devolution of Market Rights franchise, and at the same time operate statutory markets under a local or special Act, or under a Public Act, such as the Food Act 1984. The transfer of market franchises is governed by the law relating to incorporeal hereditaments. Accordingly, a conveyance of the franchise can be made only by deed107; and a deed is necessary to create a valid lease of the franchise for any term, however short108. This general rule may, however, be modified in particular instances by Act of Parliament.

ILLUSTRATION By a private Act of Parliament, the market of Devonport belonging to A was enlarged into a market for sheep and cattle, etc and A was empowered to let the building, etc on the market site and to take tolls from any persons bringing goods or articles to the market. There was also a clause providing that if the owner should demise or lease the market, the lessee would be entitled to the tolls authorised by the Act, as the owner would have been entitled if the lease had not been made. Held that a lessee of the market, under a parol demise, was entitled to demand and receive tolls: Bridgland v Shapter109.

Generally, where rent is reserved upon a lease of a market franchise for a term of years, arrears of rent cannot be recovered by distress but only by action110. But upon a lease by the Crown the arrears may be distrained for upon any lands belonging to the lessee111. If the lease is a lease of lands as well as of the franchise, and one entire rent is reserved, it may be that the whole of the rent is recoverable by distress upon the land; but if the lease is invalid as regards the franchise, a distress for the entire rent would be wholly unlawful112. A covenant by a lessee to pay the rent reserved upon a lease of the tolls of a market or fair runs with the land and binds an assignee of the lessee, whether named in the covenant113, or not114. (2) Mortgage Incorporeal hereditaments, such as a market franchise, may be the subject of a mortgage. The mortgage is in the same form, so far as applicable, as in the case of other hereditaments, and if it is a legal mortgage it must be by deed115. The power of a local authority to borrow and the mode of borrowing are controlled by the Local Government Act 1972116, but express power is given to a local authority to borrow for the purpose of the Animal Health Act 1981117. Such purposes include the provision of wharves, stations, lairs, sheds and other places for the landing,

107 108 109 110 111 112 113 114 115 116 117

Co Litt 9a, 49a, 169a. Ibid; Somerset (Duke) v Fogwell (1826) 5 B & C 875, 882. (1839) 5 M & W 375. Co Litt 47a; 7 Bac Abr, Rent (B); Jewel’s Case (1588) 5 Co Rep 3a; Gardiner v Williamson (1831) 2 B & Ad 336. Mountjoy (Lord) and Huntington’s (Earle) Case (1589) 5 Co Rep 3b at 4a, b; Knight’s case (1588) 5 Co Rep 54b at 56a; Chitty’s Prerogatives of the Crown, 208, 209. 2 Roll Abr 451; Gardiner v Williamson (1831) 2 B & Ad 336. Lucan (Earl) v Gildea (1831) 2 Hud & B 635. Egremont (Earl) v Keene (1837) 2 Jo Ex Ir 307. It is subject to the general law of mortgages. Section 172 and Sch 13, Pt I. See s 53(1).

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Chapter 2  Creation, Acquisition, Transfer and Registration of Markets and Fairs reception, keeping, sale, etc of imported or other animals, etc118 which are constituted markets under that Act119. If the undertakers of a statutory market have power under their statutes to mortgage the undertaking or the tolls, the High Court has jurisdiction, unless expressly taken away by the statutes, to appoint, at the instance of the mortgagee, a receiver of the rents and profits, or the tolls, and will do so whenever it is necessary or proper for the protection of the mortgagee’s security120. The court will not, however, appoint a manager of an undertaking, the management of which has been entrusted by Parliament to the undertakers above121. (3) Death of the owner On the death of the owner, a franchise market or fair passes to his personal representatives as real estate122; but if the owner dies intestate and without leaving any person entitled as next of kin under the statutory trusts, the franchise passes as bona vacantia to the Crown123. However, the franchise is not extinguished, but continues in esse in the Crown, so that the Crown can either hold the market or fair on its own behalf or again grant it out to a subject124.

C Power to transfer (1) Market owner A market owner (not being a public body) may sell or lease market rights generally without impediment, and such disposal will be governed by the law of incorporeal hereditaments as mentioned above. (2) Public body Where market rights, whether at common law or statutory, are vested in a public body, not for its own benefit but for the benefit of the public, the question arises as to whether that body has power to dispose of such rights. A public body, such as a local authority, is a creature of statute, and may do only such things as are expressly or impliedly authorised by statute or by subordinate legislation. Further, a local authority cannot disable itself from fulfilling its obligations to exercise its powers and duties for the benefit of the public; and any attempt to do so would be ultra vires and void125. 118 119 120

Animal Health Act 1981, s 54(1). Ibid, s 54(3). De Winton v Brecon Corpn (1859) 26 Beav 533; Hopkins v Worcester and Birmingham Canal Properties (1868) LR 6 Eq 437, 447; see also Drewry v Barnes (1826) 3 Russ 94, 104; Fripp v Chard Rly Co (1854) 11 Hare 241. 121 Gardner v London, Chatham and Dover Rly Co (1867) 2 Ch App 201, 212; Blaker v Herts and Essex Waterworks Co (1889)41 Ch D 399; De Winton v Brecon Corpn (1859) 26 Beav 533, 542. 122 Administration of Estates Act 1925, ss 1(1), (3), 3(1). 123 Ibid, s 46(1)(vi) (but as restricted by the Inheritance (Provision for Family and Dependants) Act 1975, s 24). Before the Intestates’ Estates Act 1884, s 4, the franchise became extinct (3 Inst 21; Chitty’s Prerogatives of the Crown, 233) and after the Act it escheated to the Crown. It now passes as stated in the text. 124 Heddy v Wheelhouse (1597) Cro Eliz 591; Strata Mercella (Abbot of) Case (1591) 9 Co Rep 24a; Whistler’s Case (1613) 10 Co Rep 63a. 125 See Gardner v London, Chatham and Dover Rly Co (1867) 2 Ch App 201 at 212, per Cairns LJ; A-G v Great Eastern Rly Co (1880) 5 App Cas 473 at 478, per Selborne LJ; Haynes v Ford [1911] 1 Ch 375 at 385, per Neville J; affd [1911] 2 Ch 237; Re Salisbury Rly and Market House Co Ltd [1969] 1 Ch 349. See also Staffordshire and Worcester Canal Co v Birmingham Canal Co (1866) LR 1 HL 254; Mulliner v Midland Rly Co (1879) 11 Ch D 611; Hobbs v Midland Rly Co (1882) 20 Ch D 418; Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223.

28

Transfer and Devolution of Market Rights However, the Local Government Act 1972, s 111(1), provides wide powers126 to local authorities to do anything, including the disposal of any property or rights, which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions. Further, s  123 of the 1972 Act empowers principal councils127, subject to certain limitations not material here, to dispose of land held by them in any manner they wish. For the purpose of the 1972 Act, it is clear that ‘land’128 includes incorporeal hereditaments such as market rights129. It is suggested, therefore, that a local authority in which market rights are vested130 would not be acting outside its powers in seeking to transfer or delegate such rights131. If a local authority seeks to transfer its market rights the question then arises as to whether it can continue to restrain rival markets given that a third party would have day-to-day control of the market operation. In Stoke-on-Trent City Council v Wass132, Nicholls LJ commented that as long as the owner of market rights is currently not exercising or seeking to exercise those rights, and is not holding a market at all, he has no cause of action against a person holding an unauthorised market since there is no disturbance in the enjoyment of the owner’s rights. As the tort of disturbance of market rights is a possessory action a council must, therefore, try to ensure that on a disposal of a right to hold a market it retains the right to suppress rival operations. If market rights were transferred absolutely, it seems clear that a council would lose this ability as it is no longer in possession of its market rights. If, on the other hand, the market rights were leased or licensed (with or without the market place), with the council explicitly retaining the ownership of the rights and a degree of control (eg, by way of byelaws) over the market place, coupled, perhaps, with the establishment of a new market under s 50 of the Food Act 1984 in some other location within its district, the right to take action against a rival should be preserved. However, careful drafting of the documentation is essential, particularly since there is no judicial authority on this point. A  local authority may not dispose of land in breach of any trust, covenant or agreement which is binding upon it133.

126 127 128 129

130 131

132 133

And which renders in statutory form the common law rule established in earlier cases such as A-G v Lord Mayor of Leeds [1929] 2 Ch 291; A-G v Smethwick Corpn [1932] 1 Ch 562. This includes district councils: Local Government Act 1972, s 270(1). Defined in ibid as including ‘any interest in land and any easement or right in, to or over land’. See also the Law of Property Act 1925, s 205(1)(ix). By the Interpretation Act 1978, s  22(1) and para  5(b) of Sch  2, ‘land’ includes ‘messuages tenements and hereditaments, houses and buildings of any tenure’; and by ibid, Sch  1, ‘land’ includes ‘buildings and other structures, land covered with water, and any estate, interest, easement, servitude or right in or over land’. ‘Land’ thus encompasses incorporeal as well as corporeal hereditaments (cf the definition in the Limitation Act 1980 and see p 97, below) and will, therefore, include market rights: see, for example, Great Western Rly Co v Swindon and Cheltenham Rly Co (1884) 9 App Cas 787 at 802, per Watson LJ and Wyld v Silver [1963] Ch 243 at 264–265, per Harman LJ. In Megarry and Wade’s Law of Real Property (4th ed at p  790), franchises are included in the list of principal incorporeal hereditaments, together with such other rights as easements, profits and tithes. Whether at common law, or established or acquired under the Food Act 1984, the Animal Health Act 1981, or a local Act. Quaere whether a local authority which established or acquired a market under the Food Act 1984, s 50, or preceding legislation, would remain the market authority within the meaning of ibid, s 61; and whether it would remain entitled to enforce byelaws made under ibid, s 60 prior to transfer and at a time when it maintained the market. It is suggested that both questions should be answered in the affirmative. Stoke-on-Trent City Council v W & J Wass Ltd (1989) 87 LGR 129, CA. Local Government Act 1972, s 131(l)(a).

29

Chapter 2  Creation, Acquisition, Transfer and Registration of Markets and Fairs (3) Other statutory powers Municipal Corporations Act 1882. There remains in force power under s 136 of the Municipal Corporations Act 1882134, for trustees135 appointed or acting by or under any local Act of Parliament for the time being in force, inter alia, for providing or maintaining a market in or for a borough, or any part thereof, (whether or not their powers under the Act extend beyond the borough) to transfer to the municipal corporation of the borough (with its consent but not otherwise) all the rights, powers, estates, property and liabilities for the time being vested in or imposed on the trustees under the local Act136. On transfer (which must be in writing under the common seal of the trustees or by deed137) the municipal corporation assumes the powers and responsibilities under the Act formerly vested in the trustees138. Local Government Act 1972. Under s 253(1) and (2) of the Local Government Act 1972, functions of a public body139 empowered to provide or maintain a market for public purposes and not for profit may be transferred by order140 of the Secretary of State to the local authority141 whose area comprises the district of that public body142. The approval of the public body to the transfer is required143. Food Act 1984. By s 51(1) of the 1984 Act144, the owner of a market undertaking, or of any rights in respect of a market and of tolls, whether established or enjoyed by virtue of statutory powers or not, may sell or lease to a local authority145 the whole or any part of his market undertaking or rights, but subject to all attached liabilities. The power applies, therefore, to owners of a franchise market, or a franchise of tolls, or of a statutory market; and the object of the subsection is, it appears, to give a power of sale or lease to owners who would otherwise have no such power. In the case of a company wishing to dispose of market rights, the provisions of s 51(2) of the 1984 Act must be observed146.

4 REGISTRATION OF MARKET AND FAIR RIGHTS A Land registration: overriding interests The franchise right of holding a market or fair is an incorporeal hereditament. As such, prior to 12  October 2003147 the registration of title at the Land Registry of 134

Although municipal corporations no longer exist: see the Local Government Act 1972, ss 1(11), 20(6) and 245(5). 135 ‘Trustees’ means trustees, commissioners or directors, or the persons charged with the execution of a trust or public duty, however designated: Municipal Corporations Act 1882, s 7(1). 136 Ibid, s 136(1). 137 1882 Act, s 136(2). 138 Ibid, s 136(3). 139 Specified as any trustees, commissioners or other persons empowered as stated in the text: 1972 Act, s 253(2). The definition of ‘public body’ in ibid, s 270(1) is wider. 140 The order may contain such incidental, consequential, transitional and supplementary provisions as the Secretary of State considers necessary or proper; and it may be subject to annulment by resolution of either House of Parliament: 1972 Act, s 253(3). 141 ‘Local authority’ here means a county council, the Greater London Council, a district council, a London borough council, a parish or community council or the Common Council of the City of London: ibid, ss 253(4), 270(1). 142 The transfer may be made jointly to two or more local authorities whose areas together comprise the district of the public body: 1972 Act, s 253(1). 143  Ibid. 144 See Appendix 1, below, replacing similar provisions in the previous legislation. 145 ‘Local authority’ means a district council, a London borough council or a parish or community council: 1984 Act, s 61. 146 See Appendix 1, below. 147 Ie the date when the Land Registration Act 2002 came into force.

30

Registration of Market and Fair Rights certain franchise rights, including market and fair rights, were considered to fall within the categories of rights which automatically bound the new owner on first registration. They were not capable of separate registration and had the status of unregistered interests which overrode first registration148. From 13  October 2003 it has been possible to register at the Land Registry certain franchises, including markets and fairs, on a voluntary first registration of title149. Further, as an incorporeal hereditament, any conveyance of a market separate from the market place does not attract the triggers for compulsory registration150 because it is not a qualifying estate151. However, on 13  October 2013152 a number of overriding interests, including franchises, lost their overriding status and ceased to have effect unless an application for a caution was lodged against first registration, or an application for an entry in the register of a notice was made before the end of the period of ten years from 13 October 2003153. Such rights had to be protected by midnight on 12 October 2013 if their overriding status was to remain – otherwise it was lost. In such case, the first proprietor of unregistered land on first registration, or a person taking a disposition of registered land for value, takes free of the franchise154. The purpose of this legislative intervention was to exclude what was considered to be an onerous and often difficult task of identifying interests from having automatic protection whilst allowing the owners of such interests a ten year period in which to seek protection. Thus, losing overriding interest status means that: (1) on first registration of title the registered estate will vest in the proprietor free of such interests unless they have been made the subject of an entry on the register; and (2) upon registration of a transfer or other registrable disposition of a registered estate for valuable consideration, the transferee or other disponee will take free of such interests unless they have been protected by an entry of a notice in the register. In short, the practical effect of this for practitioners and interested parties is that such interests ceased to be capable of overriding first registration of a registered

148

149

150 151 152 153 154

These rights are termed as ‘unregistered interests which override…’, (otherwise referred to as ‘overriding interests’) see the Land Registration Act 2002, Sch 1, Sch 3. These categories of rights automatically bind the new owner on first registration of the disposition of a registered estate without being entered on a register. The most important overriding interests besides franchises, are leases granted for seven years or less which are not required to be registered; interests of persons in actual occupation; certain legal easements and profits a prendre, such as, customary and public rights, certain mineral rights, and local land charges; seignoral and manorial rights; and rights in respect of embankments and sea walls. See the Land Registration Act 2002, s  3(1)(c). However, to be capable of registration such a franchise must constitute an unregistered legal estate. In the case of an unregistered leasehold estate it must have been granted for a term with more than seven years’ unexpired, and the right to possession under the lease must not be discontinuous: see s 3(3), (4). Ie under the Land Registration Act 2002, s 4(1). Ie within meaning of the Land Registration Act 2002, s 4(2). Ie by virtue of the effect of the Land Registration Act 2002, s 117(1). See the Land Registration Act 2002, s 117(1), Sch 1 para 10, Sch 3 para 10. No fee was charged if before the end of the period of ten years: s 117(2). See Land Registry Practice Guides 15 (overriding interests and their disclosure), 18 (franchises) and 66 (overriding interests that lost automatic protection in 2013). See Appendix 3. The market owner’s franchise right is not affected, as such, but priority to the right is lost.

31

Chapter 2  Creation, Acquisition, Transfer and Registration of Markets and Fairs disposition, but do not thereafter automatically cease to have effect or be rendered unenforceable155.

B Land registration: affecting and relating franchises A market or fair is to be distinguished from the market place or the place for holding a fair. These comprise two distinct legal interests and may be vested in different persons holding different titles156. A conveyance or transfer of the market will not necessarily pass the market place, nor will a conveyance or transfer of the market place pass the market. A franchise owner may also validly sever the rights of market by conveying the rights to as general market whilst reserving the right to hold a livestock market157. The Land Registration Rules 2003158 distinguish between two types of franchise, namely an affecting franchise and a relating franchise. Where the franchise is an affecting franchise, the defined area of land which it affects will be the defined area of land at the date of grant159 and is an adverse right affecting, or capable of affecting, the title to an estate or charge. A relating franchise is a franchise which is not an affecting franchise. It is the considered strong view of the Land Registry that most franchises are relating franchises160. Further, where the franchise is an ‘affecting franchise’161 the defined area of land which it affects will be the defined area of land at the date of grant162.

155

As to Land Registry guidance on the protection of interests see Land Registry Practice Guide 66 (updated October 2013 replacing the July 2013 edition). In fact, the Practice Guide specifies six interests, namely a franchise; a manorial right; a right to rent that was reserved to the Crown on the granting of any legal estate (whether or not the right is still vested in the Crown); a non-statutory right in respect of an embankment or sea or river wall; a right to payment in lieu of tithe; and a right in respect of the repair of a church chancel. 156 See AG v Horner (1884) 14 QBD 245, CA (affd at (1886) LR 11 App Cas 66, HL) ‘… the grant of a franchise has nothing to do with the ownership of the land by the person to whom it is granted’: at 254 per Brett MR; ‘…in my opinion it is not law that no market franchise can be granted except to one who possesses the soil on which it is to be exercised’: at 260 per Cotton LJ. 157 See Sevenoaks District Council v Pattulo and Vinson Ltd [1984] 1 All ER 544. 158 Ie Land Registration Rules 2003, SI 2003/1417, r 217(1). 159 As to circumstances where the area of the subject matter could be defined see Loose v Lynn Shellfish Ltd [2016] UKSC 14, [2017] AC 599, [2017] 1 All ER 677 (extent of area over which exclusive prescriptive right could be claimed was in dispute). 160 Even if the market franchise relates to an area that still can be defined, it does not appear to give the franchise-holder the right to enter the land to hold the market without the landowner’s consent: Land Registry Practice Guide 18: Franchises, para 4.2 (see AG v Horner (1884) 14 QBD 245, CA (affd at (1886) LR 11 App Cas 66 HL)), and so does not confer property rights adversely affecting the title to any estate or charge. 161 It is the considered ‘strong’ view of the Land Registry that ‘most franchises are relating franchises. Thus, ‘…even if the market franchise relates to an area that still can be defined, it does not appear to give the franchise-holder the right to enter the land to hold the market without the landowner’s consent,…and so does not confer property rights adversely affecting the title to an estate or charge’, citing AG v Horner, ibid at 254–255 per Brett MR. See Practice Guide 18: Franchises, at paragraph 4.2. 162 See Loose v Lynn Shellfish Ltd [2015] 2 WLR 643; see footnote 4, above.

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CHAPTER 3

The Market Place and the Place for Holding Fairs 1 THE RIGHTS OF THE PUBLIC IN THE MARKET PLACE A To frequent the market place, and bring goods for sale The holding of a market or fair is for the public benefit. Thus, wherever a market or fair is held, every member of the public has, of common right, the liberty of coming into the place and frequenting it for the purpose of buying and selling, and also the liberty of bringing there and exposing for sale his goods1 and the goods of others2. The sole limitations on this public right appear to be that it may be exercised only whilst the market or fair is open, and that if the market or fair is not a general one the goods brought or exposed for sale there must be goods of the kind or kinds for which the market or fair is held. With regard to the former limitation, it may be observed that the approaches to a market or fair, and the ways over it, may be highways (in which case the public may use them as such at all times), but they are not necessarily so3. ILLUSTRATION A trader has the same right on paying the proper tolls to sell by auction in a market the marketable goods of others as he has to use the market for selling his own goods by private treaty and there is the same obligation on the market owner to provide him with accommodation. Where therefore the owners of a market refused for reasons other than lack of room to allow a trader to use the market for sales by auction of the marketable goods of others, they could not maintain an action to restrain the trader from carrying on auctions in premises close to but outside the market, in a manner which did not amount to the setting up of a rival market, on the ground that he was causing a disturbance of the market, so held by the Court of Appeal in London Corporation v Lyons, Son & Co (Fruit Brokers) Ltd.

1 Austin v Whittred (1746) Willes 623. 2 London Corpn v Lyons Son & Co (Fruit Brokers) Ltd [1936] Ch 78 approving Nicholls v Tavistock UDC [1923] 2 Ch 18, and see p 88. See also the Irish case of Skibereen UDC v Quill [1986] IR 123 where ‘…it is clear that once a franchise to hold a market is granted, potential sellers have rights in the nature of proprietary rights to use the market apart from the right of the owner of the franchise to hold the market’ per Lynch J at 128. In The Listowel Livestock Mart Ltd v Bird [2009] 4 IR 631 it was held that the right of coming into the place of the market or fair and frequenting it for the purposes of buying or selling was subject to the limitation that the right could only be exercised when the market or fair was open. Further, it could be confined to a specific category of goods where the market or fair was limited, in its terms, to those goods, per Clarke J. See also Duffy v Dublin Corporation [1974] IR 33 as to whether there was an obligation on the part of the local authority to keep the market open and to provide market places under the provisions of the Dublin Improvement Act 1979, ss  79, 80. Held there were no such duties under the statute. However, in The Listowel Livestock Mart Ltd v Bird it was held that the grant of a market at common law was made for the benefit of the public as well as for the benefit of the grantee, and that certain obligations lay upon the grantee including one to hold the market or fair concerned. 3 A-G v Horner (1885) 11 App Cas 66 at 80. Also see Gloucestershire County Council v Farrow [1984] 1 WLR 262; affd [1985] 1 WLR 741 (see p 106, below).

33

Chapter 3  The Market Place and the Place for Holding Fairs Whilst the market or fair is proceeding, goods brought into the place for sale4, or goods in course of removal from the place after sale5, are not liable to distress damage feasant6; and this is so, even though some toll is due in respect of the goods and payment of the toll is refused7.

B Mode of sale The persons using the markets have a right on payment of the dues to fix the conditions on which they will sell their goods and the persons to whom they will sell8, except so far as the market or a particular part thereof is restricted in the form of sale9. So they may sell their goods by public auction10 or they may sell by private auction except so far as the particular part of the market where the sale is held is set aside for sale by public auction11. The users cannot, however, be restrained from selling by public auction in the market in places other than the part of the market set aside for sale by public auction12. C Right to fixed place — stalls Although every person has the right of frequenting the market or fair, and of bringing his goods there, no one has, of common right, the liberty of occupying exclusively any particular part of the soil on which it is held13. A member of the public has no general right to erect a stall14, or to place a table, chair, basket, or other article, or his goods15, upon the soil, in such a manner as to occupy the land to the exclusion of other persons. He may only do that if he has obtained the leave of the owner of the soil or has in some way acquired a special right so to do16. If he does such an act without any such leave or right, he is a trespasser, and he is liable to an action to trespass at the suit of the owner of the soil17. Moreover, the latter is probably entitled to pursue after notice all the usual summary remedies in case of a trespass, and

4 Austin v Whittred (1746) Willes 623; Wigley v Peachy (1732) 2 Ld Raym 1589; Lawnson’s (Mayor) Case (1587) Cro Eliz 75. As to the protection of goods etc, on the way to the market, see p 35, below. 5 Sawyer v Wilkinson (1598) Cro Eliz 627. 6 The right to seize and detain any animal was in any event abolished by s 7 of the Animals Act 1971; but the common law remedy still applies with regard to other goods. NB the Control of Horses Act 2015 has introduced a new procedure and amended the Animals Act 1971 with regard to the detention and disposal of horses which are unlawfully present on land, whether they have strayed there or been placed there deliberately; See Gadsden and Cousins, The Law of Commons and Greens (3rd edn, Sweet and Maxwell, 2020), Chapter 8 – Animals. 7 Wigley v Peachy, above, footnote 4. Non-payment does not constitute a trespass; Six Carpenters’ Case (1610) 8 Co Rep 146a. 8 Scott v Glasgow Corpn [1899] AC 470 at 475; Nicholls v Tavistock UDC [1923] 2 Ch 18 at 27. 9 Scott v Glasgow Corpn, ibid. As to the power of the market owner to impose restrictions, see below, pp 118 et seq. 10 Nicholls v Tavistock UDC, above, footnote 8 (applying Scott v Glasgow Corpn, above, footnote 8 and Wortley v Nottingham Local Board (1869) 21 LT 582) and not following Collins v Wells Corpn (1885) 1 TLR 328. The right to sell goods by auction includes a right to sell the goods of other persons: see London Corpn v Lyons Son & Co (Fruit Brokers) Ltd [1936] Ch 78 at 125, 126, 131. 11 See footnote 9, above. 12 London Corpn v Lyons, Son & Co (Fruit Brokers) Ltd [1936] Ch 78. 13 See cases cited in footnotes 5 and 7 above. 14 Northampton Corpn v Ward (1746) 2 Stra 1238. 15 Yarmouth Corpn v Groom (1862) 1 H & C 102; Norwich Corpn v Swann (1777) 2 Wm Bl 1116. 16 For example, by custom; see below, pp 43 et seq. 17 See cases cited in footnotes 5 and 7 above.

34

The Rights and Duties of the Owner in Providing a Place to pull down the stall18, put out the offender19, and remove the offending article or goods20, using and doing no unnecessary force and damage. However, it should be noted that the mere placing upon the soil for some temporary purpose, of goods, or of a basket or sack which contains goods, does not necessarily amount to an exclusive occupation. Whether it does so or not is a question of fact, depending upon all the circumstances of the case21. A person who erects a stall, or anything in the nature of a stall, with the express or implied consent of the owner of the soil, is liable for stallage22.

2 PROTECTION OF GOODS AND CATTLE ON WAY TO MARKET A Badgering and engrossing, forestalling and re-grating It was formerly an offence at common law to prevent or endeavour to prevent by force or threats any goods, wares or merchandise being brought to any fair or market. Other offences included buying merchandise on its way to market, or buying hay and straw in the market and selling it again in the same place in order to raise its price. By an Act of 184423 these offences of badgering, engrossing, forestalling and regrating were abolished as were certain statutes passed in relation to these offences, as being pernicious and in restraint of trade. Although s 2 of that Act provided for the continuance of certain offences relating to spreading false rumours and preventing or attempting to prevent by force or threats merchandise being brought to any market or fair, in 1892 these offences were finally abolished24. B Distress for rent of cattle on the way to market It may be mentioned here that cattle on their way to a market or fair, which are put into a ground with the consent of the occupier to graze for only one night, are not liable to the distress of the landlord of the ground for arrears of rent25. This privilege is apparently for the encouragement of persons frequenting markets and fairs from distances which their cattle cannot travel without being fed on the way. It is of little significance today.

3 THE RIGHTS AND DUTIES OF THE OWNER IN PROVIDING A PLACE A Site A grant of a market or fair usually specifies, more or less definitely, some area or district within which the market or fair is to be held. Whenever that is the case the market or fair must be held within the area or district specified, and not elsewhere. 18 Compare Davies v Williams (1851) 16 QB 546. 19 Stourbridge Market Case, 11 Hen VI, fo 23, pl 20. 20 The cases against distress damage feasant (above, footnotes 4, 5 and 7) are scarcely authorities against removal for misfeasance. The distinction between nonfeasance and misfeasance is recognised in Northampton v Ward, above, footnote 14. 21 Yarmouth Corpn v Groom (1862) 1 H & C 102; Townend v Woodruff (1850) 5 Exch 506. 22 Yarmouth Corpn v Groom, ibid. For stallage see pp 65 et seq, below. 23 7 & 8 Vict, c 24, s 1. See also per Fry LJ in Mogul Steamship Co v McGregor, Gow & Co (1889) 23 QBD 598 at 629; affd [1892] AC 25 at 58. As to the protection of goods, etc, in the market, see above, pp 33, 34. 24 By the Statute Law Revision Act 1892. 25 Nugent v Kirwan (1838) 1 Jebb & S 97; see per Parke B, Muspratt v Gregory (1836) 1 M & W 633 at 647; Fowkes v Joyce (1689) 3 Lev 260, 2 Lut 1161.

35

Chapter 3  The Market Place and the Place for Holding Fairs

ILLUSTRATION The burgesses of Andover being the grantees of a right to hold a fair at Weyhill claimed that they could keep their fair at any one place where they pleased. Held, that if the place is not limited by the grant, the grantees ‘may keep it where they please, or rather where they can most conveniently’: Dixon v Robinson26.

However, it would be incorrect to suppose that in this case the area was not limited by the grant then before the court. The grantees were merely claiming to keep their fair at Weyhill and their grant in fact limited this fair to Weyhill27. There does not appear to be any instance of a grant imposing no limits whatever as to space; and it is difficult to see how, with a view to such a grant, any proper return could have been made to a writ of ad quod damnum, or in what locality the inquisition could have been held28. In A-G v Horner29 the question arose as to the effect of a charter which granted a market to be held in sive juxta Spital Square. It was decided that the grant permitted the extension of the market, if the owner thought fit and had the means of extending it, beyond Spital Square into the surrounding area30. However, Lord Blackburn was not prepared to accept the view that the grant permitted any and every extension, however great31.It is submitted that a grant of a market to be held ‘in or near’ a specified place would not authorise an extension to a point which could not reasonably be said to be ‘near’ that place. Grants have generally been for the holding of a market or fair in some city, borough, township, manor, or other like district. But they have sometimes required it to be held in a particular place in such district32. As an instance of a grant limiting a market to a fixed spot, defined by metes and bounds and containing a precise quantity of land, can be found in the grant made by Charles II as to Covent Garden Market33. Where the grant merely specifies a district, such as a borough or manor, for the holding of the market or fair, the grantee has a general right, as between himself and the public, to hold it anywhere within that district34, and to determine in what place or places within that district it is to be held35. However, this general right is limited by the rule that an obligation is cast upon the grantee by his acceptance of the grant to provide convenient accommodation for all who wish to buy and sell in his market or

26

(1686) 3 Mod Rep 107 per Herbert CJ. See The Listowel Livestock Mart Ltd v Bird [2009] 4 IR 631 on the duty of the market owner to hold the market or fair concerned, and contra Duffy v Dublin Corporation [1974] IR 33, see footnote 2, above. 27 See Patent Roll 41 Eliz, Pt 12. 28 As to such writs, see p 19, above. Such writs have now fallen into disuse. 29 (1886) 11 App Cas 66; (1884) 14 QBD 245. 30 But the right to extend will only apply with respect to the market days in the grant; A-G v Horner (No 2) [1913] 2 Ch 140. 31 A-G v Horner (1885) 11 App Cas 66 at 81. See also per Cotton LJ (1884) 14 QBD 261. 32 See, for example, the grant to Charles Hore and Richard Hore of markets to be held ‘within a place inclosed with brick walls, called Vinegar Ground’, in the parish of St James, Clerkenwell, Middlesex; Patent Roll 6 Anne, part 4, No 8. 33 See Prince v Lewis (1826) 5 B & C 363 at 365. 34 Islington Market Bill (1835) 3 Cl & Fin 513, 12 M & W 20n; and see below, p 39, as to the extent of a market place, and see The Listowel Livestock Mart Ltd v William Bird and Sons Ltd [2009] 4 IR 631 where it was held that the entitlement to hold a market or fair, not defined by metes and bounds ‘..does not attach to any particular portion of land’, per Clarke J, at para 54. 35 Mosley v Walker (1827) 7 B & C 40 at 54, per Bayley J. For the effect of this power on the Local Government (Miscellaneous Provisions) Act 1982, s  3, Sch  4, para l(2)(b), see Jones v Lewis, Times, 14 June (1989) and Chapter 9, footnote 67, below.

36

The Rights and Duties of the Owner in Providing a Place fair36. The grant is made for the benefit of the public as well as for the benefit of the grantee, and if he confines his market or fair to particular places within the district, he must fix it in such places as will from time to time yield to the public a reasonable accommodation37. The grantee of a market to be held in a fixed spot defined by metes and bounds has a similar general right, limited by similar considerations of public convenience. If the space allotted by the grant is more than is necessary for the purposes of the market in ordinary times, he may lawfully appropriate a part of that space to other purposes, and he is not bound to extend the market over the whole of the soil38. However, he is bound to leave sufficient room for the purposes for which the franchise was granted to him, and whenever the convenience of the public requires that the whole of the allotted space shall be devoted to the use of the market there is an obligation on the part of the grantee so to devote it39.

B Failure to provide sufficient accommodation If the owner of a market fails in his duty by not providing sufficient space accommodation for the public there would be a good defence to an action brought by him against any person for selling out of the market to the prejudice of his right, provided such person had been prevented from selling in the market by the want of convenient room40. In the case of a market held under a grant which confines it to a fixed place, limited by metes and bounds, the grantee fulfils his duty to the public of providing them with accommodation if he properly devotes the whole of that place to the purposes of the market; for the grant does not permit him to do more. If the accommodation is insufficient for the wants of the public, that can be no ground for the repeal of the grant or for any proceedings against the grantee. It might be a sufficient ground for a new grant of a new market to be held elsewhere in the same neighbourhood; but such a new grant would not be valid if it injuriously affected the existing grant, and the new market would not be legal if it did more than provide merely for the surplus wants of the public which the existing market was unable to meet41. A  like case to which the same principles would be applicable might possibly arise with regard to a market not confined to a fixed place but granted to be held anywhere in a district. The district might be so narrow, and the residue of the district not appropriated to the market might be so occupied, that the grantee could not be held responsible for not providing all the accommodation required by the public42. It must be observed that the owner of a market does not fail in his duty to the public merely because the market is sometimes very full. ‘The very idea of a market is that it is a place which will on market days be crowded’43. ILLUSTRATIONS Charles II granted to William, Earl of Bedford, that he, his heirs and assigns, should have and hold and keep a market in a place called the Piazza, near the church of St Paul, Covent Garden, and within certain specified limits for the buying and selling of

36 37 38 39 40 41 42 43

Islington Market Bill (1835) 3 Cl & Fin 518, 12 M & W 20n. Mosley v Walker (1827) 7 B & C 40 at 54, per Bayley J. Prince v Lewis (1826) 5 B & C 363. Ibid. Prince v Lewis (1826) 5 B & C 363; Mosley v Walker (1827) 7 B & C 40. Islington Market Bill (1835) 3 Cl & Fin 513, 12 M & W 20n at 23: and see below, p 94. Islington Market Bill (1835) 3 Cl & F 513, 12 M & W 20n; see further below, pp 91, 92. Ibid. Goldsmid v Great Eastern Rly Co (1883) 25 Ch D 511 at 543, per Cotton LJ.

37

Chapter 3  The Market Place and the Place for Holding Fairs all kinds of vegetables, fruits, flowers, roots and herbs. This grant was later confirmed by Act of Parliament and the grantee was authorised to take tolls. But the grantee had for his own profit permitted part of the space, within the limits described, to be used for other purposes than those specified in the grant. The remaining part of the space, within which the market was to be held by the terms of the grant, became insufficient for the public accommodation, and there was not, on ordinary occasions, space within the market for carts and waggons, resorting thither with vegetables, &c. Held, that the lord of the market could not maintain an action against an individual for selling vegetables in the neighbourhood of his market, and thereby depriving him of toll, even at a time when there was room in the market, without showing that on the day when the sale took place he gave notice to the seller that there was room within the market. Prince v Lewis44. In answer to a number of questions propounded by counsel to the House of Lords in connection with the introduction of a Bill in Parliament for the purpose of establishing a cattle market in Islington, inter alia, the following answers were given by Lord Littledale on behalf of the House— ‘… These questions evidently apply to the grant of a market, not to be held in a certain spot defined or known by metes and bounds, but generally in the vill or district of Blackacre. There is no doubt but that the grantee of such a market may hold it anywhere within that vill or district, or in more places than one, and may change the place in which it is held; and an obligation is cast upon him by his acceptance of the grant, to provide convenient accommodation for all who are ready to buy and sell in the public market. If he does not do so, or if, after having once appropriated a particular site for the use of the public as a market place, he afterwards employs or permits it, or part of it, to be employed for other purposes without providing as convenient a place for the public to buy and sell elsewhere, within the limits of his grant, the consequence would be first, that there would be a good defence to an action brought by the grantee of the franchise against any person for selling out of the market to the prejudice of his right, provided such person had been prevented from selling in the market by the want of convenient room. This point was decided in the case of Prince v Lewis45, and confirmed by that of Mosley v Walker46. A second consequence would be, that this breach of a public duty on the part of the grantee of the franchise might, unless those inconveniences were removed, and a sufficient space restored for the accommodation of the public, operate as a forfeiture, and furnish a ground for a scire facias to repeal the patent by which the market was granted. And thirdly, we are not prepared to say that such misconduct of the grantee would not render him liable to an indictment for a misdemeanour, in like manner as the grantee of a ferry is punishable for a default in providing proper boats and ferrymen, though we are not aware of any instance in which such a proceeding against the owner of a market has been adopted; and if an indictment would lie against him for his default, an action would also lie at the suit of any private individual who should have received any special injury thereby.’ Per Lord Littledale, Islington Market Bill 47.

44 45 46 47

(1826) 5 B & C 363 at 365. Ibid. (1827) 7 B & C 40 at 54, per Bayley J. (1835) 3 Cl & Fin 513, 12 M & W 20n.

38

The Rights and Duties of the Owner in Providing a Place

C Extent of a market place In Mosley v Walker48 Bayley J observed that, generally speaking, the grantee of a market may ‘permit every place within the specified limits of the market to be the place where articles may be sold’; and on other occasions judges have recognised that the owner of a market or fair, granted to be held in a district, generally has a right, and sometimes owes a duty, to allow it to be held throughout the district49. It is a question of fact, whether there has been an appropriation to a particular place50. If the market is not limited by metes and bounds the owner may enlarge the market place so as to extend it into the surrounding area. Instances in which whole cities have been given over to fairs are supplied by St Giles’ Fair at Winchester and Lammas Fair at York; and in this connection, perhaps, mention may be made of the custom which prevailed in the City of London, whereby every shop open to the public was market overt51. In early times, when a very great part of the trade of the country was conducted at markets and fairs, their extension over so large a district as a city or town was, no doubt, justified by the wants of the public; and there may be cases in which it is, or would be, still quite justifiable. It is submitted, however, that if the owner of a market or fair were to extend it so unreasonably that the public lost the benefit of the concourse of buyers and sellers which the grant was intended to bring about, and other substantial inconveniences ensued, that would constitute a ground for the repeal of the grant by scire facias. The question, however, does not appear ever to have arisen, and it is hardly likely that it ever will arise as the cause of action has fallen into disuse and become obsolete52. ILLUSTRATION The lord of an ancient market may, by law, have a right to prevent other persons from selling goods in their private houses situated within the limits of his franchise. Where such a market had been from ancient times held in a public street, but in consequence of the increased population and traffic, persons frequenting the market place were subjected to inconvenience and danger, and the lord had permitted part of the market place to be used for other purposes than for the sale of articles usually sold there. An action was brought by the lord against the owner of a house adjoining to the market place for opening a shop and selling goods from these premises, but who, at the time when he sold the goods, had a stall in the market place which he might have occupied. Held, that it was properly submitted to the jury to find whether, from the state of the market place, the defendant had a reasonable cause for selling in his private house. A  verdict having been found for the plaintiff, the court refused to grant a new trial. Mosley v Walker53.

48 49 50 51 52 53

(1827) 7 B & C 40 at 54. See the Islington Market Bill (1835) 3 Cl & Fin 513, 12 M & W 20n. In Kerby v Whichelow (1700) 2 Lut 1498, Powell J said, apparently with regard to the pleadings, that ‘the vill in this case shall be taken to be the market place’. London Corpn v Lyons Son & Co (Fruit Brokers) Ltd [1936] Ch 78 at 106, citing Bayley J in Mosley v Walker (1827) 7 B & C 40 at 54. Market overt was repealed by the Sale of Goods (Amendment) Act 1994, s 1; and see p 101. See pp 159 et seq. (1827) 7 B & C 40 at 54, per Bayley J.

39

Chapter 3  The Market Place and the Place for Holding Fairs

4 THE RIGHT OF REMOVAL A Within the area Whenever a market or fair is granted to be held within an area, such as a city, borough, township, or manor, there is incident to such grant a right to remove the fair or market from time to time from one convenient place to another within that area; and the right continues, although the fair or market has always been held in one particular place54. The right may be exercised not only with regard to the whole market or fair, but also with regard to particular parts of it55. This right of removal is incident to every grant, unless the grantee is tied down by its terms to some particular spot56, and it may be established even in the case of a prescriptive fair or market. Where a market has always been owned, or was originally owned, by the corporation of a borough, or the lord of a manor, a jury may infer that it was originally granted to be held anywhere within the borough, or manor, and if such an inference be drawn the right of removal within the limits of the borough or manor follows as incident to the grant57. B Outside the area A removal to a situation outside the area defined by the grant is generally illegal, and it constitutes a ground of forfeiture58. But such a removal may be made legal by statute. In the case of an extension of boundaries by special Act or order, or by existing statutory provisions, a market which might have been held, either by grant or prescription, in any part of the ancient borough or town may now be held in any place within the extended boundaries, whether within or beyond the limits of the ancient place59. 54

55 56 57 58 59

Curwen v Salkeld (1803) 3 East 538. The same position applies to a statutory market established a Local or Public Act, such as under s 50 of the Food Act 1984 (a Public Act), where the market owner has the power of removal of the market as part of the common law incidents accorded to it. The particular statute may itself contain the power to remove, or close down the market, as often occurs in Local Acts. There are many examples of these statutes, such as – the Metropolitan Meat & Poultry Act 1860, and the London Central Markets Act 1875, governing Smithfield Market; the Luton Corporation Act 1911 and the Louth Markets Improvement Act 1849. Other examples are cases where the Local Improvement Act establishing and governing markets in its area was repealed by a further Local Act, such as occurred with enactment of the Greater Manchester Act 1981. This statute repealed, inter alia, most of Part VII of the Wigan Improvement Act 1874 (Markets and Fairs), and other local enactments, and then (as in the case of the Greater Manchester Act 1981) enacted a deeming provision in the following terms ‘Any market carried on by a district council which is not established or acquired under section 49 of the [Food and Drugs Act 1955] or any of the enctments mentioned in sub-section (2) of that section shall be deemed to have been acquired by the district council under the said section 49.’ For the effect of the deeming provision, see pp 22 et seq. Wortley v Nottingham Local Board (1869) 21 LT 582; cf per Bayley J Mosley v Walker (1827) 7 B & C 40 at 54. For consideration of the question of severance of market rights, see p 26, above, and Sevenoaks District Council v Pattullo and Vinson Ltd [1984] 1 All ER 544. Curwen v Salkeld, above, but he may remove the market within that limited area; see Prince v Lewis (1826) 5 B & C 363 and above, pp 35 et seq. R v Cotterill (1817) 1 B and Ald 67, De Rutzen v Lloyd (1836) 5 Ad & El 456; and see Gingell, Son and Foskett Ltd v Stepney Borough Council [1908] 1 KB 115; affd sub nom Stepney Corpn v Gingell, Son and Foskett Ltd [1909] AC 245 (right to hold market extended over new streets). For an early case of an illegal removal, see Abb Plac, p 72, temp. John (Hoiland, Linc). As to forfeiture, see below, Chapter 8. Dorchester Corpn v Ensor (1869) LR 4 Exch 335, quaere, whether this principle can be said to apply to the various extensions of local government boundaries by the Local Government Act 1972 and the London Government Act 1963. There are a number of Irish cases where local authorities have sought to relocate casual traders from their traditional market locations, or to designate certain areas for the purposes of casual trading, pursuant to the powers contained in casual trading byelaws enacted under the Casual Trading Act 1995. See eg Simmonds v Cork County Council [2002] IEHC 17 (22 February 2002) where it was held that ‘…the power to move a market at law is limited and accordingly the power to regulate casual trading may not extend to defeat proprietary rights of members of the public in the absence of clear statutory authority.’ Per Aindrias O Caoimh J [para 24].

40

The Right of Removal

C Other requisites of good removal In exercising his power of removal, the owner of a fair or market must take care to accommodate the public60. The power must not be exercised to the prejudice of the object of the grant which is said to be for the benefit of the public; and a removal to an inconvenient place would lay the foundation of a scire facias to repeal the grant61. An illegal removal is no defence to an action for disturbance by setting up a rival market62, but it would probably be a defence to an action for disturbance by selling outside the market63, and it would certainly justify selling in the old market place, for if a removal is bad the market continues in point of law in the old market place64. D Bad removal A removal is not good unless the new market place is as unrestricted and free as the old65. Where a market in which no toll or stallage had ever been taken was removed to a close which belonged to the owner of the market, but which he had leased on terms which allowed the lessee to take stallage, it was held that the removal was illegal, and that no nuisance was committed by resorting to the old market place66. Where any persons other than the owner of the market possess prescriptive rights therein, a removal without their consent is bad, if it injuriously affects such rights67. Thus, where the occupiers of shops adjoining a market place had a prescriptive right to erect stalls in the market place opposite their shops, it was held that the market owner could not remove the market to a place where this right would become worthless68. Where the owner of a market does not own the soil on which it is held, a removal might deprive the owner of the soil of the right to stallage; but it seems that a removal which did so would not generally be bad on that account69. E Duty to remove It may become the duty of the owner if he has power to remove a market70 to remove it for the better accommodation of the public. “I take it to be implied in the terms in which the market71 is granted that the grantee, if he confines it to the particular parts within a town, shall fix it in such parts as will from time to time yield to the public reasonable accommodation, and that if the place once allotted ceases to give reasonable accommodation he is bound, if he had land of his own, to appropriate land on which to hold it; or, if not, to get land from other persons, in order that the market, which was originally granted for the benefit of the public, as well as for the benefit of the grantee, may be effectually held; and that the public may have the benefit which it was originally intended they should derive from it72.” The consequences which follow upon the owner of a market failing in his duty to provide reasonable accommodation for the public are stated elsewhere73. 60 61

Curwen v Salkeld (1803) 3 East 538. R v Cotterill (1817) 1 B & Ald 67 at 75, per Lord Ellenborough; as to scire facias, see pp 159, 160, below. 62 Middleton v Power (1886) 19 LR Ir 1. As to disturbance, see Chapter 6, below. 63 See Prince v Lewis (1826) 5 B & C 363; Mosley v Walker (1827) 7 B & C 40 at 53; and cf Aiton v Stephen (1875) 1 App Cas 456. 64 R v Starkey (1837) 7 Ad & El 95; Ellis v Bridgnorth Corpn (1863) 15 CBNS 52 at 79. 65 R v Starkey, above. 66 Ibid. 67 Ellis v Bridgnorth Corpn (1863) 15 CBNS 52. 68 Ibid. 69 De Rutzen v Lloyd (1836) 5 Ad & El 456 at 458n. 70 See above, pp 40 et seq. 71 That is, a market granted to be held in a town or other like district. 72 Mosley v Walker (1827) 7 B & C 40 at 55, per Bayley J. 73 Above, pp 37 et seq and below, p 93.

41

Chapter 3  The Market Place and the Place for Holding Fairs

F Consequences of removal After the market has been lawfully removed, the public have no longer a right to go into the old market place as such74, but it appears that the owner of a market who removes it ought to give a reasonable public notice of the removal75. Probably, public notices ought to be placed at the entrance or entrances to the old market place.

5 UPON WHAT LANDS A MARKET OR FAIR MAY BE HELD A Ownership not essential A market or fair must be held on land on which the lord of the market can properly perform his duties of correcting the market and protecting the rights of the public76. Such duties can be most readily performed where the lord owns both the market or fair and the land on which it is held. At no time, however, does it seem to have been thought necessary that the market owner should own the fee of the market place. In 1433, the Corporation of Cambridge pleaded77 that they had, by prescription, a fair at Stourbridge as part of the fee of the town of Cambridge; and the court held that they might so have it, although the land on which the fair was held was the fee of the Prior of Barnwell, because, as Paston J said78, the Corporation might ‘prescribe to have a fair in another’s freehold well enough’. The case, however, shows that the Corporation had sufficient control over the soil to have the regulation of the stalls in the market. The case of Stourbridge Fair came up again in 174679, and then the plea was that the Corporation were seised in fee of the fair, and ‘of the sole and separate use of the ground and soil of the places at Barnwell and Stourbridge’ where the fair was held, during the times of holding it, ‘for pickage, stallage, and groundage there, and all other uses and purposes of the said fair’. ILLUSTRATION The owner of a market removed it on to land held by his tenant under a lease which did not demise the franchise, but empowered the tenant to exact from vendors in the market certain novel tolls. To these tolls the market owner himself had no right. The court held that the removal was illegal because ‘when the lord removes, the new market must be unrestricted and free as the old’. Littledale J, however, was of opinion that the removal was also illegal because ‘the market must be held on the soil of the lord’: ‘the lord is to have the correction of the market, and how can he have that when he has not the soil?’ R v Starkey80.

But an opinion contrary to that of Littledale J  was expressed in Lockwood v Wood 81. There one of the questions was whether any right to stallage could exist under a grant of a market to be held in lands in which neither the Crown nor the grantee had any rights at the date of the grant. Lord Denman CJ, in delivering the judgment of the Queen’s Bench, laid it down that the grantee could not claim stallage 74 Curwen v Salkeld (1803) 3 East 538. 75 Ibid. 76 See above, p 33 and below, p 114. 77 YB II Hen VI, fol 23, pl 20. 78 Ibid. 79 Austin v Whittred (1746) Willes 623. 80 (1837) 7 Ad & El 95. 81 (1841) 6 QB 31.

42

Upon What Lands a Market or Fair May be Held unless he possessed land in which to hold the market, but could claim it at whatever time after the grant he became interested in the land. His lordship added that ‘if he never was so interested, he might, nevertheless, hold the fairs and markets on land belonging to other persons by their mere sufferance and permission; but unless he had the actual possession of it he could not claim stallage’. This judgment was afterwards affirmed in general terms in the Exchequer Chamber82. The question whether a grant of a market could be made otherwise than in respect of lands held by the grantee at the date of the grant was fully considered in the case of A-G v Horner83, and there the Court of Appeal (overruling Stephen J) held that it could. ‘A grant’, said Lord Esher MR, ‘of a franchise of a market has nothing to do with ownership of the land by the person to whom it is granted84.’ The judgment of the Court was affirmed in the House of Lords85. From the above cases it seems clear that, apart from questions as to the right to stallage, the owner of a market need not own, or even have the possession of, the land upon which his market is held; he may hold the market on any land on which he has obtained a right or licence to hold it. All that is necessary is that he holds it upon land in which he can exercise his duties of correcting the market and can secure to the public their rights and immunities. It is perhaps hardly necessary to add that if he holds the market upon another’s land under a mere licence from the landowner his power to hold it there may be determined at any time by the withdrawal of the licence. ‘As against the owner of land the Crown cannot by its grant enable anyone to take that land and use it, either for the purposes of a market or anything else86.’

B Churchyards as place of holding Prior to 1285 it was a common practice to hold fairs in churchyards and the fair was usually held on the day of the festival of the saint to whom the church was dedicated. But the Statute of Winchester87 (now repealed) enacted that ‘henceforth neither fairs nor markets to be kept in churchyards, for the honour of the church’. C Highways as place of holding As a matter of principle, the public highway is a place that the public may enjoy for any reasonable purpose, provided that the public is not inconvenienced, or that the activity amounts to a private or public nuisance. In essence, the public’s primary right of passage must not be impeded88.

82 83 84

(1841) 6 QB 47. (1884) 14 QBD 245. Ibid, at 254. See also The Listowel Livestock Mart Ltd v William Bird and Sons Ltd [2009] 4 IR 631 where it was held that the entitlement to hold a market or fair, not defined by metes and bounds, ‘.. does not attach to any particular portion of land and cannot affect the legal title to any land such as would allow a declaration to be made in any form which would impair that title’ per Clarke J. 85 (1886) 11 App Cas 66. 86 Per Cotton LJ, A-G v Horner (1884) 14 QBD 245 at 260. There may, however, be an inference drawn from the evidence that the owner has exercised the right of holding the market with the consent of the owner of the soil of the highway; ibid, and see pp 45 et seq, below. 87 Now repealed by the Statute Law (Repeals) Act 1969, s 1, Schedule, Pt II. 88 See DPP v Jones [1999] 2 AC 240; and see Hirst v Chief Constable of West Yorkshire (1986) 85 Cr App R 143. The concept of ‘reasonableness’ renders the scope of the right somewhat lacking in clarity.

43

Chapter 3  The Market Place and the Place for Holding Fairs Thus, it was also a common practice in early times to hold a market or fair either wholly or in part in public streets leaving a sufficient portion of the highway open for public passage89. The prevalence of this practice has been recognised by the judicial statement that, ‘formerly all markets were holden in the public streets’90, and in one case, in which it was held that a removal of a market from a public street to a private close was bad, the right to hold the market in the street was, apparently, not disputed91. There are many instances in which the practice still obtains92. Where the origin of both the highway and the market or fair is immemorial, the practice, if shown to be ancient, is justifiable, although it somewhat abridges the right of the public in the use of the highway as such. For the proper inference is that the grant of the market or fair preceded the dedication of the highway and that the highway was dedicated subject to the right to hold the market or fair on the soil. The law recognises that a highway may be dedicated subject to a right of partial interruption during a certain limited and not unreasonable period of time for the purposes of a market or fair as often as it may be lawfully held93. Accordingly, an immemorial custom for victuallers to erect stalls in the highway during a fair, sufficient room being left for public passage, has been upheld as reasonable and valid94. The practice may also be justified although the market or fair was granted, and the highway was dedicated, within the time of legal memory. Upon proof that the market is older than the highway, and that, going as far back as living memory can go, the practice has always obtained, the proper inference, in the absence of evidence to the contrary, is that the highway was dedicated subject to the right to hold the market or fair therein95. The burden of proving that he is entitled to hold his market in the highway lies upon the market owner, but, in considering whether he has discharged that burden, regard must be paid to the principle on which presumptions from usage are made96, and ‘all reasonable presumptions should be made in support, and not in destruction, of long enjoyment’97. Evidence that the market owner did not own the soil of the highway at the date of its dedication does not of itself make the practice unlawful, as the inference may reasonably be drawn, until the contrary be shown, 89

90 91 92 93 94 95 96 97

Cheapside seems to have been used as a market place until circa 1667, when Honey Lane Market was opened; and Newgate Street until circa 1681 when the market was removed to Newgate Market. The markets in the area comprising Smithfield Market, part of which was and is public highway, were governed by a number of Charters and Letters Patent, the last one of note being that of Charles I of 1638. Subsequently, The Metropolitan Meat & Poultry Act 1860 (was enacted to establish Smithfield Market as the meat and poultry market for the City. This local Act was followed by other local Acts enacted to govern Smithfield Market notably The Metropolitan Markets (Fish etc.,) Act 1882, and The London Central Markets Act 1875. The former empowered the City Corporation to convert the London Central Fruit, Vegetable and Flower Market into an inland fish market and to discontinueFarringdon Market, as contemplated under the powers contained in the 1860 Act.There was subsequent litigation in the 1980’s over ther true meaning and effect of the Letters Patent of Charles I; seeThe Crown Estate Commissioners v The Mayor & Commonalty & Citizens of the City of London (1987 C No.8285); on appeal 9 February 1994 (No. 93/0303/B), (1994) Times, 18 May. Per Lord Tenterden, Mosley v Walker (1827) 7 B & C 40 at 52. R v Starkey (1837) 7 Ad & El 95; see pp 40 et seq, above. For a definition of ‘street’ under the Control of Pollution Act 1974, s  62, see Tower Hamlets London Borough Council v Creitzman (1984) 83 LGR 72. Elwood v Bullock (1844) 6  QB  383. See also Brandon v Barnes [1966] 1  WLR  1505 (the obstruction of an ‘access way’ to Romford Market, contrary to the Metropolitan Police Act 1839, s 54(6)); and see p 50. Elwood v Bullock (1844) 6 QB 383. A-G v Horner (1884) 14 QBD 245, (1885) 11 App Cas 66; on appeal. Ibid, per Lord Selborne, 11 App Cas 77 at 78. Per Lord Selborne, Great Eastern Railway Co v Goldsmid (1884) 9 App Cas 927 at 939.

44

Upon What Lands a Market or Fair May be Held that at that date he was exercising a right of holding the market on the soil with some consent or other from the landowner98. It has been suggested by high authority that the practice might be upheld even though the market were shown to be of later origin than the highway, and that after proper inquiry the Crown might grant a valid franchise to hold a market in public streets99. However, there seem to be great difficulties in the way of accepting the latter proposition. During argument in Elwood v Bullock100 Lord Denman observed that ‘if the way was first, no grant of a fair could control it’; and the safer view, probably, is that where the market is of later origin than the highway the right to hold it there, so as to obstruct any part of the thoroughfare, could be created only by an Act of Parliament. Cases may, perhaps, be found in which markets or fairs are known to have been held from a very early date in public streets, whilst those streets are known to be older than the grants of the markets or fairs. It may be that such markets or fairs were originally held on narrow strips of land at the side of the highway, which have subsequently become part of the highway. Perhaps a presumption to this effect ought to be made, whenever necessary and possible, in order to support an ancient usage. However, in Gloucestershire County Council v Farrow101 it was held that once the provisions of s 31 of the Highways Act 1980 (relating to the presumptions of dedication) were satisfied so as to deem a public right of way to have been dedicated as a highway, the effect of the section, on its proper construction, was to prevent the exercise of other rights over the land which were inconsistent with its user as a highway if those other rights had not been exercised during 20 years’ uninterrupted public enjoyment. Accordingly, since the market franchise had not been exercised in the market square at Stow on the Wold in the 20 years prior to the commencement of the action, during which period the public had enjoyed continuous and uninterrupted user of the whole of the market square as a public right of way, and since there was no evidence of any intention not to dedicate the land as a highway, the market square was to be deemed to have been dedicated as such free of any restriction on the public use of the square as a highway which would result from the holding of the weekly market thereon. As Goulding J stated at first instance102: ‘On the whole I am of the opinion that Parliament enacted section 31 …, and its statutory predecessor, in order to avoid the need for lengthy and expensive antiquarian investigations when highway rights are called in question … Accordingly, I must hold that the manorial right to have a weekly market in the market place has been lost by the lapse of a twentyyear period without such market being held.’

However, as Fox LJ indicated103 in the Court of Appeal, the right to hold a Thursday market in Stow on the Wold was not being extinguished104. The right still existed. It 98 99 100 101 102 103 104

A-G v Horner, footnote 93, above; see also A-G v Horner (No 2) [1913] 2 Ch 140 CA; Gingell, Son and Foskett Ltd v Stepney Borough Council [1908] 1 KB 115; affd sub nom Stepney Corporation v Gingell, Son and Foskett Ltd [1909] AC 245. Per Lord Esher, A-G v Horner (1884) 14 QBD 245. Lindley LJ, at 265, however, expressed doubt upon the point. (1844) 6 QB 383 at 407. [1984] 1 WLR 262; affd [1985] 1 WLR 741. See also Brandon v Barnes [1966] 1 WLR 1505, and p 46, below. [1984] 1 WLR 262 at 270. [1985] 1 WLR 741 at 747. See also pp 105, 106, below. For a discussion of this case and the effect of the Highways Act 1980, see G Holgate, (1985) JPL 92, ‘Loss of Rights to Hold Markets and Fairs; Effect of the Highways Act 1980’. Quaere whether these rights could later be revived in the market place in Stow-on-the Wold if and when the surface ceases to be a highway (‘the “two spits”principle’), and then reverted to owners of the sub-soil. See p 24, below.

45

Chapter 3  The Market Place and the Place for Holding Fairs was not a right which is annexed simply to the market place105. It could be exercised over any land in Stow within the boundaries which may be limited by the proper construction of the franchise. The judge’s decision only prevented it being exercised in the market place.

D Effect of statutes regulating the use of the highway A highway is a way which is open at all times to the public at large, as of right, for the purpose of passing and repassing from one place to another. Thus, the right of free passage must not be obstructed or impeded, save for those restrictions, interruptions and obstructions which are lawfully authorised. However, as previously mentioned, the use of the highway as a lawful venue for holding a market or fair may constitute such an obstruction or interruption to free passage, in which case the highway is said to be dedicated subject to the existing obstruction. The law relating to obstruction of the highway is of ancient origin and has reflected changing social and economic conditions of the times. There has been subsequent statutory intervention. Both in 1530, and in 1835, new statutes were passed defining the limitations to the right of free passage and providing for penalties in the event of transgression. Nevertheless, market rights in public streets are not taken away or affected by Acts of Parliament which prohibit the exposure for sale of marketable articles, or the placing of stalls in the streets, so as to incommode the passage thereof, if the statutes ought to be construed as being aimed merely against nuisances; for no acts lawfully done in the exercise of market rights can be treated as nuisances106. For this reason it appears that valid rights and customs relating to markets and fairs lawfully held in highways are not affected by the provisions of the Highways Act 1980107, which prohibit, inter alia, obstructions by pitching booths or stalls in highways108 provided, of course, that those rights continue to be exercised109. However, it was said that a custom to set up stalls on a highway at statute sessions could not be immemorial, and therefore afforded no justification for obstructing an ancient highway110. In this context it must be remembered that once a highway has been vested in the highway authority as a highway maintainable at the public expense111 the effect is to bestow upon the authority an interest in land. This interest is in the nature of a determinable legal estate in fee simple in the surface of the land restricted to highway use112. If, and when, the land ceases to be used as a highway it will revert to the owner in fee simple of the underlying soil113 who is presumed to be the owner of the land through which the highway passes. Where the highway abuts land 105

In this regard note should be made of the ‘top two spits’ principle; see Tithe Redemption Committee v Runcorn UDC [1954] Ch 383, and see London Borough of Southwark v Transport for London and Corporation of London [2018] UKSC 63, p 47. 106 Goldsmid v Great Eastern Rly Co (1883) 25 Ch D 511, sub nom Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927, (1883) 25 Ch D  511; A-G  v Horner (1885) 11 App Cas 66; (1884) 14 QBD 245; where the effect of the Paving Acts (12 Geo I, c xxxviii, 28 Geo III c ix and 57 Geo III, c ccix) was considered. 107 See Highways Act 1980, ss 137, 148 and its statutory predecessors; and pp 49, 50, below. 108 For decisions under previous statutes see Elwood v Bullock (1844) 6 QB 383; Gerring v Barfield (1864) 16  CBNS  597; Mercer v Woodgate (1869)  LR  5  QB  26; R  (Kennedy) v County Cork Justices (1911) 45 ILT 217. See also Brandon v Barnes [1977] 1 WLR 1505, p 50, below. 109 See Gloucestershire County Council v Farrow [1985] 1 WLR 741. 110 Simpson v Wells (1872) LR 7 QB 214, where the origin of statute sessions for hiring servants was considered. R v Smith (1802) 4 Esp 111, seems of doubtful authority. 111 Highways Act 1980, s 41. 112 Ie, the ‘top two spits’ principle; see Tithe Redemption Committee v Runcorn UDC [1954] Ch 383; and see London Borough of Southwark v Transport for London and Corporation of London [2018] UKSC 63. 113 Rolls v St George the Martyr, Southward Vestry (1880) 14 Ch D 785.

46

Upon What Lands a Market or Fair May be Held belonging to different owners it is presumed that each owner owns the underlying soil to the centre line of the highway. Thus, a market formerly held on a highway which had been rededicated free from such market rights could be revived if the highway ceased to be vested in the highway authority. In the London Borough of Southwark v Transport for London and Corporation of London114 Lord Briggs provided elucidation on the ‘top two spits’ principle, as follows. ‘That slice of the vertical plane included, of course, the surface of the road over which the public had highway rights, the subsoil immediately beneath it, to a depth sufficient to provide for its support and drainage, and a modest slice of the airspace above it sufficient to enable the public to use and enjoy it, and the responsible authority to maintain and repair it, and to supervise its safe operation. That lower slice was famously labelled “the top two spits” in Tithe Redemption Commission v Runcorn Urban District Council.115. A spit is a spade’s depth. Although colourful, that phrase says nothing about the necessary airspace above the surface. Again, following counsel’s example, I prefer the phrase “zone of ordinary use”. It is common ground that the zone of ordinary use is a flexible concept, the application of which may lead to different depths of subsoil and heights of airspace being vested in a highway authority, both as between different highways and even, over time, as affects a particular highway, according to differences or changes in the nature and intensity of its public use. A simple footpath or bridleway might only require shallow foundations, and airspace of up to about ten feet, to accommodate someone riding a horse. By contrast a busy London street might require deep foundations to support intensive use, and airspace sufficient to accommodate double-decker buses, and even the overhead electric power cables needed, in the past, by trolley buses and, now, by urban trams.’116

The Metropolitan Police Act 1839117 prohibits the commission of a variety of acts in any thoroughfare or public place within the limits of the Metropolitan Police District118. And the Town Police Clauses Act 1847119 contains like prohibitions with regard to any street120 within the towns and districts to which the Act applies. In prohibiting the exposure for show or sale of any horse or other animal, these statutes expressly except from the prohibition such an exposure in a market lawfully appointed for that purpose121. No such express exception is made with regard to certain other prohibited acts which, apart from the statutes, might be justified in some cases by some valid right or custom in connection with a market or fair, such as the causing of an obstruction in a public footpath or thoroughfare, or the placing of a stool or stall on a footway. It seems, however, that the statutes do not affect such 114 [2018] UKSC 63. 115 Ibid, at 407. 116 At [9], [10]. 117 Sections 54, 60, as amended; and see Hinchon v Briggs (1963) 61 LGR 315, [1963] Crim LR 357; Brandon v Barnes [1966] 1 WLR 1505, at 45H. 118 As from 1 April 1965 the Metropolitan Police District comprises Greater London (excluding the City, Inner and Middle Temples) and adjacent small parts of Essex, Herts and Surrey: London Government Act 1963, s 76(l). 119 Section 28, as amended. That section is incorporated into the Public Health Act 1875 (as amended), by ibid, s  171, and applies throughout England and Wales outside Greater London. Greater London is defined as meaning the administration area comprising the areas of the London boroughs, the City of London and the Inner and Middle Temples (London Government Act 1963, s 2(1)). For a case under s 28 see Wolverton UDC v Willis (trading as SG Willis & Sons) [1962] 1 WLR 205. 120 Street here includes any road, square, court, alley and thoroughfare, or public passage (s 3); see Curtis v Embery (1872) LR 7 Exch 369. 121 The exception in s 28, is ‘in fair lawfully appointed for that purpose’.

47

Chapter 3  The Market Place and the Place for Holding Fairs acts if it can be proved that the thoroughfare or street, or the portion thereof upon which the acts are committed, was dedicated subject to the right to commit them122. An auctioneer who sells in an open market place situated by the side of a street cannot be convicted under s  28 of the Town Police Clauses Act of causing an obstruction in the street because a crowd collects in the street to listen to him123. The Metropolitan Streets Act 1867124 provides that no goods or other articles shall be allowed to rest on any footway or other part of a street within the general limits of the Act125 or be otherwise allowed to cause obstruction or inconvenience to the passage of the public for a longer time than may be absolutely necessary for loading or unloading such goods or other articles. But, by reason of the Metropolitan Streets Amendment Act 1867126, the above provision, prohibiting the deposit of goods in streets, does not apply to costermongers, street hawkers, or itinerant traders, so long as they carry on their business in accordance with the regulations from time to time made by the Commissioner of Police with the approval of the Home Secretary127. Under the original Act128 the surface of any space over which the public have the right of way that intervenes in any street between the footway and the carriageway was deemed to be part of the footway, notwithstanding any claim of any person by prescription or otherwise to the deposit or exposure for sale of any goods or other articles on such surface; but the amending Act129 repealed this definition. It would seem that the provisions of the original Act, as now amended, cannot be construed as taking away actual market rights in streets. This view appears to be supported by the speedy repeal, as already mentioned, of the definition given by the original Act to footways, which might certainly have been considered to interfere with rights subject to which streets had been dedicated.

E Obstruction — the inapplicability of the de minimis principle Important current provisions are also contained in the Highways Act 1980 which, by s 137(1)130, provides that: ‘If a person, without lawful authority or excuse in any way wilfully obstructs the free passage along a highway he is guilty of an offence …’

122 See Spice v Peacock (1875) 39 JP 581; Jones v Matthews (1885) 1 TLR 482; Leicester Urban Sanitary Authority v Holland (1888) 57 LJMC 75; see also Curtis v Embery (1872) LR 7 Exch 369; and cf Whittaker v Rhodes (1881) 46 JP 182; R v Young (1883) 52 LJMC 55; Hitchman v Watt (1894) 58 JP 720. 123 Ball v Ward (1875) 33 LT 170. 124 Section 6. 125 Namely, within six miles from Charing Cross; ibid, s 4 as amended by Metropolitan Streets Act 1885, s 2, now repealed by the Statute Law (Repeals) Act 1993. 126 Section 1. 127 If the costermongers, etc, comply with the regulations they cannot be proceeded against under the Amending Act or the Metropolitan Paving Act 1817, s 65 restricting sales in streets, but if they violate the regulations they may be proceeded against under the Amending Act Act; see Keep v Vestry of St Mary Newington [1894] 2 QB 524, where Summers v Holborn District Board of Works [1893] 1 QB 612 was considered. They may also require to be licensed under the London Local Authorities Act 1990, Pt III. The London Local Authorities Act 1990, Pt III was amended by the London Local Authorities Act 1994, s 6, Schedule. See pp 123, 124, below. Apart from Greater London, street trading is regulated in many districts by local enactments. Such districts also may be prompted to adopt the street trading code pursuant to the Local Government (Miscellaneous Provisions) Act 1982, Sch 4. See also Pedlars, p 141, and the cases of Watson v Molloy [1935] 3 All ER 459 and Stevenage Borough Council v Wright (1996) 95 LGR 404. 128 Section 6. 129 Section 1. 130 This section is virtually identical to its statutory predecessor, Highways Act 1959, s 121(1).

48

Upon What Lands a Market or Fair May be Held Decisions under these provisions have constantly reaffirmed the principle of unrestricted access by the public to the whole of the highway, and the only exceptions which have been made relate to those obstructions which are lawful such as lawfully held markets, or of such a temporary nature that they cannot be considered to be obstructions at all. The various attempts by stall holders to raise issues based on the definition of ‘lawful authority or excuse’, such as acquiescence by the local authority in the stall holder’s conduct, have been consistently rejected, as have arguments based on the de minimis principle.

ILLUSTRATION A tradesman encroached on a footway, in that bookshelves were set out together with a sunblind and side panels which projected over the pavement, and it was held by the justices that this encroachment did not constitute an offence, apparently on the basis of the de minimis rule. Held on appeal to the Divisional Court, that the case should be remitted back to the justices on the basis that the offence had been proved. ‘It is perfectly clear that anything which substantially prevents the public having free access over the whole of the highway which is not purely temporary in nature is an unlawful obstruction … In my judgment, however, in this case, it is quite impossible to say that the principle of de minimis applies. Here was a substantial projection into the footway whereby the public were prevented from having free access over the whole of the footway.’ Seekings v Clarke per Lord Parker131.

Again, the de minimis principle was also held inapplicable in Wolverton UDC v Willis (trading as SG Willis and Sons)132, Hinchon v Briggs133 and Hertfordshire County Council v Bolden134. Further, by s 137ZA of the Highways Act 1980 where a person is convicted of an offence in respect of the obstruction of a highway and it appears to the court that the obstruction is continuing, and it is that person’s power to remove the cause of the obstruction, the court now has the additional power to order the offender to remove the obstruction from the highway in addition to, or instead of, imposing any punishment135. If a person fails without reasonable excuse to comply with such an order he is guilty of an offence and liable to a penalty136.

F What constitutes an obstruction? There have been several decisions on what constitutes an obstruction under s 121(1) of the Highways Act 1959137, most of which relate to the parking of vans or the erection of stalls on the highway.

131 132

133 134 135 136 137

(1961) 59 LGR 268 at 269. [1962] 1 WLR 205. This was a case under s 28 of the Town Police Clauses Act 1847 under which a prosecution may be brought for placing or exposing for sale any goods so that they project into or over any footway or beyond the line of any house, shop or building at which they are so exposed ‘so as to obstruct or incommode the passage of any person or along such footway’. (1963) 61 LGR 315, a case under s 60 of the Metropolitan Police Act 1839. (1986) 151 JP 252. Inserted by the Countryside and Rights of Way Act 2000, ss 64(1), (2) and 103(2). The penalty is a fine not exceeding level 5 on the standard scale (see s 137ZA(3), as added). The highway authority has powers to remove the cause of the obstruction, and to recover any expenses in so doing (ibid). Now Highways Act 1980, s 137(1).

49

Chapter 3  The Market Place and the Place for Holding Fairs

ILLUSTRATION A  defendant had parked his motor van on the highway for the purpose of selling hotdogs from it. He was seen to park and five minutes later was asked several times by the prosecutor to move on. He refused to do so and was arrested. In giving the court’s judgment, Lord Parker CJ held: ‘It is really difficult to think of any argument that could be used in the present case to the effect that the appellant had lawful authority to obstruct the highway if what happened was an obstruction. Whether or not the user amounting to an obstruction is or is not an unreasonable use of the highway is a question of fact. It depends on all the circumstances, including the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and, of course, whether it does in fact cause an actual obstruction as opposed to a potential obstruction.’ Nagy v Weston138.

In the case of Pitcher v Lockett139 reported in the following year it was again held that the selling of hotdogs from a stationary van was an unreasonable use of the highway and was unlawful140.

G Obstruction — pitching a stall Similarly, there have been a number of actions pursuant to s 148 of the 1980 Act (formerly s 127 of the 1959 Act)141. H Obstruction — whether land is a highway In Brandon v Barnes142 (a case under the Metropolitan Police Act 1839), the defendant was charged with wilfully obstructing the thoroughfare by means of a barrow contrary to s 54(6). The land obstructed was an access way for pedestrians and vehicles to Romford Market. In support of the contention that the access way was a thoroughfare within the meaning of the 1839 Act, the court was referred to s 34(1) of the Highways Act 1959 (a provision now replaced by s 31(1) of the Highways Act 1980)143. It was found as a fact that no circumstances existed from which the intention not to dedicate could be inferred, and thus the access road was a highway; and it was held that, if an obstacle to passage is placed on the highway otherwise than in accordance with (i) the franchise rights and (ii) the authority of the owner of the soil, it is an obstruction of the highway if it materially interferes with the use of the highway144. Since the defendant could derive the right to obstruct only from the owner’s authority (which he did not have) and not from the franchise, he was held wilfully to have caused an obstruction.

138 139 140 141 142 143 144

[1965] 1 WLR 280, at 284. (1966) 64 LGR 477. See also Redbridge London Borough v Jaques [1970] 1 WLR 1604. Divito v Stickings [1948] 1 All ER 207; Cambridgeshire and Isle of Ely County Council v Rust [1972] 2 QB 426; Waltham Forest London Borough Council v Mills (1980) 78 LGR 248. [1966] 3 All ER 296. Ibid at 303. Ibid at 304.

50

Provision of Stalls and Pens

I Liability for statutory nuisance The owner of a market held in a street may be answerable for a nuisance arising in the market place. Thus, in Draper v Sperring145 it was held that the owner of such a market in which sheep were penned so that their droppings caused a nuisance was a person by whose ‘act, default, permission or sufferance’ the nuisance arose, and was therefore liable to an order to remove the nuisance under the Nuisances Removal Act 1855146. Such a case can now be dealt with under the provisions of the Public Health Act 1936147 or the Public Health (London) Act 1936148. For a case concerning the deposit of a thing on the highway so as to constitute a nuisance contrary to the Highways Act 1980, s 149 see Scott v Westminster City Council149.

6 PROVISION OF STALLS AND PENS The owner of a market is under no obligation to provide pens for animals brought into the market, but if he provides them and charges a toll therefore he owes a duty to the stall holders or users of the pens to provide them in a reasonably safe condition for their purpose150. The owner of the market is not, however, liable to members of the public at large for injury caused by the escape of animals from any pen provided by him151, nor is he so liable, it seems, to members of the public resorting to the market152. It seems that he would, however, be liable to the users of the market in respect of a structure dangerous in itself153 and he may be liable for a public nuisance in the street154.

145 146 147

(1861) 10 CBNS 113. Now repealed. Sections 92, 93; see now the Environmental Protection Act 1990, ss 80, 80A, 81, 82, Sch 3. See also the Public Health (Recurring Nuisances) Act 1969 (repealed by the EPA  1990, s  162(2), Sch 16, Pt III); Statutory Nuisance (Appeals) Regulations 1990, SI 1990/2276, as amended by SI 1990/2483. 148 Section 82. 149 (1995) 93 LGR 370. Braziers mounted on four-wheeled barrows used for the sale of chestnuts held to be unlawfully ‘deposited’ on the highway entitling the highway authority forthwith to remove them as a danger to the public. 150 Draper v Sperring (1861) 10  CBNS  113 at 123, per Willis J; Brackenborough v Spalding UDC [1942] AC 310 at 314, 322, 328. 151 Lax v Darlington Corpn (1879) 5 Ex D  28; Brackenborough v Spalding UDC, footnote 150, above. 152 Ibid at 330, per Lord Porter: ‘Where no duty is imposed a defendant who takes inadequate steps to attain a particular result which he is authorised but under no legal obligation to bring about incurs no legal liability if those steps do not effect the desired result provided they do not increase the danger.’ 153 Lax v Darlington Corpn (1879) 5 Ex D 28, per Lush J. 154 See footnotes 143–146, above.

51

CHAPTER 4

The Days and Hours for Holding Markets and Fairs 1 THE DAYS A Franchise markets and fairs In grants of markets and fairs, the days on which they are to be held are usually specified. Where a market or fair is held under a prescriptive title, it is presumed that it is held under a lost grant, and that such grant specified as the days for holding it, the days upon which the evidence shows that it has in fact been held1. In most grants of fairs, the specified days have reference to a Saint’s day, usually the day of the patron Saint of the place where the fair is to be held2. For a three days’ fair the grant generally provides for its being held on the eve, the day, and the morrow of such a Saint. Grants allotting three days to a fair are common. But in some cases, a greater number of days have been allotted. Thus, Westminster Fair was granted to be held from the eve of St Edward for 15 days3. Markets are usually granted to be held upon a particular day or particular days in every week4. Instances can be found, however, of monthly and fortnightly5 markets. A grant of markets to be held on two days in the week is often treated as a grant of two separate franchises. As a general rule, the grantee is bound to hold his fair or market upon the days for which it has been granted, and it is unlawful for him to hold it on other days. Holding a market or fair upon days other than those specified in the grant was, at one time, a common cause of forfeiture6. Formerly, there was a distinction in this respect between fairs and markets. An entire change of day, whether for a fair or a market, being illegal, was a cause of forfeiture7. But whereas illegally to extend the time of holding a fair was a cause of forfeiture of the whole fair8, if a market was held on the proper day, and also on an additional and improper day, that did not lead to a forfeiture of the whole market, but only to a forfeiture of the market held on the improper day9. For the market held on the additional day was treated as an entire and separable market, wrongfully usurped, and not as a mere extension of the lawful market.



1 2 3 4 5

See p 20, above. The Latin feria (fair) was the proper ecclesiastical term for a Saint’s day. See Chart 29, Hen 1, part 1, memb 3; and Plac Quo Warr, p 480. For example, at Chester, Okehampton, Aberdare, Lechlade, etc. For example at Cranbrook, Axminster, Gillingham, Stallbridge, etc. At Llangattock there is a market every third Tuesday. 6 15 Vin Abr, tit Market (F); Com Dig tit Market (I); Newcastle (Duke) v Worksop UDC [1902] 2 Ch 145 at 158. Also see Abb Plac, p 36 (4 John, Luton), p 43 (5 John, Lichfield and Wolverhampton); Plac Quo Warr, p 384 (temp Edw I, Lancaster): Select Pleas of Crown (Seldon Society) Vol i, pl 22, 44, 50. As to non-user of the market giving rise to a possible cause of forfeiture of the right, see Skibbereen UDC v Quill [1986] 1 IR 123, and see Chapter 2, footnote 37 and Chapter 8. 7 Ibid. See YB 22 Ass f 93, pl 34. 8 Statute of Northampton, 1328, repealed by the Statute Law (Repeals) Act 1969, s 1, Sch, Pt VII. 9 YB 22 Ass f 93, pl 34; Com Dig Market (1); A-G v Horner (1884) 14 QBD 245.

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Chapter 4  The Days and Hours for Holding Markets and Fairs

B Statutory markets and fairs In the case of a market or fair held under a statute incorporating the Markets and Fairs Clauses Act 184710, s 14, the days of holding are the prescribed days (if any) and such other days as the undertakers may appoint from time to time by any byelaw made under the statute establishing the market or fair or under the incorporated Markets and Fairs Clauses Act 184711; and a local authority providing a market under the Animal Health Act 1981 has the same power by virtue of the incorporation of the Markets and Fairs Clauses Act 184712, s 14. In the case of a market established under the Food Act 1984 or to which that Act applies13, the market authority may appoint the days on which the market is to be held14. However, it seems that there would be no power to hold a market on prohibited days15 although, in more recent history, a number of local authorities have permitted car boot sales and markets on Sundays16. C The holding of markets and fairs on Sundays and feast days17 In early times any change of the market day was unlawful including a change from Sunday to a weekday18. But in the 13th century it appears that the opinion began to prevail that Sunday marketing was wrong, and consequently changes of market days from Sunday to weekdays were often allowed without payment of a fine19, and at last they came to be regarded as lawful20. Finally, in 1448 the Sunday Fairs Act21 was passed which made it illegal to show or expose any goods or merchandise (except necessary victuals) for sale in any fair or market held upon any Sunday22, or upon Good Friday23, or upon certain ‘principal feasts’; and permitted persons who had no day for holding their fair or markets other than these days to hold it within three days later or three days earlier, after making proclamation of the change of day. The feast days mentioned in the statute are Ascension Day24, Corpus Christi Day25,

10

As to incorporation see below, Appendix 1. But any provision of a local Act which confers powers on a local authority to make byelaws appointing days on which or hours during which markets or fairs are to be or may be held must be construed as conferring on the authority a power to appoint such days or hours by resolution: Local Government (Miscellaneous Provisions) Act 1976, s 36(1). 11 See Markets and Fairs Clauses Act 1847, s 42, Appendix 1, below. 12 Animal Health Act 1981, s 54(2) incorporates s 14 of the Markets and Fairs Clauses Act 1847. 13 As to such markets see Appendix 1, below. 14 1984 Act, s 52: see Appendix 1, below. For meaning of ‘market authority’ and ‘local authority’ see 1984 Act, s 61. 15 Compare Clifton v Holborn Borough Council (1929) 27 LGR 658. 16 NB there is no power to establish a fair under the Food Act 1984, and see Appendix 1, below. 17 So-called street markets in the City of London are not markets (see p 6, above). 18 Plac Quo Warr, p 710 (temp Edw I, Eccleshall); Abb Plac, p 43 (5 John, Lichfield and Newcastleunder-Lyme). 19 Abb Plac, p 71 (temp John, Edenham and Lafford); Maitland, Pleas of the Crown for Gloucester, p 12, and p 171. 20 Bracton, fol 117. 21 Stat 27 Hen VI, c 5, ‘considering the abominable injuries and offences done to Almighty God, and to his Saints, always aiders and singular assisters in our necessities’. 22 At a much earlier date, Sunday markets had been forbidden; see the Laws of Athelstan (circa AD 925) and of Aethelred, Witan of 1014. 23 ‘Accustomably and miserably holden and used in the realm of England’. 24 A moveable feast, falling on the Thursday which comes 40 days after Easter and a holy day under 5 & 6 Edw VI, c 3, and a feast day according to the calendar of 1750 (24 Geo II, c 23). 25 Thursday next after Trinity Sunday. It is not a holy day under 5 & 6 Edw VI, c 3, nor is it recognised as a feast day in the calendar of 1750.

54

Change of Days Assumption Day26 and All Saints’ Day27. With regard to Sundays, an exception was made of ‘the four Sundays in harvest’28, but this exception was abolished in 185029. The penalty for exposing goods contrary to the statute is forfeiture of the exposed goods to the lord of the fair or market. This statute did not in any event affect the prescriptive or charter rights of persons entitled to markets or fairs by making it unlawful to hold them on Sundays or the other specified days: it only imposed penalties on persons who exposed goods for sale in markets and fairs held on such days30. The Sunday Fairs Act was finally repealed in 1969 by the provisions of the Statute Law (Repeals) Act 196931 and the remaining Sunday trading legislation relating to shops was subsequently the subject of further repealing legislation32. When the calendar was reformed by the Calendar (New Style) Act 1750, the nominal days for keeping the fixed feasts and fasts remained the same33 and accordingly all fairs and markets, the dates for holding which depended upon the dates of such feasts and fasts, continued to be held on the same nominal days; and the 1750 Act provided34 that any market, fair, or mart which had been held at a moveable time depending upon the fall of Easter, or any other moveable feast, should continue so to be held, the fall of Easter or such other moveable feast being computed in accordance with the new tables. However, in the case of markets, fairs, and marts fixed to certain nominal days of a month or depending upon the beginning or any certain day of a month, the nominal days for holding them were changed by the provisions of the Act35, and such markets, fairs and marts are now held 11 days later than their old nominal days. So that, for example, Dunstable Fair, which was originally granted to be held on 1 August and 11 May, was afterwards properly held on 12 August and 22 May.

2 CHANGE OF DAYS A Franchise markets and fairs As a general rule, the grantee is bound to hold his fair or market upon the days for which it has been granted, and it is unlawful for him to hold it on other days; if he does so change the day, the franchise is liable to forfeiture36. The present position appears to be that an unauthorised change of the market or fair day would constitute an abuse of the franchise rendering it liable to forfeiture, the effect of which is to entitle the Crown to obtain a repeal of the grant by scire

26

Assumption BVM, 15 August. It is not a holy day under 5 & 6 Edw VI, c 3, nor is it recognised as a feast day in the calendar of 1750. 27 The first of November and a holy day under 5 & 6 Edw VI, c 3, and a feast day according to the calendar of 1750. 28 ‘In autumno’. 29 By Stat 13 & 14 Vict, c 23 (repealed by the Statute Law Revision Act 1875). 30 Comyns v Boyer (1596) Cro Eliz 485; Cork Corpn v Shinkwin (1825) Sm and Bat 395 at 399. 31 Section 1, Schedule, Pt IV This repeal is not to have the effect of requiring any market or fair to be held on a Sunday or certain other holy days; and a market or fair may continue to be held on any day on which it might lawfully have been held if that Act had not been repealed, ibid, s 4(l). 32 See the Sunday Trading Act 1994, Appendix 1, below. 33 Section 3. 34 Section 3. 35 Section 4. A ‘mart’ it has been said, is a great fair; see p 3, above. Today, the term is more usually applied to a livestock market. 36 See footnotes 6–9, above.

55

Chapter 4  The Days and Hours for Holding Markets and Fairs facias37. However, the position with regard to fairs is somewhat obscure in the light of the repeal of the Statute of Northampton38. A right to change the day of holding may, however, be presumed and if a market or fair has been held for a long time past upon days other than the days specified in the grants which relate to the market or fair, it may sometimes be presumed from the long user that there was a further grant or licence, which has since been lost, authorising the change of day39.

B Statutory markets and fairs In the case of a market or fair held under a statute in which the Markets and Fairs Clauses Act 1847, s 14 is incorporated, the days of holding may be changed under the powers to make byelaws (see s 36(1)) appointing other days for the holding of the market or fair40 and in the case of a market established under the Food Act 1984, or to which that Act applies, the market authority may change the days of holding under its power to appoint such days41. C Power of Secretary of State to change any fair day The Fairs Act 187342 gives to a principal Secretary of State43 power to alter or increase or abridge the days of holding fairs in England and Wales. He may order that a fair shall be held: (1) on some day or days other than that or those on which such fair is used to be held ; or (2)

on the same day or days on which such fair is used to be held and any preceding or subsequent day or days; or

(3) on or during a less number of days than those on which such fair is used to be held44. As he thinks fit. However, he can only make such an order upon a representation duly made to him45 that it would be ‘for the convenience and advantage of the public’ that the change should be made; and the representation can only be made to him46 either: (1) by the owner of the fair; or (2) by the district council of the district in which the fair is held, or if the fair is in London, by the appropriate London borough in which the fair is held47. Before the Secretary of State takes the representation into consideration, the Act requires a notice of the representation and of the time when the Secretary of State will take the representation into consideration, to be published. 37 See pp 105, 106, below. 38 See footnote 8, above. 39 See Penryn Corpn v Best (1878) 3 Ex D 292, as explained in Manchester Corpn v Lyons (1882) 22 Ch 287 at 300; Middleton (Lord) v Power (1886) 19 LR Ir 1 at 12; Newcastle (Duke) v Worksop UDC [1902] 2 Ch 145 at 158. 40 See p 53, above. 41 Ibid. NB there is no power to establish a fair under the Food Act 1984, and see Appendix 1, below. 42 As amended by the Courts Act 2003. 43 In practice, usually the Home Secretary. 44 1873 Act, s 6, as amended by the Courts Act 2003, s 109(1), Sch 8, para 53(a) and (b). 45 Ibid. 46 Ibid. 47 1873 Act, s 6, as amended by the Local Government Act 1894, ss 21(3), 27(l)(e); Local Government Act 1972, ss 1(10), 179(3).

56

The Hours Where the representation is made by the owner48 of the fair, this notice must be given to the district council49 or, if the fair is situate in London, to the appropriate London borough50, and where the representation is made by the district council, or London borough, the notice must be given to the owner of the fair51. In every case, before the representation is considered the notice must be published: (1) once in the London Gazette; and also (2) in three successive weeks in some one and the same newspaper published in the county, city, or borough in which the fair is held, or if there is no newspaper published there, then in a newspaper of some county adjoining or near52. As soon as the order has been made, notice of the making of the order must be similarly published53, and the order has apparently no force until such publication has been completed. When the requirements of the Act with regard to publication have been complied with, the fair may only be held on the day or days mentioned in the order54. The Act expressly preserves all the rights of the owner of the fair, with regard to toll or otherwise, notwithstanding the change of the day or days55. For the purposes of the Act, ‘owner’ means ‘any person or persons, or body of commissioners or body corporate, entitled to hold any fair, whether in respect of the ownership of any lands or tenements or under any charter, letters patent, or otherwise howsoever’56.

3 THE HOURS A Franchise markets and fairs With regard to the proper hours for holding fairs and markets, it has been said that dies in grants means dies solaris (ie from sunrise to sunset) and not dies naturalis (ie from midnight to midnight), so that fairs and markets can be lawfully held only by day57. It cannot be said that this doctrine has always been maintained in practice. B Statutory markets and fairs In the case of a market or fair held under a statute in which the Markets and Fairs Clauses Act 184758, s 42, is incorporated, the hours during each day on which the market or fair may be held may be fixed and changed by byelaws made by the

48 49 50 51 52 53 54 55 56 57 58

1873 Act, s 3. 1873 Act, s 3. 1873 Act, s 3. 1873 Act, s 6, and see footnote 47, above. 1873 Act, s 6. 1873 Act, s 7. 1873 Act, s 7. 1873 Act, s 7. 1873 Act, s 3. 2 Co Inst 714 (11th exception), now repealed by the Sale of Goods (Amendment) Act 1994, s 1; Reid v Metropolitan Police Comr [1973] 1 QB 551 at 559–560; and see Tutton v Drake (1860) 5 H & N 647, and Chapter 7. As to incorporation, see p 249, below.

57

Chapter 4  The Days and Hours for Holding Markets and Fairs undertakers59, and the local authority providing a market under the Animal Health Act 1981 has the same power60. In the case of a market established under the Food Act 1984, or to which that Act applies61, the hours may be appointed by the market authority for holding the market62.

4 STATUTORY RESTRICTIONS OF HOURS Fairs in the Metropolitan Police District The business and amusements of fairs held within the Metropolitan Police District63 are required by the Metropolitan Police Act 183964 to cease at 11pm and not to begin earlier than 6am. If any house, room, booth, standing, tent, caravan, wagon, or other place, is ‘open’ between 11pm and 6am for any purpose of business or amusement, in the place where the fair is held, the person having the care or management of such and also every person being there who does not quit the same forthwith upon being asked to do so, will be liable to a penalty not exceeding level 1 on the standard scale upon summary conviction65.

59 60

61 62 63

64 65

Markets and Fairs Clauses Act 1847, s 42, see Appendix 1, below. By virtue of the incorporation with the Animal Health Act 1981, s 54(2), of the Markets and Fairs Clauses Act 1847, s 42. But any provision of a local Act which confers power on a local authority to make byelaws appointing days on which or hours during which markets or fairs are to be or may be held must be construed as conferring on the authority a power to appoint such days or hours by resolution: Local Government (Miscellaneous Provisions) Act 1976, s 36(1). As to such markets, see Appendix 1, below. Section 52, see Appendix 1, below. As from 1  April 1965 the Metropolitan Police District comprises Greater London (excluding the City, Inner and Middle Temples) Greater London Authority Act 1999, s  323. The London Government Act 1963, s 76 may be amended (as to alteration of police areas) by orders made by the Secretary of State under the Police Act 1964, s 2, as substituted by the Police and Magistrates’ Courts Act 1994, s 14. And see p 241, below. This restriction seems to apply only to a fair in the strict meaning of the word as a market, and will not apply to a fair at which there is no exposure of goods for sale nor selling of goods but held for amusement only; cf Collins v Cooper (1893) 68 LT 450. Ibid, s 38, as amended by the Criminal Law Act 1977, s 31(6), the Criminal Justice Act 1982, s 46 and the Police and Criminal Evidence Act 1984, ss 26(1), 119(2), Sch 7, Pt I.

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CHAPTER 5

Toll and Stallage 1 NATURE The usual payments made to the owners of markets and fairs are of toll and stallage1. The legal definition of toll (in connection with a fair or market) is ‘a reasonable sum of money due to the owner of the fair or market upon the sale of things tollable within the fair or market, or for stallage, piccage or the like’2; and it has been held that in grants3, Acts of Parliament4 and pleadings5, toll may include stallage as a general word for all such charges or payments. It is, however, usual to limit the word ‘toll’ to payments made on the sale within the market or fair, as distinguished from stallage and other payments which are made in respect of some user of the soil6: ‘toll is a charge which can only be made by special grant prescription or statute, and there has to be found some power to levy it … stallage is something which the owner of the soil of the market place or market house is entitled to exact as a condition for allowing people to come on to his land’7.

It is in this more limited sense that the word ‘toll’ will be used in this chapter8.

1 2 3 4 5 6

Other dues, such as piccage or pennage, may be payable (see p 65, below). 2 Co Inst 220. There may also be variable and differential tolls: see p 68, below. Lockwood v Wood (1841) 6 QB 31. Bedford (Duke) v Emmett (1820) 3 B & Ald 366, 371. Bennington v Taylor (1701) 2 Lut 1517. Com Dig, Market (Fl); Bedford (Duke) v Overseers of St Pauls Covent Garden (1881) 51 LJMC 41 at 45, per Bowen J; and see Northampton Corpn v Ward (1746) 2 Stra 1238. As to stallage, piccage and pennage, see p 65, below. 7 Kearton v Robinson (1965) 63 LGR 341 at 342–343, per Lord Parker CJ. See also Oswestry Corpn v Hudd (Valuation Officer) [1966] 1 WLR 363 and pp 154, 155, below. 8 It may be of interest to refer briefly to the nature of certain tolls — probably now obsolete — which were connected with markets and fairs. It is difficult to say what meanings are to be attached to some of the terms, but to the best of the authors’ judgment the definitions given are fairly accurate. Lastage or Lestage: a toll paid for liberty for persons to carry their goods up and down to markets and fairs; see Birch’s Historical Charters, &c, of London (1887), p  328. Pesage or Poizage: a duty for weighing commodities; ibid, 331. Tronage: a duty paid for weighing wool, and other heavy commodities; ibid, 336, Lat ‘trutina’ (scales). Scavage or Shewage: toll paid for a licence to show or expose wares; ibid, 333; Jacob’s Law Dictionary, the ‘scavenger’ collected it. Sumage or Summage: toll paid for carrying goods on horseback; Jacob’s Law Dictionary (cf ‘sumpter’, a pack-horse). Toll-turn: toll paid for cattle or goods on their return from a fair or market; Com Dig Toll (D). Toll-traverse: toll paid for cattle or goods taken over private land; Com Dig Toll (D a); see Brecon Market Co v Neath Rly Co (1872) LR 7 CP 555. Toll-through: toll paid for passing through or into a town or over a public-way, bridge or ferry; Com Dig Toll (C). In particular markets or fairs, tolls of a special kind may be payable by custom or prescription. Thus, at Lichfield market there was payable to a bell-man for sweeping out the market a toll on all corn brought into the market, whether sold or not; Hill v Hawkur (1615) Moore KB 835; SC Hill v Hank (1614) 2 Bulst 201, 1 Roll Rep 44; and see Riley’s Memorials of London, p 366: Ordinance for the cleansing of Smithfield, 46 Edw III.

59

Chapter 5  Toll and Stallage

2 THE RIGHT TO TOLL9 A By grant, prescription or statute The right of taking toll is not incident to a market or fair, and some markets and many fairs are toll-free. Everyone has, at common law, the right and liberty of buying and selling in a public market or fair, and toll is not payable in respect of sales there unless the market owner is entitled to it by special grant from the Crown10 or prescription11, or by statute12. In relation to a franchise market or fair, the right to take toll has been described as a subordinate franchise appurtenant to the market or fair13. A grant of a market or fair does not carry with it a grant of toll, unless there is wording specifically creating a right to toll. It is not sufficient for the grant to be ‘with all profits, commodities, emoluments, liberties and free customs appertaining to such fair’14 or any similar general words not peculiarly applicable to toll since toll is not incident to a market or fair. However, there is a distinction between an original grant of a new market or fair and a confirmatory grant of an ancient one, or a re-grant of the latter after it has passed by forfeiture or otherwise into the hands of the Crown. In the case of a confirmatory grant, or of a re-grant, general words may be sufficient to continue any right of toll, whether by grant or prescription, which had previously existed15. The grant or re-grant must be of the ancient market or fair, and not merely a grant of a new franchise, as was the case in Holloway v Smith16, where new fairs were granted, and where it was held that a custom to take toll in an old fair, although cited in the grant, did not justify taking toll in the new fairs. A right to take toll may be founded on prescription and the court may find, if the evidence is adequate, either a lost grant of a reasonable toll or a lost grant of a toll of a reasonable amount17.

9

For neglect to collect tolls giving rise to a possible cause of forfeiture of the franchise, see Skibbereen UDC v Quill [1986] IR 123, and p 108. 10 See Stamford Corpn v Pawlett (1830) 1 Cr & J  57; affd sub nom Pawlett v Stamford Corpn v Pawlett (1831) 1 Cr & J 400. 11 Heddy v Wheelhouse (1597) Cro Eliz 558, 559. R v Maidenhead Corpn (1620) Palm 76; Osbuston v James (1688) 2 Lut 1377; Holloway v Smith (1742) 2 Stra 1171; Austin v Whittred (1747) Willes 623; Lowden v Hierons (1818) 2 Moore CP 102; Wright v Bruister (1832) 4 B & Ad 116; Stamford Corpn v Pawlett (1830) 1 Cr & J 57; Egremont (Earl) v Saul (1837) 6 Ad & El 924. According to Moore’s report of Heddy v Wheelhouse, the judges there said that toll is payable of common right for live cattle but not for victuals or other wares, but this statement is not borne out by the decision in the case, which was that toll is not demandable for a heifer or a cow, unless by grant from the King or by prescription, and the case seems to be more correctly reported by Coke: (1597) Cro Eliz 558, 591. Also, toll is not due by common usage for hens or geese, or for many other things of such nature: per Clench J in Escot v Lanreny (1594) Owen 109; cf 1 Rot Hundred p 280b (Lafford, Lines) p 239b (Lutterworth, Leics). 12 See the Markets and Fairs Clauses Act 1847, s 36, Appendix 1, below. 13 Newcastle (Duke) v Worksop UDC [1902] 2 Ch 145 at 156, per Farwell J and see also pp 64, 108, 111, below. 14 As in, for example, Holloway v Smith (1742) 2 Stra 1171; Heddy v Wheelhouse (1597) Cro Eliz 558, 591 (‘cum omnibus libertatibus, et liberis consuetudinibus ad hujusmodi feriam spectantibus vel pertinentibus’); Earl of Egremont v Saul (1837) 6 Ad & El 924, 931; Lightfoot v Lenet (1617) Cro Jac 421. 15 Heddy v Wheelhouse (1597) Cro Eliz 591, per Popham J; Earl of Egremont v Saul (1837) 6 Ad & El 924, 931. 16 (1742) 2 Stra 1171. 17 Wright v Bruister (1832) 4 B & Ad 116 (where it was held that a toll of one penny for every pig brought into the market, which toll had been taken for many years, was reasonable); Lawrence v Hitch (1868) LR 3 QB 521 and see pp 61 et seq, below. As to evidence of a prescriptive right see ‘Evidence of Market Rights’, Chapter 11, below.

60

The Right to Toll

B Toll-free markets If the Crown grants a market or fair without a specific grant of toll, the market or fair is toll-free; and the Crown cannot later grant toll for such market or fair ‘without quid pro quo, some proportionable benefit to the subject’18. The reason is that a market or fair, when once established, exists for the benefit of the public, as well as for the benefit of the owner. However, in Lowden v Hierons19 it appeared that there had been a usage to take toll in Covent Garden for some 150 years before action was brought, but that the market had been free up to 1670, when a further grant20 was obtained of the market cum tolneris hujusmodi mercuturae aliquatinus spectantibus. On these facts, the court seems to have thought that it was open to a jury to presume from the usage that a valid grant of toll had been made since the original charter21. C Toll must be reasonable; power to increase toll If a grant of toll specifies the amount which may be taken, such amount must be reasonable. A grant of an unreasonable toll is wholly void, and no portion of it is payable22. A grant of toll which does not specify the amount to be taken is interpreted as a grant of a reasonable toll23. ILLUSTRATION By grant of Queen Anne24, the plaintiff Corporation enjoyed the right to hold two fairs or markets yearly for ever with all tolls and profits from the fair proceeding and arising. No toll was specified but in pursuance of the grant the Corporation was accustomed to receiving a toll of 2d per beast from buyers in the market. The defendant refused to pay the toll arguing that the grant of a toll without specifying the amount was void since it would allow the grantee to take whatever may appear to him to be reasonable and expose the public to extortion. Held that the grant entitled the plaintiff Corporation to take a reasonable toll: Corporation of Stamford v Pawlett25.

If, however, the language of the grant is ambiguous it may be void for uncertainty, as was held in the case of a grant of ‘such toll as is used to be taken ibi et alibi infra regnum Angliae’26. Where the right to take toll is founded on prescription, it seems that a court may find, if the evidence is adequate, either a lost grant of a reasonable toll, or a lost grant 18 19 20 21

2 Co Inst 220; R v London Corpn (1682) 2 Show 263; Lancum v Lovell (1832) 6 C & P 437, 465. (1818) 2 Moore CP 102. 22 Car II. See per Dallas J in Lowden v Hierons (1818) 2 Moore CP 102; although Alexander CB in Stamford Corpn v Pawlett (1830) 1 Cr & J 57 at 79 thought that this case was sent to a new trial for lack of evidence that a reasonable sum, by way of toll, had been regularly paid. 22 2 Co Inst 220; Heddy v Wheelhouse (1597) Cro Eliz 558, 591; Moore 474. 23 R v Maidenhead Corpn (1620) Palm 76; Stamford Corpn v Pawlett (1830) 1 Cr & J 57, 400. 24 13 Anne. 25 (1830) 1 Cr & J 57. In delivering the judgment of the Court of Exchequer Alexander CB said (at 81), on the question of a ‘reasonable’ toll: ‘The grantee demands it at his peril, and at the hazard of a private as well as of a public prosecution: of a private, at the suit of the party injured; of a public, at the suit of the Attorney-General, in the name of his Majesty. The inconvenience of raising such questions cannot be avoided by specifying the sum. The King cannot grant an unreasonable toll; and it is competent to every subject of the realm, from whom the toll is demanded, to question its being reasonable, even when the exact sum is specified in the charter. This question may always be brought under discussion, in whatever terms the grant may be expressed.’ The judgment was affirmed in the Exchequer Chamber, ibid, at 400. 26 Lightfoot v Lenet (1618) Cro Jac 421.

61

Chapter 5  Toll and Stallage of a toll of a specified amount27. The former finding is the more favourable for the market owner as such a grant does not prevent his varying the amount of his toll, provided that the amount taken is always reasonable; and the toll is not liable to be invalidated on the ground of rankness28. Where the amount of toll is not fixed by charter29, custom or prescription, or statute, it may be increased from time to time so long as it is reasonable. If the amount is so fixed, and there is no provision for increase in the charter or statute, it may only be increased by authority of an Act of Parliament, whether private or public30.

D Reasonableness Reasonableness is a question of law. If the sum demanded by way of toll is in accordance with an express grant, or prescription, the court will support its payment, unless it is shown to be unreasonable; and the onus of showing that the toll is unreasonable lies on the party disputing it31. A  continuance of uniform payment and acquiescence in it is evidence of reasonableness32. The mere fact that a toll of a particular amount has been taken for a long period of time will not, in the absence of evidence, warrant the assumption that a toll of a larger amount is unreasonable33. ILLUSTRATION The plaintiff was the lessee of markets and street tolls in Cheltenham. No specific toll was granted by the charter of Henry III or subsequent letters patent of Charles I, but, for as long as living witnesses could remember, a board had been displayed in the market place showing the market tolls including a toll of one shilling for every cartload of vegetables. These tolls had been collected regularly, and as of right, from at least 1810. The defendant refused to pay toll on a cartload of vegetables brought into the market arguing, in response to the plaintiff’s claim to a prescriptive toll, that the amount of the toll although reasonable at the present time would have been unreasonable in 1189 (the commencement of legal memory), and for many years after and could not, therefore, have had a legal origin. Held: (1) that, on the facts, it ought to be presumed that the toll of one shilling had been taken from time immemorial and that if the doctrine of rankness34 applied, the other facts showed that one shilling for a cartload of vegetables was not unreasonable in the time of Richard I; (2) that it may also be presumed that the grant was of a reasonable

27 See Wright v Bruister (1832) 4 B & Ad 116, Gunning on Tolls, 62; Lawrence v Hitch (1868)  LR  3  QB  521. In the Worksop market and fair case, Plac Quo Warr p  627, the Crown alleged as an abuse, and proved, that the lord had taken twice as much for tolls as he and his predecessors from time immemorial had before taken, and the market and fair were forfeited. The tolls were prescriptive. It does not appear whether the lord’s claim was to tolls of a specified or of reasonable amount; but the case is consistent with either view. 28 Lawrence v Hitch (1868) LR 3 QB 521. The doctrine of rankness had some place in the law of tithes, but has never been successfully applied to prescriptive tolls, although its application would have been fatal to many. 29 Lawrence v Hitch (1868) LR 3 QB 521. 30 For power to increase charges in statutory markets, see pp 69 et seq, below. 31 Wright v Bruister (1832) 4 B & Ad 116, where a toll of one penny on every pig brought into a market was held to be not necessarily unreasonable. 32 Gard v Collard (1817) 6 M & S 69. As to slight variations from time to time, see Beaufort (Duke) v Smith (1849) 4 Exch 450. 33 See Mills v Colchester Corpn (1868) LR 3 CP 575. 34 See footnote 28, above.

62

The Right to Toll toll which may vary in amount from time to time with the value of money; and that such toll is valid in point of law35: Lawrence v Hitch36.

However, if a toll were claimed by charter granting a toll of a specified amount which, although reasonable now, must have been unreasonable at the time of the grant, it might be successfully contended on that ground that the grant of the toll was void37. Many tolls which are now taken in ancient charter and prescriptive markets would have been unreasonable at the time when the charter was granted, or in the first year of the reign of Richard I38, and would be bad unless they could be supported as tolls varying in amount.

E Excessive toll Statute39 formerly provided that where an excessive or ‘outrageous’40 toll was taken by the lord, the Crown was entitled to seize the market or fair into its own hands41; and that if an officer of the market took outrageous toll without authority, he would be liable both to compensate the injured party and to 40 days’ imprisonment. At common law, an abuse of franchise of toll, by taking excessive toll, renders that franchise (but not, it seems, the market or fair) to forfeiture42 by scire facias43. F Persons liable to pay toll At common law, toll for goods sold in markets and fairs is payable by buyers and not sellers44. However, it is not difficult to envisage the practical difficulties involved in collecting toll from buyers45 and in most modern statutory markets46, and perhaps now even in many franchise and prescriptive markets, toll is, in practice, paid by sellers. The common law rule may be excluded by custom or prescription47 and, in addition, any individual seller may contract with the market owners that his, the

35 See R v Maidenhead Corpn (1620) Palm 76 at 86; Wright v Bruister (1832) as reported in Gunning on Tolls, pp 62, 63. The point does not appear in the report in 4 B & Ad 116. 36 (1868) LR 3 QB 521. 37 Ibid; cf Bryant v Foot (1868) LR 3 QB 497. 38 Thus, in the time of Edward III, the following tolls were held to be unreasonable, viz one penny for each of the following when sold in market or fair: horse, ox, cow, eight sheep, four pigs over one year old, eight young pigs, and a cart laden with merchandise; for a horse’s load one halfpenny or farthing, and for a man’s load one farthing. Plac Quo Warr, p 146 (Meysham), and p 140 (Bauquell). See also ibid p 627 (Worksop). In 1832, a toll of a penny for a pig sold in market was held to be reasonable: Wright v Bruister (1832) 4 B & Ad 116. See also Heddy v Wheelhouse (1597) Cro Eliz 558, Moore 474. 39 3 Edw I, c 31 (Statute of Westminster I, 1275): repealed by the Theft Act 1968, s 33(3), Sch 3, Pt I (repeal not to extend to Northern Ireland, ibid, s 36). 40 2 Co Inst 220. 41 The franchise of toll was not extinguished, but continued to exist in the Crown’s hands. 42 See Co Dig Market (1) citing Palmer, 82; Vin Abr Market (F) 7, to the contrary, cites 2 Show 265; but the passage in Shower is mere argument, on the false assumption that toll is incident to a market. See also Newcastle (Duke) v Worksop UDC [1902] 2 Ch 145 at 157; and at 158, Farwell J remarked (without deciding the point) that it was not easy to see how a subordinate franchise of toll, if surrendered or forfeited, could vest in the Crown, whilst the franchise of fair could remain in the lord; cf R v Maidenhead Corpn (1620) Palm 76 at 78, 82, where the court held that toll was neither incident nor subordinate to the market and could be forfeited and the market remain. 43 See p 105, below. 44 Leight v Pym (1687) 2 Lutw 1329; YB 9 Hen VI, f 45, pl 28; 2 Co Inst 221. 45 See, for example, the remarks of Danckwerts J in A-G v Colchester Corpn [1952] Ch 586 at 594. 46 See Hailsham Cattle Market Co v Tolman [1915] 1 Ch 360; affd [1915] 2 Ch 1 and the Food Act 1984, s 54(3), Appendix 1, below. 47 See Leight v Pym (1687) 2 Lut 1329; Hill v Smith (1809) 10 East 476, overruled on another point (1812) 4 Taunt 520.

63

Chapter 5  Toll and Stallage seller’s, goods shall be sold in the market, toll-free, in consideration of an agreement by the seller to pay a sum equal in amount to the toll properly payable by the buyer48. In a very early case49, the lord claimed a prescriptive right to take toll from both buyer and seller: the amount taken was held unreasonable. However, if the total amount taken were not excessive, perhaps such right might be successfully prescribed for.

G Articles and sales liable to toll It has been questioned whether tolls are payable on articles not in use at the time of the grant, or not then known, which have subsequently become marketable articles. It is submitted that there can be no objection to taking tolls on such articles if the terms of the charter by which the tolls were granted are sufficiently wide50; and in the case of a prescriptive market, or a market with prescriptive tolls, there might be evidence from which it could be inferred that the lost grant contained a clause which provided for such articles, as by granting a reasonable toll on all chattels and things brought into the market and there sold. Where statutory markets are concerned, the question of whether articles are subject to toll obviously depends upon the construction of the Act regulating the market. Nevertheless care is required in construing the relevant provisions and it may be necessary to apply the ejusdem generis rule to establish whether or not certain goods are subject to toll51. However, the rule is to be applied with caution and prima facie words are to be given their natural meaning, unless that meaning is cut down by the context as a result of the operation of the rule52. Toll is usually payable only on tollable articles actually brought into the market and there sold53. By custom or statute, however, toll may be payable for goods brought into the market for sale and not sold54. If goods are sold by sample in a market, but the bulk is not brought into the market, toll is not payable on the bulk55; and there cannot be a grant or prescription to take toll on goods not actually brought into the market and there sold56. In Hill v Smith57, Lord Mansfield said: ‘Fairs were invented that contracts might have good testimony and be made openly, and that the seller might know what to ask and the buyer what to give … The goods should 48 A-G v Horner (No 2) [1913] 2 Ch 140 at 173. 49 Case of Bauquell, Plac Quo Warr, p 140. 50 See R v Maidenhead Corpn (1620) Palm 76 at 85; Brune v Thompson (1843) 4 QB 543, 552; Carlisle Corpn v Wilson (1804) 5 East 2; Waterhouse v Keen (1825) 4 B & C 200. 51 Whittle (Hy) Ltd v Stalybridge Corpn (1967) 65 LGR 344, where Buckley LJ held that the words ‘other provisions’ in a local Act had to be construed ejusdem generis with the preceding words ‘meat, fish, poultry, vegetables, fruit …’. Since the latter were all natural products, manufacturered products such as bread and confectionery (sold by the plaintiff) did not attract toll. See also Loftos v Gleave (1891) 55 JP 149; Kearton v Robinson (1965) 63 LGR 341; and pp 68, 69, below. 52 Anderson v Anderson [1895] 1 QB 749, cited in Aberdare Markets and Town Hall Co v Bolwell & Hayward Ltd (1992) 90 LGR 613, CA. 53 Wells v Miles (1821) 4 B & Ald 559; Kerby v Whichelow (1701) 2 Lut 1498; Leight v Pym (1687) 2 Lut 1329; Bennington v Taylor (1700) 2 Lut 1517; Swindon Central Market Co Ltd v Panting (1872) 27  LT  578; Vines v Reading Corpn (1826) 12 Moore CP  201; Londonderry Corpn v Osborne [1926] NI 58. 54 Leight v Pym (1687) 2 Lut 1329; Hill v Hawkur (1614) Moore KB 835; Bedford (Duke) v Emmett (1820) 3 B & Ald 366 at 371. 55 Tewkesbury Corpn v Diston (1805) 6 East 438; Moseley v Pierson (1790) 4 Term Rep 104. But an action lies for the injury done to the market: see Tewkesbury (Bailiffs etc) v Bricknell (1809) 2 Taunt 120 and pp 94 et seq, below. 56 Hill v Smith (1812) 4 Taunt 520; Wells v Miles (1821) 4 B & Ald 559; Kerby v Whichelow (1700) 2 Lut 1498. 57 (1812) 4 Taunt 520 at 531.

64

The Right to Stallage be sold there publicly. This sale by sample is directly contrary to the origin and purpose of markets; and it would be a strange thing that toll should be taken by the owners of the market on that very transaction which is contrary to the intention of the market.’

3 THE RIGHT TO STALLAGE A Nature of the right Stallage is the sum which may be demanded by the owner of the soil on which a market or fair is held in return for the privilege of placing a stall upon it58, or for standing room for cattle or goods within the market or fair. Piccage (the right to make holes in the ground for support59) and pennage (the right to erect pens60) are merely varieties of stallage, and are terms met less frequently today. However, the market owner need not own the freehold of the soil, but he must be entitled in some way to actual possession or control of it61. Although the market owner is under no duty to erect stalls or pens62, he does have a duty not to prevent the public from exercising its common law right of resorting freely to the market place. If he so covers the site of the market place with stalls that insufficient room remains for those who do not wish to take stalls, he will be in breach of that duty63. No one has a right, at common law, to erect or occupy stalls or pens in a market without the consent of the market owner64, unless he has acquired a special right to do so. Nor, generally, may anyone take exclusive occupation of any part of the soil of the market without the consent of the owner of the soil: anyone so doing will be a trespasser65. Nevertheless, there may be a custom for a particular class of persons to erect stalls in a market or fair, paying a fixed or reasonable sum as stallage; and such custom will be an answer in an action for trespass66. ILLUSTRATION In an action for trespass for entering onto the plaintiff’s land and erecting a stall, the defendant claimed justification under a custom entitling victuallers to erect stalls and booths at fairs held at certain times of the year on the common in return for a payment to the lord of the manor of the sum of 2d. Held, affirming the judgment of the Queen’s Bench: (1) that the custom was reasonable and an answer to an action for trespass brought by the owner of the soil; (2)

58 59 60 61 62 63 64 65 66

See, for example, Kearton v Robinson (1965) 63 LGR 341 at 343. Northampton Corpn v Ward (1746) 2 Stra 1238. R v Marsden (1765) 3 Burr 1812. Austin v Whittred (1747) Willes 623; Lockwood v Wood (1841) 6 QB 31; A-G v Horner (1885) 11 App Cas 66; and see pp 42, 43, above. Draper v Sperring (1861) 10 CBNS 113 at 123; Brackenborough v Spalding UDC [1942] AC 310 at 314, 322, 328; and see p 51, above. R v Burdett (1697) 1 Ld Raym 148; A-G v Colchester Corpn [1952] Ch 586 at 595. It appears that such action would be grounds for forfeiture of the market: 2 Co Inst 221. As to rights of the public, see p 33, above. See p 34, above. Northampton Corpn v Ward (1746) 2 Stra 1238; Norwich Corpn v Swann (1777) 2 Wm Bl 1116; but see footnote 69, below. A lease of stallage in a street market passes no interest in the soil of the market place to the lessee on non-market days: Coleman v Howard (1860) 2 LT 463. Tyson v Smith (1838) 9 Ad & El 406; Elwood v Bullock (1844) 6 QB 383; Chafin v Betsworth (1684) 3 Lev 190; A-G v Colchester Corpn [1952] Ch 586 at 595.

65

Chapter 5  Toll and Stallage that the word ‘victualler’ was to be understood in the sense which it bore at the time of the custom, that is, persons authorised by law to keep public houses: Tyson v Smith67.

In essence, therefore, the right to stallage is different from the right to take tolls from the buyers of goods since it is dependent not on royal grant or prescription but arises by virtue of the ownership of the soil (which includes possession as lessee or licensee68). The only right enjoyed by the public over the soil of the market or fair is to enter to buy and sell69; stallage and like payments are made in respect of some user of the soil beyond mere entry into the market place.

B When stallage payable Stallage is not payable unless there is some exclusive occupation of the soil by the person from whom it is demanded70, as where stalls or tables are erected or baskets placed upon the ground. Whether or not occupation is exclusive is, however, a question of fact71 and persons resting their goods or baskets on the ground for a short time will not be liable to stallage72. Similarly, where cattle are driven or stand in the market place, but are not penned, no stallage is payable73. It is sometimes difficult to distinguish stallages paid upon goods pitched in the market from tolls. For example, in the old Covent Garden market, in addition to rent paid for stalls, payments were made upon articles pitched for sale. Although called tolls, these payments were clearly stallages since they were charged on the space occupied by an article, and not upon the sale of the article74. Such stallages may be prescribed for75.

67

(1838) 9 Ad & El 406. In this case, Tindal CJ said (at 425–426): ‘At the early time at which this custom originated it may have been a profit to the lord, and at all events it may have been an object to him, with respect to the profits of his fair, to give encouragement to those who would erect booths and stalls for the entertainment of strangers coming to the fair … The custom, in fact, comes at last to an agreement, which has been evidenced by such repeated acts of assent on both sides from the earliest times, beginning before time of memory and continuing down to our own times, that it has become the law of the particular place.’ 68 Thus, stallage may be demanded in the case of a newly constructed market: Northampton Corpn v Ward (1746) 2 Stra 1238, per Lee CJ; Yarmouth Corpn v Groom (1862) 1 H & C 102; and see per Lord Denman, Lockwood v Wood (1841) 6 QB 31. 69 Ibid. Although anyone erecting a stall without the authority of the market owner will be liable in trespass (see footnote 65, above), it seems that ejectment will not lie for a stall erected in a public street: Doe d St Julian (Minister etc of) v Cowley (1823) 1 C & P 123. Nor, probably, for a stall erected in a close to which the public has admission for market purposes: see Northampton Corpn v Ward (1746) 2 Stra 1238. 70 A-G v Tynemouth Corpn (1900) 17 TLR 77. 71 Norwich Corpn v Swann (1777) 2 Wm Bl 1116; Yarmouth Corpn v Groom (1862) 1 H & C 102. The construction of the stall is immaterial as is whether it is fixed into the ground or not: ibid at 112, per Wilde B. 72 Townend v Woodruff (1850) 5 Exch 506; and see R v Bell (1816) 5 M & S 221; Wigley v Peachey (1732) 2 Ld Raym 1589; Lawnson’s (Mayor) Case (1587) Cro Eliz 75; Sawyer v Wilkinson (1598) Cro Eliz 627, where the owner of the soil was held not justified in distraining damage feasant goods brought into the market place and laid down for sale. 73 Swindon Central Market Co Ltd v Panting (1872) 27 LTNS 578. 74 See Bedford (Duke) v Overseers of St Paul’s Covent Garden (1881) 51 LJMC 41; Bedford (Duke) v Emmett (1820) 3 B & Ald 366. 75 See Tyson v Smith (1838) 9 Ad & El 406, per Tindal CJ at 425: ‘It is clear that a prescription for a certain toll by way of stallage is good, notwithstanding toll and stallage are different things, … and, if the lord of the fair can justify distraining for such toll under a prescription, there seems no reason why the person who uses the stall on payment of the toll, and who cannot prescribe either in a que estate or in himself and his ancestors, being a stranger, should not justify under such a custom as the present.’ See also Bennington v Taylor (1700) 2 Lut 1517.

66

The Right to Stallage Stallage may take the form of a rent payable weekly, or at other intervals, for the continuous hire of a stall; alternatively, a payment may be made for the use of a stall throughout the course of a single market day or fair day.

C Amount of stallage; power to increase stallage The amount due for stallage may be fixed by charter76, custom or prescription77, or statute, and in such cases the amount so fixed may not be exceeded78 and may be increased only by authority of an Act of Parliament, whether private or public79. If the amount is not so fixed, the market owner can charge what he pleases in a free bargain with the stall holder and may increase the amount from time to time80 subject to the decision to increase being susceptible to judicial review in the case of a local authority. Even if there is no express agreement on amount, or no special sum fixed by charter, custom, prescription or statute, a reasonable sum is recoverable in an action for use and occupation81. ILLUSTRATION The defendant Corporation was the owner of an ancient market held in the High Street, the soil of which the Corporation also owned. Market charges had never been limited by charter, custom, prescription, or statute. In order to try to exclude undesirable elements from the market the Corporation adopted a new scale of charges for stallage (payable by virtue of the Corporation’s ownership of the soil) whereby traders not resident in the borough were obliged to pay very much more than local traders and traders in comparable markets elsewhere. In an action brought at the relation of the General Secretary of the National Market Traders’ Federation, it was claimed that the charges for stallage were excessive and unreasonable and that the Corporation was entitled by law to charge only a reasonable amount for stallage. The Corporation claimed to be able to make such charges for stallage as it thought fit. Held, dismissing the action, that where the right to occupy a space in a market, and the amount of stallage, are not regulated by charter, custom or otherwise, the charge for stallage is the result of a voluntary bargain between the owner of the soil and the stall holder and the owner may charge whatever he wishes: A-G v Colchester Corpn82.

76 77 78 79 80

81

82

Lawrence v Hitch (1868) LR 3 QB 521: and see p 60, above. Wright v Bruister (1832) 4 B & Ad 116: and see p 60, above. Bennington v Taylor (1700) 2 Lut 1517; Hickman’s Case (1599) 2 Roll Abr 123 ‘Market’ B 2. As to customary and prescriptive stallage, see footnote 75, above; as to the right of action for stallage, see p 72, below. For power to increase tolls and stallages under statute, see pp 61, 67, below, and Ricketts v Havering London Borough Council (1981) 79 LGR 146. Northampton Corpn v Ward (1746) 2 Stra 1238; A-G v Colchester Corpn [1952] Ch 586 at 601, and see the case of R v Birmingham City Council, ex p Dredger (1993) 91 LGR 532, and R (Harvey) v Leighton Linslade Town Council [2019] EWHC 760 (Admin), below at p 200. See also pp 69, 200–201. A market owner who so covers the site of the market with stalls that insufficient room is left for the market to be enjoyed by those who do not wish to take stalls was formerly liable to be indicted for the offence of extortion, abolished by the Theft Act 1968: see R v Burdett (1697) 1 Lord Raym 148; A-G v Colchester Corpn [1952] Ch 586 at 595, 598, 600; and see pp 65, 66 and footnote 63, above; and footnote 82, below. Newport Corpn v Saunders (1832) 3 B & Ad 411; Taunton Market v Kimberley (1777) 2 Wm Bl 1120; A-G v Colchester Corpn [1952] Ch 586. An action for stallage is analogous to an action for use and occupation of land: ibid, and 1 Roll Abr 106; but quaere whether an action for use and occupation will lie if the occupation is without the licence of the owner of the soil: see Phillips v Homfray (1883) 24 Ch D 439 at 461, per Bowen LJ. [1952] 1 Ch 586. If, however, the market owner so covers the market place with stalls that there is no other accommodation, there will be no voluntary bargain: see ibid at 601 and footnote 80, above.

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Chapter 5  Toll and Stallage

4 TOLLS AND STALLAGES IN KIND Particularly in times past, tolls and stallages were, by custom or prescription, often paid in kind. A not infrequent due was a pint of wheat for every bushel exposed for sale83. Where a custom to take in kind exists, that custom must be closely observed.

ILLUSTRATION At Cockermouth market the custom was for the collector to ‘lift’ a handful of corn out of every sack. He varied from the usual practice by ‘sweeping’ the corn out, and by so doing took more than a handful. Held he was liable in trover: Norman v Bell84.

5 VARIABLE AND DIFFERENTIAL TOLLS AND STALLAGE As described above 85, toll is a payment on the sale of goods. It is clearly distinguishable from stallage, which is a payment for the use of part of the soil, generally payable whether a sale is effected or not. The amount of toll payable on goods depends on the goods sold, not on the part of the market in which they are sold. It is not possible to sustain at common law a different toll for the same article in different parts of the same market86. However, payments in the nature of stallage, even though called toll, may vary according to the part of the market place in which the goods are pitched. For example, it may be very much more profitable to erect a stall in certain parts of the market and that will justify a higher stallage than in other parts. Further, there is authority which enables a market owner to introduce differential charges, particularly in relation to regular and casual traders, as established in the case of Attorney-General v Colchester Corporation87.

ILLUSTRATION The preamble to an Act of Parliament recited the grant of a market, and that it was expedient that provision should be made for the better regulation of the market and for the more easy collection of tolls and dues payable in the market. It was enacted that it would be lawful for the market owner to take from all persons who should place, pitch or expose for sale in any part of the market any fruit, etc all such tolls as were usually collected in the market, or which were payable for or in respect of the same. Held that the market owner, although not entitled at common law to any toll, might under the Act recover such tolls as, at the time of the passing of the Act, were usually paid in any part of the market even though the tolls then usually paid in respect of some articles were different in different parts of the market: Bedford (Duke) v Emmett88.

83

84 85 86 87 88

Specot v Carpenter (1682) T Jo 207; Hill v Smith (1812) 4 Taunt 520; Norman v Bell (1831) 2 B & Ad 190; Hickman’s Case (1599) Noy 37; Roll Abr Market, B 2; Hill v Hawkur (1614) Moore KB 835; Abb Plac (4 John) p 41, (8 Edw 1) p 321; Plac Quo Warr p 569 (Twywell); Final Report of Royal Commission, p 101. (1831) 2 B & Ad 190. Now wrongful interference with goods: see the Torts (Interference with Goods) Act 1977, s 1. See p 59, above. For profits of statutory markets, see pp 69 et seq, below. Bedford (Duke) v Emmett (1820) 3 B & Ald 366, but see pp 70, 71, below. [1952] Ch 586, and see R (Harvey) v Leighton Linslade Town Council [2019] EWHC 760 (Admin). (1820) 3 B & Ald 366.

68

Charges in Statutory Markets

ILLUSTRATION In March 2018 Linslade Town Council Town sought to revise market pitch fees or rents89 at Leighton Buzzard Market. A market trader sought to challenge this decision by way of judicial review. The issues were whether the decision was lawfully made, and whether there was a duty to consult. The decision made by the Town Council was: (1) to standardise the pitch size and the method of charging from imperial measurements to metric measurements; (2) to alter the method of calculating fees to a square metreage basis; (3) to create a uniform approach to fee charging; and (4) to increase the standard rate of fees charged. As a result of these proposed changes an element of differential charging was to be introduced, particularly with regard to regular and casual traders. The ability of a market operator to introduce differential charges had previously been established in the case of A-G v Colchester Corpn90 but it appears that this judgment was not relied upon to justify the Town Council’s actions. However, the focus of the case was the consultation undertaken by the Town Council. The Deputy Judge dismissed the application and held that there was no duty to consult. Even if there was such a duty, he held that the consultation that did occur fell with the principles laid down in the case of R v Brent London Borough ex parte Gunning91. It was found that there was no breach, and that there had been adequate consultation (R (Harvey) v Leighton Linslade Town Council) 92. There is, however, nothing unlawful at common law in remitting the whole or any part of a toll taken in a market, provided the highest toll does not exceed that which may be lawfully demanded93. In some markets, a person of a particular class (for example, a freeman of the borough) may be entitled to be charged less for toll or stallage than outsiders94.

6 CHARGES IN STATUTORY MARKETS A The Markets and Fairs Clauses Act 1847 Local Acts authorising the holding of markets and fairs frequently incorporate the whole or part of the 1847 Act if the local (or ‘special’95) Act authorises the taking of stallages, rents or tolls, such right will be regulated in accordance with the provisions

89 90 91 92

93

94 95

These charges were not referred to in the documentation as ‘stallage’, but clearly fall within that definition. [1952] Ch 586. [1984] 84 LGR 168. [2019] EWHC 760 (Admin); and see p 200, below. A noteworthy aspect of the case is that the attention of the Deputy Judge does not appear to have been drawn to the judgment in A-G  v Colchester Corpn [1952] Ch 586, being the leading case on market charges. There it was held that where the right to occupy a space in a market, and the stallage charges for such a right, are not specifically regulated by custom, charter, or otherwise, the charges are the subject matter of a free contractual bargain made between the market owner and the trader. Newcastle (Duke) v Worksop UDC [1902] 2 Ch 145 at 161 applying Hungerford Market Co v City Steamboat Co (1860) 3 E & E 365; and see A-G v Colchester Corpn [1952] Ch 586 at 597, 598 and 601; and Lancum v Lovell (1832) 5 C&P 437, at 465 per Tindall CJ. See also Plac Quo Warr p 158 (Derby); Rot Hund p 2 (Wallingford); Abb Plac p 140 (Faversham). As to the maximum in case of tolls, see pp 61 et seq, above, and in the case of stallage, see p 67, above. See, for example, Newcastle (Duke) v Worksop UDC [1902] 2 Ch 145 and A-G v Colchester Corpn [1952] Ch 586. See 1847 Act, s 2, Appendix 1, below.

69

Chapter 5  Toll and Stallage of the 1847 Act, if the appropriate part of that Act96 is incorporated in the special Act. The provisions of the 1847 Act relating to stallages, rents and tolls are dealt with in more detail elsewhere97. However, it should be noted in particular that the market authority98 may, from time to time, vary the stallage rents and tolls provided the amounts authorised by the special Act are not exceeded99. A local authority which maintains a market under a local Act may make in connection with the market such charges as it determines from time to time, notwithstanding anything in the local Act100. This discretion should, however, be exercised in a reasonable manner101.

B The Food Act 1984 A market authority102 may demand in respect of the market such charges as it may from time to time determine103. ILLUSTRATION The defendant Council, concerned about the deficit on its market operation at Romford, and having ascertained that stallage charges at the market were less than at comparable markets, decided to increase charges by 120 per cent on the two weekdays on which the market operated, and by 270 per cent on Saturdays. Certain stall holders who considered that the increases were too great, and that the application of any profits to purposes unconnected with the market was not justified, sought a declaration from the High Court that the increased charges did not comply with the then provisions of s  52(1) of the Food and Drugs Act 1955104, and that the implementation of such increases was ultra vires the authority. Held, refusing the application, that the Council was right to take the view that the market was potentially a profit making operation and that it might be appropriate to operate it at an increased level of charges which would produce an income over and above the immediate needs of the market economy which could be devoted to the benefit of the borough generally, and that in the circumstances the proposed increases were not unreasonable: Ricketts v Havering LBC105.

Although the discretion to increase charges under the 1984 Act is wide, care must nevertheless be taken to ensure that such discretion is not exercised unreasonably106.

96

97 98 99 100 101 102 103 104 105 106

That is, ss 31–41. It should be noted that the incorporation of clauses relating to stallages, rents and tolls by virtue of these provisions do not in themsleves confer any right as such to such charges. They merely regulate the conditions subject to which such charges are payable and see Appendix 1, below. Ibid. ‘The undertakers’ under the 1847 Act: defined in ibid, s 2 as the persons authorised by the special Act to construct or regulate the market or fair. 1847 Act, s 36. The Local Government (Miscellaneous Provisions) Act 1976, s 36(2): see Appendix 1, below. See next section, and the cases there cited, and in particular R v Birmingham City Council, ex p Dredger (1993) 91 LGR 532 for a case under s 36(2). That is, a local authority which maintains a market established or acquired under the 1984 Act, s 50, or under corresponding provisions of preceding legislation: see 1984 Act, s 61. Ibid, s 53(1): see Appendix 1, below. ‘Charges’ includes stallage and tolls: 1984 Act, s 61. The 1984 Act, s 53(1) re-enacts the provisions of the 1955 Act s 52(1), as amended in almost identical terms. (1981) 79 LGR 146. See also A-G v Colchester Corpn [1952] Ch 586 at 601–603. See the words of Lord Wrenbury in Roberts v Hopwood [1925] AC  578 at 613: ‘A  person in whom is vested a discretion must exercise his discretion on reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to do so — he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably.’

70

Charges in Statutory Markets Furthermore, if a local authority market owner decides to raise charges for stalls to a level which makes it uneconomic to trade, it is open to the stall holder to argue that the resulting threat to his livelihood affects his common law rights, so removing into the realms of public law the relationship between local authority and stall holder. In these circumstances, the local authority decision is susceptible to challenge by way of judicial review107. Other provisions relating to charges under the 1984 Act include the requirement to display tables of the amounts payable108, the time for payment109, and recovery in the event of non-payment110.

C The Animal Health Act 1981 A wharf or other place provided by a local authority under the 1981 Act is a market within the Markets and Fairs Clauses Act 1847111 (which, with certain exceptions, is incorporated in the 1981 Act112), and a local authority113 may charge for the use of the wharf or other place provided by it under the 1981 Act such sums (deemed to be tolls) as may be fixed by byelaws114. D The Local Government (Miscellaneous Provisions) Act 1982 A  district council may115, under the 1982 Act, charge such fees as it considers reasonable for the grant or renewal of a street trading licence or consent116, and may determine different fees for different types of licence or consent117. In addition, a council may recover from a licence holder such reasonable charges as it may determine for the collection of refuse, the cleansing of streets and other services rendered by the council to him in his capacity as licence holder118. E Other Acts Markets and fairs in which, for the time being, tolls are authorised to be taken and actually are taken in respect of cattle, are subject to the provisions of the Markets and Fairs (Weighing of Cattle) Acts 1887, 1891 and 1926119.

107 See R v Barnsley Metropolitan Borough Council, ex p Hook [1976] 1 WLR 1052; R v Birmingham City Council, ex p Dredger and Paget (1993) 91 LGR 532, and see Chapter 9, footnote 23, below. 108 1984 Act, s 53(3). 109 Ibid, s 54. 110 1984 Act, s 55, and see Appendix 1, below. 111 1981 Act, s 54(3). 112 Ibid, s 54(2). 113 Defined in the 1981 Act, s 50(2): see Appendix 1, below. 114 Ibid, s 54(4). 115 Provided, of course, the council has resolved to apply the provisions of the 1982 Act to its district: see ibid, s 3 and pp 120 et seq, below. 116 1982 Act, s 3, Sch 4, para 9(1). A council is not, however, empowered to raise general revenue by way of street trading licences and consents: see R v Manchester City Council ex p King (1991) 89 LGR 696. 117 Ibid, para 9(2). The council may determine that fees may be paid by instalments: 1982 Act, Sch 4, para 9(4). 118 Ibid, para 9(6). A council must observe certain procedural steps before determining or varying charges: 1982 Act, Sch  4, paras 9(9), 9(10), 9(11). See para  9 also for provisions relating to deposit, recovery, remission and refund of fees and charges. 119 See pp 127 et seq, below, and also Appendix 1, below. Sections 36–41 inclusive of the Markets and Fairs Clauses Act 1847 (which relate, inter alia, to the recovery of tolls by distress, disputes, and the exhibition of a list of tolls) are incorporated in the Markets and Fairs (Weighing of Cattle) Act 1887: ibid, s 8. These Acts are now of limited effect.

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Chapter 5  Toll and Stallage

7 RECOVERY OF TOLLS AND STALLAGE A By action Toll and stallage may be recovered by action without proof of an express contract120. In an action for recovery of toll, facts to be proved are usually as follows: (1) that the plaintiff was in possession (as owner or lessee) of the market or fair and the tolls; (2) the due holding of the market or fair at the time and place in question; (3) that the toll claimed is reasonable, and that it was payable (either by charter, prescription or otherwise by the buyer or seller as the case may be) on any sale in the market or fair of the articles in respect of which it is claimed; (4)

that tollable goods were brought into the market, and were then bought or sold (as the case may be) by the defendant;

(5) that the toll has not been paid. In an action for stallage, or piccage, the facts to be proved are usually as follows: (1)

that the plaintiff was in possession (as owner or lessee) of the soil of the market or fair;

(2) the due holding of the market or fair at the time and place in question; (3) that the defendant erected a stall in the market place, or took a standing and, if piccage is claimed, that in so doing he broke the soil; (4) if the sum claimed is not fixed by custom, prescription or statute, and is not previously agreed, that the sum claimed is reasonable; and if it is claimed by express agreement, or by custom or prescription, that the agreement was made, or the custom or prescription exists121; (5) that the defendant has not paid the amount due. Where there is no express agreement, or no special sum fixed by custom or prescription, a reasonable sum is recoverable for stallage as for use and occupation122. A county court has no jurisdiction to hear and determine any action in which the title to any toll, market, fair or franchise is in question123.

120

Unless required by statute, a market owner is not obliged to publish a list of tolls and charges. See A-G v Horner (No 2) [1913] 2 Ch 140. See also Seward v Baker (1787) 1 Term Rep 616; Tewkesbury Corpn v Diston (1805) 6 East 438; Bedford (Duke) v Emmett (1820) 3 B & Ald 366; Reading Corpn v Clarke (1821) 4 B & Ald 268; Stamford Corpn v Pawlett (1830) 1 Cr & J 57; Newport Corpn v Saunders (1832) 3 B & Ad 411; Lockwood v Wood (1844) 6 QB 31; Yarmouth Corpn v Groom (1862) 1 H & C 102. 121 See A-G v Colchester Corpn [1952] Ch 586 at 600; and see p 67, above. 122 See p 67, above. 123 County Courts Act 1984, s 15(1), (2)(b) as amended by the Crime and Courts Act 2013, Sch 9, para 10(1); SI 1991/724. This position is unaffected by the Courts and Legal Services Act 1990 and the High Court and County Courts Jurisdiction Order 1991, SI 1991/724, and such actions continue to remain outside the county court jurisdiction, although such actions can be transferred under the 1984 Act, s  40 as substituted by the Courts and Legal Services Act 1990, s  2(1); SI 1991/1364, art 2, Schedule.

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Remedies for Toll or Stallage Wrongfully Taken

B By distress After demand and refusal of toll due in respect of goods, the owner of the market or fair may distrain upon those goods, or upon a reasonable part of them124. In some of the cases on this subject, the right to distrain was claimed by prescription125; and possibly the right cannot be claimed except by prescription, toll not being due of common right126. However, it has been said that the right to distrain is incident to every toll127 and need not be specially prescribed for and although the authorities are not clear, this is the sounder view. The distress must be made, it appears, while the goods are still in the market or fair128. The goods may not be sold under the distress129, and the distrainor has no other power but to retain them until satisfaction is made130. No distress for toll can be made on goods sold outside the market even though there is a disturbance of the market131: the proper remedy is an action in damages for disturbance132. With regard to stallage, a claim to distrain after demand and refusal was upheld in Bennington v Taylor133, when the owners of a fair prescribed for a reasonable stallage of an ascertainable amount, and also for the right to distrain for such stallage during the fair upon the goods exposed for sale in the stall.

8 REMEDIES FOR TOLL OR STALLAGE WRONGFULLY TAKEN An action lies against anyone who takes toll when none is due or takes from someone who is exempt134. If the toll-taker improperly takes too much by way of toll in kind, or wrongfully distrains for any toll, he is liable in an action for wrongful interference with goods135. Money improperly exacted as toll may be recovered as money had and received to the plaintiff’s use136, but not if paid merely to avoid litigation and because others in similar circumstances were paying toll137.

124

Heddy v Wheelhouse (1596) Cro Eliz 558; Agar v Lisle (1613) Hob 187; and see Smith v Shepherd (1599) Cro Eliz 710; Hickman’s Case (1599) Noy 37; Harris v Hawkins (1662) 1 Keb 342; height v Pym (1687) 2 Lutw 1329. 125 See Agar v Lisle (1613) Hob 187; Smith v Shepherd (1599) Cro Eliz 710; Bennington v Taylor (1700) 2 Lut 1517. 126 See Com Dig Distress (A 1), citing 11 Co 44 b; Harris v Hawkins (1662) 1 Keb 342. 127 Hickman’s Case (1599) Noy 37; Viner, Ab Toll (1); Gunning on Tolls 216. See also Heddy v Wheelhouse (1596) Cro Eliz 558, where the right apparently was not prescribed for; Gilbert’s Law and Practice of Distress and Replevin (4th ed) 18, 19; and see Whitstable Free Fishers and Dredgers Co v Gann (1861) 11 CB NS 387 at 416. 128 Hickman’s Case (1599) Noy 37; Viner, Ab Toll (1). 129 Gunning on Tolls, 217; Gilbert, Distress, 19. 130 3 Bl Com 10. 131 Blakey v Dinsdale (1777) 2 Cowp 661. 132 See Chapter 6, below. 133 (1700) 2 Lut 1517; see Tyson v Smith (1838) 9 Ad & El 406, 425. 134 Com Dig Toll (H 2), Market (F 1); Wood v Haukshead (1602) Yelv 14; FNB 94F. A remedy for the taking of ‘outrageous’ toll was formerly provided by the Statute of Westminster I 1275 (repealed by the Theft Act 1968): see p 108, below. As to persons exempt, see next section. 135 Formerly an action for trespass or trover: see Leight v Pym (1687) 2 Lut 1329; Wigley v Peachey (1732) 2 Ld Raym 1589; FNB 94F; Norman v Bell (1831) 2 B & Ad 190; the Torts (Interference with Goods) Act 1977, s 1. 136 Waterhouse v Keen (1825) 4 B & C 200; Maskell v Horner [1915] 3 KB 106, and see Lewis v Hammond (1818) 2 B & Ald 206. 137 Maskell v Horner [1915] 3 KB 106.

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Chapter 5  Toll and Stallage

9 EXEMPTIONS FROM TOLL Exemptions from toll are of less importance than in former times. Nevertheless, it may be of historical interest to refer to the subject generally. Certain persons are entitled to exemptions by the common law138; others may be entitled by Crown grant, or by grant from the owner of the market or fair, or by prescription.

A Exemption at common law (1) The Sovereign The Sovereign and a queen consort are not liable to payment of toll139; but members of the royal family do not enjoy exemption from toll at common law, although they may be exempt from particular tolls by statute140. (2) Ecclesiastical persons Ecclesiastical persons, of whatever order or rank141, are exempt from toll at common law for their ecclesiastical goods, and for goods bought by them for their sustenance; but not for merchandise142. (3) Lords of manors which are ancient demesne, and their tenants Are exempt from toll in all markets and fairs by custom of the realm143. ‘Ancient demesne’ means those manors which were in possession of Edward the Confessor, and afterwards William the Conqueror, and which were described in Domesday as terra regis144. The exemption appears not to extend to every purchase or sale by tenants in ancient demesne145. It is clear that the exemption extends to sales by tenants of the produce of their tenements and to purchases by them of goods to maintain their tenements, or themselves or their households there146; and that consequently it includes the buying

138

Thus, the commoners of the manor of Hungerford appear to claim exemption in Hunger-ford Market: see Report of Royal Commission, vol 4, p 173 (1888). The men of the Duchy of Lancaster appear to be free of toll under various charters: see Hardy’s Charters of the Duchy of Lancaster (1845). 139 2 Inst 221; Co Litt 133b; Chitty, Prerog. 195, 377, 402. 140 Chitty, Prerog 405n(c). 141 2 Inst 3. See Com Dig Ecclesiastical Persons, as to what persons are such; see also Middleton (Lord) v Lambert (1834) 1 Ad & El 401, 421. 142 Fitz Nat Brev 227F; 2 Co Inst 3-4; Com Dig Ecclesiastical Persons (D), p 549 (5th ed); Rot Parl 8 Edw II m 4; YB 30 Edw III 15b. 143 Savery v Smith (1686) 2 Lut 1144; FNB 14E, 228 AD; YB 9 Hen VI f 25b; pl 20. 144 Fitz Nat Brev 14D, 16D; Hob 118; Hunt v Burn (1701) 1 Salk 57. Tenants in ancient demesne have ‘many and divers liberties, gifts and grants by law: as to be quit of toll and passage, and such impositions which men shall demand of them for the goods or chattels sold or bought by them in fairs or markets’: FNB 14D. The reason for the exemption is stated by Coke to be, ‘because at the beginning of their tenure they applied themselves to the manaurance and husbandry of the king’s demesnes, and therefore, for the lands so holden, and all that came or renewed thereupon, they had the said privilege’: 2 Inst 221. See also Stenton, Anglo-Saxon England (Oxford), p 483. This privilege of exemption still remains, and it may be claimed even though the tenants have been paying toll time out of mind: 2 Co Inst 654. 145 See Ward v Knight (1591) Cro Eliz 227, where it was expressly decided that ‘tenants in ancient demesne should pay toll for their merchandises’. See also Iveagh v Martin [1961] 1 QB 232. 146 YB 9 Hen VI, 256, pl 20; 19 Hen VI, 66b, pl 9.

74

Exemptions from Toll and selling of beasts bought to stock the land, or to be fatted147. It does not, however, apply to the purchase and sale of merchandise148.

B Exemption by Crown grant In early times, the Crown frequently gave charters of exemption from toll in one or more market towns in England to the corporations of favoured cities or boroughs. Thus, the Corporation of London obtained the liberty or privilege, granted and confirmed by various charters and statutes, that the citizens of London and all their goods should be quit and free of and from toll, and passage and lastage149, and other customs, throughout the whole kingdom of England, and the ports of the seas, except only the due and ancient customs of the Crown, and the prisage of wines150. Further , to claim the exemption, a citizen of London need not reside in the city151. Grants of exemption by the Crown are either general or special and are good except in so far as they derogate from previous grants152. A grant of exemption may exempt the grantees from payment of toll in a market or fair which belongs to the Crown at the date of the grant153, or in which toll is claimed under a later grant. A grant of exemption will not, however, avail against a toll claimed under an earlier grant, for the former cannot detract from the latter; nor against a prescriptive toll, for that is presumed to have existed from time immemorial under a lost grant. C Exemption by market owner, or by prescription As a general rule, the grantee or owner of a market or fair can grant exemptions from toll, and, in this way, rights to exemption, founded upon grant or prescription, may arise after the market or fair has been established154. Exemption may be claimed by prescription or by long usage from which a lost grant will be presumed155. A grant of exemption from toll may include exemption from stallage156. If the franchise later comes into the hands of the Crown, it can only be regranted subject to the immunity157.

147

YB 7 Hen IV, 44b, pl 11. These are transactions arising out of the cultivation of tenements, and are not merchandisings. Fitzherbert says ( Fitz Nat Brev 228 E citing YB 7 Hen IV): ‘I concede that they shall be quit of toll generally, although they merchandise with their goods’. But Hale ( Fitz Nat Brev 228E, note b) and Coke (2 Inst 221) are of a different opinion; and Coke says: ‘if such a tenant be a common merchant for buying and selling of wares or merchandise that rise not upon the manaurance or husbandry of those lands, he shall not have the privilege for them, because they are out of the privilege of ancient demesne, and the tenant in ancient demesne ought rather to be a husbandman than a merchant by his tenure, and so are the books to be intended’. See Middleton (Lord) v Lambert (1834) 1 Ad & El 401, for a discussion of the subject. 148 See footnote 145 above; and see also the Leicester Town Case (1585) 2 Leon 190; Savery v Smith (1687) 2 Lut 1144. 149 See footnote 8, above. 150 A duty payable to the Crown on the importation of wines. 151 London Corpn v Lynn Regis Corpn (1796) 1 Bos & P 487; 7 Bro Par Cas 120; but the exemption does not exempt the citizens from tolls in the City of London; cf Truro Corpn v Reynalds (1832) 8 Bing 275. 152 The Crown cannot derogate from its own grant: see p 18, above. 153 See Hill v Priour (1679) 2 Show 34. 154 See FNB 226 I, 227 B, note c; 2 Inst 221; Bracton, lib 2, c 24, f 56b: Viner, ‘Prerogative’, I c 2, K c 1; York’s (Archbishop) Case (1574) 4 Leon 168; Lockwood v Wood (1841) 6 QB 31. For other cases on the construction of grants of exemptions see Hill v Priour (1679) 2 Show 34. 155 See Ellis v Bridgnorth Corpn (1863) 15 CB NS 52 and see ‘Evidence of Market Rights’, Chapter 11, below. As to the exemption of freeholders of the Duchy of Lancaster see Osbuston v James (1688) 2 Lut 1377. No prescriptive right to non-payment of tolls may be acquired, however, where the right to charge tolls is given by statute: see Woolwich Corpn v Gibson (1905) 3 LGR 961. 156 Lockwood v Wood (1841) 6 QB 31. 157 Tewkesbury (Bailiffs etc) v Bricknell (1809) 2 Taunt 120.

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Chapter 5  Toll and Stallage A lord of the manor may prescribe that his tenants ought to be free of toll; and it has been said that if he can establish such a prescriptive right, he can maintain an action against any person who takes or claims toll from his tenants158.

D Statutory abolition of exemptions All exemptions from toll are liable to be taken away by Act of Parliament. Where a market or fair has been established, or is now regulated, by statute, the question as to whether any exemption from toll is abolished or preserved depends upon the construction of the statute. The Municipal Corporations Act 1882159 abolished the exemption enjoyed by inhabitants and freemen, etc from tolls levied in markets or fairs wholly or in part for the benefit of a borough160 or body corporate. The Act would not, however, affect the rights of those claiming exemption from toll otherwise than as an inhabitant or freeman161 or member of a municipal corporation162, etc163. Accordingly, the Act would not affect any right of a person claiming exemption as tenant in ancient demesne, or as freeholder of the Duchy of Lancaster164; nor would it affect any right of a person claiming exemption as a citizen of London, for the City of London is not a municipal corporation within the meaning of the Act165.

158 159 160 161 162 163 164 165

Viner, ‘Actions’ (case), NC8, C 2; YB 43 Edw III 30. Section 208(2), repealed by the Local Government Act 1933, Sch 11, Pt II. That is, a city or town to which the Municipal Corporations Act 1882 applies: see ibid, s 7(1). See 1882 Act, s 201, repealed by the Local Government Act 1933, Sch 11, Pt II. That is, the body corporate constituted by the incorporation of the inhabitants of a city or town to which the Act applies: , Municipal Corporations Act 1882, ss 6 (repealed by SI 1974/1351), 7(1). That is, the widow or kin of such an inhabitant, freeman or member: 1882 Act, s 208(3), repealed by the Local Government Act 1933, Sch 11, Pt II. See footnote 155, above. See footnote 162, above. The 1882 Act did not apply to London.

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CHAPTER 6

Disturbance 1 RIGHT OF MARKET OWNER TO PEACEABLE ENJOYMENT The owner of a market or fair is entitled to the peaceable enjoyment of his franchise1, and to protection from disturbance. Disturbance is a tort in respect of which the owner has a right of action2 and for which he may recover damages3. If the disturbance is likely to continue, restraint may be enforced by injunction4. Disturbance of a market may arise either out of the levying of a rival market5 or as a result of some other act which has the effect of depriving the market owner, either wholly or in part, of the benefit of his exclusive right to hold a market and to take profits6.

2 DISTURBANCE BY LEVYING A RIVAL MARKET OR FAIR The holder of a market franchise enjoys a right of protection from disturbance by a rival market or fair established within the common law distance of 6⅔ miles.

A The common law distance In the Middle Ages, England was primarily an agricultural society, and the distribution of markets was determined to a great extent by the time it would take to travel to the market, dispose of the produce, and travel home again before dusk. An important factor in the foundation of local markets in medieval England, and in their survival and growth, was the captive trade maintained by the interdict on newer markets set up within a day’s travelling distance7. Bracton8 laid it down that the distance within which it may be a disturbance of an old market to set up a new one is 6⅔ miles9: ‘because every reasonable day’s journey consists of 20 miles. The day’s journey is divided into three parts. The first part, that of the morning, is to be given to those who are going to the market. The second is to be given to buying and selling, which ought to be sufficient to

1 In Leeds City Council v Watkins [2003] UKCLR 467, Smith J sets out six propositions explaining the legal basis of market rights, at [36]. 2 See, for example, Scottish Co-operative Wholesale Society Ltd v Ulster Farmers’ Mart Co Ltd [1960] AC 63; and p 97, below. 3 For measure of damages, see Stoke-on-Trent City Council v W & J Wass Ltd (1989) 87 LGR 129, CA and pp 83 et seq, below. 4 See, for example, Birmingham Corpn v Perry Barr Stadium Ltd [1972] 1 All ER 725 and pp 81, 82, below. 5 Which includes a car-boot sale, see Newcastle City Council v Noble (1990) 89 LGR 618, and see p 91, below. 6 Ibid and see pp 93 et seq, below. 7 See, for example, Platt, The English Medieval Town, c 3; and see, for a modern example, the remarks of Johnstone J in Loughrey v Doherty [1928] IR 103 at 110. 8 Bk iv, c 46, f 235b; cf Britton, lib ii, c 32, c 8, f 159; Fleta, bk iv, c 28, s 13. 9 ‘Infra sex leucas et dimidiam et tertiem partem dimidiae’. Leuca, in this passage, has generally been translated by lawyers as ‘mile’; see FNB 184n(a); 3 B1 Com 218; and cf 2 Inst 567. For a general inquiry into some of the various distances from time to time denoted by the word, and for a discussion and explanation of the rule given by Bracton, see (1916) 32 LQR 199–207.

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Chapter 6 Disturbance all, unless they be merchants who have stalls, who have deposited their goods and exposed them for sale, to whom a longer delay in the market may be necessary. But the third part is left for those returning from the market to their homes. And all these things it will be necessary10 to do by day and not by night, on account of the snares and attacks of robbers11, that all things may be in safety. When, therefore, a market has been obtained within such a limit, it will have to be levelled, since it is a nuisance, doing damage and injury because it is so near.’

Lord Parker of Waddington in Hammerton v Earl of Dysart12 regarded the reasons given for this ruling as quite inadequate without questioning the validity of the rule; but its soundness is generally accepted despite, as Lord Parker pointed out, the varying facilities for travel in different cases13. There was formerly some doubt as to whether the distance is 6⅔ or 7 miles. The latter is the distance stated in the declaration in Yard v Ford14 and the same distance is expressly mentioned in the charter granted by Edward III15 to the Corporation of London, which contained a clause providing that no grant of markets should be made to others within 7 miles16 of the city. Lord Parker (above) thought the distance to be 7 miles. No doubt part of the explanation is that the mile as a unit of measurement has varied at different times and in different places17. The point was examined by Walton J in Mayor, Aldermen and Burgesses of the Royal Borough of Kingston upon Thames v Sherman and Waterman Associates Ltd18; and the learned judge concluded that a market was entitled to protection from rivals within a distance of 6⅔ miles. Subsequently, this distance was accepted by the Court of Appeal19, albeit without any investigation of the rationale of the rule; and it is submitted that it is now settled that the shorter distance is the correct one.

10

Sir T Twiss translated this passage somewhat differently (ed 1880, vol iii, p  585); but cf the corresponding passage in Fleta, loc cit above. 11 The danger was so great that the Statute of Winchester, 13 Edw I, c 5 (repealed by 7 & 8 Geo IV, c 27) required the clearance of underwood and brush, whereby a man might lurk to do hurt, to be made for 200 feet on either side of highways leading from one market town to another. 12 [1916] 1 AC 57 at 88, 89. See also Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927 at 936. 13 Also, as Maddocks J remarked in Newcastle-upon-Tyne City Council v Noble (1990) 89 LGR 618, the reasoning is unsatisfactory since a rival market just outside the common law distance could attract persons living rather less than 6⅔ miles from either the rival or the lawful market. 14 (1670) 2 Saund 172. See 3 B1 Com 218. In the Newton Case (Plac Quo Warr, p  184), it was alleged for the Crown that every market ought to be distant from another five miles (quinque miliaria). In the Lyme Case (ibid, p 185), however, Lyme market was held to be a nuisance to Bridport market, which was more than five (but under six) miles off. 15 1 Edw III, confirmed by the charter of 7 Rich II. Both charters were granted with the consent of Parliament. 16 Leucae, which is translated as ‘miles’ in Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927. The use of the word ‘league’ as an equivalent in Re Islington Market Bill (1835) 3 Cl & Fin 513, was probably due to the desire to avoid a definite translation. The judges there expressed the opinion (at 515) that such clause in a grant is void, if it adds, without any consideration therefor, ‘any prohibition other than that which is attached by the common law to the grant of a market’. But they gave no opinion as to whether the distance of 7 miles mentioned was, or was not, greater than the common law distance. 17 See 32 LQR 199–207. 18 (6 July 1976, unreported). In Northampton Borough Council v Midland Development Group of Companies Ltd (1978) 76 LGR 750, the same judge said (at 752): ‘There is no doubt, I think, as a matter of law, that a person who has a market is entitled to prevent the levying of a rival market within 6⅔ miles of his own market.’ See also Tamworth Borough Council v Fazeley Town Council (1978) 77 LGR 238 at 240, 241. 19 In Sevenoaks District Council v Pattullo and Vinson Ltd [1984] 1 All ER 544, where Slade LJ, at 553, expressed the view that the law on the subject generally is ‘recondite and confused’ and ‘might well benefit from the attention on the part of the legislature’.

78

Disturbance by Levying a Rival Market or Fair It seems that a new market or fair levied more than the common law distance from an older cannot be injurious in law to the latter, even though it may cause loss. Bracton20 and Blackstone21 both say expressly that it cannot be; and there appears to be no modern reported case in which an action has been brought for disturbance by erecting a new market or fair more than 6⅔miles from an old22. The usual form of grant is to hold a market in any place within a town or borough rather than at a fixed spot and the grantee has a power in these circumstances to move the market from place to place within the market limits23. The question arises as to whether the common law distance is to be measured from the place where an authorised market is actually established and conducted, or from the boundary of the area within which the market owner is entitled to establish a market. It might be thought that, if the former applied, uncertainty would arise in that the area of protection would not remain constant. For example, the owner of a ‘market’ established neither by franchise nor statute, but which had originally been set up perhaps many years previously more than the common law distance from a market so established, may suddenly find himself the subject of an action for disturbance by a market owner who had decided to set up a new market or move an existing market within the authorised area and to within the common law distance of his own, now rival, market24. Having regard, however, to the rationale of the common law distance, ie  the protection of a market owner from competition for customers who would normally use his market, the distance is to be measured from the actual place where the authorised market is held and not from the edge of the area within which it might be held25. If the contrary applied there obviously would also be practical difficulties where the boundary of a market encompasses a wide area, which is frequently the case with modern local authority statutory markets.

ILLUSTRATION A City Council was the owner of an exclusive statutory right to hold markets within the boundaries of the City. The City Council also licensed many others to conduct markets at various places within the City. The defendants conducted a rival unlicensed market at a site which was more than 6⅔ miles from the nearest authorised market, but less than 6⅔ miles from the boundary of the area within which the City Council had power to establish markets. On the City Council’s claim that the defendant’s market constituted an actionable disturbance of its own right of market. Held that the distance was to be measured from the place at which an authorised market was actually conducted and not from the boundary of the authorised area and, since the defendant’s market was more than 6⅔ miles from any market conducted or

20 21 22

Bk iv c 46, f 235 b. Bk iii, c 13, p 218, citing Hale on FNB 184. Blackstone also explains the reasons for the rule. See, however, to the contrary, for what they are worth, the Leominster Fair Case (1285) Abb Plac 206, and the Bath Market Case (1377) Rot Parl 50 Edw III, vol ii, p 347. Both cases concerned fairs, and it is possible that the rule never applied to fairs: cf R v Aires (1717) 10 Mod Rep 354; and see also 32 LQR 206. 23 See above, pp 39, 40. 24 As occurred in Stoke-on-Trent City Council v W  & J Wass Ltd (1989) 87  LGR  129: see p  83, below. See also the unreported decisions at first instance, 4 March 1987. 25 Quaere, however, in the case of a franchise market, whether the Crown would derogate from its own prior grant in granting new market rights at a place less than 6⅔ miles from the edge of the authorised area, albeit more than the common law distance of the actual market place. See pp 17, 18, above and p  91, below. Cf the position with regard to the establishment of local authority statutory markets under the Food Act 1984, s 50(2) and preceding legislation; see p 24, above and Appendix 1, below.

79

Chapter 6 Disturbance licensed by the City Council, it did not constitute an actionable disturbance of the Council’s right of market: Birmingham City Council v Anvil Fairs26.

Until recently, there was no authority as to whether the 6⅔ miles should be measured by the nearest road or in a straight line. In view of the reason for fixing the distance at 6⅔ miles, ie, that it is one-third of a day’s journey of 20 miles27, it might be thought that the proper way to measure the distance is by the nearest road. At one time, measurement for the purposes of statutes was by the nearest and most usual way rather than ‘as the crow flies’28; but by the Interpretation Act 1889, now replaced by the Interpretation Act 197829, measurement of any distance shall, unless a contrary intention appears, be measured in a straight line. In determining whether or not a reference in a document (other than a statute) to a measurement should be taken to be ‘as the crow flies’, regard must be had to the subject matter of the document and the object which the draftsman had in mind in mentioning the measure of distance30. The courts have, in analogous cases, generally favoured the distance ‘as the crow flies’; and, in the market context, the distance should be measured in this way.

ILLUSTRATION A City Council was the owner of an exclusive statutory right to hold public fairs and markets within the borough for the sale of a wide variety of items. The first defendant started holding car boot sales on a site owned by the second defendant in the area of a different local authority but within 6⅔ miles as the crow flies from the City Council’s Quayside market. On the City Council’s application for an injunction to restrain the defendants from holding further markets. Held, granting the injunction, that the correct method of measuring the distance under the common law rule was as the crow flies, that is, a direct radius, and not by measuring the shortest distance by road between the authorised market and its rival: Newcastle-upon-Tyne City Council v Noble31.

26

[1989] 1WLR 312. This point was previously undecided although there are obiter dicta to the contrary in Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927 (where Lord Selborne LC says at 936 that protection prima facie extends ‘to a distance of nearly 7 miles from the places in which [the market rights] might be exercised’) and in Manchester City Council v Walsh (1985) 84 LGR 1 (where Griffiths LJ says at 10: ‘In our judgment the weight of authority must … establish that a statutory market, whether established under public or private Act, enjoys as part of the market rights protection from disturbance by a rival market set up within 6⅔ miles of the boundaries, unless the working of the relevant statutes modifies that right’). But cf Re Islington Market Bill (1835) 3 Cl & Fin 513 at 515 where the judges speak of the prohibition merely as being ‘within the common law distance of an old market’. Browne-Wilkinson VC in Anvil Fairs above decided that nothing in these three cases turned on the point from which the distance should be measured and he could see no basis in principle why protection should be afforded to persons who could establish a market in a particular place but who have not done so. Unless and until the rival market is established, no customers are lost nor is there any actionable disturbance of the market owner’s rights. See also Stoke-on-Trent City Council v W & J Wass Ltd (1988) 87 LGR 129, CA at 142 and at first instance (4 March 1987, unreported) p 83, below. 27 See Bracton, bk iv, c 46, f 235b; 3 B1 Com 219. 28 Wing v Earle (1591) Cro Eliz 212; (1592) Cro Eliz 267. 29 Section 8. 30 Mouflet v Cole (1872) LR 7 Exch 70, 8 id 32, and Jewel v Stead (1856) 6 E & B 350. 31 (1990) 89  LGR  618. The dictum of Sir Nicholas Browne-Wilkinson VC in Birmingham City Council v Anvil Fairs (1989) 87 LGR 394 at 396 applied.

80

Disturbance by Levying a Rival Market or Fair

B ‘Same day’ rival market presumed a nuisance If a new market or fair is held32 within the common law distance of the old, and on the same day, then there is an irrebuttable presumption that the new market is a nuisance to the old, and proof of damage is not required33. As Bracton says: ‘when, therefore, a market has been obtained within such a limit it will have to be levelled, since it is a hurtful and tortious nuisance because it is so near’34.

The cause of action is complete when the franchise owner establishes that there is a same-day market within the common-law distance; and nuisance is presumed unless the new market is itself licensed by the franchise holder or is the subject of a concurrent right of market franchise either by Crown grant or pursuant to statute35.

ILLUSTRATIONS The plaintiff had a right, under a charter of Charles I, to hold markets in the borough every week on Wednesdays, Fridays, and Saturdays. The defendants conducted sheep and cattle auctions on Saturdays in a field within the limits of the borough. Held that the defendants’ market was a disturbance of the plaintiff’s by intendment of law: Mayor of Dorchester v Ensor36. The plaintiff Borough Council had held a Saturday market from time immemorial which, in 1663, had been confirmed by charter. In 1977, the defendant Town Council started to hold a Saturday market within 1½ miles of the plaintiff’s market. Held, granting the injunction sought, that there was an irrebuttable presumption that the new market was a nuisance to the old: Tamworth Borough Council v Fazeley Town Council37.

The franchise owner is not entitled to sever the right of market for a particular locality so as to enable the holding, in that locality, of two or more markets dealing wholly or in part in the same commodity in different places on the same day.

32 33

34 35

36 37

See footnote 26, above. Yard v Ford (1670) 2 Wms Saund 172 at 174, citing Fitzherbert’s Natura Brevium 184a, note (b), where Hale cites Weston’s Case, YB 11 Hen IV, f 5 in support of this proposition and also refers to Clinton’s Case, YB Pasch, 13 Edw III, pl 20. See also to the same effect, Dorchester Corpn v Ensor (1869) LR 4 Exch 335 at 343; Elwes v Payne (1879) 12 Ch D 468 at 472, per Jessel MR; Cork Corpn v Shinkwin (1825) Sm & Bat 395 at 398, per Chatterton VC; Winsford Entertainments Ltd v Winsford UDC (1924) 23 LGR 254; Hammerton v Earl of Dysart [1916] 1 AC 57 at p 89, HL per Lord Parker of Waddington; Morpeth Corpn v Northumberland Farmers’ Auction Mart Co Ltd [1921] 2 Ch 154 at 162, per Sargant J; Tamworth Borough Council v Fazeley Town Council (1978) 77 LGR 238, where the authorities from the earliest times are comprehensively reviewed; Sevenoaks District Council v Pattullo and Vinson Ltd [1984] 1 All ER 544; Stoke-on-Trent City Council v W & J Wass Ltd (1988) 87 LGR 129. Bracton bk iv, c 46, f 235B; and to the same effect are Britton, ii, c 32, s 8, f 159; Fleta, iv, c 28, s l3. Tamworth Borough Council v Fazeley Town Council (1978) 77 LGR 238 at 266. The nine judges in Re Islington Market Bill (1835) 3 CI & Fin 513 at 520 were of the opinion that the establishment of a new market to be held at the same time within the common law distance of an old market prima facie is injurious to the old market, and therefore void. It appears that the phrase prima facie is used here not with reference to the burden of proof of damage but in view of the possibility of setting up a rival market authorised by grant in special circumstances: see Tamworth Borough Council v Fazeley Town Council, above. (1869) LR 4 Exch 335. (1979) 77 LGR 238.

81

Chapter 6 Disturbance

ILLUSTRATION The vendors, as predecessors in title to both the plaintiff District Council and the defendant, enjoyed a right by prescription to hold a market dealing in any commodity on Saturdays and other lawful days in the manor of Sevenoaks. In 1925 the vendors conveyed the market rights to the plaintiff’s predecessors, excluding the right to sell livestock, this right being conveyed in 1927 to the defendant’s predecessors. Thereafter, the plaintiff operated a general market on Saturdays and the defendant a livestock market on Mondays; but in 1981 the defendant started a general market on Saturdays on the site of the livestock market. Held (by CA) (1) that the vendor could not, by the 1925 conveyance, have reserved or retained valid and effective rights to hold a general market on the same day as the plaintiff’s predecessor so that the 1925 conveyance had not severed the right to hold a general market so as to entitle the defendant to hold a general same-day market concurrently with that of the plaintiff; (2) since the defendant’s market was held within the common law distance, the plaintiff was entitled to relief without proof of damage: Sevenoaks District Council v Pattullo and Vinson Ltd38.

The levying of a rival market is therefore actionable per se and is a ground for at least nominal damages (even though there is no right to take toll), and therefore for an injunction39.

C ‘Different day’ rival market requires evidence of damage If a new market or fair is held within the common law distance of the old, but on a different day or days, actual damage to the old market must be proved40. This is a question of fact; but, for the purposes of a motion for an interlocutory injunction, it is sufficient to show a likelihood of damage41. ILLUSTRATIONS The plaintiffs were the owners of the tolls of an ancient cattle market held weekly on Thursdays. The defendants, who were auctioneers, fitted up with stalls and pens a neighbouring piece of ground and issued circulars stating that weekly sales of cattle would be held there on Mondays. The plaintiffs brought an action to restrain the defendants from holding sales as being an interference with the plaintiffs’ market and applied for interlocutory relief.

38 39 40

41

[1984] 1 All ER 544. Morpeth Corpn v Northumberland Farmers’ Auction Mart Co [1921] 2 Ch 154 at 162, per Sargant J (for a form of injunction, see ibid at 163); Stoke-on-Trent City Council v W & J Wass Ltd (1988) 87 LGR 129. Weston’s Case, YB 11 Hen IV, ff 5, 6; Yard v Ford (1670) 2 Saund 172; R v Aires (1761) 10 Mod 354; Cork Corpn v Shinkwin (1825) Sm & Bat 395; Dorchester Corpn v Ensor (1869) LR 4 Ex 335; Elwes v Payne (1879) 12 Ch D  468 at 472; Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927; Marquis of Downshire v O’Brien (1887) 19 LR Ir 380 at 387; Morpeth Corpn v Northumberland Farmers’ Auction Mart Co [1921] 2 Ch  154; Winsford Entertainments Ltd v Winsford UDC (1924) 23 LGR 254. Birmingham Corpn v Perry Barr Stadium Ltd [1972] 1 All ER  725; Leicester Corpn v Maby (1971) 70  LGR  209 at 215; Kingston-upon-Thames Royal Borough Council v Sherman and Waterman Associates Ltd (6 July 1976, unreported); Northampton Borough Council v Midland Development Group of Companies Ltd (1978) 76 LGR 750 at 754. For cases in which the market owner failed to obtain interlocutory relief in respect of different day markets, see Warwick Corpn v Maby (No 2) (1971) 116 Sol Jo 137; 136 LG Rev 463 and Cirencester UDC v Cirencester Town AFC and Aketwise Merchants Ltd (1973) 137 LGR 515.

82

Disturbance by Levying a Rival Market or Fair Held (at first instance, per Jessel MR) that having regard to modern facilities for traffic, a market on Monday was prima facie an injury to a market on Thursday, and an interlocutory injunction ought to be granted: Elwes v Payne42. The plaintiff Corporation enjoyed a statutory monopoly of holding markets within the boundary of the city. The defendant company purported to grant a licence to M to hold markets at its stadium within such boundary, and, despite protests from the plaintiff, M held a market there which attracted about 200 traders and 15,000 persons. The plaintiff issued a writ seeking to restrain M and the defendant from holding such markets and moved for an interlocutory injunction. Before the hearing, M held a second market at which some 25,000 persons were present. Held, granting the injunction, that although at the trial of the action the plaintiff must prove damage to its market rights, in order to justify the grant of an injunction on a motion it was sufficient to show only a likelihood of damage: Birmingham Corpn v Perry Barr Stadium Ltd43. The plaintiff Corporation claimed an ancient common law franchise to hold a market on Saturdays, such right being recited in four local Acts. The defendants began to levy a rival market on Sundays, outside the plaintiff’s franchise area, but within the common law distance. The plaintiff issued proceedings and sought interlocutory relief to restrain the defendant. Held, granting the injunction, that where the rival market was held on a day other than the market day, it was a question of fact whether damage was caused to the market owner and the levying of a rival market on the next day after a market day was evidence of apprehended damage sufficient to entitle the plaintiff to relief: Leicester Corpn v Maby44.

Delay in seeking relief may be a bar to the grant of an interlocutory injunction45.

D Measure of damages The general rule in tort actions, such as in the tort of nuisance, is that a successful plaintiff is entitled to receive damages equivalent to the loss he has suffered, no more or no less. A second general rule is that where the plaintiff has suffered loss to his property, or to some proprietary right, he is entitled to damages equivalent to the diminution in value of that property or right46. In market cases, the owner of a market right is not entitled to more than nominal damages in respect of a same day rival market in the absence of evidence of actual loss.

42 43 44 45

46

(1879) 12 Ch D 468. The decision was reversed unanimously in the Court of Appeal (ibid at 475), but on different grounds: see for example Leicester Corpn v Maby (1971) 70 LGR 209 at 215. [1972] 1 All ER 725. (1972) 70 LGR 209. Warwick Corpn v Maby (No 2) (1971) 116 Sol Jo 137; 136 LG Rev 463, where a delay of eight months without effective protest was held to be a bar to interlocutory relief. In an action, however, mere acquiescence or delay on the part of the market owner which has not continued long enough to satisfy the requirements of the Limitation Act 1980 will not constitute a bar to the enforcement of his legal rights (Morpeth Corpn v Northumberland Farmers’ Auction Mart Co [1921] 2 Ch 154 at 163; and see ‘Limitation of actions’, p 97, below). There are exceptions to the rules, ie trespass to land (eg Whitwham v Westminster Brymbo Coal and Coke Co [1896] 2 Ch  538); detinue (Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246); patent infringement (eg Meters Ltd v Metropolitan Gas Meters Ltd (1911) 28 RPC 157). See also the decision of Brightman J in Wrotham Park Estate Co v Parkside Homes Ltd [1974] 1 WLR 798. In cases of trespass to land and patent infringement, and in some cases of detinue and nuisance, the court will award damages in accordance with what Nicholls LJ termed the ‘user principle’ in Stoke-on-Trent City Council v W & J Wass Ltd (1989) 87 LGR 129, CA at 140: see text, below.

83

Chapter 6 Disturbance

ILLUSTRATION In 1982 the defendant began to operate a Thursday market at Longton without the permission of the Council who operated statutory markets on Wednesday, Friday and Saturday. On 12 April 1984 the Council commenced a statutory market on Thursday at Fenton within 6⅔ miles of the defendant’s market at Longton. Following unsuccessful attempts to prevent the defendant’s market at Longton, the Council issued a writ in 1986 seeking an injunction and general damages, claiming that the Council’s right to operate its market at Fenton was being infringed. Peter Gibson J held, granting a permanent injunction to the Council that, although the Council had suffered no loss to its Thursday market, it was nevertheless entitled to damages calculated by reference to the licence fee that the Council could reasonably have required for the operation of the defendant’s market between 12 April 1984 and the grant of the permanent injunction at trial. On appeal by the defendant on the question of damages: Held, allowing the appeal, that in cases of trespass to land, patent infringement and some cases of detinue and nuisance the ‘user principle’ applied to enable a plaintiff to recover as damages a reasonable sum for the wrongful use made of his property; that, whilst the owner of a market right was entitled to damages for disturbance of that right equivalent to the diminution in value through loss of stallage, tolls and so forth, the ‘user principle’ should not be extended to cover infringement of a market right by the holding of an unauthorised market where the plaintiff could not show any loss as a result of the infringement; and that, accordingly, since the Council had suffered no loss as a result of the defendant’s unauthorised market, it was entitled to nominal damages only: Stoke-on-Trent City Council v W & J Wass Ltd47.

The market owner may prove damages by showing loss of tolls, stallage48 or other profits. Alternatively, he may demonstrate damage to his stall-holders especially if it is apparent that, should the rival market continue, the viability of marginal stalls would be seriously impaired49. However, it must be remembered that as a possessory action it is the loss to the market owner and not to his stall-holders which grounds the action in tort. The stall-holders have no direct tortious claim. Where a local authority owner of a charter market without tolls has subsequently acquired the right, by statute, to charge tolls, it may be sufficient in proving damage to rely on loss of those tolls50. It may not be easy to prove loss. If actual loss cannot be shown at trial, no cause of action will lie in the case of an unauthorised different day market. However, for the purposes of an interlocutory injunction apprehended or anticipated loss and damage is sufficient51. In the case of a same day market it has been said that the grant

47

48 49

50 51

(1989) 87 LGR 129. In this case the court drew a distinction between those trespass, detinue and patent cases where damages were awarded in accordance with the ‘user principle’ (see footnote 46, above) and market cases. In particular, an unlawful use of a plaintiff’s right to hold his own market does not deprive him of the opportunity of holding one himself (ibid at 138); and, whilst a market right confers a monopoly in the same way as a patent, the protection afforded to the owner of a market right is limited to protecting him against disturbance of that right (ibid at 142). Cork Corpn v Shinkwin (1825) Sm & Bat 395; Morpeth Corpn v Northumberland Farmers’ Auction Market Co Ltd [1921] 2 Ch 154 at 162; Wakefield City Council v Box [1982] 3 All ER 506 at 509. Ibid; Northampton Borough Council v Midland Development Group of Companies Ltd (1978) 76  LGR  750 at 754. Even though no pecuniary loss can be shown, it has been said that the exclusive privilege of holding a market, with the authority and jurisdiction incident thereto, may perhaps have a value which will render an encroachment upon the privilege the subject of an action for damages, see Cork Corpn v Shinkwin (1825) Sm & Bat 395 at 402. Morpeth Corpn v Northumberland Farmers’ Auction Mart Co [1921] 2 Ch 154 at 162. See pp 83, above.

84

Disturbance by Levying a Rival Market or Fair of injunctive relief is peculiarly appropriate precisely because damages will not be an adequate remedy52.

E What constitutes a rival market? This is a question of fact53, and the defendant’s intention is immaterial54. To sustain an action for disturbance by levying a rival market, it is not necessary to show that the defendant has set up what purports to be a legal market. It is sufficient if he has erected stalls on his land and has taken rent in the nature of stallage from persons who have brought goods there to sell55; or has so used his land as to encourage and provide for a concourse of buyers and sellers: for example by establishing a depot with conveniences for the benefit of buyers and sellers56, or by holding public auctions or sales whereby persons are provided with a means of selling their goods without bringing them to market57. It is not necessary for the defendant to have actually sold or conducted sales in the rival market. Any active interference by him in the conduct of the market, or participation in its profits or risks, is sufficient: for example, if he provides land for sale by auction and, in consequence of the use to which the land is put, takes an increased rent above that which would otherwise be obtainable58. ILLUSTRATIONS The plaintiff was the holder of a market franchise for the sale of commodities on every day of the week except Sunday, and in respect of which stallage was taken. The defendant owned a piece of ground immediately contiguous to the plaintiff’s market, and laid it out as a public market by filling it with stalls and letting those stalls to dealers in the same types of commodity already sold in the plaintiff’s market. The defendant’s market was held on some of the same days as the franchise market with the result that the plaintiff was deprived of stallage and other profits. Held that the defendant’s operation constituted a rival market in respect of which a right of action lay: Cork Corpn v Shinkwin59. The defendant railway company set up a ‘depot’ or row of stalls in arches under a station 300 yards from the plaintiff’s market, which it let to monthly tenants who were to sell not only their own commodities but also those of any member of the public which were sent via the defendant’s railway. The defendant advertised widely and

52

53

54 55 56 57 58 59

Sevenoaks District Council v Pattullo and Vinson Ltd [1984] 1 All ER 544 at 553; Stoke-on-Trent City Council v W & J Wass Ltd (1988) 87 LGR 129 at 143. Quaere whether exemplary damages may be awarded in a market case where a defendant’s conduct justifies such award: the point was raised by Nicholls LJ in Wass above, but not further discussed. Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927; Wilcox v Steel [1904] 1 Ch  212; London Corpn v Lyons Son & Co (Fruit Brokers) Ltd [1936] Ch 78 at 140; Scottish Co-operative Wholesale Society Ltd v Ulster Farmers’ Mart Co Ltd [1960] AC 63; Kingston-upon-Hull City Council v Greenwood (1984) 82 LGR 586. Wilcox v Steel [1904] 1 Ch  212 at 218; London Corpn v Lyons Son & Co (Fruit Brokers) Ltd [1936] Ch 78 at 131, 132, 140. See further as to defences, pp 91 et seq, below. Yard v Ford (1670) 2 Saund 172; Morpeth Corpn v Northumberland Farmers’ Auction Mart Co Ltd [1921] 2 Ch 154 at 160, per Sargant J. Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927; Moseley v Chadwick (1782) 3 Doug KB 117; Birmingham Corpn v Foster (1894) 70 LT 371. Dorchester Corpn v Ensor (1869) LR 4 Exch 335; Elwes v Payne (1879) 12 Ch D 468; London Corpn v Low (1879) 49 LJQB 144; Morpeth Corpn v Northumberland Farmers’ Auction Mart Co [1921] 2 Ch 154. Dorchester Corpn v Ensor (1869)  LR  4 Exch 335; Marquis of Downshire v O’Brien (1887) 19 LR Ir 380. (1825) Sm & Bat 395.

85

Chapter 6 Disturbance invited the public both to send goods for sale at the depot (through the instrumentality of the tenants) and to come and buy. Held (by HL, affirming the decision of CA) that the defendant’s depot, although not technically a market, nevertheless constituted a rival market and a disturbance of the plaintiff’s market: Great Eastern Rly Co v Goldsmid60. The plaintiff enjoyed a right by charter to hold markets every week on Wednesdays, Thursdays and Saturdays. The defendant held sheep and cattle auctions on alternate Saturdays in a neighbouring field belonging to the co-defendant M, either let by M for that purpose, or jointly occupied by E and M for that purpose. Evidence was given of M’s active co-operation at sales held there. Held that M’s involvement amounted to a disturbance of the plaintiff’s market rights without the necessity of showing that M had actually sold: Dorchester Corpn v Ensor61.

Where the defendant does not publicly invite sellers indiscriminately, but sells the goods of others under contract or by private arrangement, he is not levying a rival market but is selling outside the market; and the fact that such goods are sold by auction does not necessarily alter the situation.

ILLUSTRATION The defendant company dealt in the same commodities as those sold in the plaintiff’s franchise market and held a number of auction sales in its own building situated outside the plaintiff’s market but within the common law distance. For reasons other than lack of room, the plaintiff had previously declined to allow the defendant to sell goods by auction within the market and had also declined to accept the defendant’s offer to pay reasonable tolls in respect of goods sold outside. The defendant sold goods owned by a limited number of persons, and sale notices expressly stated that buyers only would be admitted and that goods were being offered to wholesale buyers only. The plaintiff claimed disturbance by the levying of a rival market and sought an injunction. Held (by CA) in refusing relief, that a trader has a right to conduct sales by auction in a market if he chooses, and that the defendant’s auction sales outside the market did not, on the facts, constitute disturbance by the levying of a rival market: London Corpn v Lyons Son & Co (Fruit Brokers) Ltd62.

The court in Lyons was satisfied that there was no rival market because there was no concourse of sellers and only a limited concourse of buyers. There can be no market, in whatever sense, without a concourse both of buyers and of sellers63. ‘Concourse’ in the market sense, describes the coming together in one place of persons for a common purpose; it does not signify a succession of persons (even if two or more happen to arrive at the same time) coming with the predetermined objective of buying from or selling to a particular individual, and then departing.

ILLUSTRATION The respondent market owners claimed that the setting up, with the approval of the Ministry of Agriculture, of the appellant Society’s own abattoir within the market 60 61 62 63

(1884) 9 App Cas 927. (1869) LR 4 Exch 335. [1936] Ch 78. See also Scottish Co-operative Wholesale Society Ltd v Ulster Farmers’ Mart Co Ltd [1960] AC 63. As to disturbance by selling outside the market, see pp 91 et seq, below. Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927; Marquis of Downshire v O’Brien (1887) 19 LR Ir 380; Scottish Co-operative Wholesale Society Ltd v Ulster Farmers’ Mart Co Ltd [1960] AC 63; Kingston upon Hull City Council v Greenwood (1984) 82 LGR 586.

86

Disturbance by Levying a Rival Market or Fair area, and the introduction of a scheme under which the Ministry undertook to use the appellant’s premises as a collecting centre to which producers could bring live pigs for sale, constituted the levying of a rival market and thus an actionable interference with the respondent’s market rights. Held (by HL) in allowing the appeal, that there was no concourse of buyers and sellers since the buyers could only be the Ministry or the appellant Society: Scottish Co-operative Wholesale Society Ltd v Ulster Farmers’ Mart Co Ltd64.

Whilst the essential feature of a rival market is the provision of facilities for a concourse both of buyers and of sellers, there is no requirement that it should be levied in a public place to which both may freely resort. Apart from auction cases, there will sometimes be rival markets where, so far as numbers, mobility and variety of sellers are concerned, the concourse falls short of that which may be expected in a lawful market. This will not necessarily affect the status of the rival operation even if the operator attempts to exercise control over sellers by conducting personal interviews of applicants for units or stalls and by granting licences to successful applicants which will result in some degree of security of tenure. The space available to sellers will often be limited, and control of this nature may sometimes be justified if chaos is to be avoided.

ILLUSTRATIONS The defendant constructed about 30 solid, semi-permanent, individual units for the sale of goods on part of the ground floor of retail premises about half a mile from the plaintiff Council’s franchise market. The front of each unit was open and sales were conducted from within the unit. At night, each unit and the two entrances to the ‘arcade’ (as the defendant described it) within the premises were securely boarded up so that goods could be safely left there overnight and at weekends. The defendant advertised in the local trade and general press inviting traders to trade from the units. Licences were granted to about 20 occupants determinable on a week’s notice. Held, in granting injunctive relief to the plaintiff, that the defendant was providing facilities for a concourse of buyers and sellers and that this operation constituted a rival market: Kingston-upon-Hull City Council v Greenwood65. The defendants acquired on lease part of a building, which had previously housed a well known department store, and advertised in the local press an ‘antiques and collectors’ fair’ to be held there inviting traders to take ‘tables/spaces by the day’. Because the building was within 6⅔ miles of the Council’s statutory markets, Council representatives visited the premises and found that 100 ‘market stalls’ could be accommodated and that approximately 60 had been erected from which individual traders were offering articles for sale to the public, including articles of the kind normally offered for sale in the Council’s markets. The stalls were of flimsy construction, and in some cases there was no physical barrier between them. The defendants granted oral licences to the traders, at first daily, later weekly and, at the time of the trial, monthly. The defendants claimed to interview all applicants for licences. The Council claimed that the defendants were operating a rival market and obtained an injunction restraining them from so doing. Held (by CA) dismissing the defendants’ appeal against the grant of an injunction: (1) that there was sufficient concourse of buyers and sellers at the defendants’ premises to constitute a rival market; (2) that the individual trading units did not come within the 64 [1960] AC 63. 65 (1984) 82 LGR 586.

87

Chapter 6 Disturbance definition of ‘shops’ for the purpose of the Shops Act 1950 so as to fall outside the field of the Council’s exclusive market rights: Manchester City Council v Walsh66.

However, the Court of Appeal in the Walsh case, above, doubted the wisdom of attempting to lay down fixed criteria to test the existence of a market, or of a concourse of buyers and sellers, as Nourse J  had attempted to do in Greenwood, above, and declined to do so: ‘Each case will have to be judged on its own facts taking into account a number of factors including, but not necessarily exclusively, the nature of the invitation to sellers and buyers, the numbers of each, the nature and size of the individual units, the nature and sources of the goods, the proximity of individual sellers one to another, and the degree of control retained and exercised by the organisers67.’

F Sales in shops and other premises It is not normally a disturbance for a person to sell his own goods in the ordinary course of business in his own shop or private house near the market place on market days68. There is, however, a substantial difference between that and the case of a person who provides premises from which others may sell their goods without taking them into the market. From a misunderstanding of an early case69, it was once supposed that a grant of a market carried with it a right to prevent persons from selling their goods on market days in their own shops or private houses; but it is now settled that such a right is not incident to a grant of a market. ILLUSTRATION The plaintiff Corporation brought an action to restrain the defendants from selling eggs and dried fish on market days in their shop. The shop was situated in a street which adjoined one side of one of the plaintiff’s markets and was on the opposite side of the street from but not opposite to, the entrance from the street to the market. The defendants sold only their own goods in their shop in the ordinary course of business.

66 67

68 69

(1986) 84 LGR 1. The Shops Act 1950 is now repealed by the Food Act 1984. Manchester City Council v Walsh (1986) 84 LGR 1 at 12. Compare the tests suggested on p 90, below. Nourse J had attempted in Kingston upon Hull City Council v Greenwood, above, to lay down three criteria, one of which was the retention by the defendant of a sufficient degree of control in particular by granting to the sellers little or no security of occupation: this test was rejected by the CA in Walsh, above. See also the cases of Northampton Borough Council v Midland Development Group of Companies Ltd (1978) 76  LGR  750; Leicester City Council v Oxford and Bristol Stores Ltd, (21  December 1978, unreported), pp 90, below, and East Staffordshire County Council v Windridge Pearce (Burton-on-Trent) Ltd [1993]  EGCS  186. In the last case the Vice-Chancellor held that the defendant’s operation constituted a rival market because the defendant’s original intention to grant exclusive nine month leases to all sellers had not, in fact, been implemented so that there was insufficient security of occupation resulting in a concourse of sellers. The Vice-Chancellor’s approach was followed in In Shops Centres plc v Derby City Council (1997) 95 LGR; [1996] NPC 150 where it was held that proposed leases for five-year terms (excluded by court order from the security of protection provisions of the Landlord and Tenant Act 1954) of separate self-contained retail units would give each trader sufficient security to take the proposed operation out of the definition of a market for the purposes of market law, ie there would be no general concourse of sellers and therefore no rival market. Macclesfield Corpn v Chapman (1843) 12 M & W 18; Macclesfield Corpn v Pedley (1833) 4 B & Ad 397; Penryn Corpn v Best (1878) 3 Ex D 292; Manchester Corpn v Lyons (1882) 22 Ch D 287, 311. Prior of Dunstable’s Case YB II Hen VI, ff 19, 25; see Macclesfield Corpn v Chapman (1843) 12 M & W 18 at 20, per Parke B.

88

Disturbance by Levying a Rival Market or Fair Held (by CA) that there was no disturbance of the plaintiff’s statutory right of market: Manchester Corpn v Lyons70.

Nevertheless, if the shop is in or next to the market place, and the owner opens it for selling in the market, he may be liable to stallage71; and a right to exclude sales in shops or private houses within the limits of the franchise on market days may exist by immemorial custom or by prescription. Such a right may formerly have been acceptable on the basis that, whilst it enabled the owner of the market to take an increased profit, it also benefited the public by securing the owner’s supervision over all articles for sale on market days72. The only cases in which the right has been established have been those concerning ancient markets in which the owner claimed the right as from time immemorial, and the evidence supported that claim. If the market is ancient, and the owner at all times appears to have prevented a sale in shops or private houses, the exercise of such control is evidence of the right73. It is probable that a clause in a modern grant of a market purporting to confer such a right would be void74. It is not possible to lay down a precise definition by which sales in a private shop may be distinguished from such a system of selling which amounts to establishing a rival market. The mere fact that the sale in a shop attracts some persons who would otherwise buy in the market is not enough to constitute a disturbance, nor is the character or name of the building in which the sale is conducted. All the circumstances of the case must be taken into consideration including the nature and method of the business done75 and the character and management of the premises76.

ILLUSTRATIONS The defendants fitted out with booths one floor of a shopping centre situated 3½ miles from the plaintiff Council’s market, with the intention of granting three-monthly licences to individual traders. It was also the defendants’ intention to install good lighting and to carpet the whole area. Held, granting interlocutory relief, that the defendants’ proposed activities would constitute the levying of a rival market: Northampton Borough Council v Midland Development Group of Companies Ltd77. The defendant’s business in a building about 200 yards from the plaintiff Council’s market was initially conducted in the manner of a market with a concourse both of sellers and of buyers. After about a fortnight, the modus operandi was altered and the defendant claimed that there was no longer a concourse of sellers but merely a series 70 71 72

73

74 75 76

77

(1882) 22 Ch D 287. Newington Fair Case (1608) 2 Roll Abr 123, B I; Com Dig Market (F) 2. See the argument in Mosley v Walker (1827) 7 B & C 40. See also Abb Plac, p 113, where the Bishop of Hereford claimed the right to prevent persons selling marketable goods in their own houses in Hereford during the fair. The townsmen, on the other hand, claimed the right to sell in their own shops, but admitted the right of the bishop to toll. Mosley v Walker (1827) 7 B & C 40 (where Bayley J justifies the right in a somewhat different manner); Macclesfield Corpn v Chapman (1843) 12 M & W  18; Macclesfield Corpn v Pedley (1833) 4 B & Ad 397; Devizes Corpn v Clarke (1835) 3 Ad & El 506; Penryn Corpn v Best (1878) 3 Ex D 292; Prior of Dunstable’s case YB II Hen VI ff 19, 25. See Mosley v Walker (1827) 7 B & C 40, per Holroyd J; Penryn Corpn v Best (1878) 3 Ex D 292 at 295. Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927, 947; McHole v Davies (1875) 1 QBD 59; Fearon v Mitchell (1872) LR 7 QB 690; Dorchester Corpn v Ensor (1869) LR 4 Exch 335. Cork Corpn v Shinkwin (1825) Sm & Bat 395, 400; Pope v Whalley (1865) 34 LJMC 76; Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 947. See also the cases next illustrated, below, and the cases under the Markets and Fairs Clauses Act 1847, s 13, footnotes thereunder Appendix 1, below. (1978) 76 LGR 750.

89

Chapter 6 Disturbance of sales by the defendant, as sole vendor, in the manner of a department store. Licences previously granted to stall holders were terminated, and under a new agreement individual traders supplied goods to the defendant for sale at the store, the property in such goods passing to the defendant on delivery (as evidenced by invoices). In addition, although traders were to find their own sales staff, these were employed and paid by the defendant, and were required to wear the defendant’s uniform. Takings were delivered to the defendant’s manager each day and banked in the defendant’s bank account. Held, refusing interlocutory relief, that there was no real evidence which cast doubt on the genuineness of the defendant’s scheme and, since there was no concourse of sellers, there could be no rival market: Leicester City Council v Oxford and Bristol Stores Ltd78.

In the context of the market law provisions of the Food Act 1984 it is suggested that the definition of ‘shop’ should be construed so as to give ‘shop’ its ordinary, everyday meaning, and applied by adopting the approach propounded in Pope v Whalley79. This will mean that a stall, by virtue of its physical attributes and the nature of its tenure, cannot normally be a ‘shop’ and even if some units in a rival operation might properly be considered to be shops, that may not preclude injunctive relief against an individual as organiser of such operation80. In seeking, therefore, to determine whether sales are from stalls rather than shops, and whether there is a concourse of buyers and sellers, it is suggested that the following questions be asked81: 1.

Has the operator, by public advertisement, issued a general invitation to the public to sell on land or in a building owned by him or under his control?

2.

Can anyone come and buy?

3.

Do the sellers have little or no security of tenure or exclusive right to use/ occupy their stalls or any others?

4.

Is there provision or space for casual traders?

5.

Are most stalls owned and erected by individual sellers? If not, are they generally of insubstantial construction and/or do they lack storage space and/ or are they insufficiently self-contained and secure for goods to be stored there overnight and at weekends?

6.

Are the goods sold of the same type, or substantially of the same type, as in the established market?

78

(21  December 1978, unreported). This case, and Northampton Borough Council v Midland Development Group of Companies Ltd (1978) 76 LGR 750 also have relevance in determining whether there is a concourse of sellers: see pp 85 et seq, above. 79 (1865) 34 LJMC 76: see Manchester City Council v Walsh (1986) 84 LGR 1 at 15 and Greenwood v Whelan [1967] 1 QB 396. See further the cases cited in footnote 3 in relation to s 13 of the Markets and Fairs Clauses Act 1847, at p 251, below. 80 The point was raised, but not decided, in Kingston-upon-Hull City Council v Greenwood (1984) 82 LGR 586, and in Manchester City Council v Walsh (1986) 84 LGR 1 at 15. See also In Shops Centres plc v Derby City Council (1996) 95 LGR 161. 81 See Manchester City Council v Walsh (1986) 84 LGR 1 at 12, and also the tests in Windridge Pearce, footnote 67, above. In Nuneaton and Bedworth Borough Council v Russell (17 April 1986, unreported), Millet J in the course of his judgment: stated as follows: ‘I do not regard the terms “market” on the one hand, and “shopping arcade” or “arcade of shops” on the other, as mutually exclusive terms. Even if the units, or some of them, may properly be described as shops, so that a prosecution would not lie against an individual shopkeeper, it does not, in my judgment, follow that the activities of the defendant … which are what are here in question … do not constitute the setting up of a rival market.’

90

Disturbance by Levying a Rival Market or Fair If the answer to most of these questions is in the affirmative, then sales will probably be from stalls and not shops, there is likely to be a concourse of buyers and sellers, and the operation, if situated within the common law distance, may constitute a disturbance of the lawful market82.

G Defences to holding a rival market (1) Consent of the owner The consent or licence of the owner of the lawful market or fair to the holding of a rival is a defence to an action by the owner but is not, of course, a bar to proceedings by the Crown if the market is otherwise unlawful83. (2) Grant from the Crown In an action for disturbance by levying a rival market, it is not usually a defence to plead a grant from the Crown, since the Crown cannot derogate from its own earlier grant by making a grant of a new market to the injury of the old84. If, however, by the terms of the original grant, the market was to be held in a fixed placed defined by metes and bounds, and those limits are insufficient but the market owner has no power to enlarge them, then it is possible that a grant of a new market will be justified to such an extent as to meet the deficiency, but no more85. In answer to one of the further questions proposed to them by the House of Lords when considering the Islington Market Bill 86, Littledale J, on behalf of himself and two other judges87, stated: ‘… if those limits are not sufficient for the accommodation of buyers and sellers at the market, and the owner of the market has no power to enlarge the limits, that circumstance, coupled with the fact that it would be for the advantage of the public that a new market should be erected, would be sufficient ground for the Crown to take such steps as would according to law have the effect of erecting a new market, to such an extent as would remedy the inconvenience, without affecting the rights of the owners of the market; … the new market can only be legally granted to such an extent as to provide for what may be called the surplus accommodation of the public beyond what the old market can afford, and that the old market is not to be affected by the new market. For instance, if the public require twenty acres of accommodation, and the old market could only furnish ten, the new market could not be granted for the whole twenty acres, but only for the additional

82

A ‘car-boot’ sale is a rival market, if within the common-law distance, since there is normally an open invitation to both buyers and sellers: Newcastle-upon-Tyne City Council v Noble (1991) 89  LGR  618. On the other hand, a jumble sale might not fall within this description if stalls are manned by representatives of the organiser; but cf the situation in Great Eastern Rly Co v Goldsmid, above, where goods belonging to others were sold through the instrumentality of the stall holders. Compare, also, ‘bring and buy’ sales. In practice, since the proceeds of jumble and bring and buy sales are often applied for charitable purposes, the consent of the market owner (below), if required, is likely to be forthcoming; or, if, as no doubt is normally the case, prior consent has not been sought, the market owner is likely to turn a blind eye. See below, p 141. 83 Bracton, bk iv, c 46, f 235b; Tamworth Borough Council v Fazeley Town Council (1978) 77 LGR 238 at 266. For the nature of an action for disturbance, see pp 97 et seq, below. As to the effect of acquiescence in barring an action by the owner, see pp 97, below. As to proceedings by the Crown, see pp 106 et seq, below. 84 2 Inst 406; Re Islington Market Bill (1835), 3 Cl & Fin 513, 519, 520 Tamworth Borough Council v Fazeley Town Council (1978) 77 LGR 238. See also pp 17, 18, above. The new grant will be void, and the Crown may repeal it by scire facias, and recover damages for disturbance: Weston’s Case, YB 11 Hen IV, ff 5, 6. 85 Re Islington Market Bill (1835) 3 Cl & Fin 513. 86 Ibid. 87 Parke B and Bosanquet LC.

91

Chapter 6 Disturbance ten acres, so as, upon the whole, the twenty should be capable of being used by the public; … For if a new market were granted for twenty acres, that would be to the damage of the old market, and might have the effect of totally ruining it, when there was no default in the owners of that market, but the necessity for a new market arose from the increase in population’88.

The judges further suggested that the same principle would apply to the case of a market which, although not defined by metes and bounds, was held in a district so narrow and otherwise so occupied, that further space could not be acquired by the market owner to meet the increased needs of the public. These opinions were, however, delivered with some diffidence, since the three judges had not had an opportunity of hearing argument on the matter, nor of conferring with the remaining six judges to whom the original questions were put89. (3) Statute It is a good defence to an action for disturbance that the new market was established by an Act of Parliament90; but such statutes normally make provision for compensation91 or require the consent of the owners of the markets affected92. (4) Lack of accommodation A  claim of insufficient accommodation for the public in the plaintiff’s market is not a good defence to an action for disturbance93, although it may provide a plea in mitigation of the damage claimed94. Lack of room in a market may justify an individual in selling his goods outside it95, but cannot excuse the levying of a market without lawful authority96. If the defendant’s acts amount to the setting up of a rival market, the question as to whether or not he intended to do so is immaterial97. (5) Irregularities or abuse of franchise by market owner If the market or fair is lawfully established, it is no answer to a charge of unlawfully levying a rival market to say that the market owner has been guilty of irregularities by demanding illegal tolls or unreasonable stallages98, or by holding his market on days other than those authorised by charter99. Nor is an abuse or neglect of 88 89 90

91 92

93 94 95 96 97 98 99

Pages 520–521. Pages 521–522; Hammersmith and City Rly Co v Brand (1869) LR 4 HL 171. Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927 at 961–962; Re Islington Market Bill (1835) 3 Cl & Fin 513; Tamworth Borough Council v Fazeley Town Council (1979) 77 LGR 238 at 266. A grant of planning permission for a market will not, of itself, amount to the establishment of a market within the meaning of s 50 of the Food Act 1984 so enabling the owner of the land in question to claim protection under s 50(2) of the 1984 Act against an owner of a later established statutory market: Delyn Borough Council v Solitaire (Liverpool) Ltd (1995) 93 LGR 614 (and see p 134 et seq, below). Ie by a clause in the special Act. See the Food Act 1984, s  50(3), but cf the Local Government (Miscellaneous Provisions) Act 1982, s 3 and Sch 4, Appendix 1, below, which, although requiring a district council to publish notice of its intention to resolve to designate a street for trading purposes, does not require it to do more than consider any representations received before so resolving. Re Islington Market Bill (1835) 3 Cl & Fin 513; Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927; Tamworth Borough Council v Fazeley Town Council (1979) 77 LGR 238 at 266–267. As to the duty of the owner to supply sufficient accommodation for the public, see above, pp 37 et seq. Cork Corpn v Shinkwin (1825) Sm & Bat 395. Prince v Lewis (1826) 5 B & C 363; Mosley v Walker (1827) 7 B & C 40; see below, p 94. Ibid. Wilcox v Steel [1904] 1 Ch 212. Cork Corpn v Shinkwin (1825) Sm & Bat 395; Lord Middleton v Power (1886) 19  LR  Ir 1; Kingston-upon-Hull City Council v Greenwood (1984) 82 LGR 586. Cork Corpn v Shinkwin (1825) Sm & Bat 395.

92

Disturbance by Selling Outside the Market franchise, though it may entitle the Crown to take proceedings against the owner, any justification for setting up a rival market100.

3 DISTURBANCE BY SELLING OUTSIDE THE MARKET A Sale without payment of toll If a person seeks to take, and takes, the benefit of a market without payment of toll, that is a fraud upon the market for which an action for disturbance will lie. An actionable wrong is committed against the market owner if a person takes advantage of a concourse of persons assembled in the market but sells outside it in order to evade toll101. ILLUSTRATION By a private Act of Parliament, the market owner and his lessees were entitled to take tolls from any persons bringing goods or articles into the market. The defendant, a cattle dealer, brought sheep to a public house situated about 40 yards from the market limits, left them there, and went into the market to look for customers which he brought back to the public house and there sold them the sheep. He refused to pay toll to the plaintiff, as lessee of the market owner. Held that the defendant’s actions constituted a fraud upon the market for which an action lay: Bridgland v Shapter102.

B Intention to evade toll essential Such acts, in order to be actionable, must be done designedly, and with an intention to obtain the benefit of the market without payment of toll. There is no disturbance if a person, in the ordinary course of his business, happens to sell goods on market day outside the market without any such design or intention103. ILLUSTRATION The plaintiff Corporation was the owner of a statutory market. The defendant’s son went, on market day, to a shop situated within the borough but outside the limits of the market, and there, on behalf of his father, sold some corn by sample to the shop owner which was delivered on the following market day. Held that, in the absence of any evidence that the defendant had intended to take the benefit of the market or had deprived the market owner of some profit which would otherwise have been obtained, there was no disturbance of the plaintiff’s market: Brecon Corpn v Edwards104.

100 101

102 103 104

Middleton (Lord) v Power (1886) 19 LR Ir 1. Bridgland v Shapter (1839) 5 M & W  375; cf Blakey v Dinsdale (1777) 2 Cowp 661; Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927 at 960, per Lord Blackburn; Horner v Freeman [1884] WN  223; Scottish Co-operative Wholesale Society Ltd v Ulster Farmers’ Mart Co Ltd [1960] AC 63, per Viscount Simmonds. (1839) 5 M & W 375. Note that the seller and not the buyer was here liable to pay toll: see pp 63, 64, above. Brecon Corpn v Edwards (1862) 1 H & C 51; Tewkesbury Corpn v Diston (1805) 6 East 438; Blakey v Dinsdale (1777) 2 Cowp 661; Sprosley v Evans 1 Roll Abr 103; Scottish Co-operative Wholesale Society Ltd v Ulster Farmers’ Mart Co Ltd [1960] AC 63; and see footnote 108, below. (1862) 1 H & C 51.

93

Chapter 6 Disturbance In the Prior of Dunstable’s case105, the allegation was that the defendant sold in his shop, adjoining the market, secretly (occulte); and this raised the question of fraud, upon which issue alone the case was tried. The mere selling in a shop, unless done secretly to evade toll, would not have been actionable.

C Defences to selling outside the market In addition to the defence of no intention to evade toll (above), it is a good defence to show that, at the time of the sale outside the market, there was insufficient room to sell within it106; or that the market is normally overcrowded and the market owner did not, on that particular occasion, give notice to the defendant that there was room107. ILLUSTRATION The plaintiffs were the lessees of a charter market (Covent Garden) granted to be held within certain specified limits for the sale of vegetables, fruit and flowers. The grantee of the market had, for his own profit, permitted part of the market place to be used for purposes other than those specified in the grant with the result that the remainder of the market place was ordinarily fully occupied. The defendant sold vegetables from a wagon stationed in a street immediately adjoining but outside the market place, and refused to pay toll. The plaintiffs claimed that, on the day in question, there was sufficient space for the defendant to place his wagon within the market. Held that as the market was ordinarily fully occupied, and the plaintiffs did not inform the defendant that, at the time of the sale, there was room within the market, an action against the defendant for selling outside could not be maintained: Prince v Lewis108.

The defendant is not bound to attend the market day by day for the purpose of seeing whether or not there is room109. This defence may be raised when the market owner fails to provide sufficient accommodation110 whether or not the market is limited by metes and bounds111; and it appears that it can also be raised when the lack of room occurs without any default on the part of the owner, provided the defendant has done nothing which amounts to the unlawful levying of a rival market112.

4 DISTURBANCE BY SELLING BY SAMPLE IN THE MARKET Toll is payable, as a general rule, by the buyer and not the seller113. In markets where the seller is responsible (eg by custom or prescription) for toll, it is an actionable 105 106

YB 11 Hen VI, f 19b; 11 Hen VI, f 25. See above, pp 88 et seq as to sales in shops. Prince v Lewis (1826) 5 B & C 363; Re Islington Market Bill (1835) 3 Cl & Fin 513; Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927 at 960, per Lord Blackburn; 25 Ch D (1884) 511 at 542, per Cotton LJ. 107 Prince v Lewis (1826) 5 B & C 363, per Bayley and Littledale JJ. See per Cotton LJ in Great Eastern Rly Co v Goldsmid ibid at 542. 108 (1826) 5 B & C 363. 109 Ibid at 372, per Bayley J and 375, per Littledale J. 110 See above, pp 37 et seq. 111 Prince v Lewis (1826) 5 B & C 363; Re Islington Market Bill (1835) 3 Cl & Fin 513. 112 London Corpn v Lyons Son & Co (Fruit Brokers) Ltd [1936] Ch 78, see p 86, above. The defendant’s willingness to pay tolls and the refusal of the market owner to allow him to sell in the market in the manner in which he desires to sell, are matters to be taken into consideration: ibid at 132, 145. 113 See p 63, above.

94

Disturbance by Selling by Sample in the Market disturbance to sell by sample in the market goods which are deliberately kept out of the market in order to evade toll114.

ILLUSTRATION The plaintiff Corporation was the owner of a charter market. Up until about 30 or 40 years previously, all corn and grain were sold in the market in bulk, but since that time the practice had grown up of selling in the market by sample but nevertheless with the plaintiff taking the customary toll on delivery of the bulk. The defendant sold beans by sample in the market, the bulk later being delivered in Tewkesbury, but refused to pay the toll. The plaintiff alleged that the defendant had wilfully and fraudulently not brought the beans to market so as to deprive the plaintiff of the toll to which it was entitled. Held that as a seller by sample in the market derives benefit from the market, an action would lie against the defendant for refusing to pay toll on the bulk to the injury of the market: Bailiffs of Tewkesbury v Bricknell115.

Selling by sample in or near a market is not in itself a disturbance116, but it will be if there is evidence that the seller intended to take the benefit of the market without payment of toll117. In a market in which the buyer customarily pays toll, a seller may nevertheless be liable in an action for disturbance if there is evidence that he intended to defraud the market owner. But equally, a buyer who buys by sample may be liable if, for example, he conspires with the seller to evade toll by some trick or fraud118. To buy by sample in a market is not, however, in itself actionable; and a distinction should, in this context, be drawn between buyers and sellers. The seller has a choice as to whether to sell by sample or bring the bulk into the market; the buyer usually has no such choice. Moreover, the buyer does not get the benefit of the market unless the bulk is in the market: he is unable to view the bulk, nor does he have the advantage of a reduction in price which often results from the seller’s reluctance to carry back his commodity in bulk unsold. All these circumstances will make it more difficult to establish a case of designedly buying by sample in order to evade toll; they rather support the view that the buyer has bought by sample because he had no opportunity to buy in bulk119.

ILLUSTRATION The plaintiff Corporation alleged that the defendant fraudulently bought corn by sample in its market with the intention of depriving the plaintiff of the toll to which it was entitled by prescription. It was proved that the defendant bought by sample in the market, knowing of the claim to toll, and refused to pay toll on the subsequent delivery of corn outside the market.

114

Tewkesbury (Bailiffs etc) v Bricknell (1809) 2 Taunt 120. See also Brecon Corpn v Edwards (1862) 1 H & C 51; Moseley v Pierson (1790) 4 Term Rep 104. 115 (1809) 2 Taunt 120. 116 Brecon Corpn v Edwards (1862) 1 H & C 51. 117 See footnote 114, above. 118 See Tewkesbury Corpn v Diston (1805) 6 East 438; and see also Loughrey v Doherty [1928] IR 103 at 117, per Kennedy CJ. 119 Tewkesbury Corpn v Diston (below), per Lord Ellenborough at 461. See also the remarks of Fitzgibbon J (dissenting judgment) in Loughrey v Doherty [1928] IR 103 at 120–121.

95

Chapter 6 Disturbance Held that no cause of action was disclosed since it did not appear that the defendant induced the seller to keep the corn out of the market if the defendant had not bought by sample: Tewkesbury Corpn v Diston120.

5 DISTURBANCE BY OBSTRUCTING OR HINDERING THE MARKET An action for disturbance will lie for hindering or stopping tollable goods from coming to the market121, or for threatening or assaulting persons on their way to the market so that the owner loses his toll122; or for wrongfully collecting toll due to the owner123, or for obstructing the owner’s toll collector124. It will also be a disturbance to obstruct physically any part of the market place (for example, by erecting a building) so as to exclude the public from it125; or to obstruct the approaches to the market place126. It may also be an actionable disturbance to buy goods on the way to the market, although no toll is payable on such goods in the market127.

ILLUSTRATION The plaintiff’s predecessor in title was granted a Royal patent to hold weekly markets. He built a market house in which markets were held pursuant to the patent. No tolls were leviable under the patent, and tolls were not levied; but a considerable income was derived from charges made for weighing and storing commodities brought into the market. About 15 to 25 years prior to the action, the practice had grown up amongst certain buyers, including the defendants, of intercepting farmers on their way to the market and of buying their produce before it reached the market. The produce so purchased was usually sent to the railway station or to the defendant’s premises for weighing with the result that the plaintiff’s market was seriously affected. Held (by CA) that this constituted an actionable disturbance of the plaintiff’s market entitling her to an injunction, since even if market tolls are not chargeable by the market owner, buyers can disturb (in an actionable sense) the market by buying outside the limits: Loughrey v Doherty128.

120 121

(1805) 6 East 438. Turner v Sterling (1672) 2 Vent 25 at 26, per Wylde B citing YB 41 Ed III, f 24, pl 17, an observation of Belknap, counsel, in argument (cf 2 Ventr 28, per Vaughan J); Ashby v White (1703) 6 Mod Rep 45 at 49, per Powell J. 122 Denesham’s (Abbot) Case (1355)  YB  29 Edw III, f 18; Gloucester Grammar School Case (1410) YB 11, Hen IV f 47b, where Skrene, counsel, states in argument that such is the law; Ashby v White (1703) 6 Mod Rep 45 at 49, approved in Tewkesbury Corpn v Diston (1805) 6 East 438. 123 Dent v Oliver (1607) Cro Jac 122; Barton’s Case YB  9 Hen IV, f 45; Viner, ‘Toll’, 1, 4, and Actions [Case]’, (NC)4; FNB 91 GH; Ramsey’s (Abbot) Case, Abb Plac, p 151b; de Kenedon’s Case, ibid, p 233. In the Rot Parl (Temp Ed 1), the Prior of St Freswide in Oxford complains that the Chancellor and Scholars of Oxford made an affray and riot in his fair ‘to the perpetual and final destruction of it’: Rot Parl Vol iii, p 176b. 124 de Chaunce v de Twenge and de Ros (1337) YB  11 Edw III, p  38; Dent v Oliver (1607) Cro Jac 122. 125 Thompson v Gibson (1841) 7 M & W 456. 126 Horner v Whitechapel District Board of Works (1885) 53 LT 842. 127 Loughrey v Doherty [1928] IR 103, notwithstanding apparently the repeal, by 12 Geo 3, c 71 and 7 & 8 Vict, c 24, of the criminal offences of forestalling, regrating and ingrossing. See also another Irish case: Wynne v Martin, Batty’s Reports 110. 128 [1928] IR 103.

96

Nature of Action for Disturbance

6 NATURE OF ACTION FOR DISTURBANCE A Possessory action The action for disturbance is a possessory action129 and the owner is entitled to damages and an injunction130. The claimant must prove the existence of the franchise131 and that, at the time of the disturbance, he was in possession of it; but he need not regularly deduce his title because, as against a stranger and wrongdoer, possession is sufficient132. The owner of a fair who has been compelled to discontinue it, owing to the absence of buyers and sellers, may nevertheless be in possession of the franchise for the purpose of an action for disturbance133. However, if the owner of several markets has voluntarily discontinued to hold some of them, he will be unable to recover in an action for disturbance except in respect of the markets he continues to hold; and this will be so even although he may be entitled to revive the discontinued markets134. B Limitation of actions It has been suggested that the undisturbed possession of a rival market for 20 years is a bar to an action for disturbance135. But the better opinion is that the uninterrupted user of a rival market for 20 years is merely evidence from which the court may infer that the rival market has had a lawful origin in a grant from the Crown136, supported by a consent by the owner of the older market, without which a grant from the Crown would be invalid137. The Prescription Act 1832 has no application to market rights138. In an action for disturbance, the period of limitation for recovery of damages is six years139; but it seems that no length of adverse user creates a positive bar to the action140.

129 130

Yard v Ford (1670) 2 Saund 172(1); Fitzgerald v Connors (1871) 5 IR 5 CL 191. See, for example, Dorchester Corpn v Ensor (1869) LR 4 Exch 335; Elwes v Payne (1879) 12 Ch D 468; Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927; Wilcox v Steel [1904] 1 Ch 212; Morpeth Corpn v Northumberland Farmers’ Auction Mart Co Ltd [1921] 2 Ch 154; Birmingham Corpn v Perry Barr Stadium Ltd [1972] 1 All ER 725. As to the necessity for proof of damage, see pp 82, 83, above. 131 As to evidence of the existence of a franchise, see ‘Evidence of Market Rights’ in Chapter 11, below; and see Wyld v Silver [1963] Ch  243; Birmingham Corpn v Perry Barr Stadium Ltd [1972] 1 All ER 725; Leicester Corpn v Maby (1971) 70 LGR 209; Kingston-upon-Thames Royal Borough Council v Sherman and Waterman Associates Ltd (6 July 1976, unreported). 132 Dent v Oliver (1607) Cro Jac 122; De Rutzen v Lloyd (1836) 5 Ad & El 456. 133 Marquis of Downshire v O’Brien (1887) 19 LR Ir 380, 389, where the fair had been discontinued because of the defendant’s activities. 134 See Mayor of Dorchester v Ensor (1869) LR 4 Exch 335 at 339, per Channell B. See also footnote 26, above and cases cited in relation to whether or not a market owner is entitled to protect his property rights when his own market is not in fact established. 135 Holcroft v Heel (1799) 1 Bos & P 400, as explained in the notes to Yard v Ford (1670) 2 Saund 172. 136 Holcroft v Heel, above, as explained by le Blanc J in Campbell v Wilson (1803) 3 East 294, 298. 137 See pp 17, 18, above. 138 See pp 19, 20, above. 139 Limitation Act 1980, s 2. The provisions of the Act relating to recovery of land have no application to franchises: see ibid, ss 15, 38(1). See also Chapter 2, footnote 129. 140 See Morpeth Corpn v Northumberland Farmers’ Auction Mart Co [1921] 2 Ch  154 at 163; Loughrey v Doherty [1928]  IR  103 at 113, per Johnston J  at first instance. In Warwick Corpn v Maby (No 2) (1971) 116 Sol Jo 137, delay in seeking relief in respect of a different day rival market, which had been held for eight months without effective protest, was held to be a bar to the grant of an interlocutory injunction.

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7 REMEDIES FOR DISTURBANCE OF STATUTORY MARKETS AND FAIRS A market established under a local or public Act enjoys all the incidents and privileges of a market created by charter, unless the statute otherwise provides141. A monopoly created by statute differs only in name from a monopoly of the same kind created by charter, the latter being known as a franchise142. Thus, a statutory market will normally have the same degree of protection as a franchise market against, for example, disturbance by setting up a rival market within the common law distance; and the market owner will be entitled to the same remedies. Protection expressly given by statute is not in substitution for, but in addition to, the common law rights143. It would be odd if statutory provisions designed to increase the franchise in strength or character had the effect of diminishing the protection against disturbance already afforded at common law144. But, nevertheless, those common law rights may be modified or excluded by the express terms of the statute, or by implication. The statute may amount to a confirmation or re-enactment of the franchise market rights, with modifications and additions145, or be in such terms as to extinguish the franchise market and substitute a statutory one146, or to close the market altogether147. Local Acts regulating statutory markets often incorporate s 13 of the Markets and Fairs Clauses Act 1847 or apply s 56 of the Food Act 1984148, or contain sections to like effect. Section 13 of the 1847 Act and s 56 of the Food Act 1984 make it an offence punishable by fine on summary conviction for any person other than a certificated pedlar to sell or expose for sale in any place within certain limits, except in his own dwelling place or shop, articles normally sold in the market. It should, however, be noted that s 56 of the 1984 Act defines the limits within which sales are prohibited by reference to the area

141

Birmingham Corpn v Foster (1894) 70 LT 371; Hailsham Cattle Market Co v Tolman [1915] 1 Ch 360; Birmingham Corpn v Perry Barr Stadium Ltd [1972] 1 All ER 725; Leicester City Council v Oxford and Bristol Stores Ltd (21  December 1978, unreported); Halton Borough Council v Cawley [1985] 1  WLR  15; East Lindsey District Council v Hamilton, Times, 2  April 1984; Manchester City Council v Walsh (1985) 84 LGR 1; Newcastle-upon-Tyne City Council v Noble (1990) 89 LGR 618. 142 Birmingham Corpn v Perry Barr Stadium Ltd [1972] 1 All ER 725 at 728. 143 Wakefield City Council v Box [1982] 3 All ER  506; Manchester City Council v Walsh (1985) 84 LGR 1. 144 Leicester Corpn v Maby (1971) 70  LGR  209 at 213–214; and see also Northampton Borough Council v Midland Development Group of Companies Ltd (1978) 76 LGR 750 at 751; Leicester City Council v Oxford and Bristol Stores Ltd (21 December 1978, unreported). 145 See the first class of cases stated by Willes J in Wolverhampton New Waterworks Co v Hawkesford (1859) 28 LJCP 242, 246; see also Stevens v Chown, Stevens v Clark [1901] 1 Ch 894; Birmingham Corpn v Perry Barr Stadium Ltd [1972] 1 All ER 725. The three classes of cases referred to by Willes J in the Wolverhampton case, above, are: ‘[first] that class where there is a liability existing at common law and which is only re-enacted by the statute with a special form of remedy; there unless the statute contains words necessarily excluding the common-law remedy, the plaintiff has his election of proceeding either under the statute or at common law. Then there is a second class, which consists of those cases in which a statute has created a liability but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third class is where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it.’ 146 Manchester Corpn v Lyons (1882) 22 Ch D  287; Abergavenny Improvement Comrs v Straker (1889) 42 Ch D  83 and cf New Windsor Corpn v Taylor [1899] AC  41; and see Simmonds v Kilkenny Borough Council [2007] 1 EHC 2 where it was held that 17th royal charters had been extinguished by the provisions of the Kilkenny Market Act 1861. 147 See Duffy v Dublin Corporation [1974] IR 33. 148 As amended by the Food Safety Act 1990, Sch 2, paras 2–11.

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Remedies for Disturbance of Statutory Markets and Fairs of the market authority (in s  13, the ‘prescribed limits’149) and ‘such distance from the market as the authority may by byelaw declare’150. The position of the owner of a statutory market in relation to actions for disturbance appears to be as follows151: 1.

There is no disturbance if a person merely sells tollable articles in his own dwelling place or shop although situated within the limits prescribed by the statute152. It will not, therefore, be a ground of complaint if a person sells such articles in his dwelling place or shop outside the limits so prescribed.

2.

If an offence is committed against the relevant section, the penalty imposed may be recovered in a court of summary jurisdiction. If the offence amounts also to an injury to a right of property, the power of a court of competent jurisdiction to protect that right by injunction is not excluded unless the statute so provides153. But for a mere offence against the section, it is probable that no action for damages lies154. Both sections appear to create a liability not existing at common law155 and, as each prescribes the particular remedy for enforcing it, that remedy must be adopted156.

3.

If, on the other hand, the market is disturbed by the unlawful levying of a rival market in a manner which does not constitute any offence against the relevant section, an action lies for damages, as well as for an injunction157. It should be noted that a person may set up a rival market without committing an offence under the sections, for the sections only prohibit selling and exposing for sale, acts which someone setting up a rival market does not necessarily commit158. Consequently, if the remedy by action did not exist, the market owner might be without remedy against very serious infringements of his rights.

4.

It is probable that, on similar grounds, an action is maintainable against persons who disturb the market by wrongful acts other than that of setting up a rival market, provided that the wrongful acts complained of amount to more than the commission of an offence under the sections. But there seems to be no authority directly on this point159.

149 150

Ie ‘prescribed for that purpose in the special Act’: see s 2, p 250, below. In addition, under s 56 of the 1984 Act, the articles must be specified in the byelaw. There is no such requirement in s 13 of the 1847 Act. 151 See Wakefield City Council v Box [1982] 3 All ER 506. 152 See per Romer J, Birmingham Corpn v Foster (1894) 70 LT 371, 372. The common law does not prohibit such sales unless by custom and no such prohibition would be included in a modern grant or statute; see pp 82, 83, above. 153 See Cooper v Whittingham (1880) 15 Ch D 501, 506; Stevens v Chown, Stevens v Clark [1901] 1 Ch 894 (in which ancient rights were preserved by a statute which gave an additional remedy for sale in avoidance of tolls outside the market but within the prescribed limits). In the absence of any statutory limitation of the common law rights, a local authority market owner is entitled to an injunction restraining a rival market operator notwithstanding that the rival market is outside the district of the local authority, provided that it lies within the common law distance, see Halton Borough Council v Cawley [1985] 1 WLR 15. 154 See, for example, Halton Borough Council v Cawley [1985] 1 WLR 15. 155 The offence created by the sections appears to differ in several respects from the common law wrong of intentionally taking the benefit of the market with intent to avoid payment of toll (see p 93, above). 156 See the third class of cases stated by Willes J in Wolverhampton New Waterworks Co v Hawkesford (1859) 28 LJCP 242, 246, footnote 145, above; see also Stevens v Chown, Stevens v Clark [1901] 1 Ch 894; Hailsham Cattle Market Co v Tolman [1915] 1 Ch 360, CA; Birmingham Corpn v Perry Barr Stadium Ltd [1972] 1 All ER 725. 157 Birmingham Corpn v Foster (1894) 70 LT 371; and see cases cited in footnotes 142, 143 and 144, above. 158 See pp 85 et seq, above, and Halton Borough Council v Cawley [1985] 1 WLR 15. 159 See, however, the dictum of Morris CJ in Newtownards Town Comrs v Wood (1877) IR 11 CL 506 at 509.

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Chapter 6 Disturbance 5.

The effect of, in particular, s 13 of the 1847 Act on the market owner’s rights of action may be complicated by the fact that the section sometimes has to be read in conjunction with other sections of the special Act which incorporates it. This may considerably alter its effect, and acts outside the exception in s 13 in respect of sales in a dwelling place or shop (and which would therefore constitute a disturbance) may nevertheless escape prohibition because the scope of the exception has been widened by another section160.

6.

If no byelaws have been made under s 56 of the 1984 Act, or its predecessor, specifying the proscribed articles or defining the distance from the market within which sales are prohibited, a local authority cannot, it seems, prosecute under this section161. Also, even in the case of a market established under a private or public Act, the common law right to protection for disturbance will be available unless the wording of the relevant statute modifies that right162.

8 DISTURBANCE OF MARKET RIGHTS VESTED IN A PERSON OTHER THAN THE OWNER On the basis that ‘prescription and antiquity of time fortifies all titles, and supposeth the best beginning the law can give them’163, it appears that actions for disturbance may be brought, not only by the market owner, but also by any person who has a prescriptive or other well established right to place a stall in the market in front of his shop, such right being appurtenant to the premises.

ILLUSTRATION The defendant Corporation was owner of a prescriptive market held in the High Street and the plaintiff was the owner of a house in the same street. The plaintiff and previous owners and occupiers of his house, and of other neighbouring houses, had from time immemorial erected stalls on market days opposite their houses and exposed goods for sale on them, but had never paid toll to the Corporation for that privilege. The Corporation removed its market to another part of the borough to the injury of the plaintiff. Held that as the holding of the market in High Street would have necessarily diminished the trade on market days of the shops kept in the plaintiff’s and neighbouring houses, the shopkeepers were probably originally granted in return the right and privilege of advancing their shops into the market itself by having stalls in the street commensurate with the fronts of their houses; and such right was sufficiently connected with the enjoyment of those houses to entitle the plaintiff to maintain an action for unlawful disturbance of his enjoyment of the right: Ellis v Bridgnorth Corpn164.

160 See Abergavenny Improvement Comrs v Straker (1889) 42 Ch D 83; Birmingham Corpn v Foster (1894) 70 LT 371; Hailsham Cattle Market Co v Tolman [1915] 2 Ch 1. 161 Halton Borough Council v Cawley [1985] 1 WLR 15; Manchester City Council v Walsh (1985) 84 LGR 1 at 7. 162 Ibid. The court in Walsh declined to follow, as being against the weight of authority (see cases cited in footnotes 141 to 144, above) the reasoning of the CA, and in particular, Pickford LJ, in Hailsham Cattle Market Co v Tolman [1915] 1 Ch 1, that a provision in a local Act similar to s 13 of the 1847 Act and s 56 of the 1984 Act in effect constituted the only remedy available to the owner of a statutory market in the event of a disturbance of his rights. 163 Per Lord Hobart in Slade v Drake (1618) Hob 295. 164 (1863) 15 CBNS 52.

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CHAPTER 7

Sales in Markets and Fairs 1 THE LAW AS TO SALE OF GOODS IN MARKET OVERT A The rule for protection of buyers As a general rule, where goods1 are sold by a person who is not the owner, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell2. By s 22(1) of the Sale of Goods Act 19793, however (substantially repeating a similar provision of the Sale of Goods Act 18934 which itself re-enacted the common law5), where goods were sold in market overt according to the usage of the market, the buyer acquired a good title to the goods provided he bought them in good faith6 and without notice of any defect or want of title on the part of the seller. The general rule has now been restored in that the law relating to goods sold in market overt is repealed in relation to contracts for the sale of goods made after 3 January 1995 by the provisions of the Sale of Goods (Amendment) Act 1994, s 1. There is therefore no need to refer to the earlier law.

2 STOLEN GOODS It was formerly the law that where goods had been stolen and the offender was prosecuted to conviction, the property in the goods so stolen revested in the person who was the owner of them, notwithstanding any intermediate dealing with them, whether by sale in market overt or otherwise. In short, the title acquired by a buyer in market overt was liable to be defeated7. However, that provision was repealed by the Theft Act 19688 and it is now provided by s 31(2) of that Act that notwithstanding any enactment to the contrary, where property has been stolen or obtained by fraud or other wrongful means, the title to that or any other property shall not be affected by reason only of the conviction of the offender. The effect of this provision is to leave consideration of the question of title and wrongful interference with goods 1

‘Goods’ includes all personal chattels other than things in action and money: see the Sale of Goods Act 1979, s 61(1). 2 Ibid, s 21(1). 3 By s 22(2) the section does not apply to Scotland. Further, the rules of market overt did not in any event apply in Wales, see Laws in Wales Act 1542, s 47 (as amended by the Theft Act 1968, ss 33(3), 35(1), and Sch 3, Pt II) which provides that the sale of stolen goods in a market or fair conveys no title. But it would appear that a title acquired in Ireland will be recognised in Scotland, see Todd v Armour (1882) 9 R 901; (quaere the position if the title has been acquired in England, see Winkworth v Christie, Manson and Woods Ltd [1980] Ch 496). 4 Sale of Goods Act 1893, s 21. 5 For a clear statement of the common law, see Lord Cairns in Cundy v Lindsay (1878) 3 App Cas 459 at 463; see 2 Co Inst 713, and the 12 exceptions thereto, and 2 Bl Com 449–50. Lord Coke’s 12 exceptions apply to all sales in market overt including shops in the City of London (below). 6 ‘A  thing is deemed to be done in good faith within the meaning of this Act when it is done honestly, whether it is done negligently or not’; Sale of Goods Act 1979, s 61(3): see also 2 Co Inst 713 (5th, 6th and 7th exceptions); 2 Bl Com 449–50. 7 See Sale of Goods Act 1893, s 24. 8 Section 33(3), Sch 3, Pt III, (but see s 63(3) and Sch 4, para 3, to the Sale of Goods Act 1979).

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Chapter 7  Sales in Markets and Fairs to the civil courts. The only remaining function which a criminal court was able to perform was under s 28 of the Theft Act 19689 which empowered a court where goods had been stolen to make a restitution order in the case of a defendant convicted of an offence with reference to the theft whereby the goods may be restored to the person entitled to recover them. This provision has now been repealed10. Further, the buyer can acquire a good title in law if he can avail himself of the provisions of the Factors Acts11 or any enactment enabling the apparent owner of goods to dispose of them as if he were the true owner12 or has purchased the goods under any contract of sale pursuant to any special common law or statutory power of sale13. Formerly, a seller of goods in market overt who after an agreement for sale discovered that the goods were stolen but still handed them over to the buyer representing that he had good title was not guilty of obtaining the purchase price by deception, for property and title in the goods would have passed to the buyer on the agreement to sell at which point there was no dishonesty14.

3 SALE OF HORSES IN MARKETS AND FAIRS The former elaborate provisions15 relating to the formalities for the sales of horses, mares, geldings, colts and fillies in markets and fairs were repealed by the Criminal Law Act 196716, and the sale of these animals is now governed by the normal rules. Also, to be noted in this context are the provisions contained in the Control of Horses Act 2015 (‘the 2015 Act’) which made amendments to the Animals Act 1971. The 2015 Act has introduced a new procedure regarding the detention and disposal of horses which are unlawfully present on land, whether they have strayed there or been placed there deliberately. Specifically, it allows horses to be disposed of 96 hours after detention, rather than 14 days as previously, and for disposal to include destruction, or any other way which could include giving it to a charity. Previously, detained horses had to be sold at a market or an auction, despite many having little or no value17.

4 SALE OF HAY AND STRAW IN MARKETS IN AND NEAR THE METROPOLIS Markets for the sale of hay or straw held in or within 30 miles of the City of London and Westminster were subject to the provisions of the Hay and Straw Acts 1796, 1834 and 185618. These were repealed by the Theft Act 196819. 9 10

As amended by the Criminal Law Act 1977, Sch 12. See the Powers of Criminal Courts (Sentencing) Act 2000, ss 165, 168, Sch 12 Pt 1 (with Sch 11 paras 1, 2, with effect from 25 August 2000). 11 See Payne v Wilson [1895] 1 QB 653, 661, [1895] 2 QB 537; Pearson v Rose and Young Ltd [1951] 1 KB 275; Du Jardin v Beadman Bros Ltd [1952] 2 QB 712. 12 Sale of Goods Act 1979, s 21. 13 Ibid. 14 R v Wheeler (1991) 92 Cr App Rep 279, CA. 15 Sale of Horses Act 1555 (2 & 3 Ph & M, c 71), Sale of Horses Act 1588 (32 Eliz, c 12). 16 Criminal Law Act 1967, s  10(2), Sch  3, Pt  1. This Act also repealed the saving provisions of s 22(2) of the Sale of Goods Act 1893 (see s 10(2), Sch 3, Pt III). But see s 22(3) of and Sch I, para 3 to the Sale of Goods Act 1979. 17 For an analysis of the 2015 Act, see Gadsden and Cousins on Commons and Greens, (3rd edn, Sweet and Maxwell, 2020) , Chapter 8 – Animals. 18 36 Geo III, c 88, s 2; 4 & 5 Will IV, c 21; 18 & 20 Vict, c 114. 19 Theft Act 1968, s 33(3), Sch 3, Pt II.

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CHAPTER 8

Forfeiture and Extinction of Markets and Fairs 1 FORFEITURE A General The owner of a market or fair is liable to be deprived of his franchise by forfeiture to the Crown if he misuses or abuses it, or if he neglects to use it1. A  franchise is granted by the Crown on the implied condition that it is duly exercised according to the grant, and if this condition is broken the grant is liable to be repealed2. A  franchise can also be extinguished by Act of Parliament3, but it cannot be abandoned4. Prescriptive markets are liable to forfeiture for misuse or abuse or neglect, as well as markets created by grant. But the Crown cannot take proceedings to forfeit statutory markets5. Neglect or abuse does not justify the setting up of a rival market. B Non-user of the franchise The non-user of a franchise which is merely to the profit or pleasure of the owner is no ground for its loss or forfeiture; but a fair or market is held not merely for the profit of the owner but also for the benefit of the public, who suffer a loss if the fair or market is not duly held; accordingly the non-user of a fair or market, or the neglect to hold it, is a good ground for the Crown taking the necessary steps to seize the franchise6. Further, if a market owner has not actually established his market although entitled to do so he may well find that a court is unsympathetic to his attempt to suppress a rival market which has either commenced or is about to commence7. 1 ‘Retinet possessionem per usum … donec amiserit per abusem vel non usum’, Bracton, lib 2, c 24, fol 56, cited 2 Co Inst 222. See also Cru Dig 4th ed, vol iii, p 268. 2 ‘… a franchise-right to a market or fair with the tolls belonging thereto, imports a holding by the owner of the right under the Crown, either upon foot of an extant charter or by prescription which assumes the former existence of such a charter, and such a right of market is in its very nature an exclusive right, and one which imports not merely a title in the grantee to enjoy the benefits conferred upon him by the grant under which he claims title, but also a correlative obligation to provide proper accommodation for the market, and for its due regulation, and the grant is held by the grantee subject to an implied liability to its being recalled by the Crown, by proceedings by scire facias, in the case of his failure properly to discharge its accompanying obligations’, per Little V-C, Manchester Corpn v Peverley (1876) 22 Ch D 294n; also see per Holt CJ, City of London v Vanacre (1700) 12 Mod Rep 270 at 271; YB 20 Edw IV ff 5, 6. As to repeal of a grant by scire facias see pp 105, 159, below. 3 Manchester Corpn v Lyons (1882) 22 Ch D  287; Manchester Corpn v Peverley (1876) 22 Ch D  294n; New Windsor Corpn v Taylor [1899] AC  41 at 45, 48 and 50. See also Simmonds v Kilkenny Borough Council [2007] IEHC 2; and see below, pp 103, 104, 105. NB abandonment of a franchise is almost impossible to prove, see p 105, below. 4 Per Lord Denning MR in Wyld v Silver [1963] Ch 243 at 255; and see per Chatterton V-C, Marquis of Downshire v O’Brien (1887) 19 LR Ir 380 at 389; but see Gloucestershire County Council v Farrow [1983] 2 All ER 1031; and see below, pp 105, 106. 5 See New Windsor Corpn v Taylor [1899] AC 41 at 50; and see below, p 110. 6 Per Sir Edward Coke, 4 March 1987, Leicester Forest Case (1608) Cro Jac 155. 7 Stoke on Trent City Council v W & J Wass Ltd (4 March 1987, unreported at first instance), (1989) 87 LGR 129, CA; Birmingham City Council v Anvil Fairs (1989) 87 LGR 394.

103

Chapter 8  Forfeiture and Extinction of Markets and Fairs In the Irish case of Skibbereen UDC v Quill8 it was stated by Lynch J that: ‘In the foregoing circumstances the owner’s failure to hold the market amounts to no more than a neglect on its part to collect the tolls and other charges to which it would have been entitled under the franchise. The non-user of a franchise to hold a market or fair does not extinguish the franchise or right to do so. Thus non-collection of tolls over a long period would not extinguish the right of the owner of the franchise to resume collecting proper tolls at any time if he thought fit.’9

The printed volume of the ‘Placita Quo Warranto’ contains many instances of forfeiture for non-user10, but the franchise was generally re-granted on payment of a fine. In one case the defendants produced a charter containing a clause that ‘although they have not used any liberty, yet they may lawfully use it’ and so justified a market which they had been holding, since the date of this charter, by virtue of an earlier market-charter upon which they had not acted until that date11. In several cases, however, the defendant pleaded successfully that he had held his fair or market as far as he could if any chose to attend it, but that it often happened that there was no access to buyers and sellers12. It seems that a market or fair cannot be forfeited for non-user of a part of the franchise which is not necessary to the due holding of the market or fair. If a market or fair is granted with a right to take toll, the grant of the market or fair cannot be repealed on the ground that no toll is taken13. Toll is not an incident of the market or fair14, and the grant of toll benefits the lord, and not the public. The franchise of market being separate and independent from the franchise of toll, it cannot be forfeited by the failure to take toll. So if the franchise of toll were to be forfeited the market or fair would remain15.

C Abuse of the franchise Amongst abuses which entitle the Crown to take proceedings to forfeit the franchise of market or fair may be mentioned that of holding a market or fair outside the lawful area16, holding a fair on additional days beyond those authorised by the grant17, or of holding a market on a day other than the authorised day18. However, to hold a market 8 [1986] 1 IR 123. 9 Ibid at p 127. In this context it is to be noted that in Ireland it is now provided by s 7(4) of the Casual Trading Act 1995 that where a market or fair right remains unexercised for a period of not less than 10 years then the market right shall stand extinguished. It is also provided by s 7(1) a local authority may acquire any market right in respect of a market or fair either by agreement or compulsorily, see p 230, below. 10 For example, Leamington (pp 128, 129); Sandiacre (pp 162, 163); Orlandston (p 329). 11 Melcheburne (pp 6, 7). 12 Placita de Quo Warranto, Wardon (p  64); Ilkeston (p  137); Ashton-in-Weston (pp 143, 144); Hovingham (pp 218, 219); Fiskarton (p 635); Lib Rad’i de Berners (p 742); Lib Prioris de Novo Loco (p 747); Lib Joh’is de Sc’o Joh’e (p 748). 13 Newcastle (Duke) v Worksop UDC [1902] 2 Ch 145 at 156, 157. 14 See above, p 60. 15 R v Maidenhead Corpn (1620) Palm 76 at 78, 82. Formerly pursuant to the Statute of Westminster I, 1275 (3 Edw I, c 31) it was possible for the franchise of market to be forfeited if outrageous toll were taken. But since the repeal of this Statute by the Theft Act 1968 (s 33(3), Sch 3, Pt I) the power of the Crown to forfeit the franchise of market for taking outrageous toll has been abolished, and the only process of forfeiture is now at common law by scire facias; and see pp 105, 159, below. But in the case of Newcastle (Duke) v Worksop UDC [1902] 2 Ch 145 at 158, Farwell J considered that it was not easy to see how a subordinate franchise of toll if surrendered or forfeited could vest in the Crown whilst the franchise of fair could remain in the lord. Also see p 108, below, neglect to take toll does not of itself destroy the right to toll. 16 See above, p 40. 17 See above, pp 53 et seq. 18 See above, pp 55 et seq.

104

Forfeiture on an additional day as well as on the authorised day seems to be treated not as abuse of the franchise granted but as usurpation of another and separate franchise19. Abuse may be of a negative character, consisting in the neglect of something which ought of necessity to be done, or non-user of an essential part of the franchise20. In the case of a market not confined by metes and bounds, neglect to provide sufficient accommodation for the public may be abuse on account of which the grant may be repealed21, but neglect to take toll is not a ground of forfeiture of the franchise of market or the franchise of toll22.

D Effect of non-user and abuse The non-user or neglect of the franchise, or its abuse, does not of itself destroy or extinguish the right23, but it entitles the Crown to obtain a repeal of the grant by scire facias24. An abuse of the franchise may entitle the Crown to take proceedings for its forfeiture, but it does not entitle third persons to usurp market or fair rights and thereby disturb the franchise25. Notwithstanding that he himself is in default, the owner of the franchise has a remedy against such wrong-doers26. If a fair becomes unfrequented and useless, and to that extent discontinued, the franchise right nevertheless remains unimpaired27, and it cannot be abandoned28. However, after a period of 20 years’ non-user, it seems that a highway can be rededicated free from the reservation of market rights pursuant to the presumption of dedication contained in s 31 of the Highways Act 1980 so as to prevent the exercise 19 See above, pp 53 et seq. 20 YB 2 Hen VII, Hilary Term, f 10, per Brian CJ, who refers, as an example, to ‘an office of clerk of the market’. One of the grounds of forfeiture of frequent occurrence in the printed volume of the ‘Placita de Quo Warranto’ is the neglect to keep judicial instruments of pillory or tumbrel for the punishment of persons breaking the assize of bread and ale, or the neglect to use those instruments and the substitution of fines in cases where corporal punishment is due, eg Wahull (p 36), Hegham (p 133), Lilleburn (pp 536, 537), see above, p 103. The pillory, however, was abolished by statute in 1816; see 56 Geo III, c 138; and in 1844 the statute called ‘Judicium Pillorie’, or ‘Statute of the pillory and tumbrel and of the assize of bread and ale’, 51 Hen III, st 6 (Ruff), was entirely repealed by 7 & 8 Vict, c 24, s 2. 21 See above, pp 37, 38. 22 See footnote 15, above, p 104 and p 108, below. 23 Contrast the position in Ireland since the enactment of the provisions of the Casual Trading Act 1995, ss 7, 8. Section 7(4) provides that where a market right in respect of a market or fair in the functional area of a local authority remains unexercised for a period of not less than ten years after the commencement of the section (1 May 1996), then, the market right concerned ‘shall stand extinguished’. Section 7 provides powers to a local authority to carry on, manage, regulate, and in certain circumstances extinguish market rights. See also Skibbereen UDC v Quill [1986] IR 123, see above p 104 and below p 230. 24 See per Bayley J, Peter v Kendal (1827) 6 B & C 703; Middleton (Lord) v Power (1886) 19 LR Ir 1. There was formerly a remedy by information in the nature of quo warranto lying at the suit of the Attorney-General against any person establishing any market or fair without the authority of the Crown; or for the abuse or neglect of the privilege. It was doubtful if this remedy lay at the suit of an indvidual insomuch as a remdy was available by action if the individual’s interests were prejudiced. However, in any event quo warranto proceedings were abolished by the Administration of Justice (Miscellaneous Provisions) Act 1938, s 9(1), and replaced by statutory provisions, now re-enacted in the Senior Courts Act 1981, s 30; and see p 159, below. 25 Middleton (Lord) v Power (1886) 19 LR Ir 1; Newcastle (Duke) v Worksop UDC [1902] 2 Ch 145 at 158; and see Re Islington Market Bill (1835) 3 Cl & Fin 513 at 519. 26 Middleton (Lord) v Power (1886) 19 LR Ir 1. 27 Downshire v O’Brien (1887) 19 LR Ir 380 at 389. 28 ‘… I know of no way in which the inhabitants of a parish can lose a right of this kind once they have acquired it except by Act of Parliament. Mere disuse will not do. I do not see how they can waive it or abandon it. No one or more of the inhabitants can waive or abandon it on behalf of the others. Nor can all the present inhabitants waive or abandon it on behalf of future generations …’, per Lord Denning MR, Wyld v Silver [1963] Ch 243 at 255; and also see per Harman LJ at 263. See also Hall v Nottingham (1875) 1 Ex D 1, and Hammerton v Honey (1876) 24 WR 603.

105

Chapter 8  Forfeiture and Extinction of Markets and Fairs of the franchise29. In such circumstances, any attempt on the part of the owner of the franchise to exercise his rights would amount to an unreasonable obstruction of the highway contrary to s 137(1) of the Highways Act 1980, there being no lawful authority or excuse, thereby effectively extinguishing the right30.

ILLUSTRATION Pursuant to a market franchise granted by Royal Charter to the Abbey of Evesham before the commencement of legal memory and in the reign of King Henry I  of England, the lord of the manor of Stow-on-the-Wold by succession had the right to hold a weekly market in the market square of Stow. By the late nineteenth century the square in question had been dedicated as a highway in connection with the market and, consequently, a public right of way had been created subject to the market right. Apparently in about 1900 the use of the square for the purposes of market ceased, but in 1979 it was proposed that the market (which had been held on Thursdays) should be revived, and the lord of the manor leased his rights to a company in order to effect this purpose. However, Gloucestershire County Council in its capacity as highway authority commenced proceedings seeking, inter alia, a declaration that as the market square was a highway by virtue of the Highways Act 1980, the company was not entitled to exercise its alleged rights to hold a market in the square, and, further, seeking an order restraining the defendant from so doing. The highway authority contended that the market place had been continuously used and enjoyed by the public as of right and without interruption as a highway for a full period of over 20 years during which the right to hold a market had not been asserted, and, therefore, by virtue of s 31(1) of the Highways Act 1980 the public had a right of way over the square unqualified by the manorial market right, which was in effect extinguished. Held: since s 31 of the 1980 Act, and its statutory predecessor, was enacted to avoid the need for lengthy and expensive antiquarian investigation when highway rights were called in question, s 31 was to be given a broad interpretation. Accordingly, despite the fact that the highway was originally dedicated subject to the right to use the land for a periodic market, it could subsequently be rededicated free from that reservation pursuant to the presumption of dedication contained in s  31(1) of the Act, thereby effectively extinguishing the market right: Gloucestershire County Council v Farrow31.

E Waiver of forfeiture It has been laid down that if a franchise becomes liable to forfeiture, the Crown may waive the forfeiture by any act, such as a receipt of rent, which recognises a continuance of the right to the franchise, and that the Crown cannot take advantage of any forfeiture which has been so waived32.

29 30

31 32

Gloucestershire County Council v Farrow [1985] 1 WLR 741. See per Goulding J  in Gloucestershire County Council v Farrow [1984] 1  WLR  262 at 269. Quaere whether the section presumes an unqualified dedication and whether a highway originally dedicated subject to market rights can subsequently be dedicated free from that reservation having regard to A-G v Horner (1884) 14 QBD 245, (1885) 11 App Cas 66, and the presumption of long usage, and see above, pp 43–45. See also Wyld v Silver [1963] Ch 243 and p 44, above. [1985] 1 WLR 741. This did not, however, prevent the right being exercised elsewhere within the market boundaries: see pp 44, 45 above. Middleton (Lord) v Power (1886) 19 LR Ir 1. As to waiver of forfeiture, see notes to Dumpor’s case, 1 Sm LC 10 ed 31.

106

Forfeiture

ILLUSTRATION In 1958 the defendant purchased a parcel of land in the parish of Wraysbury and obtained planning permission for the purpose of constructing five bungalows. It transpired that the parcel in question had comprised part of an area of open and common fields, and waste lands, enclosed by a private Act of Parliament in 1799. The Act recited that the inhabitants of the parish were by ancient usage entitled to hold an annual fair or wake on the Friday in Whitsun week on part of the waste lands, and enacted that the Commissioners appointed to determine Inclosure Awards should appoint a parcel of waste land for the purpose of holding the fair as near as possible to the place where it was most commonly held. The inhabitants of the parish should thereafter have the same right to hold it on the same day on the appointed parcel and enjoy and exercise all the rights and privileges thereof as they had before the Act. The Act further provided that no person was to have any right, inter alia, to build on the land in question. The Award was made and three adjoining parcels allocated for the purpose of holding a fair or wake thereon, and the Award was enrolled in the Court of Common Pleas. Held: on the defendant’s appeal to the Court of Appeal, that the plaintiffs were entitled: (1) to a declaration that they had a right to hold an annual fair or wake on the land including the defendant’s land; (2) to an injunction restraining the defendant from doing acts which would interfere with the holding of the fair or wake on the ground that, inter alia, they were entitled to do so by virtue of a statutory right which could not be waived nor lost by disuse, or by right of franchise which could not be abandoned: Wyld v Silver33.

F Effect of forfeiture Markets and fairs, when forfeited to the Crown, are not extinguished, but continue in esse in the Crown’s hands34, and unless re-granted are placed under the management of the Crown Estate Commissioners35 who are entitled to collect the tolls and other dues. Formerly the Commissioners had the power at any time, with the consent of the Treasury, to abandon or discontinue, either permanently or for a limited time, the collection of any tolls or profits of any markets or fairs belonging to the Crown which might have been considered inexpedient to collect, and also, with the consent of the Treasury, by deed, absolutely to relinquish any such tolls or profits. However, rigorous Treasury control was abolished by the Crown Estate Act 1956 (now repealed by the Crown Estate Act 1961), and the Commissioners are now free to act

33 34

35

[1963] Ch 243. 2 Co Inst 222. In Heddy v Wheelhouse (1597) Cro Eliz 591, it was held by Popham, Gawdy, and Fenner that ‘such liberties, which a common person hath by grant, or prescription, which the King (if such prescription had not been) could not have by his prerogative, was warren, park, fayre, market with toll, etc, if these come to the Crown, etc, they remain in esse, and are not extinct; for if the King should not have them by this means, they would be lost’, and see Abbot of Strata Mercella (1591) 9 Co Rep 24a at 25b. Contra the position if the rights form part of royal prerogative as ‘flowers of the Crown’ such as wrecks, treasure trove and royal mines, and see above, p 28. Crown Estate Act 1961, s 1. Formerly markets and fairs were placed under the management of the Commissioners of Crown Lands pursuant to the Crown Lands Acts 1829 and 1885, but these Acts were repealed by the Crown Estate Act 1961, s 1(2), Sch 3, Pt II.

107

Chapter 8  Forfeiture and Extinction of Markets and Fairs without approval but subject to directions and an obligation to furnish accounts and estimates36.

G Neglect to take toll There remains the question whether the right to toll can be lost by non-user. Non-user does not of itself appear to destroy the right to toll37 and cannot create a forfeiture of the market or fair38. Further, non-collection of tolls over a long period would not extinguish the right of the owner of the franchise to resume collecting proper tolls at any time if he thought fit39. However, it may be that if the public have been using a market or fair for a great number of years without any demand of toll being made, this fact may, in the absence of any other explanation, warrant the inference that the right of toll has been at some time or other surrendered to the Crown40, or otherwise become extinguished, or, at any rate, that it has become severed from the ownership of the market or fair. Probably a forfeiture would not be presumed if there is no evidence that there was at any time any ground of forfeiture; for a forfeiture implies a wrong done by the owner of the franchise, and, as a general rule, the presumption is against wrong41. But this objection does not apply to a presumption of a voluntary surrender. An abuse of the franchise of toll by taking outrageous toll renders that franchise liable to forfeiture, but does not at common law, it seems, create a forfeiture of the market or fair42. Formerly it was possible pursuant to the Statute of Westminster the First, 1275, to forfeit the franchise of market or fair for taking outrageous toll43. Thus the effect of the surrender or forfeiture of the right to toll is that the franchise of market or fair will remain in the owner and the subordinate franchise of toll, which exists only as appurtenant to the franchise of market or fair, will be in the Crown44.

2 SURRENDER Prescriptive and charter markets and fairs may be lost by their surrender to the Crown45, but they are not extinguished but continue to exist in the Crown’s hands46. It has been said that if the owner of prescriptive franchises accepts from the Crown a grant of the same liberties, he cannot afterwards claim them by prescription, but he must rely upon the grant47.

36 37

Formerly the Crown Lands Act 1852, s 6. See now the Crown Estate Act 1961, ss 1, 2. See per Sir Edward Coke, Leicester Forest Case (1608) Cro Jac 155; Newcastle (Duke) v Worksop UDC [1902] 2 Ch 145 at 156; and see above, p 104. 38 See above, pp 103, 104. 39 Skibbereen UDC v Quill 1986] IR 123. 40 Cru Dig, 4th ed, Vol iii, p 267. 41 See Doe d Tatum v Catomore (1851) 16 QB 745. 42 See footnote 15, p 104, above. 43 Ibid. 44 See the comments of Farwell J, in Newcastle (Duke) v Worksop UDC [1902] 2 Ch 145 at 158. 45 Cru Dig, 4th ed, Vol iii, p 267; and see above, p 28. 46 See above, pp 28 and 107. 47 Com Dig, 5th ed, Vol vii, p 100, title ‘Prescription G’; cited by Smith LJ, in Taylor v New Windsor Corpn [1898] 1 QB 186, (on appeal sub nom New Windsor Corpn v Taylor [1899] AC 41); Cru Dig, 4th ed, Vol iii, p 428, citing Finch Bk 1, c 3, s 23, who in turn cites YB 21 Hen VI, f 5; but the decision in the Year Book supports the contrary proposition; and see also Goodson v Duffield (1612) Cro Jac 313. The effect of the grant is probably a matter of construction in each case. See also Addington v Clode (1775) 2 Wm Bl 989; Carnarvon (Earl) v Villebois (1844) 13 M and W 313; Grant on Corporations.

108

Extinction by Act of Parliament

3 EXTINCTION BY ACT OF PARLIAMENT A By general or special Act All franchises are liable to be extinguished by Act of Parliament48, and a market or fair created by statute can only be extinguished by statute49. A statute of 25 Henry VI expressly annulled all grants of markets and fairs in North Wales which had been made at any time to Welshmen50. However, express words are not necessary to cause extinguishment; and a statute may abolish a franchise by implication. Where the owners of a prescriptive Saturday market obtained an Act of Parliament which empowered them to hold the markets on every weekday over an extended area, and with higher tolls, it was decided that the prescriptive rights were superseded by the Parliamentary rights, and that the statute, on its true construction, conferred the latter in substitution for, and not by way of addition to, the former51. The intervention of Parliament for some subordinate purpose which presupposes the continuance of the old rights does not necessarily merge or extinguish the tenure of the old rights52; but in each case the effect of the statute is a question of construction53. ILLUSTRATIONS (1) In 1838 the charter incorporating the Borough of Manchester was granted. The manor was coterminous with the township of Manchester, but the Borough included not only the township but also five other townships. In 1846 the Corporation purchased the manorial rights of the manor of Manchester pursuant to the powers of an Act of 1844 and this purchase included an ancient prescriptive franchise to hold a market, which appears to have been a Saturday market, and to levy tolls and stallages in connection therewith. The lords of the manor were the Mosley family, and prior to this purchase they had established by a series of actions their monopoly of market on various weekdays for the sale of different products. In 1846 the Manchester Markets Act was enacted, inter alia, to provide new market places and to regulate markets and fairs within the Borough. On the question of whether this Act operated to extinguish the prior manorial franchises in respect of markets and fairs formerly dependent upon prescription, it

48 See Simmonds v Kilkenny Borough Council [2007] 1 EHC 208. 49 See, for example, New Windsor Corpn v Taylor [1899] AC 41 at 50. It is not liable to forfeiture, and see below, p 111. 50 25 Hen VI, repealed by 21 Ja I, c 28, s 11. 51 Manchester Corpn v Lyons (1882) 22 Ch D 287. ‘But if after such a grant has been made by the Crown the three estates which conjointly constitute Parliament step in, whether on the solicitation of the grantee or otherwise, and by their joint act create the same rights or larger or different rights of the same nature and character in favour of the grantee, it seems to me that of necessity these Parliamentary rights, emanating as they do from a paramount authority, must supersede those which the grantee was previously holding from the Crown alone, and that after the passing of such an Act there can be no continuing tenure by the grantee under his original title, nor a continuance of his prior accountability on foot thereof to the Crown … I think, therefore, that the franchise rights have been superseded by the Parliamentary rights on the grounds just now stated … The question then arises, can the Plaintiffs, having solicited and obtained this Act of Parliament, now fall back upon and assert the continuance of their original franchise rights? And it seems to me that the ruling of Wood V-C, in the case of Ellis v Bridgnorth Corpn ((1861) 4 LT 112, 2 John & H 67), is distinctly in point against their being able to do so’, per Little V-C, in Manchester Corpn v Peverley (1876) 22 Ch D 294n. See also New Windsor Corpn v Taylor [1899] AC 41; Hammerton v Honey (1876) 24 WR 603; Wyld v Silver [1963] Ch 243. See also Bishopsgate Motor Finance Corpn v Transport Brakes Ltd [1949] 1 KB 322. See also p 25, above. 52 Manchester Corpn v Peverley (1876) 22 Ch D 294n at 296n. 53 See above, p 25.

109

Chapter 8  Forfeiture and Extinction of Markets and Fairs was held that the rights granted by Parliament superseded those which the grantee previously held from the Crown alone and that the old franchise was extinguished. The effect of a change of time, a change of place, an alteration of the old charges, an imposition of new charges and an extension of the market from the township to the Borough meant that the plaintiffs could not fall back on and assert the continuance of the original franchise right: Mayor of Manchester v Lyons54. ‘I can hardly imagine a plainer case of a new market as distinguished from a mere alteration or enlargement of an old one. It appears to be perfectly plain that, applying the law as laid down, and in my opinion correctly laid down, by Vice-Chancellor Little55, there is a new market which is intended to be a new market, or rather a series of new markets, and that the old franchise was intended to be extinguished.’56 (2) From a time long before living memory down to 1734, the New Windsor Corporation had taken certain tolls for passage over a wooden bridge which crossed the River Thames at Windsor. In 1734 a local Act was passed which, after reciting the Corporation’s right to take the customary tolls, enacted that the customary tolls should be and remain vested in it and its successors. In 1819 the Corporation obtained another local Act which repealed the former Act and empowered it to take down the old bridge and build a new one and to take tolls which varied from the old tolls in amount and subject matter. The Act was for a specific term which had expired. Held: that the prescriptive rights to take tolls had merged in and been extinguished by the statutory right given in 1734. Further, this prescriptive right had not been nor could have been revived by the later Act, and the right to take tolls expired with the later Act: New Windsor Corporation v Taylor57. (3) The plaintiff was a wholesale and retail merchant who imported olives and other Mediterranean goods from North Africa, and much of Europe, trading under the name ‘The Real Olive Company’. He had many outlets in Ireland, including one in the English Market in Cork. In December 2003 the defendant enacted the Kilkenny Borough Council Casual Trading Bye-laws 2003 in order to manage and regulate casual trading in Kilkenny. The plaintiff contended that there still existed ancient market rights in Kilkenny deriving from Royal Charters of James I  granted in 1608/1609 and confirmed by the Kilkenny Markets Act 1861 and were to be seen in the context of the statutory overlay of the Markets and Fairs Clauses Act 1847, and the Public Health (Ireland) Act 1878. It was further submitted that these rights were superior to, and distinct from, any ‘rights’ arising under the Casual Trading Act 1995, and a distinction was to be drawn between market trading and casual trading. It was held by Smythe J that the market franchise created by the Crown in 1608/1609 had been expressly discontinued and extinguished by the provisions of the Kilkenny Markets Act 1861, and in particular by s 28 thereof. This provided for the construction of a new general market in Kilkenny for the sale of fruit and other agricultural produce and other items. It was specifically provided by the statute

54 55

(1882) 22 Ch D 287. Manchester Corpn v Peverley (1876) 22 Ch D 294n, ‘… what is there left subsisting of the ancient franchise capable of being held under the Crown? It is in my opinion clear that the answer to this question must be “nothing”, for the rights to the holding of the markets, and to the receipt of tolls in respect of those markets were not merely incidents of the holding under the Royal franchise, but were in truth the sole constituent element of that franchise. I therefore arrive at the conclusion and I hold, that the franchise rights were superseded or extinguished on the passing of the Act of 1846, and that whatever rights do now exist in the plaintiffs in respect of markets and fairs must be asserted on the footing of their Parliamentary title’ (per Little VC at 298n). 56 Per Jessel MR at 305, 306. 57 [1899] AC 41.

110

Extinction of Statutory Markets that as soon as the new market was open and constructed at the Market Yard it was lawful for the Corporation to remove the existing market and market places to the new purpose-built general market whereupon the existing markets would be extinguished. Accordingly, it was held that there was no longer an extant market right to trade at the Parade in Kilkenny, or any other place in the Borough, under the Charter, as asserted by the plaintiff. Simmonds v Kilkenny Borough Council58.

B Abolition of fairs under the Fairs Act 1871 By the Fairs Act 1871 (as amended)59 special powers are given to the Home Secretary which enable him, under certain circumstances, to make an order abolishing any fair held in England or Wales. The Secretary of State cannot make such an order without the previous consent in writing of the owner for the time being of the fair or of the tolls or dues payable in respect thereof60; but he can only make the order in cases where he has received a representation that it will be for the convenience and advantage of the public that the fair be abolished, and where it appears to him that such is the fact61. The representation, to entitle him to act upon it, must be made either: (1) by the owner of a fair; or (2) by the district council of the district in which the fair is held, or London borough within which it is held62. Before the representation is considered by the Home Secretary, notice of the representation, and of the time when he will take it into consideration, must be published once in the London Gazette, and in three successive weeks in some one and the same newspaper published in the county, city or borough in which such fair is held, or if there are no such newspapers, then in the newspaper of some county adjoining or near thereto63. As soon as the order that the fair be abolished has been made the notice of the making of the order must be similarly published, and thereupon the fair becomes abolished64, but the order appears to have no force until such publication has been completed. For the purpose of the Act ‘“owner” means any person, or persons, or body of commissioners or body corporate entitled to hold any fair, whether in respect of ownership of any lands or tenements, or under any charter, letters patent, or Act of Parliament or otherwise howsoever’65.

4 EXTINCTION OF STATUTORY MARKETS The Crown cannot take proceedings by scire facias to forfeit a statutory market66. If abuses arise in connection with statutory markets, and the remedies provided by the 58 [2007] IEHC 208. 59 35 & 36 Vict, c 12; see below, p 262. 60 Fairs Act 1871, s 3. 61 Ibid, s 3. 62 Ibid, s 3, as amended by the Local Government Act 1894, ss 21(3), 27(1)(e); Local Government Act 1972, ss 1(10), 179(3). 63 Fairs Act 1871, s 3. 64 Ibid, s 4. 65 Ibid, s 2. 66 For scire facias, see pp 159 et seq, below.‘The root of title is an Act of Parliament, and it is sufficiently proved by the production of that Act of Parliament, instead of being evidenced whenever it is called in question by the more or less precarious proof which is necessary to support a prescription. And it differs also in its incidence; it is not liable to be disproved in various ways which are familiar to lawyers, nor is it liable to forfeiture or to be called in question by any process of scire facias’, per Davey LJ in New Windsor Corpn v Taylor [1899] AC 41 at 50.

111

Chapter 8  Forfeiture and Extinction of Markets and Fairs statutes regulating them prove to be inadequate, they may be restrained by information at the suit of the Attorney-General67 or recourse must be had to Parliament to pass a further statute which will provide adequate remedies68. Recourse to Parliament will undoubtedly be necessary in the case of a public or local Act where certain powers and duties have been given to the statutory market owner to hold the market in effect for the benefit of the public.

5 SUPPRESSION OF UNLAWFUL MARKETS AND FAIRS A  person who held a market or fair or levied toll without charter or other lawful authority could formerly be proceeded against by information in the nature of quo warranto to compel him to show by what authority the market was held or the toll levied; but that remedy has been abolished69. A simple process is provided, however, to prevent the holding of unlawful fairs within the limits of the Metropolitan Police District. By the Metropolitan Police Act 1839 (as amended)70, if it appears to the Commissioners of Police that any fair held within the Metropolitan Police District71 has been held without lawful authority, or that any fair lawfully held has been held for a longer period than is warranted72, the Commissioners may cause the owner or occupier of the ground upon which the fair is held to appear before a magistrate and show his title to hold a fair or hold it beyond the given period as the case may be. If the owner or occupier does not attend before the magistrate, or cannot show a right and title to hold the fair or hold it for the given period, the magistrate may declare the fair to be unlawful altogether or beyond the stated period. The Commissioners on such a declaration may give notice thereof and take steps to suppress the fair so far as it is unlawfully held73 unless the owner or occupier exercises their right to have the legality of the fair raised before the High Court74. Furthermore, by the Metropolitan Fairs Act 1868 (as amended)75, if a fair is held or notice given of any fair proposed to be held, on any ground within the Metropolitan Police District76, other than that on which a fair has been held during each of the seven years immediately preceding, the Commissioner of Police, can, under that Act, have the question of whether the fair is legal summarily raised before a magistrate and, if the fair is declared unlawful, he can take summary steps to suppress it77.

67 A-G v Tynemouth Corpn (1900) 17 TLR 77 at 78. 68 Fairs Act 1871 (Appendix 1, below), however, gives power to extinguish a fair. 69 See above, footnote 24. 70 2 & 3 Vict, c 47, s 39, and see below, Appendix 1. 71 As from 1 April 2000 the Metropolitan Police District comprises Greater London (excluding the City, Inner Temple and Middle Temple) Greater London Authority Act 1999, s 323. 72 As to the permitted hours, see Metropolitan Police Act 1839, s 38, below, Appendix 1. 73 Metropolitan Police Act 1839, s 39. 74 Ibid, s  40; Supreme Court of Judicature (Consolidation) Act 1925, s  19(2); and see below, Appendix 1. 75 31 & 32 Vict, c 106, s 2; and see Appendix 1, below. 76 See above, footnote 71. 77 Metropolitan Fairs Act 1868, s 2. For service of the summons and description of owner, etc, see s 3, below, Appendix 1. The powers under this Act are additional to the powers contained in the Metropolitan Police Act 1839, ss 39, 40, below, Appendix 1.

112

CHAPTER 9

Regulation, Administration and Control 1 BYELAWS A Franchise markets and fairs The lord of a market or fair had, at common law, extensive regulatory powers, but these powers have now been surrendered or fallen into disuse1. The private owner of a franchise market or fair has, as such, no power for the purpose of regulating the market except under statute to make byelaws or regulations enforceable by fine or imprisonment. Where, however, a local authority has acquired a franchise market, it has the same powers under the Food Act 1984 to make byelaws2 regulating that market as it has in relation to markets established by it under that Act. The council of a district or London borough may also make byelaws for the good rule and government of the whole or any part of the district or borough, and for the prevention and suppression of nuisances3, and these powers may be utilised to some extent to control conduct at markets and fairs4. In addition, local authorities5 have powers under the Public Health Act 19616 to make byelaws regulating pleasure fairs. These local authority powers are exercisable irrespective of the ownership of the market or fair and are exercisable also in relation to statutory markets and fairs. In Ireland local authorities are empowered under the Casual Trading Act 1995 to make byelaws regulating casual trading7.

1

2 3 4 5 6 7

Thus, he had a court of pie powder for the determination of disputes arising in the market or fair; see pp 7, 8, above; and he was bound to keep in the market place a pillory and tumbrel for the punishment of offenders; see p 10, above. How far the duties in connection with these and other matters belonged to the owner of a market or fair as such, or how far they properly belonged to other jurisdictions usually held along with that franchise, is a somewhat obscure subject and not now of practical importance. For fuller consideration, see Chapter 1. That is, under the 1984 Act, s 60; see Appendix 1 below. Local Government Act 1972, s  235(1). As to procedure for confirmation of all local authority byelaws for which specific provision is not otherwise made, see ibid, ss 236, 236A and 236B. But a byelaw prohibiting or restricting market rights in streets would be bad: see Elwood v Bullock (1844) 6 QB 383. That is, a district council, a London borough, the Common Council of the City of London and, in the Inner Temple and Middle Temple, the Sub Treasurer and Under Treasurer respectively: see the Public Health Act 1961, s 2(3) and the Local Government Act 1972, s 180(1), (3). Section 75. NB by virtue of sub-s  (5) nothing in this section, or the byelaws made thereunder shall apply, inter alia, to a fair held by statute, royal charter, royal licence, letters patent or ancient custom; and see Appendix 1, below. For the Irish position and casual trading, see Chapter 14, below.

113

Chapter 9  Regulation, Administration and Control

B Under the Markets and Fairs Clauses Act 18478

If the empowering or special Act incorporates s 42 of the Markets and Fairs Clauses Act 1847 then the persons authorised by the special Act to construct or regulate the market or fair9 may, from time to time, make such byelaws as they think fit for all or any of the following purposes10: (1) for regulating the use of the market place and fair, and the buildings, stalls, pens and standings in it, and for preventing nuisances or obstructions there or in the immediate approaches to it; (2) for fixing the days, and the hours during each day, on which the market or fair shall be held11; (3) for inspection of slaughterhouses, for keeping them in a clean and proper state, for removing filth and refuse at least once in every twenty-four hours, for requiring that a sufficient supply of water be provided and for preventing cruelty in them; (4) for regulating carriers resorting to the market or fair and fixing the rates for carrying articles from it within the limits of the special Act; (5) for preventing the sale or exposure for sale of unwholesome provisions in the market or fair. The byelaws must not be repugnant to the laws of that part of the United Kingdom where they are to have effect, nor to the provisions of the 1847 Act or the special Act; and they may be repealed or altered12.

8 9 10 11

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Certain functions under the following provisions may be ‘relevant functions’ for the purposes of the Regulatory Enforcement and Sanctions Act 2008, s 4. Sch 3, see pp 125, 126, below. That is, the undertakers: 1847 Act, s 2. For the 1847 Act, see below, Appendix 1. 1847 Act, ss 2 and 42. But any provision of a local Act which confers power on a local authority to make byelaws appointing days on which or hours during which markets or fairs are to be or may be held must be construed as conferring on the authority a power to appoint such days or hours by resolution: Local Government (Miscellaneous Provisions) Act 1976, s 36(1). 1847 Act, s 42.

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Byelaws The 1847 Act makes, in addition, specific provision for the confirmation of byelaws by the Secretary of State13, and for their publication14 and enforcement15.

C Under the Food Act 198416 A local authority which maintains a market, whether or not it is a market authority within the meaning of the Food Act 198417, may make byelaws: (1) for regulating the use of the market place, and the buildings, stalls, pens and standings in it; (2) for preventing nuisances or obstructions in the market place, or in the immediate approaches to it; (3) for regulating porters and carriers resorting to the market, and fixing the charges to be made for carrying articles from the market within the district;

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Ibid, ss 44–46. The Secretary of State refers to one of Her Majesty’s Principal Secretaries of State, see the Interpretation Act 1978, s 5, Sch 1. In Wales the Government of Wales Act 2006 brought about changes to the procedure for effecting transfers of functions. Under the original Welsh devolution settlement contained in the Government of Wales Act 1998, executive functions including statutory functions relating to markets were transferred to the National Assembly for Wales by Order in Council under the Government of Wales Act 1998, s 22 (now repealed), and then delegated to the First Minister and on to other Ministers as appropriate by the National Assembly for Wales (Transfer of Functions) Order 1999, SI 1999/672, arts 2, 3, Sch 1, and National Assembly for Wales (Transfer of Functions) Order 2004, SI 2004/3044, arts 2, 3, Sch 1. All of the functions transferred to the National Assembly for Wales under those arrangements have now been transferred directly to the Welsh Ministers by virtue of provisions in the Government of Wales Act 2006 and the Orders now have effect as if they had been made under s 58 of the 2006 Act. The Wales Act 2017 has brought into effect two further significant changes. First, the National Assembly, the Welsh Government and the legal framework are enshrined as a permanent part of the United Kingdom’s constitutional arrangements. Neither the National Assembly nor the Welsh Government can be abolished without the agreement of the people of Wales. The second significant change brought about by the Wales Act 2017 was the move from a ‘conferred powers’ model of establishing what is devolved to a ‘reserved powers model’. This is also the model that underpins the devolution settlement in Scotland and Northern Ireland. Under the reserved powers model the legislature is able to legislate on any matter unless it is expressly prevented from doing so. In the Welsh context this means that the 2006 Act now contains a list of subjects upon which it cannot legislate (as they are reserved to the UK Parliament) instead of a list of subjects upon which it can. Although this means that there is a presumption in favour of a matter as being devolved, in practice it does not involve significant change because the list of subjects, now reserved, largely mirrors the list of subjects that was previously conferred. Thus, statutory functions relating to markets, so far as exercisable in relation to Wales, are now almost exclusively the responsibility of the Welsh Ministers namely, under the Local Government Act 1972, the Local Government (Miscellaneous Provisions) Act 1976, the Animal Health Act 1981, the Local Government (Miscellaneous Provisions) Act 1982 and the Food Act 1984. No additional functions relating to markets have been conferred or transferred at the date of publication of this book. 1847 Act, ss 47–49. Ibid, s 43, as amended by Statute Law (Repeals) Act 1993; and by virtue of the Criminal Justice Act 1982, s 46 and the Criminal Justice Act 1991 ss 17(1), 101(1), Sch 12, para 6. The maximum penalty which may be imposed is level 1 on the standard scale, or a lesser amount for each breach. Where the special Act incorporates the 1847 Act, penalties are recoverable on summary conviction in accordance with the Railway Clauses Consolidation Act 1845, s 145; see 1847 Act, s 52; and see below, Appendix 1. Ibid. That is, a local authority which maintains a market established or acquired under s  50(1) of the 1984 Act or under the corresponding provisions of any earlier enactment: 1984 Act, s  61. ‘Local authority’ means a district council, a London borough council or a parish or community council: ibid.

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Chapter 9  Regulation, Administration and Control (4)

after consulting the fire authority18 for the area in which the market is situated, for preventing the spread of fires in the market19.

A  market authority may also make a byelaw specifying the distance from the market within which articles commonly sold in the market, and specified in the byelaw, may not be sold or exposed for sale by unauthorised persons on market day20. The market authority must keep exhibited in conspicuous places near the market notices stating the effect of any such byelaw21. Byelaws under this Act can now be confirmed by the local authority if the model version of the Byelaws is used or only minor changes to the model made22. Offences under byelaws are triable summarily23.

D Under the Animal Health Act 198124 A wharf or other place provided by a local authority under s 54(1) of the Animal Health Act 198125 is a market within the Market and Fairs Clauses Act 184726, and the 1981 Act is deemed to be the special Act. Byelaws must be approved by, in England, the Minister of Agriculture, Fisheries and Food, in Scotland by Scottish Ministers27, and Wales, Welsh Ministers28. Notice of application for approval must be given and, before application, the proposed byelaws published as required by the 1847 Act29. The local authority may charge for the use of the wharf or other place provided by it under the 1981 Act such sums as may be imposed by byelaws, and those sums are deemed to be tolls authorised by the special Act30. E Validity of byelaws Byelaws will be valid and may regulate trade in a market provided all the following conditions are satisfied:

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The words ‘fire and rescue authority’ have been substituted for ‘fire authority’, and the words ‘for the area in which the market is situated’ have been deleted by the provisions of the Fire and Rescue Services Act 2004, Sch 1, para 56, and see the Regulatory Reform (Fire Safety) Order 2005, SI 2005/1541. 1984 Act, s  60. The Ministry of Housing, Communities and Local Government has published a a set of model byelaws: see ‘Model Byelaw Set 10’. This is intended to be a guide for local authorities in their preparation of byelaws for regulating the use of their markets. See also the procedure for the confirmation of such byelaws under the Local Government Act 1972, s 236. 1984 Act, s 56(1); and see p 98, above. Ibid, s 56(2). The Byelaws (Alternative Procedure) (England) Regulations 2016, SI 2016/165. Food Act 1984, s 93(1), (3)(g). Byelaws under the Food Act 1984 may provide for the imposition of fines not exceeding level 2 on the standard scale: Local Government Act 1972, s 237. Where byelaws provided for a fine on breach, it was held in R v Barnsley Metropolitan Borough Council ex p Hook [1976] 1 WLR 1052 (per Lord Denning MR and Sir John Pennycuick) that the market owner could not deprive the stall holder of his common law right to trade, and thereby indirectly of his livelihood, by revoking his licence, as an alternative to taking him before the justices. Also see, below, Chapter 10, pp 149 et seq. See Appendix 1, below. See pp 114, 115, above, Appendix 1, below. By virtue of the Scotland Act 1998, s 53. Animal Health Act 1981, ss 54(3)(b) and 86(l)(b). Since June 2001 the functions of the Minister of Agriculture, Fisheries and Food have been exercised in England by the Secretary of State for Environment, Food and Rural Affairs as the successor to the Minister of Agriculture, Fisheries and Food. In Wales the functions are exercised by Welsh Ministers, see footnote 14, above. Ibid, s 54(3)(b). Animal Health Act 1981, s 54(4).

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Byelaws (1) Must not be ultra vires A byelaw is invalid and of no effect if not made in the manner (if any) directed by statute, charter or other authority under which it is purported to be made31. A power to make byelaws regulating trade cannot be used to justify the prohibition of a lawful trade carried on in a lawful manner32. (2) Must not be repugnant to the general law A byelaw is not repugnant to the general law merely because it creates a new offence and says that something shall be unlawful which the law does not say is unlawful. It is repugnant if it expressly, or by necessary implication, proposes to alter the general law, or deprives the defendant of a defence which he would have under the general law. Again, a byelaw will be repugnant if it adds something inconsistent with the provisions of a statute creating the same offence; but if it adds something not inconsistent, that is not sufficient to make the byelaw bad as repugnant33. (3) Must not be unreasonable A byelaw may be unreasonable if it is partial and unequal in its operation, or because it is manifestly unjust or discloses bad faith or involves oppressive or gratuitous interference with the rights of those subject to it. But it will not be unreasonable merely because it goes further than is prudent, necessary or convenient, or because it does not contain an exception or qualification which it might well contain. The elected representatives of a local authority understand the requirements of their locality better than judges, and if something can be a nuisance in law it is for the local authority to decide whether it ought to be controlled by byelaw34. As indicated in paragraph (1) above, byelaws in restraint of trade are bad unless made under an express power or supported by custom35. But byelaws involving partial restraint are not necessarily unreasonable. For example, a byelaw may confine sales of a particular article to special parts of the market36; or it may appropriate a part of the market to sales by wholesale37 or by public auction38; and where part of the market is properly set aside for sales by public auction, a byelaw prohibiting sales by private auction in that part is good39. A  byelaw may not, however, prohibit without the consent of an officer of the market authority, all dealing in a particular article in a market, or in any special part of the market, if the article is one of those for which the market was established40. 31 32 33 34

35 36 37 38 39 40

Parry v Berry (1717) 1 Com 269; Parker v Bournemouth Corpn (1902) 86 LT 449. For the proper test to be applied when determining whether the bad parts of a byelaw are severable to enable the legislative purpose to be served, see DPP v Smith; DPP v Hutchinson [1990] 2 AC 783, HL. Toronto (City) Municipal Corpn v Virgo [1896] AC 88. Gentel v Rapps [1902] 1 KB 160 at 166, per Channell J; Strickland v Hayes [1896] 1 QB 290; Dyson v London and North Western Rly Co (1881) 7 QBD 32. Kruse v Johnson [1898] 2 QB 91 at 100, per Lord Russell of Killowen CJ; White v Morley [1899] 2 QB 34; Elwood v Bullock (1844) 6 QB 383; Dodd v Venner (1922) 20 LGR 574. A byelaw which is unreasonable in part may nevertheless be upheld as to the rest if it is divisible into separate and distinct parts: see Strickland v Hayes [1896] 1 QB 290; Dyson v London and North Western Rly Co (1881) 7 QBD 32. Parry v Berry (1717) 1 Com 269; Elwood v Bullock (1844) 6 QB 383. Savage v Brook (1863) 15  CBNS  264; Worthy v Nottingham Local Board (1869) 21  LT  582; Player v Jenkins (1666) 1 Sid 284. Strike v Collins (1886) 55 LT 182. Scott v Glasgow Corpn [1899] AC 470; Nicholls v Tavistock UDC [1923] 2 Ch 18. Scott v Glasgow Corpn [1899] AC 470. Wortley v Nottingham Local Board (1870) 21 LT 582. A byelaw which indirectly prevents dealing in an article is also bad: see Sutton Harbour Improvement Co v Foster (1920) 89 LJ KB 829; but not if it is merely restrictive and is otherwise reasonable: see Sutton Harbour Improvement Co v Foster (No 2) (1920) 89 LJ Ch 540.

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Chapter 9  Regulation, Administration and Control Similarly, a byelaw is bad if it purports to prohibit sales by auction in the market, or to prohibit such sales without the consent of the market authority; for a seller is entitled to fix the conditions on which his goods should be offered for sale41. It has been held that a byelaw which regulates the times at which sales by auction may take place in a market is valid42, but this decision has, in effect, been overruled43. It is for the person who asserts that a byelaw is unreasonable to prove that it is44. (4) Must be certain A byelaw must clearly specify the action which is to be taken or avoided and identify the person whom it affects45. If the words of a byelaw are ambiguous, the courts will, however, construe it so as to give effect, as far as reasonably possible, to the intention of the authority which made it46.

2 CONTRACT No one has the right at common law to occupy exclusively any particular part of the soil of the market place, for example by erecting a stall, without the consent of the owner of the soil, or any other person entitled to actual possession or control of the land47. The landowner may stipulate such terms as he thinks fit when granting a licence to occupy a stall including the level of stallage (charge) and the class of goods to be sold.

ILLUSTRATION The Council, as market owner and owner of the market building, granted the defendants a licence to use a stall in the building. The licence restricted the defendants to selling ‘high class salads’. The defendants failed to comply with the restriction and sold various green vegetables and fruit not on an agreed list of items. The Council obtained an order for possession of the stall. On appeal by the defendants: Held dismissing the appeal, that the general law, which was not displaced by any rule of law of market franchise, was that the landowner was entitled to exact from an intending occupier of land such terms as he thought fit and, accordingly, since the defendants were in breach of the provisions of the licence, the Council was entitled to possession of the stall: Gloucester City Council v Williams48.

A local authority or other public authority market owner should ensure, however, that any licence to occupy a stall is, in its terms, clear and unambiguous49 with specific provision for determination in the event of breach of conditions. Care should be taken to ensure that a trader is not given cause to complain that he has been treated 41 Nicholls v Tavistock UDC [1923] 2 Ch 18. 42 Collins v Wells Corpn (1885) 1 TLR 328. 43 By Scott v Glasgow Corpn [1899] AC 470; see Nicholls v Tavistock UDC [1923] 2 Ch 18 at 30. 44 Belfast Corpn v Daly [1963] NI 78 at 85; Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 at 228, per Lord Greene MR. 45 Kruse v Johnson [1898] 2 QB 91 at 108, per Mathew J. 46 Tuck & Sons v Priester (1887) 19  QBD  629 at 638, per Lord Esher MR; London and North Eastern Rly Co v Berriman [1946] AC 278. 47 See pp 34 and 65 above and A-G v Colchester Corpn [1952] Ch 586. 48 (1990) 88 LGR 853. 49 See, for example, Parker LJ’s obiter remarks (at 862) on the meaning of ‘high class salads’ in Gloucester City Council v Williams, above. Any rules and regulations made by an authority will not be deemed to be incorporated into the contract (and will therefore be unenforceable) unless a copy is given to each stall holder: Richard v Forest Heath District Council (1 May 1991, unreported).

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Statute unfairly or in an arbitrary manner. Failure to give attention to proper procedures may lead to review by the court on the basis that any resulting threat to a trader’s livelihood affects his common law rights, so bringing the issue within the ambit of public law50.

ILLUSTRATION 1.

2.

3.

4.

The Town Council sought to revise market pitch fees or rents at Leighton Buzzard Market. The issues were whether the decision was lawfully made, and whether there was a duty to consult. The decision made by the Town Council was: (1) to standardise the pitch size and the method of charging from imperial measurements to metric measurements; (2) to alter the method of calculating fees to a square metreage basis; (3) to create a uniform approach to fee charging; and (4) to increase the standard rate of fees charged. As a result of proposed changes in the contractual relationship between the Town Council and the market traders the Town Council sought to introduce an element of differential charging, particularly in respect of regular and casual traders. The ability of a market operator to introduce differential charges had previously been established in the case of A-G v Colchester Corpn51. The Deputy Judge dismissed a judicial review application made by a market trader and held that there was no duty to consult. Even if there was such a duty, he held that the consultation that did occur fell with the principles laid down in the case of R v Brent London Borough, ex p Gunning52. It was found that there was no breach, and that there had been adequate consultation. The judgment in A-G v Colchester Corpn is the leading case on market charges. This was a case where the right to occupy a space in a market was subject to the payment of stallage charges in consideration of such a right. If such charges are not specifically regulated by custom, charter, or otherwise, the charges are to be perceived as being the subject matter of a voluntary contractual bargain made between the market owner and the trader and the market owner can charge whatever he wishes, 53.

R (Harvey) v Leighton Linslade Town Council54.

3 STATUTE A Street Trading55 The law relating to street trading is noted for its complexity and is in need of a comprehensive review to update the licensing arrangements. Also, to add to the

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As in R v Barnsley Metropolitan Borough Council, ex p Hook [1976] 1 WLR 1052; R v Basildon District Council, ex p Brown (1981) 79 LGR 655; R v Wear Valley District Council, ex p Binks [1985] 2 All ER  699; Rickard v Forest Heath District Council (1  May 1991, unreported); R  v Birmingham City Council, ex p Dredger and Paget (1993) 91  LGR  532 and Camden London Borough Council v Paddock [1996] CLY 3691. [1952] Ch 586. [1984] 84 LGR 168; and see R v Birmingham City Council, ex parte Dredger (1993) 91 LGR 532. Ibid. See also Ricketts v Havering LBC (1981) 79 LGR 146. [2019] EWHC 760 (Admin). This section on street trading is designed to provide an overview of the position. However, for an in-depth analysis of street trading and the law relating to Pedlars, see Halsbury’s Laws of England, Vol 71, (2020), Markets and Fairs.

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Chapter 9  Regulation, Administration and Control challenges, the attention of practitioners should be drawn to the proposals set out in the Business and Planning Act56. Street Trading is subject to separate statutory provision in relation to District Councils, Greater London, (and particular London boroughs), and the City of London. Street Trading in District Councils Adoption of a street trading code and designation of streets The Local Government (Miscellaneous Provisions) Act 198257 introduced an adoptive code for the control of street trading58. Many of the provisions were previously found in local Acts59. Under the 1982 Act, a district council may, by resolution, designate any street as a prohibited street60, a licence street or a consent street61. The system of control by licensing is rather more involved than that by consent, but generally the former is intended to cover street markets and the latter itinerant or mobile traders62. It should be noted that although the definition of ‘street trading’63 appears to be a wide concept, it is restricted by the exemption from control of certain specified activities64. The activities exempted include, notably, trading by a person acting as

56

See also the comments made in the Preface to this Edition as to the impact upon street trading and changes in the rules relating to permitted development enabling temporary markets to operate for 28 days, currently 14 days, and see p 125 post. 57 Section 3 and Sch 4. See Appendix 1, below. 58 ‘Street’ includes: (a) any road, footway, beach or other area to which the public have access without payment; and (b) a service area defined in s  329 of the Highways Act 1980; and also includes any part of a street: 1982 Act, s 3, Sch 4, para 1(1). ‘Street trading’ means the selling or exposing or offering for sale of any article (including a living thing) in a street: ibid; but note the exemptions in Sch 4, para 1(2). 59 For example, the County of South Glamorgan Act 1976 (C XXXV): See Voisey v Cardiff City Council (1981) 79  LGR  185 and Yeates v Cardiff City Council (1981) 79  LGR  577. Note the protection in the 1982 Act, Sch  4, para  3(8), for the rights of existing fixed traders. See also Appendix A to Home Office Circular 62/82 (DoE Circular 19/82, Welsh Office Circular 34/82). 60 See R (on the application of Davies) v Crawley Borough Council [2001] EWHC Admin 854 where the local authority has designated a street as a prohibited street in which the traders were trading from mobile vans. It was held that the designation was not unlawful, nor did it deprive them of their rights under the Convention for the protection of Human Rights and Fundamental Freedoms, First Protocol, Art 1. 61 1982 Act, Sch  4, para  2(1)(a). The procedure for designation is set out in ibid, para  2; and it should be noted, in particular, that the consent of the highway authority is required before a street maintainable by such authority is designated as a licence street: 1982 Act, Sch 4, para 2(3) and (4). In West Berkshire District Council v Paine [2009] All ER (D) 55 a trader held a franchise selling tea, coffee and snacks from a van adapted for the purpose and traded in the ‘Thatcham Business Village’ but had no trading licence to do so. The issue arose before the magistrates as to whether the area in question where the trader operated was a ‘street’ within the meaning of the Act. It was held by the Adminstrative Court in allowing the appeal that there was no reason to narrow the definition of ‘street’ to a ‘public place’ as the justices had so done, and that they had been wrong to conclude that where the defendant traded was not a ‘street’. 62 But see ibid, para 7(8) and text, below. 63 See footnote 58, above. 64 See 1982 Act, Sch 4, para 1(2) and (3).

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Statute a pedlar65 (ie going from door to door); and anything done in a market or fair the right to hold which was acquired by virtue of a grant (including a presumed grant) or acquired or established by virtue of an enactment or order66. These exemptions provide defences from prosecution under Sch 4, para 10. One view is that the he licensing system is an attempt to maintain a balance between stall holders, who are dependent on street trading for their livelihood, and councils,

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66

Under the Pedlars Act 1871: see also Appendix 1, and pp 141 and 145 et seq, below. For the distinction between acting as a street trader and a pedlar, see Watson v Malloy [1988] 1 WLR 1026 (a person who sells on the move from portable stands as an itinerant salesman and not from a stall is a pedlar); R v Westminster City Council ex parte Elmasoglu [1996] COD 357 (sale of hot dogs from a barrow which was moved from time to time were not sales by a pedlar); Shepway District Council v Vincent [1994] COD 451 (a pedlar must be a pedestrian but who can have some means of assistance for the transportation of his goods such a trolley, per Laws J); Tunbridge Wells Borough Council v Dunn (1996) 95 LGR 775 (a trader who was stationary for no longer than 20 minutes selling balloons was acting as a pedlar- per Leggatt LJ); Stevenage Borough Council v Wright (1996) 95 LGR 404 (a person who sells from a pitch at the entrance to an arcade from which he attracts the attention of passers-by is not a pedlar, per Leggatt LJ – the trader was stationary for at least half an hour and the length of time the trader is stationary is important). See also the passage in the judgment of the Lord Justice General in the Scottish case of Normand v Alexander 1994 SLT 274: ‘The correct approach is to examine the nature of the activity which is being carried on, at the time and in the place to which the charge relates. The question must then be, looking at the activity, whether it is an activity which can be described as falling within the term “pedlar”, or whether it is an expression which falls outside that expression and thus requires a street trader’s licence. As we said earlier in this opinion, the essence of the activity which is the subject of the charge in this case was that the placing of the stall to which customers were invited to come rather than from moving from place to place to find customers in order to sell to them,’ as cited in South Tyneside MBC v Jackson [1998] EHLR 249 by Kennedy LJ, (a person who sells from a unit which despite the fact he periodically moved backwards and forwards a few feet, but remains on the same site is not a pedlar. He is thus unable to avail himself of the statutory exception even though he holds a pedlar’s licence). The same passage from Normand v Alexander 1994 SLT 274 was cited in Chichester District Council v Wood [1997] EWHC (Admin) by Blofeld J who listed nine features identifying the distinction between a pedlar and a street trader. See also London Borough of Croydon v Burdon [2002] EWHC 1961 (Admin) (sales of balloons from a ‘barrow on wheels’ which was moved periodically by a person holding a pedlar’s licence was not a pedlar and therefore did not fall within the exception). Similarly in Jones v Bath and North East Somerset Council [2012] All ER (D) 66 it was held that a person who was selling umbrellas from a fixed place had not been acting as a pedlar as he had not moved, and therefore did not fall within the exemption. For the purposes of the 1982 Act, Sch 4 para 1(2)(f) the definition of ‘roundsman’ means ‘one who goes the round of his customers for orders and the delivery of goods’, see Kempin (t/a British Bulldog) v Brighton and Hove Council [2001] All ER (D) 125 (Feb). 1982 Act, Sch 4, para l(2)(a) and (b). See also the savings contained in Sch 4 para 11(a), (b) (Sch 4 para 11(b) amended by the Food Act 1984, s 134, Sch 10 para 34). These provide that . nothing in the code affects the Markets and Fairs Clauses Act 1847, s 13 (which prohibits sales elsewhere than in markets or in shops etc: see para 856), as applied by any other Act, or the Food Act 1984, s 56 (which prohibits certain sales during market hours. However also to be noted is that if the local authority market owner validly restricts the holding of the market to an area smaller than that over which the market rights subsist (see pp 32, 33, above), a street trader trading without authorisation in a consent street outside the designated market area will not be entitled to avail himself of the defence under Sch 4, para 1(2)(b): Jones v Lewis (1989) Times 14 June. In this case, the Queen’s Bench Division (per Glidewell LJ) held that initially the burden of proof lay on the trader to show that the place where he was trading was a market (eg by the production of the indenture granting market rights) following which the onus fell on the local authority to prove that it had exercised the power to limit the market area.

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Chapter 9  Regulation, Administration and Control who must maintain control and recover costs67. On the one hand, a council is not entitled to refuse, revoke or vary a licence, except on certain specified grounds68, but on the other, it has absolute control over the number of stalls in the street, the number of traders dealing in the same goods and the minimum number of days on which a licence holder must trade69. Reasonable conditions may be attached to a licence70. Reasonable conditions may also be attached to street trading consents71. Control is, however, much stricter, with no rights of appeal for the trader against refusal, revocation or variation of a consent72. Although consents are intended primarily to control mobile trading (which may include a flower seller with a single basket or a hot-dog stall), power is given to a council to permit trading in a consent street from a stationary van, cart, barrow or other vehicle; or from a portable stall73. Licences and consents may be granted for any period not exceeding 12 months.74. They cannot be granted to anyone under the age of 17 years, nor where a control order under s 7 of the Local Government (Miscellaneous Provisions) Act 1976 is in force and applies75. The system of control is intended to be flexible, and different controls may be applied to different parts of the same street76. If one form of control proves to be inappropriate, another may be adopted in its place77. A person guilty of an offence under the provisions is liable on summary conviction to a fine78. Street Trading in Greater London under the London Local Authorities Act 1990 Formerly street trading in Greater London was regulated under the London County Council (General Powers) Acts 1947 and 195779. 67

68 69 70

71 72

73 74 75 76 77 78 79

Councils may charge reasonable fees for the grant or renewal of a street trading licence or consent: 1982 Act, Sch 4, para 9(1) and (2); and may (but in relation to licences only) recover reasonable charges for the collection of refuse, the cleansing of streets and other services rendered: ibid, para 9(6). Note, however, that since the purpose of the Act is to control street trading, a council is not empowered to raise revenue generally by means of fees: R v Manchester City Council, ex p King (1991) 89 LGR 696. See also R v London Borough of Tower Hamlets, ex parte Tower Hamlets Combined traders Association (CO/629/93) 19 July 1993, unreported, and R (on the application of West End Traders Association) v Westminster City Council [2004] EWHC 1167 (Admin). See 1982 Act, Sch 4, paras 3(6), 5(1) and 6. Ibid, para 6(5). 1982 Act, Sch 4, para 4(4) and (5). These are ‘subsidiary terms’ and are additional to the ‘principal terms’ which must be specified in a licence. ‘Principal terms’ are: (a) the street or particular place in the street in which the licence holder is permitted to trade; (b) the days on which and the times between which he is permitted to trade; and (c) the description of the articles in which he is permitted to trade: ibid, para 4(1), (2) and (3). 1982 Act, Sch 4, para 7(4), (5) and (9); and these may be varied: ibid, para 7(6). 1982 Act, Sch  4, para  7(2), (6) and (10). See R  v Bristol City Council, ex p Pearce (1984) 83 LGR 711, where it was held that a district council is not obliged to hear oral representations from applicants for consents or to give reasons for its decisions although the applicant has a right to know the contents of any letters of objection (other than from the council’s own officers or the police) so that he may have an opportunity to comment. Ibid, para 7(8). For conditions, see para 7(9). Obviously, it is for a council to decide whether, if a trader stays sufficiently long and often in the same place, the street ought to be re-designated as a licence street. 1982 Act, Sch 4, paras 4(6) and 7(10). Ibid, paras 3(4) and 7(3)(b). For definition of ‘street’, see footnote 58, above. 1982 Act, Sch 4, para 2(13). Ibid, para 10. The maximum fine is level 3 on the standard scale. The London County Council (General Powers) Act 1947, Pt IV (ss  14–35) and the London County Council (General Powers) Act 1957, Pt VII (ss  62–77) were repealed by the London Local Authorities Act 1990, ss  24, 40, Sch  2, as from days to be fixed by individual borough councils in accordance with s  3. Various licensing reports and application forms indicate that the individual borough councils are now operating under the provisions of the London Local Authorities Act 1990.

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Statute In London, powers to control street trading are now conferred upon local authorities by the London Local Authorities Act 1990, Part III80 (as amended and re-enacted). The Act originally received Royal Assent on 22 February 1990 and comes into force in the area of the participating council81 on the day appointed by each council82, when certain specified local enactments shall cease to have effect83. Under the Act, it is unlawful for a person to engage in street trading84 in any licence street85, so designated86 by a borough council, without a street trading licence87 or a temporary licence88. Provision is made for succession rights89, conditions of licences90 and grant, renewal, variation and revocation of licences91. There are rights of appeal to a magistrates’ court by a person aggrieved92 and thence (by street trader or borough council) to the Crown Court93. Borough councils may charge fees for licences to cover reasonable costs94, and may provide receptacles or containers for use in street

80 81 82 83 84

85 86 87 88 89 90 91 92 93 94

Part III of the 1990 Act (as amended by the London Local Authorities Act 1994, and the London Local Authorities Act 2007). It is reproduced in its entirely in its amended form in Sch 3 to the London Local Authorities Act 2007 (see s 49, the Keeling Schedule). That is, a borough council mentioned in the 1990 Act, Sch 1. It does not include the Common Council of the City of London; and ‘borough’ is construded accordingly, see s 2. 1990 Act, ss 3 and 22. 1990 Act, ss 24, 40 and Sch 2. As defined in the 1990 Act s 21(1), and see s 38; as amended by London Local Authorities Act 2007, s 38. The activities which are defined as not falling within street trading are set out in s 22(2) (as amended) for the purposes of Pt III of the 1990 Act. As to what falls within the definition of street trading in London, see R v Westminster City Council, ex p Elmasoglu [1996] COD 357 and Wandsworth London Borough Council v Rosenthal (1996) 95 LGR 84. In the latter case it was held that the exposing of goods for sale on a pavement outside the shop for payment within the shop was street trading for the purposes of the 1990 Act, s 21(1). This activity is specifically excluded from the definition of ‘street trading’ under the Local Government (Miscellaneous Provisions) Act 1982, applicable to areas outside London. Trading from a kiosk is not street trading as the reference contained in s 21(2)(f) of the 1990 Act to the Highways Act 1980, Pt VIIA clarifies that trading within a permanent structure is not street trading. In Onasanya v Newham London Borough Council; Newham London Borough Council v Onasanya [2006] EWHC 1775 the defendant owner of two vehicles, one a Volvo and the other a Rover, was prosecuted by the local authority for displaying notices that the vehicles were for sale whilst parked on the public highway. It was held on appeal by the Divisional Court that for the purposes of the statutory defence under s 38(2) of the 1990 Act the question that had to be asked when deciding whether an article ‘was brought into that street for some purpose other than street trading’ was why was it in ‘that street’ and nowhere else at the material time? In Haringey London Borough Council v Michniewicz [2004] All ER (D) 97 a vehicle was displaying a ‘for sale’ sign in a street which was not a licensed street. The justices dismissed the summons. The Divisional Court allowed the appeal on the basis that the display for sale in an unlicensed street was capable of giving rise to an offence under s 38(5) of the 1990 Act. In Islington London Borough Council v Jordan [2002] All ER (D) 81 it was held by the Administrative Court that the justices had erred in refusing to allow the prosecution an adjournment in order to produce goods (a number of books) which the defendant had been selling without a licence, and which the local authority sought to forfeiture order under s 38(5) of the 1990 Act. The decision was quashed and the case remitted to the justices for re-determination. ‘Street’ and ‘licence street’ are defined in the 1990 Act, s  21(1) as amended by the London Local Authorities Act 2007, s 38; and see O’Gorman v Brent London Borough Council (1993) 91 LGR 555. In accordance with the 1990 Act, s 24. For licence application, see ibid, s 25. 1990 Act, ss 21(1) and 31. Ibid, s 26. 1990 Act, s 27. Ibid, ss 25, 28 and 29. 1990 Act, s 30(1). Ibid, s 30(4). Cf R v Crown Court at Southwark, ex p Watts (1989) 153 JP 666, a case under the London County Council (General Powers) Act 1947, s 64. Also see p 184, below. 1990 Act, s 32.

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Chapter 9  Regulation, Administration and Control trading95. Further provisions relate to offences and penalties96, the employment of assistants97 and itinerant ice cream traders98. There are savings in respect of sales prohibited under other enactments99 and a saving for sales in legal markets and fairs100. Street trading in the City of London and in particular boroughs For many years street trading was not permitted in the City of London except for a Sunday market held in part of Middlesex Street. This was governed by the City of London (Various Powers) Act 1987101, which formerly made provision for the control of street trading and related activity in that part of Middlesex Street lying between the junctions of that street with Widegate Street and Sandys Row between the hours of 9am and 2pm on any Sunday, other than Christmas Day when that day fell on a Sunday. However, that general provision was amended by the City of London (Various Powers) Act 2013102 which now permits street licences to be issued for street trading elsewhere in the City of London for limited periods. The City Corporation also has the power to make byelaws under s 21 of the City of London (Various Powers) Act 1965 applicable to Middlesex Street only, and also under s 14 of the City of London (Various Powers) Act 1987 applicable to all street trading, including temporary street trading, within the City of London103. Special detailed provisions apply to street trading in the City of Westminster and the London Borough of Camden104.

B Temporary markets Section 37 of the Local Government (Miscellaneous Provisions) Act 1982105 enables a district council or a London borough to adopt, by resolution, a limited power of control over temporary markets106. ‘Temporary market’ is defined107 as a concourse of buyers and sellers of articles held otherwise than in a building or on a highway, and comprising not less than five stalls, stands, vehicles108 (whether movable or not) or pitches from which articles are sold. Excluded from the definition are charter, prescriptive or statutory markets and fairs, and sales by auction of farm livestock or deadstock109. The section also does not apply to a market in respect of which planning permission has been obtained110.

95 96

Ibid, s 33. Power to remove receptacles is given by the 1990 Act, s 35. 1990 Act, ss 34 and 38. The maximum fine is level 3 on the standard scale; and see footnote 84, above. 97 Ibid, s 36. 98 1990 Act, s 37. 99 Ibid, s 39. 100 1990 Act, s 41. 101 Part III Street Trading, ss 6–26. 102 Sections 3–6. 103 For these detailed provisions the reader is invited to have regard to the governing Acts of Parliament, together with the Policy and Procedure guidance issued by the City Corporation. 104 See the City of Westminster Act 1999, and the London Local Authorities Act 2012, ss 13–16. 105 See Appendix 1, below. 106 1982 Act, s 37(1). Within 14 days of the passing of the resolution, notice of it must be advertised in a local newspaper. 107 In ibid, s 37(6). 108 Thus, it appears, ‘car boot sales’ will be caught. 109 1982 Act, s 37(6). 110 Ibid, s 37(8). For the necessity for planning permission, see pp 134 et seq, below.

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Statute Where the provision is in force, at least one month’s notice of an intention to hold111 a temporary market must be given to the local authority by both the intending promoter and by the occupier of the land on which it is to be held112. There is no prescribed form of notice, but it must state the names and addresses of the promoter and the occupier of the land; the day or days on which and the times between which the market is to be held; and the site113. However, no notice is required if the proceeds of the market are to be applied solely or principally for charitable, social, sporting or political purposes114. Holding a temporary market (or permitting land to be used for the purposes of such) without giving the required notice is an offence punishable on summary conviction by a fine115. The provision is a useful addition to a local authority’s common law and statutory powers to control markets. Although it does not give authorities the power to prohibit markets completely, it does give them a prior opportunity to discuss with market promoters or occupiers of land the problems normally associated with activities of this kind: for example, traffic control and litter disposal116. It may also provide local authorities with valuable time within which to consider whether an effort should be made under other powers to prevent the market from taking place; for example, where there is likely to be an infringement of franchise rights117. A local authority may also wish, in exceptional circumstances, to consider making the proposed market subject to planning control by means of a general direction under art 4 of the Town and Country General Development Order 1988118.

C Regulatory Enforcement and Sanctions Act 2008 This statute was part of the Government’s commitment to improve the current regulatory system by ensuring that it was consistent, proportionate and effective. The Act received Royal Assent on 21 July 2008. It seeks to implement the key provisions of the Hampton Review, and the Macrory Review119. Parts 1, 3 and 4 came into force on 1 October 2008, and Part 2 on 6 April 2009. Part 1 established the Local Better Regulation Office to provide greater coordination between national and local Government and also to provide clarity and guidance on regulatory issues while at the same time minimising the impact of regulation120. Part 2 seeks to provide co-ordination and consistency in the way that regulatory responsibilities are discharged, and it provides for the creation of a Primary Authority scheme covering more than one local authority area. Part 4

111 112 113 114 115 116 117 118

119 120

1982 Act, s 37(7) describes the circumstances in which a person is deemed to hold a temporary market. Ibid, s 37(2). 1982 Act, s 37(4). 1982 Act, s 37(3). Ibid, s 37(5). The maximum fine is level 4 on the standard scale. See Home Office Circular 62/82, DoE Circular 19/82 and Welsh Office Circular 34/82. See Chapter 6. See also the provisions relating to control under the Town and Country Planning Act 1990, and permitted development arising under the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2010 whereby land may be used for the purpose of holding markets for not more than 14 days in any calendar year. It is to be noted that this has been temporarily extended to 28 days. See also the Preface to this Edition. Reducing Administrative Burdens: Effective Inspection and Enforcement, Hampton P. HM Treasury March 2005. http://www.berr.gov.uk/files/file22988.pdf; Regulatory Justice: Making Sanctions Effective, Cabinet Office November 2006. On 1 April 2012 this office was dissolved by the Local Better Regulation Office (Dissolution and Transfer of Functions, etc) Order 2012, SI 2012/246 and its functions transferred to the Secretary of State and Welsh Ministers (arts 3, 4).

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Chapter 9  Regulation, Administration and Control provides for the introduction of a duty on regulators not to impose or maintain unnecessary burdens. Part 3 is potentially important in the context of market and street trading activities because it seeks to provide for the introduction of an extended range of civil sanctions as possible alternatives to the current regulatory framework. These sanctions include fixed monetary penalties, and discretionary variable monetary penalties the value of which will be determined by the regulator, together with stop notices, and enforcement undertakings. Part 4 provides a requirement that regulatory regimes are kept under review and that the framework for their implementation is maintained at a proportionate level. So far none of the extended range of sanctions has been applied to markets and street trading. On 16 March 2009 the possibility of the 2008 Act being applied to street trading was raised in a written question to the BERR Minister121. No decision has yet been made on using the sanctions available under Part 3 to deal with issues affecting street trading and market activities generally. Reference has been made in the section dealing with pedlars of the announcement of the Government’s proposals in respect of street trading and pedlars122. It remains to be seen whether, in implementing the Government’s proposals, consideration is given to extending the powers contained in Part 3 in particular to illegal street trading activities.

D Weights and measures: goods generally (1) Under the Markets and Fairs Clauses Act 1847 The weighing and measuring provisions of the Markets and Fairs Clauses Act 1847123 apply to all markets and fairs subject to the special Act which incorporates those provisions124; and to all markets established under the Animal Health Act 1981125. The provisions of the 1847 Act, some of which are set out in full elsewhere126, require the undertakers127 to provide sufficient and proper weighing houses or places and to keep there proper weights, scales and measures128. Proper persons must be appointed to attend to weighing and measuring, and everyone offering articles129 for sale must have them weighed or measured, if required to do so by the buyer, with a

121

122 123 124 125 126 127 128 129

‘Mr Brazier – to ask the Minister of State, Department for Business, Enterprise and Regulatory Reform, whether he plans to given local authorities the power to issue fixed penalty notices for illegal street traders. Mr Thomas – this Department intends to consult shortly on possible amendments to the current street trading regime. The consultation demonstrates the Government’s commitment to presenting options for change following publication on 10  February 2009 of research into street trading and pedlary commissioned from Durham University. We are also considering whether authorities should be given access to new powers available under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 which could allow them to impose civil sanctions (including fixed monetary penalties) for certain offences committed under street trading legislation.’ BIS  Street Trading and Pedlar Laws – a joint consultation on modernising Street Trading and Pedlar Legislation, and on draft guidance on the current regime – Government response – March 2011. That is, ss 21, 22, 24 and 34. See 1847 Act, ss 1, 2, Appendix 1, below. Animal Health Act 1981, s 54(2). See Appendix 1, below. See 1847 Act, s 2. 1847 Act, s 21. For the meaning of ‘articles’, see 1847 Act, s 22. ‘Articles’ is not specifically defined in the 1847 Act but appears to mean all things for the buying and selling of which the market is held, including horses and cattle: Llandaff and Canton District Market Co v Lyndon (1860) 8 CBNS 515 at 521, per Byles J.

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Statute penalty in default130. Tolls, if any131, are payable before the commodities are weighed or measured to the person authorised by the undertakers132. Similar provisions133 apply to the weighing of carts in which goods are brought for sale within the market or fair or the prescribed limits134.

E Weights and measures: cattle (1) Under the Markets and Fairs (Weighing of Cattle) Acts These provisions are dealt with in some detail because of the somewhat confusing nature of their current application. Markets and fairs in which, for the time being, tolls135 are authorised to be taken and actually are taken in respect of cattle136, are subject to the provisions of the Markets and Fairs (Weighing of Cattle) Acts 1887 and 1891137. However, it should be noted that these Acts, and the Markets and Fairs (Weighing of Cattle) Act 1926, (see below), are now effectively repealed insofar as they relate to any local authority which is a market authority for the purposes of Part III of the Food Act 1984138. Under the 1887 and 1891 Acts, certain duties are imposed on the market authority139 unless exemption is granted by an order of the Minister140. These duties are: (1)

to provide and maintain in or near the market or fair sufficient and proper buildings or places for weighing cattle brought for sale within the market or fair141;

(2) to keep there, or nearby, weighing machines and weights for the purpose of weighing cattle142; (3) to appoint proper persons in charge of such machines and weights143; 130 131 132 133 134 135

136 137 138 139 140

141

142

143

1847 Act, s 22. Maximum penalty level 1 on the standard scale. That is, if authorised by the special Act. 1847 Act, s 34. That is, ibid, ss 24, 34. For ‘prescribed limits’ see 1847 Act, s 13, note (4), Appendix 1, below. Quaere whether the provision applies to markets and fairs in which only payments in the nature of stallage are taken. It may be, however, that the provision covers payments for standing room for cattle: see R v Casswell (1872) LR 7 QB 328; Bedford (Duke) v Overseers of St Pauls, Covent Garden (1881) 51 LJMC 41 and cf Heddy v Wheelhouse (1597) Cro Eliz 558. Defined in the Markets and Fairs (Weighing of Cattle) Act 1926, s  3, as including ram, ewe, wether, lamb and swine. Compare the definition in the Markets and Fairs (Weighing of Cattle) Act 1926, s 1(3), pp 129 and Appendix 1, below. See Appendix 1, below. See Appendix 1, below. Defined in the 1887 Act, s  2, as being any company, corporation or person by whom tolls in respect of cattle are taken. Under the 1887 Act, s 9. NB The London Government Act 1963, s 93(1), Sch 18, Pt II has repealed ss 4, 5, 8 and 9 of the 1887 Act in relation to any London Borough Council which is a market authority for the purposes of Pt III of the Food and Drugs Act 1955 (now Food Act 1984) is concerned. ‘The Minister’ means the Minister of Agriculture, Fisheries and Food whose functions in England are now exercised by the Department for the Environment, Food and Rural Affairs. 1887 Act, s 4; for the position in relation to London Borough Councils, see footnote 140, above. Where a cattle market is held on a highway dedicated subject to the right to hold a market thereon, the highway authority cannot prevent the market authority from setting up, in accordance with the Acts, a permanent weighing machine: McIntosh v Romford Local Board (1889) 60 LT 185. 1887 Act, s 4. Where a cattle market is held on a highway dedicated subject to the right to hold a market thereon, the highway authority cannot prevent the market authority from setting up, in accordance with the Acts, a permanent weighing machine: McIntosh v Romford Local Board (1889) 60 LT 185. 1887 Act, s 4. Where a cattle market is held on a highway dedicated subject to the right to hold a market thereon, the highway authority cannot prevent the market authority from setting up, in accordance with the Acts, a permanent weighing machine: McIntosh v Romford Local Board (1889) 60 LT 185.

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Chapter 9  Regulation, Administration and Control (4)

to make the machines and weights available for use by the public for weighing cattle144;

(5) generally, to provide and maintain to the satisfaction of the Ministry sufficient and suitable accommodation for weighing cattle145. Unless it is otherwise expressly provided in any Act, the market authority may take tolls in respect of the weighing of cattle146; but failure to comply with any of the above duties will make it unlawful for the market authority to demand, receive or recover tolls in respect of cattle brought to the market or fair for sale147. And if during the time the market authority is in default any person demands or receives toll, he will be liable on summary conviction to a fine148. Every person selling, offering for sale, or buying cattle in a market or fair provided with accommodation for weighing cattle, may require such cattle to be weighed; and the toll payable for weighing shall be paid by such person to the person authorised by the market authority to receive it149. Sections 36 to 41 of the Markets and Fairs Clauses Act 1847 (which deal with such matters as recovery of tolls by distress, disputes and exhibition of a list of tolls) apply to this toll as if the Markets and Fairs (Weighing of Cattle) Act 1887 were the special Act, and the market authority were the undertakers150. Upon the application of a market authority, the Minister has power to make an order exempting the market or fair from the provisions of the 1887 and 1891 Acts; but the order must limit the time, not exceeding three years, during which it is to be in force; and such order may be wholly or partly rescinded, altered or extended by subsequent order151. The conduct of auctioneers is governed by s 4 of the 1891 Act, and by the 1926 Act152. An auctioneer is prohibited, unless exempted by order of the Minister153, from selling cattle at any mart where cattle are habitually or periodically sold, unless there are provided at that mart similar facilities for weighing cattle as are required

144

145 146

147 148 149 150 151 152 153

1887 Act, s 4. Where a cattle market is held on a highway dedicated subject to the right to hold a market thereon, the highway authority cannot prevent the market authority from setting up, in accordance with the Acts, a permanent weighing machine: McIntosh v Romford Local Board (1889) 60 LT 185. Markets and Fairs (Weighing of Cattle) Act 1891, s  2 which, in effect, imposes the additional requirement of satisfying the Minister. That is, in addition to tolls on sale. The Acts do not apply unless tolls on sale are payable: see 1887 Act, s 2, Appendix 1, below. Tolls on weighing must not exceed the amounts specified in the Schedule to the 1926 Act (which superseded the Schedule to the 1887 Act) or such other amounts as may be authorised by the Minister to be taken by the market authority: see 1887 Act, s 8. The maximum tolls specified in the Schedule to the 1926 Act were 6d (now 2½p) for every head of cattle, other than sheep or swine; and 3d (now about 1½p) for every five or less number of sheep or swine. 1887 Act, s 4; 1891 Act, s 2. Ibid. Maximum fine now level 1 on the standard scale, see the Criminal Justice Act 1982, ss 38, 46. 1887 Act, s 5. As to what constitutes an offer for sale see, for example, Partridge v Crittendon [1968] 2 All ER 421 and British Car Auctions Ltd v Wright [1972] 3 All ER 462. 1887 Act, s 8. ‘The special Act’ and ‘the undertakers’ are defined in the Markets and Fairs Clauses Act 1847, s 2, Appendix 1, below. 1887 Act, s 9; 1891 Act, s 1; 1926 Act, s 2. See, respectively, Appendix 1, below. That is, in circumstances where the Minister is of the opinion that enforcement of the requirements would be inexpedient: 1926 Act, s 2.

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Statute under the above provisions154. Failure to comply with this requirement will render the auctioneer, or his employee, liable to a fine155 on summary conviction. An auctioneer is also prohibited (unless exempted as above) from offering for sale in any market, fair or mart in or near which a weighing machine is provided in compliance with the requirements of the 1887 and 1891 Acts156 any cattle, ie bulls, cows, oxen, or heifers157, which are fit for immediate slaughter (‘fat cattle’) unless they have been weighed on the weighing machine and their weight is then effectively communicated to intending purchasers at the time of the offer for sale158. Failure to comply will render the auctioneer, on summary conviction, to a fine for each head of cattle offered for sale159. The Minister may, however, declare by order that these provisions shall not apply to any market, fair or mart160. (2) Under the Food Act 1984 The Markets and Fairs (Weighing of Cattle) Acts 1887 and 1891161 do not apply to a market authority within the meaning of the Food Act 1984162. Such authority, in whose market cattle, sheep and swine are sold, must (unless the Minister163 declares by order that in the circumstances it is unnecessary) provide one or more weighing machines adapted for weighing those animals, and must appoint officers to attend to the weighing164. The market authority may, in return for weighing, demand such charges as it may from time to time determine165. The provisions as to notice of the weight of fat cattle to be given by auctioneers under the Markets and Fairs (Weighing of Cattle) Act 1926, s 1166 are not excluded with respect to markets under the 1984 Act; and a weighing machine provided under s 57(2) of the 1984 Act is sufficient machine for the purpose of requiring the auctioneer to comply with the provisions of the 1926 Act, s 1167.

F Diseases and welfare of animals By the Animal Health Act 1981168, the Minister169 has extensive powers of control over the holding of markets and fairs for the purpose of preventing or checking

154

155 156 157 158 159 160 161 162 163

164 165 166 167 168 169

1891 Act, s 4(1). Where the cattle sale yard in a market was let exclusively by the market authority to the auctioneers, the provision of weighing facilities by the authority in the market place, although outside the sale yard, was held to exempt the auctioneers from the necessity of providing weighing facilities in the sale yard: Knott v Stride (1913) 11 LGR 534. See 1891 Act, s 4(3), Appendix 1, below. See pp 126 et seq, above. Compare definition in 1887 Act, s 3. 1926 Act, s 1(1), (3). Ibid, s 1(2), Appendix 1, below. 1926 Act, s 1(4). Above pp 126 et seq. See 1984 Act, s 61, Appendix 1, below. Defined in the 1984 Act, s  132(1) as the Minister of Agriculture, Fisheries and Food and the Secretary of State acting jointly. Since June 2001 such functions have been exercised by the Department for the Environment, Food and Rural Affairs. Certain functions are now carried out by Welsh Ministers in Wales, see footnote 169, below. Ibid, s 57(2). 1984 Act, s 53(2). Above, and Appendix 1, below. 1984 Act, s 57(2). See Appendix 1, below. Ie, the Minister of Agriculture, Fisheries and Food, now the Secretary of State for the Environment, Food and Rural Affairs, see s  86. In Wales the functions are exercised by Welsh Ministers by the National Assembly for Wales (Transfer of Functions) Order 1999, SI 1999/672 and National Assembly for Wales (Transfer of Functions) Order 2004, SI 2004/3044. In Scotland the functions are vested in the Scottish Ministers by s 53 of the Scotland Act 1998.

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Chapter 9  Regulation, Administration and Control pleuro-pneumonia, foot-and-mouth disease and other diseases170 of animals171, and diseases of poultry172. The Minister may make such orders173 as he thinks fit: (1)

for prohibiting or regulating the holding of markets or fairs and sales of animals or poultry174;

(2) for prohibiting or regulating the exposure of diseased or suspected animals or poultry in markets or fairs, and the placing of them in lairs or other places adjacent to or connected with markets or fairs or where animals are commonly placed before exposure for sale175; (3) for dealing with animals found to be affected with pleuro-pneumonia or footand-mouth disease whilst exposed for sale in a market or fair, or in transit176; (4)

for prescribing and regulating the cleansing and disinfection of places used for the holding of markets and fairs, or for lairage177;

(5) generally, for preventing the spread of disease178. The Minister may also make orders for the purpose of protecting animals and poultry from unnecessary suffering179. The Welfare of Animals at Markets Order 1990180 provides for the protection and welfare of animals181 kept in a market182, or while being exposed for sale183 in a market, or while awaiting removal after being exposed for sale in a market, or which are being kept temporarily in a market (without being exposed for sale) pending completion of their inland transit in Great Britain184. In a market it is an offence185 to expose for sale 170 171

172

173 174 175 176 177 178 179 180 181 182

183 184 185

For meaning of ‘disease’, see ibid, s 88. ‘Animals’ means cattle, sheep and goats and all other ruminating animals and swine; but the Minister may extend the definition to comprise any kind of mammal except man and any kind of four-footed beast which is not a mammal: 1981 Act, s 87(1) and (2). The definition may be further extended by order to comprise for any purpose except disease, fish, reptiles, crustaceans or other cold-blooded creatures of any species: ibid, s 87(3). ‘Poultry’ means birds of the following species: (a) domestic fowls, turkeys, ducks, guinea fowls and pigeons; and (b) pheasants and partridges; but the Minister may by order extend the definition to include any other species of bird or restrict the definition to exclude any of the species in para (b): 1981 Act, s 87(4). Such orders as affect the holding of markets and fairs have been made partly under ss 1, 7, 8, 25, 26, 27 and 37 of the 1981 Act or partly have effect thereunder by virtue of the Interpretation Act 1978, s 17(2)(b). See Appendix 1. 1981 Act, ss 8(l)(e), 87(4). Ibid, ss 25(a), 87(4). For ‘expose for sale’ see, for example, Crane v Lawrence (1890) 25 QBD 152; Keating v Horwood (1926) 135 LT 29; Newman v Lipman [1951] 1 KB 333. 1981 Act, s 26. For ‘expose for sale’ see footnote 175, above. 1981 Act, s 7(l)(a). Ibid, ss 1, 87(4). 1981 Act, s 37(1) repealed in relation to Scotland by the Animal Health and Welfare (Scotland) Act 2006, s  52, Sch  2, para  8(2) from 6  October 2006, and in relation to England and Wales prospectively repealed by the Animal Welfare Act 2006, s 65, Sch 4, as from a date to be appointed. SI 1990/2628 (in force on 1 March 1991). ‘Animals’ means cattle, sheep, goats and all other ruminating animals, pigs, rabbits and poultry: 1990 Order, arts 2(a) and 3(1). The definition of ‘poultry’ in the 1981 Act, s 87(4) is extended so as to comprise quails: 1990 Order, arts 2(b) and 3(1). ‘Market’ means a market place or sale-yard or any other premises or place to which animals are brought from other places and exposed for sale and includes any lairage adjoining a market and used in connection with it and any place adjoining a market used as a parking area by visitors to the market for parking vehicles: 1990 Order, art 3(1). For ‘expose for sale’ see footnote 175 above. For scope of application, see 1990 Order, art 4. For offences, see 1990 Order, art 20.

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Statute an unfit186 animal or an animal likely to give birth187 or to cause or permit any injury or unnecessary suffering to an animal188. It is also an offence to handle or tie animals in a market in a particular way189, to use excessive force to control animals190 or knowingly to obstruct or wantonly or unreasonably to annoy an animal191. It is the duty of a market authority192 to ensure that: (1) in the case of certain specified animals, covered accommodation is provided for such animals193; (2) all passageways and sale rings in the market and pens in which animals are kept are constructed and maintained in such manner as not to cause injury or unnecessary suffering to animals, and that certain other facilities are provided for the welfare of animals194; (3) ramps are provided for the loading and unloading of certain specified animals in and out of vehicles195. It is the duty of the market operator196 (or, in the case of (2) below, such other person for the time being in charge of an animal) to ensure that: (1) no animal is kept in a pen, cage or hutch which is unsuitable for the size and species of that animal, and that no injury or unnecessary suffering is otherwise caused through the penning and caging of animals197; (2) adequate lighting is available to enable animals in the market to be inspected and to be fed and watered, and that an adequate supply of suitable bedding is kept for certain specified animals198; (3)

certain specified animals are kept in the covered accommodation to be provided by the market authority (see above)199;

(4)

where a calf is sold, certain information is supplied to a purchaser, and a record of such is kept200;

(5)

suitable pens are available to enable the separation of unfit from other animals, with pens so used being clearly marked as such201. A  market operator must render such reasonable assistance to an inspector202 in relation to the moving

186

‘Unfit’ includes infirm, diseased, ill, injured and fatigued: 1990 Order, art 3(1). Proof of knowledge of unfitness is not required: Davidson v Strong (1997) Times, 20 March. 1990 Order, art 5. Ibid, art 6. 1990 Order, art 7. Ibid, art 8. 1990 Order, art 9. ‘Market authority’ means the local authority or other person responsible for the upkeep of a market or for the provision of fixed penalties there: 1990 Order, art 3(1). Ibid, art 13(1). 1990 Order, art 15. Ibid, art 19. ‘Market operator’ means the person for the time being responsible for managing the reception or the sale of animals in a market: 1990 Order, art 3(1). Ibid, art 10. 1990 Order, art 12. Ibid, art 13(2). 1990 Order, art 14(5) and (6). In this article, ‘calf’ means a bovine animal under 12 weeks of age: ibid, art 14(8)(a). 1990 Order, art 16. ‘Inspector’ means a person appointed to be an inspector for the purposes of the 1981 Act by the Minister or by a local authority and, when used in relation to a person appointed by the Minister, includes a veterinary inspector: 1990 Order, art 3(1).

187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202

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Chapter 9  Regulation, Administration and Control and detention of an unfit animal, pending examination by a veterinary inspector, as the inspector may reasonably require and must give to the inspector such information as he possesses as to the ownership of such animal203. Additionally, it is the duty of the owner (or his duly authorised agent) or the person in charge of an animal to ensure that the animal is adequately fed and watered whilst kept in the market204, and to remove any calf from the market within four hours of the time of the last sale by auction of a calf205. There are restrictions on the sale of calves206. An inspector may mark or cause to be marked any animal for identification purposes207. The Welfare of Horses at Markets (and Other Places of Sale) Order 1990208 makes similar provision for the protection and welfare of horses and foals. Orders under the Act are made by statutory instrument209, and severe penalties are imposed for disobedience210.

G Inspection and seizure of fish By the Sea Fish (Conservation) Act 1967, any officer of a market authority211 acting within the limits of any market which that authority has power to regulate, may at all reasonable times board any fishing boat212 or enter any premises used for carrying on any business in connection with the treatment, storage or sale of sea fish213. He may search for and examine any sea fish in any place, whether on board a fishing boat or elsewhere, and whether in a receptacle or not, and may seize any sea fish which have been landed, sold214 or exposed or offered for sale215 by any person, or which any person has in his possession216 in contravention of an order restricting fish sizes217. An officer will not be liable in any civil or criminal proceedings following the purported exercise of these powers if the court is satisfied that he acted in good faith and there were reasonable grounds for so acting218. Any officer of a market authority219 acting within the area of the jurisdiction of that authority, may seize any salmon, trout or freshwater fish220 bought, sold or exposed

203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220

Ibid, art 17. 1990 Order, art 11. Ibid, art 14(7). 1990 Order, art 14. Ibid, art 18. SI 1990/2627 (in force on 1 March 1991). 1981 Act, s 91(5). 1981 Act, ss 72, 73, 75. Defined by the Sea Fish (Conservation) Act 1967, s 22(1) as meaning any person having power to regulate a market. As defined by the Sea Fish (Conservation) Act 1967, s 22(1). As defined by the Sea Fish (Conservation) Act 1967, s 22(1). To constitute a sale, the property in the goods must pass: Sale of Goods Act 1979, s 2(4), (5). An agreement for sale will not, therefore, constitute a sale. See, for example, Mischeff v Springett [1942] 2 KB 331 and Watson v Coupland [1945] 1 All ER 217. On what constitutes an offer for sale see, for example, British Car Auctions Ltd v Wright [1972] 3 All ER 462. On what constitutes exposure for sale see, for example, Keating v Horwood (1926) 135 LT 29 and Newman v Lipman [1951] 1 KB 333. Possession’ probably should be construed in its popular sense: see, for example, Towers & Co Ltd v Gray [1961] 2 QB 351 and Warner v Metropolitan Police Comr [1968] 2 All ER 356. Sea Fish (Conservation) Act 1967, s 16(1)(c). Orders are made under ibid, s 1 (as substituted and amended by the Fisheries Act 1981, s 19(1), (3)). Sea Fish (Conservation) Act 1967, s 16(3) (as inserted by the Fisheries Act 1981, s 25(5)). Defined as including any corporation, local authority, body of trustees or other persons having power to maintain or regulate any market: Salmon and Freshwater Fisheries Act 1975, s 41(1). For the meaning of ‘salmon’, ‘trout’, and ‘freshwater fish’, see ibid.

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Statute for sale by, or in the possession of for the sale by, any person in contravention of the Salmon and Freshwater Fisheries Act 1975221. Any officer of a market authority222, acting within the area of the jurisdiction of that authority, may open any package consigned or sent by any common or other carrier, or brought to any place to be so consigned or sent, and suspected to contain salmon or trout223. If any such package is found to contain salmon or trout and is not conspicuously marked ‘salmon’ or ‘trout’ (as the case may be) on the outside as required224, the officer may detain the package and its contents until proof is forthcoming that the fish is not being dealt with contrary to law. He may also detain in like manner and conditions any salmon or trout not packaged in a package225. If any salmon or trout so detained becomes unfit for human food before proof is given that it is not being dealt with contrary to law, the officer may destroy it or cause it to be destroyed226. Provision has also been made for the registration of fish buyers and sellers227.

H Food safety It is an indictable offence at common law knowingly to bring into a market food for human consumption which is not fit for that purpose228, or to sell or expose for sale such food in the market229. Under the Food Safety Act 1990, it is an offence to sell or offer or expose or advertise for sale, or possess for the purpose of such sale, any food for human consumption which fails to comply with food safety regulations230. Contravention of regulations is an offence liable on summary conviction to a fine not exceeding £5,000 or on conviction on indictment to a fine and/or imprisonment for a term not exceeding two years. If a breach of the regulations is proved and the court believes that a serious health risk has occurred or may occur, the court must issue a prohibition order under s  11 of the 1990 Act prohibiting the use of processes, treatments,

221

Ibid, ss 37, 41(1) and Sch 4, para 7. Salmon and Freshwater Fisheries Act 1975, ss 22, 24 have been prospectively repealed by the Marine and Coastal Access Act 2009, Sch  22, Pt  5 (from 12 January 2010). For the sale of shell-fish, see the Sea Fisheries (Shellfish) Act 1967, ss 16, 17. See also the Salmon Act 1986, ss 31, 32, for the handling of salmon. 222 Defined as including any corporation, local authority, body of trustees or other persons having power to maintain or regulate any market: Salmon and Freshwater Fisheries Act 1975, s 41(1). 223 Salmon and Freshwater Fisheries Act 1975, s 24(2). Salmon and Freshwater Fisheries Act 1975, ss 22, 24 have been prospectively repealed by the Marine and Coastal Access Act 2009, Sch 22, Pt 5 (from 12 January 2010). As to further restrictions on the sale and handling of salmon, see the Salmon Act 1986, ss 16, 17. 224 That is, as required by ibid, s 24(1). Salmon and Freshwater Fisheries Act 1975, ss 22, 24 have been prospectively repealed by the Marine and Coastal Access Act 2009, Sch  22, Pt  5 (from 12 January 2010). 225 Salmon and Freshwater Fisheries Act 1975, s  24(3). A  person who contravenes the above provisions, or refuses to allow an officer to exercise his powers, or obstructs him, is guilty of an offence: ibid, s 24(6). Salmon and Freshwater Fisheries Act 1975, ss 22, 24 have been prospectively repealed by the Marine and Coastal Access Act 2009, Sch 22, Pt 5 (from 12 December 2010). 226 Salmon and Freshwater Fisheries Act 1975, s 24(5). Salmon and Freshwater Fisheries Act 1975, ss 22, 24 have been prospectively repealed by the Marine and Coastal Access Act 2009, Sch 22, Pt 5 (from 12 December 2010). 227 See the registration of fish buyers and sellers and designation of fish auction sites by the Fish Buyers and Sellers and Designation of Fish Auction Sites Regulations 2005, SI 2005/1605. 228 See R v Treeve 2 East PC 821; R v Haynes (1815) 4 M & S 214; R v Jarvis (1862) 3 F & F 108; R v Crawley (1862) 3 F & F 109; Shillito v Thompson (1875) 1 QBD 12. 229 R v Stevenson (1862) 3 F & F 106. From the earliest times butchers and victuallers committing such an offence were punishable by statute: see Judicium Pillorie, 51 Hen III, Stat 6 (Ruff), repealed by 7 & 8 Vict, c 24, s 2. 230 1990 Act, s 8. The current regulations are the Food Safety (General Food Hygiene) Regulations 1995, SI 1995/1763 and the Food Safety (Temperature Control) Regulations 1995, SI 1995/2200.

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Chapter 9  Regulation, Administration and Control equipment and/or the premises. Breach of a prohibition order is an offence liable on summary conviction to a maximum fine of £20,000 and/or imprisonment for a term not exceeding six months or on conviction on indictment to an unlimited fine and/or imprisonment for a term not exceeding two years, or both231. The court may also prohibit the food business proprietor or manager from participating in the management of any food business. Section 10 of the Food Safety Act 1990 provides that an inspector who has reasonable grounds for believing the regulations are being contravened may issue an improvement notice requiring remedial action to be taken. An appeal lies to the magistrates’ court but an offence is committed if the notice is then breached. Breach of an improvement notice is an offence liable on summary conviction to a fine not exceeding £5,000 or to imprisonment for a term not exceeding six months, or both, or on conviction on indictment to an unlimited fine or to imprisonment for a term not exceeding two years, or both.

I Town and country planning232 (1) The need for planning permission Market activities clearly may have serious implications in terms of, for example, disturbance to local residents and traffic control. However, it is also clear that such activities may be subject to control as being a material change of use of land and thus development requiring planning permission under the Town and Country Planning Act 1990233. Two factors should be considered in relation to this basic proposition. (a)  Existing market rights – A market owner seeking to revive an ancient market, the rights in respect of which have not been exercised for many years, may find himself in conflict with the local planning authority. The question arising in these circumstances is whether the market activity is subject to control under the planning legislation. Section 335 of the 1990 Act declares ‘for the avoidance of doubt’ that the provisions of the Act and any restrictions or powers in relation to land imposed or conferred by it, apply and may be exercised notwithstanding any enactment authorising or regulating any development in force at the time of the Town and Country Planning Act 1947. ‘Enactment’ is defined234 as including ‘an enactment in any local or private Act of Parliament, and an order, rule, regulation, byelaw or scheme made under an Act of Parliament’. Thus, if the charter or letters patent235 conferring market rights is expressed as having been granted by the Crown ‘with Parliament’s assent’236, or

231 232 233

234 235 236

1990 Act, s 35. See also the Local Government (Miscellaneous Provisions) Act 1982, s 37 relating to temporary markets, at Appendix 1. Section 57. For Ministerial planning decisions on the use of land for a market, see [1973] JPL 617, [1975] JPL 371 and [1976] JPL 113. See also Tidswell v Secretary of State for the Environment and Thurrock Borough Council [1977] JPL 104 (the appeal from the last cited Ministerial decision); Thanet District Council v Ninedrive Ltd (1978) 76 LGR 320; and Scott Markets Ltd v Waltham Forest London Borough Council (1979) 77 LGR 565. If the local authority is also a market owner, the question of disturbance to established market rights may also, of course, arise: see Chapter 6, above. In the 1990 Act, s 336. For the difference between charters and letters patent see p 17, above. As was the case in Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927, where a charter of Edward III was expressed to have been granted by the King ‘with the assent of the prelates, earls, barons and all the commons of our realm assembled in our present Parliament convoked at Westminster’. Selborne LC said of this document, at ibid p 934 (and again at 936), that it was ‘… strictly in the nature of a private grant, or at all events, a local and personal Act of Parliament, and ought to be construed and to receive effect according to its nature’.

134

Statute words to that effect, it is clear that such grant would be in the nature of an ‘enactment’ for the purposes of ss 335 and 336 of the 1990 Act, and so subject to planning control. It was until recently, however, less certain as to whether the grantee of market rights given by the Crown in exercise of its prerogative was subject to the controls imposed by the 1990 Act. Whilst the Crown itself is not bound by the provisions of the 1990 Act in respect of development of its own land237, this immunity will not extend to licensees or tenants of the Crown238. Nor, it has been decided239, to those in whom market rights are vested by virtue of a Crown grant; and this is so notwithstanding the undoubted duties towards members of the public which the law imposes on a market owner240.

ILLUSTRATION On 29  June 1638, Charles I, by Deed, granted to Anthony Bourchier, his heirs and assigns, the right to ‘hold forever a market to be held on Tuesday in every week at the town of Moreton Henmarsh’. The market was held in the High Street until 1923 and from that date until 1956 it continued as a cattle market in Station Road. No market at all was held between 1956 and 1976 when the appellant acquired the market franchise and sought to revive a general retail market on its former site in High Street. Conceding that such revival constituted a material change of use for the purposes of s 22 of the Town and Country Planning Act 1971241, the appellant contended that it was entitled to the Crown’s exemption from planning control since in exercising rights granted under the royal prerogative it was acting on the Crown’s behalf and exercising its prerogative power. Planning permission was sought, but without prejudice to the argument that no permission was required. Permission was granted subject to conditions limiting the area within which the market might be held and the local planning authority served enforcement notices requiring compliance with those conditions. The Secretary of State dismissed the appellant’s appeal and on appeal to the High Court242 Macpherson J held, that in exercising rights granted by the Crown the owners were not thereby exercising the Crown’s prerogative power and that accordingly planning control applied. Held (by CA) in dismissing the appeal, that a market franchise granted by the royal prerogative gave rise to a private right for the exclusive enjoyment of the owner but that the exercise of such right was not an exercise of the prerogative itself and, since the owner was in no sense acting on the Crown’s behalf, there was no exemption from planning control: Spook Erection Ltd v Secretary of State for the Environment243.

Thus, the Crown’s immunity from planning control will not extend to those to whom exclusive rights are given by the Crown in the exercise of its prerogative. Whilst planning permission is required for the siting of a franchise market in a particular place where the market had not been held since before 1 July 1948244, the refusal of permission to site a market in that place, or the imposition of restrictions on the permission unacceptable to the market owner, will not affect the market owner’s

237 1990 Act, s 293. 238 See Minister of Agriculture Fisheries and Food v Jenkins [1963] 2 QB 317. 239 In Spook Erection Ltd v Secretary of State for the Environment (1988) 86 LGR 736. 240 See pp 33 et seq, above. 241 Now the 1990 Act, s 55. 242 (5 June 1987, unreported). 243 (1988) 86 LGR 736. 244 The date of the coming into force of the Town and Country Planning Act 1947. In the case of a market held on a particular site at that date, subsequently not held for a period but then sought to be revived on the same site, the question of whether previous existing use rights have been lost through abandonment may have to be considered.

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Chapter 9  Regulation, Administration and Control absolute right to hold the market elsewhere within the market area defined by the grant245, albeit subject again to the requirement to obtain planning permission246 and the consent of the landowner. The grant of planning permission will not, in itself, confer on the owner of land a market right nor a universal ‘right’ destroying any legal obstacles having nothing to do with the planning laws; and nor will it amount to a statutory authority giving immunity from suit.

ILLUSTRATION The plaintiff council established in 1991 a statutory Saturday market in the centre of Holywell under s 50 of the Food Act 1984. In July 1994 the defendants re-opened a Saturday market within three miles of the council’s new market pursuant to planning permissions granted by the council in 1981 and 1983. In granting the council an interlocutory injunction to prevent the defendants from continuing to operate their Saturday market within the common law distance Jacob J held that planning permission does no more than remove the impediment on use or development of land imposed by the planning laws and conferred no universal ‘right’ on the defendants: Delyn Borough Council v Solitaire (Liverpool) Ltd247.

It is to be noted that the judge also held that the defendants did have an arguable defence on the basis that modern public law might, in some circumstances, interfere with the exercise of a market right, for example, where lack of good faith on the part of the local authority could be demonstrated, or where a trader had established a long standing and thriving market which, especially when coupled with a grant of planning permission, gives rise to a ‘legitimate’ or ‘reasonable’ expectation that the local authority will not obstruct. The case did not proceed to a full hearing. (b)  Permitted development – Under Part 4, Class B of the Town and Country Planning (General Permitted Development) Order 1995248, land249 may be used for the purpose of the holding of markets for not more than 14 days in total (not necessarily consecutive) in any calendar year without the necessity of obtaining planning permission250. Immediately prior to publication of this edition of this book the Government, as part of its response to the Covid-19 crisis, announced that it wanted to encourage more markets to be held. To this end and it would be increasing from 14 days to 28 245

Compare the position with regard to the impact on market rights of the operation of the Highways Act 1980, s 31: see Gloucestershire County Council v Farrow [1984] 1 WLR 262; affirmed [1985] 1 WLR 741 and pp 44, 45, above. 246 Spook Erection Ltd v Secretary of State for the Environment, per Macpherson J at first instance (5 June 1987, unreported). 247 (1995) 93 LGR 614. 248 SI 1995/418. 249 That is, open land. 250 Each day is a grant of planning permission: South Buckinghamshire District Council v Secretary of State for the Environment [1989] JPL 351, CA: Strandmill v Secretary of State for the Environment and South Buckinghamshire District Council [1988] JPL 491. An article 4 notice may, therefore, be served after any day’s use. And where it is apparent from the outset that the character of the user is permanent rather than temporary, the local planning authority may take enforcement action even though the 14-day period permitted by the GDO has not expired: Tidswell v Secretary of State for the Environment and Thurrock Borough Council [1977] JPL 104 (following Miller-Mead v Minister of Housing and Local Government [1963] 2 QB 196). In Tidswell, a market advertised as ‘open every Sunday’ had been held for nine successive Sundays only, but the High Court dismissed the appeal against the Minister’s decision to uphold the enforcement notice, Slynn J drawing a distinction (at 105) between a permanent user, which was not covered by the GDO, and a temporary casual user, which was.

136

Statute days the approval for holding markets without the need for planning permission. It is not certain at this stage whether this will be a temporary or permanent measure. (2) Control under the 1990 Act (a)  By direction – Article 4 of the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2010251 enables a local planning authority to make a direction which, in effect, negatives the general permission conferred by Part 4, Class B of the General Permitted Development Order 1995252. A  local planning authority may make such direction without the approval of the Secretary of State if it considers that the development would be prejudicial to the proper planning of its area or constitute a threat to the amenities of the area253. A direction so made expires at the end of six months unless approved beforehand by the Secretary of State, whose approval is also required to any second or subsequent direction relating to the same development or to development of the same class in the same area254. (b)  By enforcement action – Where it appears to a local planning authority that a market is being conducted in breach of planning control, the authority may issue an enforcement notice under the 1990 Act, s 172 (as amended by the Planning and Compensation Act 1991, s 5), requiring the breach to be remedied. Copies of the notice must be served on the owner and on the occupier of the land in question, and on any other person having an interest in the land, which interest is, in the opinion of the local planning authority, materially affected by the notice255. Whether a copy of the notice ought to be served on each individual stall holder depends on the nature of the stall holder’s interest. If stall holders are in occupation of pitches neither as tenants256 nor as licensees other than on a casual or transient basis, and if it cannot be argued that they enjoy at least an equitable interest in the land, then copies of the enforcement notice need not be served on them257. Enforcement procedure under the 1990 Act is, however, slow and cumbersome, and singularly ill equipped to control market activities. This situation is, to a certain extent, ameliorated by the power given to local planning authorities by s 183 of the 1990 Act to serve a stop notice which has the effect of prohibiting the carrying on of the activity alleged by the enforcement notice to constitute a breach of planning control258. A stop notice may not, however, be utilised so as to remove the permitted

251 SI 2010/654. 252 SI 1995/418. 253 GDO 1988, article 5(4). Guidance issued by the Secretary of State states that clear justification is required for withdrawal of permitted development rights including a full assessment of the area and evidence of local support for the decision. 254 Ibid, article 5(5), (6). For a case concerning a market where an article 4 direction was employed, see Thanet District Council v Ninedrive Ltd (1978) 76 LGR 320; and see South Buckinghamshire District Council v Secretary of State for the Environment [1989] JPL 351, CA where it was held that every time the temporary use was implemented a material change of use occurred and a grant of planning permission was necessary. 255 1990 Act, s 172(6). 256 Such relationship with the landowner or market operator will not exist if there is a genuine concourse both of buyers and sellers: see p 1, above. 257 Munnich v Godstone RDC [1966] 1 All ER 930, 934; Stevens v Bromley London Borough Council [1972] 1  All ER  712, 719; and see also the Ministerial planning decision in Tidswell, above [1976] JPL 113. Note, however, the advice contained in PPG 18 (Guidance on Enforcing Planning Control Generally) concerning unauthorised development by small businesses and self-employed persons. 258 But note the effect of Scott Markets Ltd v Waltham Forest London Borough Council (1979) 77  LGR  565 (12-month limitation period on the service of a stop notice under the 1990 Act, s  183(3), begins to run from the commencement of the use, not from the breach of planning control). Note, also, the entitlement, in certain circumstances, to compensation for loss due to a stop notice: ibid, s 186.

137

Chapter 9  Regulation, Administration and Control development rights to hold a market on 14 days in each calendar year. It may not be necessary for a local authority, in coming to a decision to issue a stop notice in a market case, to carry out a ‘cost benefit analysis’ of the type implicit in paragraph 19 of Annex 3 to DoE Circular 21. But before issuing a stop notice a local authority ought to satisfy itself that there is good reason to require the immediate discontinuance of the offending market, for example, to safeguard the amenities of the area, or public safety, or to abate a nuisance, or to prevent serious damage to the environment259. (c)  By injunction – Proceedings for an injunction under the 1990 Act, s 187B (as amended by the Planning and Compensation Act 1991, s 3) cannot remove permitted development rights and may be commenced only when an offence has occurred or is about to occur. Other remedial action (the issue of an enforcement or a stop notice) can be taken concurrently and it is not a condition of the commencement of proceedings that enforcement action be started first. An injunction is an equitable remedy the grant of which lies within the discretion of the court. The local authority applicant has to satisfy the court that an injunction is ‘necessary or expedient’ and demonstrate why other available remedies would not be effective. Evidence must be submitted showing that the market is causing damage and inconvenience justifying its cessation. (d) Advertisements – The Town and Country Planning (Control of Advertisements) Regulations 1992260 may be utilised to render advertisements for markets less visually offensive. Class 3B of Sch 3 to the Regulations permits the advertising of a market on land on which the market is to take place. Only one advertisement may be displayed at any one time, and where more than one is displayed, the first is taken as the one permitted. There are restrictions on the size, appearance and positioning of the advertisement. An advertisement must not be displayed earlier than 28 days before the sale starts and must be removed within 14 days after it ends. This allows an advertisement to be displayed for a maximum period of 20 weeks (14 weeks being the maximum duration of the sale, plus four weeks before the sale and two weeks following the sale). Express consent is required to exceed any of the limitations imposed by the Regulations. A common breach is exceeding the maximum permitted size (1.2 sq. m in area) of advertisement. Breach is an offence liable on summary conviction to a fine not exceeding £1,000.

J Landlord and Tenant Act 1954 Part II The application of Part II of the Landlord and Tenant Act 1954 to markets was considered by the Court of Appeal and House of Lords in Graysim Holdings Ltd v P & O Property Holdings Ltd261. The tenant had taken a lease from the landlord of a building and had agreed to operate a general market in the premises. Individual stalls were fitted with lock up roller-blinds with the stall holders paying a weekly rent and service charge. The tenant employed a manager and provided basic facilities for the traders who were not allowed access outside market hours. The landlord served a notice to terminate the tenancy, objecting to the grant of a new lease on the ground it intended to demolish or reconstruct the building. The tenant then served a counter notice stating that it did not wish to give up possession on the basis it was operating a market. It was held by the judge that the tenant did not have exclusive possession of the building and accordingly was not entitled to the protection of the Landlord and Tenant Act 1954. The tenant appealed and the Court of Appeal overturned the judgment at first instance on the grounds that although the tenant did not physically occupy the 259 R v Elmbridge Borough Council, ex p Wendy Fair Markets Ltd [1994] EGCS 159, [1995] JPL 928, CA. 260 SI 1992/666. 261 [1994] 1 WLR 992, [1996] AC 329.

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Statute individual stalls, it exercised sufficient management control required by that type of business for it to be considered to be in ‘occupation’ for the purposes of the Act. The Court of Appeal also considered the point as to whether the tenant operated a market. The landlord had contended that the operation was similar to a downmarket shopping centre on the basis that there was no concourse of sellers and buyers. Nourse LJ considered that whilst a concourse is essential to the tort of levying a rival market, it is not so for the purpose of determining whether the business conducted by the tenant is a market. On appeal by the landlord, the House of Lords held, allowing the appeal and in effect restoring the decision at first instance, that the tenant did not ‘occupy’ for the purposes of its business that part of the building taken up by the stalls, and as the stalls were no longer part of ‘the holding’ under the 1954 Act, the tenant was not entitled to a new tenancy of them, or to recover compensation. Without the stalls, and the rents receivable from them, the retained parts of the market were useless to the tenant. This decision has serious implications for those market operators holding premises under a headlease. Care must be taken, in these circumstances, to ensure that stall holders hold on licence only, or, where stalls are relatively substantial or self-contained (as in Graysim), that security of tenure is excluded by the court prior to the sub-letting, which should be for a term expiring not less than 14 months before the expiry of the headlease, so as to enable the market operator to regain physical occupation of the whole property prior to the expiry of the term under the headlease.

K Environmental protection (1) Statutory nuisance Where a local authority believes that disturbance caused by a market constitutes a statutory nuisance within the meaning of s 79 of the Environmental Protection Act 1990 it may take remedial action by issuing an abatement notice. The definition of ‘statutory nuisance’ in s 79 includes any premises (including land) the condition of which is prejudicial to health or a nuisance, and any noise emitted from premises which is prejudicial to health or a nuisance. ‘Nuisance’ must be an enduring event and have substantial effect on enjoyment of the land. ‘Noise’ includes vibration; ‘prejudicial to health’ means injurious or likely to cause injury to health. When a local authority believes a statutory nuisance exists, or is likely to occur, it can serve an abatement notice requiring the abatement of the nuisance within a specified period of time. There is a right of appeal to the magistrates’ court but on conviction the offender is liable to a fine not exceeding £20,000 in cases of land used for trade or business. (2) Litter Under s  87 of the Environmental Protection Act 1990 (as amended by the Clean Neighbourhoods and Environment Act 2005, s 18) the leaving of litter in a public open space is an offence Litter control areas were abolished by the Clean Neighbourhoods and Environment Act 2005, s 20. Section 20 inserts a new s 92A in the Environmental Protection Act 1990. A principal litter authority may in accordance with this section serve a notice (a ‘litter clearing notice’) in relation to any land in its area which is open to the air. However, before serving a litter clearing notice in relation to any land a principal litter authority must be satisfied that the land is defaced by litter or refuse so as to be detrimental to the amenity of the locality262.

262

See s 92C. Failure to comply with a litter clearing notice is an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

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4 OTHER RELATED ACTIVITIES A Restrictions on Sunday opening of ‘large shops’ The Sunday Trading Act 1994 (as amended), imposes restrictions on the Sunday opening of large shops. By Sch  1, para  1 ‘large shop’ means a shop which has a relevant floor area exceeding 280 square metres (3000 square feet). ‘Relevant floor area’, in relation to a shop, means the internal floor area of so much of the shop as consists of or is comprised in a building, but excluding any part of the shop which, throughout the week ending with the Sunday in question, is used neither for the serving of customers in connection with the sale of goods nor for the display of goods. ‘Shop’ means any premises where there is carried on a trade or business consisting wholly or mainly of the sale of goods. A  large shop may be open on a Sunday only for a continuous period of six hours beginning no earlier than 10am and ending no later than 6pm263. There are exemptions264 which are not relevant here. The question arises as to whether a market hall containing individually occupied stalls or units will be caught by the definition of ‘large shop’ if the relevant floor area of the building as a whole exceeds 280 square feet, even though the relevant floor area of the individual units is less. First, ‘building’ should probably be given its ordinary meaning, ie ‘a structure of considerable size and intended to be permanent or at least endure for a considerable time’265. Secondly, ‘premises’ appears to mean a whole property in either one occupation or one ownership according to the context in which it is used266. To help answer the question raised above, it may be useful to contrast (1) a shop or unit in a modern retail centre, and (2) an area of floor in a large building licensed by the owner of the building to a retailer selling his own goods. In (1), the individual shop or unit within the centre will be of substantial construction, be completely self-contained with its own washing and lavatory accommodation for staff and customers (albeit there will be common entrances and exits to and from the centre), and the occupier will normally have security of tenure under the Landlord and Tenant Act 1954, Pt II. In (2), the areas of floor will have, at most, a rudimentary system of division designed primarily to demarcate space rather than for security reasons, and most, if not all, facilities (water, light, heat, cleaning services) will be provided by the owner of the building and paid for through the licence fee. The individual occupiers will have no security of tenure perhaps even to the extent of there being a genuine concourse of sellers. In (1) above, it seems clear that it is the floor area of the individual shop or unit in the retail centre which will be ‘relevant’; in (2), the floor area of the building as a whole. The closer the operation is to a market in law, i.e. a genuine concourse of sellers and buyers, the more it seems likely that it will be the floor area of the building as a whole which will be relevant for the purpose of determining whether the statutory restrictions apply. Inevitably, there will be ‘grey’ areas but these must await judicial consideration on the facts of each individual case267. 263 264 265 266 267

1994 Act, Sch 1, para 2. Ibid, Sch 1, para 3, and Sch 2. Stevens v Gourley (1859) 7 CBNS 99 at 112, per Byles J. See, eg, Cadbury Bros Ltd v Sinclair [1934] 2 KB 389 at 393. See, in the context of determination of a rival market, Manchester City Council v Walsh (1986) 84 LGR 1, above, p 88.

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B Car boot sales There is no doubt that a car boot sale is a market in law and is subject to the same controls as a common law or statutory market268. There is currently no legislation specifically designed to control car boot sales although historically there has been discussion in Parliament and an attempt has been made to introduce a Private Member’s Bill with the object of regulating those activities. Since car boot sales may be controlled and regulated under the legislation discussed above, it seems somewhat unnecessary to introduce further controls to deal with a market under another name. Furthermore, a car boot sale can constitute a rival market at common law and so is susceptible to action by a local authority under its general powers269. C Pedlars Although the code regulating sales by pedlars is outside the scope of the law governing sales in markets and fairs, there is historical justification for including it in this work. Further there has been some recent interest both in England and Wales, and in Ireland, directed to the amendment of pedlars’ legislation. The Pedlars Act 1871 itself is set out below270. ‘Pedlar’ is defined comprehensively by statute271 as any hawker, pedlar, petty chapman, tinker, caster of metals, mender of chairs or other person who, without any horse or other beast bearing or drawing burden, travels and trades on foot and goes from town to town or to other men’s houses, carrying to sell or exposing for sale any goods, wares or merchandise immediately to be delivered, or selling or offering for sale his skill in handicraft. A pedlar is, therefore, someone who sells on the move and not from a stall272 and although, generally, no one may operate as a pedlar without a pedlar’s certificate273, a certificate is not required if goods are sold or offered for sale in a legally constituted market or fair274.

5 MORE RECENT DEVELOPMENTS A Deregulation On 16 August 1993, the then Department of the Environment published a Consultation Paper, seeking views, inter alia, on the proposal that there should be early legislation to remove from local authorities the common law right to object to the establishment of new markets. This Government proposal emanated from the Deregulation Panel of the then Department of Trade and Industry and the Conservative Prime Minister’s Policy Review Unit. This had been apparently generated by pressure from certain private market operators. These proposals were eventually incorporated into three clauses in the Deregulation and Contracting Out Bill. These in effect were designed to restrict a local authority’s ability to suppress a rival market operation on and after the date upon which these provisions would have become law. In other words, rival markets 268 See Newcastle City Council v Noble (1981) 89 LGR 618. 269 See Newcastle-upon-Tyne City Council v Noble (1991) 89 LGR 618, and see ante pp 77, 79. 270 See Appendix 1, below. For the distinction between acting as a pedlar and a street trader, see the cases cited in footnote 60 above. 271 The Pedlars Act 1871, s 3 and see Appendix 1, below. 272 See footnote 65, above for the distinction between a pedlar and a street trader, and cases on the subject. Watson v Malloy [1988] 3 All ER 459. 273 The Pedlars Act 1871, s 4. The maximum penalty is level 1 on the standard scale: ibid. 274 Ibid, s 23, para 3. A sale in a market held without grant or statutory authority falls outside this exception: Benjamin v Andrews (1858) 5 CBNS 299. For other exemptions from the requirement for a certificate, see the 1871 Act, s 23, paras 1 and 2.

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Chapter 9  Regulation, Administration and Control would have been able to operate freed from the market owner’s right to protection capable of being enforced by injunction and/or damages. The proposed legislation would have proscribed the right to pursue the tort of disturbance to suppress the rival market undertaking within 6⅔ miles of the market owner’s established market. On 10 May 1994 after a somewhat stormy passage in the House of Commons, the Government withdrew these clauses from the Bill at the Report Stage with a view to further discussion with all interested parties as to how best to remove the adverse effects of market franchise and monopoly rights in the light of a perceived general consensus that there was a need to modernise the law. The intention was that new clauses would be produced and inserted in the Bill during the deliberations in the House of Lords. However, on 18 October 1994 in response to a written question to the Government in the House of Lords: ‘What proposals in the Deregulation and Contracting Out Bill they are bringing forward on market franchise rights’

the following written answer was provided: ‘Following the decision to withdraw the then Clauses 22, 23 and 24 on market franchise rights from the Bill, my right honourable friend the then Minister for Industry expressed the hope that the Government would be able to come forward at a later stage with fresh proposals on the deregulation of market franchise rights which enjoyed a widespread measure of support among interested parties. The Government remain of the view that the common law on market franchise rights is antiquated. Interested parties do not dispute that the law needs revision but say that any review would need to be more considered. In view, however, of the very short time remaining for consideration of the Deregulation and Contracting Out Bill in Parliament the Government is not intending to make changes to existing law in the context of the current Bill.’

The Bill was then enacted without any of the features being included relating to the modification of market franchise rights as had originally been envisaged. No further Government sponsored proposals have since been made.

B The European Services Directive The European Services Directive275 (‘the Directive’) was adopted by the European Union in December 2006. Its purpose is to help open up the internal market in services throughout the EU together with the EEA states of Iceland, Liechtenstein and Norway. The principal objective of the Directive is defined as follows: ‘to make progress towards a genuine Internal Market in Services so that, in the largest sector of the European economy, both business and consumers can take full advantage of the opportunities its presents.’276

In implementing the detailed requirements of this objective there is a desire to abolish restrictive legislation and practices and also to clarify rights of consumers throughout the EU. As a prelude to the implementation of the Directive, Member States of the European Union were required to undertake a screening of national legislation. This

275 The European Services Directive 2006/213. 276 http://eur-lex.europa/en/treaties/dat/12002E/pdf/12002E_EN.pdf.

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More Recent Developments particular requirement was highlighted by the European Union on their website, as follows: ‘Member States have to carry out a comprehensive review of their legislation on services. The Directive basically requires them to “clean their house”, have a critical look at their existing regulatory framework and get rid of unjustified complications and red tape’.

The Department for Business, Innovation and Skills (‘BIS’) was required to incorporate its requirements into United Kingdom law and practices prior to 28 December 2009. The Directive was brought into force in the United Kingdom by the Provision of Services Regulations 2009, which came into effect on 28 December 2009277. The Regulations require service providers to make available prescribed information about themselves and their services to recipients and thus affect a very wide range of business service activities. A  local authority is a ‘competent authority’ within the meaning of the Regulations, i.e. it is a body with a regulatory or supervisory role over the provision of a service, and a ‘provider’ is the body or individual who provides a relevant service within the EEA. Thus, the Directive, and the Regulations, apply to a wide range of licensing activities and in principle local authorities operating markets would appear to fall within its ambit278. In accordance with the screening process and for the purposes of compliance the Government screened over 6000 items of national legislation to ascertain whether any requirements which were prohibited by the Directive exist, and where they do, to justify or abolish these279. In 2010 BIS published a list of primary legislation being checked for compliance. This included the following: (1)

Animal Health Act 1981 – described as being ‘in scope, provisions are justified and will be retained. Reported to the Commission’

(2) Fairs Acts 1871 to 1873 – each described as being ‘not in scope and raises no requirements under the Directive.’ (3)

Food Act 1984 – described as being ‘in scope, provisions are justified and will be retained. Reported to the Commission’.

(4) The various London Local Authorities Acts 1990 to 2004 – each described as being ‘not in scope and raises no requirements under the Directive.’ (5) Markets and Fairs Clauses Act 1847– similarly described. (6) Markets and Fairs (Weighing of Cattle) Acts 1887 to 1926 – similarly described. (7) Pedlars Act 1871 – described as ‘in scope and Act being reviewed’280. In the event the Government identified relatively few requirements that needed to be amended in order to make the legislation compatible with the Directive. In Table C of its ‘Guidance for Business on the Provision of Services’281 only one relevant Act of Parliament is identified, namely the Pedlars Act 1871. This has resulted in a draft statutory instrument being produced making alterations to section 45 of that Act.

277 SI 2009/2999. 278 See the information provided for local authorities at http://www.bis.gov.uk/files/file50026.pdf, although market activities are not specifically included in the non-exhaustive list of examples in part 3. 279 http://www.berr.gov.uk/whatwedo/europeantrade/europe/services-directive/implementation/ implementationupdates/page43431.html. 280 See p 145, below. 281 http://www.bis.gov.uk/files/file53100.pdf.

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Chapter 9  Regulation, Administration and Control Irrespective of the legislation referred to in the last paragraph the impact of the Directive is also important with regard to franchise rights as BIS has also been of the view that they fall within the ambit of the screening process required by the Directive. Since the Directive was incorporated into UK law questions have been raised regarding its application to market rights. The requirement to carry out a screening process does not impose any restriction on the use of market rights, but BIS takes a separate view that market rights fall within the ambit of the Directive and market operators seeking to rely on their market rights need to have regard to the requirements of the Directive. In particular the Department is of the view that Article 15(2)(a) of the Directive embraces market rights, and that it imposes on Member States a responsibility for examining their legal systems to ascertain whether their respective legal systems render the exercise of a service activity subject to compliance with various criteria referred to in Article  15(2)(a). These criteria include making the service nondiscriminatory, in the public interest, proportionate to that public interest, clear and unambiguous, objective, public and transparent and accessible. Irrespective of the Department’s view on market rights, there are still some doubts about the extent to which the Directive impacts on the use of market rights to control the holding of rival markets. In particular, the Directive declares: ‘This Directive does not affect the exercise of fundamental rights as recognised in the Member States and by Community Law’282

The right to property is regarded as a fundamental right in English law and, as such, the right to prevent a rival market being set up within the common law distance of 6 2/3 miles is no more than an exercise of this fundamental right. A further reason to argue that market rights fall outside the scope of the Directive is that market rights could be considered to be monopolistic in nature. Article 1(3) of the Directive clarifies the point that the Directive does not deal with the abolition of monopoly services covered by EC competition law. NAMBA, representing market operators throughout the UK, had discussions with the Department about the potential impact of the Directive. There is a general acceptance that the Directive has implications for market trading in terms of requiring the provision of online information in respect of making an application for a market stall, and also the requirement that clear and transparent policies should be provided in relation to letting arrangements. There remain, however, some doubts as to the relevance of the Directive to market rights. Whatever the outcome of the debate on the relevance of the Directive to market rights, it is clear that there is an increased onus on market operators to ensure that their policy in respect of controlling rival markets is kept up-to-date and the criteria for implementing the policy is consistent with the requirements set out in Article 15(2) of the Directive. In the context of the impact of this announcement with regard to street trading and pedlars this may well mean that the Directive has wider implications for market activities. Whilst the Government has indicated its general proposals with regard to street trading and pedlars, the detailed consequences will need to be assessed in the light of the Government’s more detailed proposals. Currently there is no timetable for the next stage.

282

The European Services Directive – Article 1(7).

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C Pedlars Private legislation has been enacted to give local authorities powers of forfeiture and seizure over pedlars’ goods. In some areas pedlars have also been limited to the areas where they are entitled to trade. As a result of the City of Newcastle upon Tyne Act 2000283 lawful peddling in the City of Newcastle upon Tyne has been limited to house-to-house sales. This statute also enacts similar provisions of forfeiture and seizure to those available in the City of Westminster Act 1999. A number of other local authorities have also successfully promoted Private Acts of Parliament restricting the activities of pedlars within their areas. These include Medway Council284, and London Local Authorities in 2004285, Leicester, Liverpool and Maidstone Councils286, Bournemouth Borough Council and Manchester City Council287. Other local authorities then followed suit, namely, Leeds, Nottingham, Reading and Canterbury successfully promoted Private Bills which became law in 2013. In addition, in February 2007, Dr Brian Iddon, MP, supported by the National Association of British Market Authorities, introduced a Private Members Bill288 to update the provisions of the Pedlars Act 1871. The aim of the Bill was to transfer responsibility for licensing pedlars from the Police to local authorities and also confer powers on local authorities to take action against unlawful pedlars by seizing goods. The Bill was challenged by Christopher Chope, MP, and failed to achieve a Second Reading. Subsequently, Dr Iddon introduced a Second Bill289 which was identical to the earlier Pedlars Bill which had failed in the previous session. The Bill had the support of a number of local authorities and the National Association of British Market Authorities, but again failed to achieve a Second Reading. In 2008 the Government commissioned Durham University to look at the way in which the pedlars’ legislation operated throughout the country290 and particularly the impact of enforcement practices. On publication of the research in 2009291, the Government announced that it would launch a full public consultation on national guidance and options for possible legislative change to street trading and pedlar law. It had been the intention of the Government to publish further guidance prior to the end of 2010, and in particular to be directed to the definition of services and its implications for retail trading. In July 2010 the Parliamentary Under-Secretary of State, BIS (Baroness Wilcox) was asked a parliamentary question relating to the Government’s position on pedlars. Her response was as follows: ‘the Government are currently considering a variety of options concerning the future of street trader licensing and pedlar certification. Any proposals for change will take into account the UK’s obligation to ensure that the services directive is correctly applied in this area.’292

283 Part 2. 284 Medway Council Act 2004. 285 London Local Authorities Act 2004. 286 Leicester City Council Act 2006, Liverpool City Council Act 2006, Maidstone Borough Council Act 2006, all enacted 2006. 287 In 2010 Bournemouth Borough Council Act 2010, Manchester City Council Act 2010. 288 Pedlars (Street Trading Regulation) Bill [HC Bill 64] 2006/07 session. 289 Pedlars (Street Trading Regulation) Bill 2007/08 session. 290 http://www.bis.gov.uk/files/file46898.pdf. 291 http://www.bis.gov.uk/consultations/street-trading-and-pedlary-laws. 292 HL Debate 21 July 2010 c226 – 7WA. See p 143, above.

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Chapter 9  Regulation, Administration and Control The Government’s response had been anticipated by the end of 2010 but only emerged in March 2011, when a detailed publication setting out the Government’s position was released293 This formed part of the Government’s response to a joint consultation on modernising Street Trading and Pedlar Legislation in which it was announced that the Government had come to the view that retail sale of goods should generally be considered a service within the scope of the Directive. One of the main reasons for the delay in the publication of a response was linked to the need for clarification on the provisions of the Directive294. The publication explained the Government’s views on how to meet the new requirements in the Directive. It found that the consensus was that the retail sale of goods was to be considered generally as a service activity within the scope of the Directive. Since pedlars and street traders were, and are, to be considered to be engaged in the retail sale of goods the conclusion was that changes were required to both areas of pedlary and street trading. Following a further assessment of the Directive in the context of the existing certification scheme for pedlars and licensing, and consent arrangements for street traders, the Government then decided that certification of pedlars could no longer be justified and it proposed that the exemption within the provisions of the Local Government (Miscellaneous Provisions) 1982 and other similar street trading licensing regimes should be maintained. However, in order to provide further clarification of the role of a pedlar the Government intended to repeal the existing pedlar legislation and provide a clearer definition of a pedlar’s activities. In essence, the Government at that stage adopted the position that the retail sale of goods should generally be considered a service within the scope of the Directive. In principle, this would have important ramifications for street trading and market activities generally. Then, on 23 November 2012 the UK Government, the Northern Ireland Executive, and the Scottish Government issued a joint consultation seeking views on draft regulations on the repeal of the Pedlars Acts 1871 and 1881, and the amendment of the 1982 Act in order to ensure compliance with the Directive. There was a possibility that, under new proposals, local authorities would have been able to limit the number of pedlars operating at certain times but that would have been largely limited to public safety issues. It was also considered that the Private Acts of Parliament referred to earlier would have to be amended to take account of the Government’s proposals. However, following consultation with the market industry organisations, and in the light of the responses to it, and having considered further the legal position regarding the compliance of the pedlar certification process with the Directive, the Government then decided it was not appropriate at that time to proceed further with the repeal of the Pedlars Acts. Instead, it expressed the intention to amend the certification process to make it compliant. No further action has been taken subsequently, so the current statutory framework including the various Private Acts remain in place.

D Localism Act 2011 Finally, the provisions of the Localism Act 2011 could have some bearing on market rights295. Part 5 of the Act is directed to ‘Community Empowerment’, and s  87 contained in Chapter 3 (‘Assets of Community Value’). This section places a duty 293 294 295

BIS – Street Trading and Pedlar Laws – a joint consultation on modernising Street Trading and Pedlar Legislation, and on draft guidance on the current regime – Government Response – March 2011. See www.bis.gov.uk/policies/consumer-isues/buying-and-selling/street-trading. European Services Directive 2006/213. ‘Community right to bid (assets of community value)’.

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More Recent Developments on local authorities in England and Wales to maintain a list of assets of community value. Listed assets will be removed from the list after five years (unless already removed) with a power to the appropriate authority (the Secretary of State for England and the Welsh Ministers for Wales) to amend that period. The local authority can determine the form and content of the list, subject to any specific requirements set out in regulations. When listed assets come up for sale or there is a change of ownership, the Act then gives community groups the time to develop a bid and raise the money in order to buy the asset when it comes on the open market. These assets might include assets such as local markets. Little use seems to have been made of these provisions in so far as markets are concerned. However, one example where there has been a successful result is the case of Bishop Stortford Town Council who pursued a localism challenge against East Herts District Council, thereby bringing the local market under the control of the Town Council.

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CHAPTER 10

Accounts, Rates and Taxes 1 ACCOUNTS AND RETURNS – GENERALLY At common law, the owner of a market or fair, in his capacity as such, is under no obligation to keep accounts, or to publish returns of his receipts or expenditure in connection with his franchise. As at the present day, apart from the overriding legal requirements relating to business rates and income tax, no fiscal obligations lie upon private persons who own common law markets or fairs and take tolls under charters, or by prescription, for their private benefit. However, a wharf or other place provided by a local authority under the Animal Health Act 19811 (‘the 1981 Act’) for the reception and disposal of imported or other animals is deemed to be a market within the Markets and Fairs Clauses Act 18472. Charges for the use of such places imposed by way of byelaws approved by the appropriate Minister3 are deemed to be tolls authorised by the special Act4. All such deemed sums received by a local authority must be carried to a separate account and applied in payment of interest and repayment of principal in respect of money borrowed by it under the 1981 Act. Any balance must be applied towards the discharge of the local authority’s expenses under that Act5. The local authority must make such periodical returns to the appropriate Minister, as the Minister may require, of its expenditure and receipts in respect of the wharf or other place6. Annual returns of receipts and expenditure are also prescribed by the Markets and Fairs Clauses Act 1847, s 507, which is deemed to be incorporated with the Animal Health Act 19818.

2 BUSINESS RATES9 A Rating of market premises and market stalls The liability to pay business rates on market premises has become an increasingly important issue in recent years for market owners and traders alike. Historically, the 1 2 3



4 5 6 7 8 9

Section 54(1); see Appendix 1, below. 1981 Act, s 54(3). The 1981 Act refers to the Minister of Agriculture, Fisheries and Food. However, since June 2001 the Minister’s functions in England have been exercised by the Department for the Environment, Food and Rural Affairs (Defra). As to Wales, the Government of Wales Act 2006 (‘the 2006 Act’) brought about changes to the procedure for effecting transfers of functions. Under the original Welsh devolution settlement contained in the Government of Wales Act 1998, executive functions were transferred to the National Assembly for Wales, and then delegated to the First Minister and on to other Ministers as appropriate. All of the functions transferred to the National Assembly for Wales under those arrangements have now been directly transferred to the Welsh Ministers by virtue of provisions in the 2006 Act and the Orders now have effect as if they had been made under s 58 of the 2006 Act. The Wales Act 2017 has brought into effect two further significant changes. See Chapter 9, footnote 13.  1981 Act, s 54(4). 1981 Act, s 54(5). 1981 Act, s 54(6). Penalty for omitting to prepare a return, level 2 on the standard scale. See 1981 Act, s 54(2). The 1981 Act expressly does not incorporate ss 6–9, and 52–59 of the 1847 Act. For a detailed analysis of the imposition of business rates, the reader is recommended to study a specialist work on the subject, such as Ryde on Rating.

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Chapter 10  Accounts, Rates and Taxes general position has seemingly been for the Valuation Office Agency (‘the VOA’) to make a single assessment for the whole of the market premises. The basis of this approach is that a market place such as a market hall is rateable, and the liability for rates falls on the occupier, or if there is not occupier, then it falls of the owner10. More recently market halls apparently have been the subject of closer scrutiny by the VOA. This agency seemingly has adopted a more rigorous approach to such determinations so as to render individual stallholders rateable occupiers subject to separate assessments, in contradistinction to making a single assessment for the whole market premises. This apparent new approach has resulted in a number of market halls having been made the subject of revised multiple rating assessments. Recently the question of rating assessment has become a significant issue for some large scale Christmas Markets. Many Christmas Markets now operate for several weeks in the period before Christmas and given their popularity and size the VOA has turned his attention to these events. It is understood that to date around 15 of the biggest Christmas Markets now have a rating assessment. However, in this context is to be noted that it is not a novel approach for assessments to be made on stallholders as rateable occupiers. In some historical cases, individual stallholders have been made liable to be rated for business purposes if they occupy, for however short a time11, fixed places on an exclusive basis. Thus, where stallholders occupy fixed places exclusively and such occupation is more than fleeting or intermittent, then stallholders may be liable for business rates. In Roberts v Overseers of Aylesbury12 Coleridge J stated: ‘The persons here rated are not those who on market days use the stalls from time to time and make payments to the appellants for such use. Their occupation probably would be too fleeting to render them properly rateable.’

This has also been the case even if the particular occupation was liable to be altered from time to time at the will of the market owner13, or if the payment is made in the name of a ‘toll’ for the sale of goods within definite portions of the market place specifically appropriated to the sale of particular kinds of goods14. However, a stallholder whose position was liable to be moved at the will of the owner of the soil was not the person considered to be in rateable occupation15. Further, whilst the focus in recent years has been on the status of market halls for rating purposes, it is also appropriate to consider the position of open market places where stalls are often erected on a daily basis. Hitherto it has been generally assumed that the occupiers of individual stalls in open markets are not generally considered to be in rateable occupation of such stalls since a degree of permanence is an essential element in such occupation. However, an analysis of the position of stalls in closed market halls, or to the market place itself, can give rise to different considerations. 10 11

See the Local Government Finance Act 1988, ss 43, 44, 44A, 45. R v Barnard Castle Inhabitants (1863) 27 JP 534; Williams v Wednesbury Churchwardens and Overseers [1890] QB 327 (stalls in a market held on a highway two days each week – held that the appellant’s occupation was none the less rateable because it was intermittent and was confined to market days); R v Mosley (1823) 2 B & C 226; see also Roberts v Aylesbury Overseers (1853) 1 E & B 423. 12 See Roberts v Overseers of Aylesbury (1853) 1 E & B 423. 13 London Corpn v Greenwich Union Assessment Committee (1883) 48 LT 437, DC. 14 Duke of Bedford v St Paul, Covent Garden, Overseers (1881) 51 LJMC 41. It is immaterial that the payments are made under the name of ‘tolls’ (Roberts v Aylesbury Overseers (1853) 1 E & B 423) or of ‘market dues and charges’ (London Corpn v Greenwich Union Assessment Committee (1883) 48 LT 437, DC). 15 Spear v Bodmin Union Guardians (1880) 49 LJMC 69, see below. The peculiarity in this case was that two stalls were rented out by the stallholder without either site being determined for specific occupation.

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Business Rates It is therefore necessary to undertake an analysis of the principles governing rateable occupation.

B The principles There are four essential ingredients in determining rateable occupation, as set out in the leading case of Laing (John) and Son Ltd v Kingswood Area Assessment Committee16. These are as follows: ‘First, there must be actual occupation; secondly, that it must be exclusive for the particular purposes of the possessor; thirdly, that the possession must be of some value or benefit to the possessor ; and, fourthly, the possession must not be for too transient a period. The primary question here is whether the plaintiffs are in actual occupation and exclusive occupation of these particular hereditaments.’

Provided the occupation in question satisfies those four requirements it is not necessary for it to be founded on any particular legal right or status17. As to (1) actual occupation, the emphasis is on fact and not law: ‘Occupation includes possession as its primary element but it also includes something more. Legal possession does not itself constitute an occupation …’18.

As to (2) exclusive occupation, this must be exclusive for a particular purpose. In considering this particular element it is important to have regard to the nature of the letting arrangement. Whilst a licence arrangement might be considered to negate the provision of exclusive occupation, it is necessary to consider the terms of the licence. The House of Lords decision in Street v Mountford19 held that the distinction between a licence and a lease, or any other tenancy, depends on the nature of the relationship between the parties to the licence, not the label which the parties choose to put upon it. Further, this element does not require that the occupier be the only occupier. Only one person may be in rateable occupation of a hereditament at any one time, but in practice there may be more than one person in actual occupation. Where more than one person is in actual occupation, the rateable occupier is the person whose occupation of the hereditament is ‘paramount’20. Turning to the third test, the occupation must be of some benefit to the occupier, but this does not necessarily imply profitable benefit. The main issue in respect of this element is whether a hypothetical tenant would be prepared to pay rent for the property. Finally, as to occupation, consideration should be given to the length of occupation, together with its character and nature. In considering transience, the intention of the trader at the material time is clearly relevant, as will an indication that the premises will be used again for the same purpose. However, a licensee can satisfy the requirements of rateable occupation even where the licence is for a short period or determinable summarily.

16

[1949] 1 KB 344, per Tucker LJ, adopting the submissions of Leading Counsel. For a recent case on the subject, see Ludgate House Ltd v Ricketts (Valuation Officer) [2019] UKUT 278 (LC). 17 See Westminster Council v Southern Railway Company Ltd [1936] AC 511, where Lord Russell of Killowen stated this principle at 533: ‘the crucial question must always be what in fact is the occupation in respect of which someone ids alleged to be rateable, and it is immaterial whether the title to occupy is attributable to a leaser, a licence, or an easement.’ 18 R v St Pancras Assessment Committee (1877) 2 QB 581, at 588 per Lush J. 19 (1985) AC 809. 20 Ie, the relationship between a householder and his lodger – ‘the landlord-control principle’, per Lord Russell of Killowen in Westminster Council v Southern Railway Company Ltd [1936] AC 511.

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Chapter 10  Accounts, Rates and Taxes Thus, the identity of the person to be construed as the ‘occupier’ for rating purposes is of paramount importance. However, franchise tolls, whether granted by charter or payable under statute, are incorporeal hereditaments, and are not incidents associated with the occupation of the soil of the market place. As such, tolls should not be taken into account in estimating the rateable value of the market place. The exception is that where a charge is made which is to be construed as incidental to the use of the soil, such a charge for admission for entry into the market, then this may render the market owner liable for rates as such charges must be taken into account in estimating the value of the occupation21. Thus, certain market tolls can be rateable in themselves.

ILLUSTRATION In 1880, an attempt was made to rate a stallholder in Bodmin market. It appeared that his stalls were capable of being removed and were liable to be removed from one spot to another, provided that they continued in the same position relative to other stalls. Held that the stall holder had no exclusive right to occupy any definite portion of the soil, and therefore had no rateable occupation: Spear v Guardians of Bodmin Union22.

Stallholders may, however, be liable to be rated for business purposes if they occupy fixed places exclusively and such occupation is more than fleeting or intermittent. In Roberts v Overseers of Aylesbury Coleridge J stated: ‘The persons here rated are not those who on market days use the stalls from time to time and make payments to the appellants for such use. Their occupation probably would be too fleeting to render them properly rateable’.23

Further illustrations In the case of Brook (VO) v Greggs plc24 it was held that the stallholders were in rateable occupation of the market stall given the particular facts of the arrangements. Applying the four tests referred to above, it was found that the stallholders physically occupied their stalls for the purpose of a particular trade. Whilst Manchester City Council had certain powers of control over the market hall, which included the inability of the stallholders to gain access to the market hall when it was closed, such features were no more than what was required for the market to function in an orderly and proper manner. Although many of the traders had been in occupation for a considerable period of time as licensees terminable at will, there was nothing in the arrangements to suggest that their occupation had been transitory. The stallholders had the right to occupy specific areas for sufficient periods of time. It was therefore held that the proper rating assessment was to treat each stall as being a separate hereditament. The proposition that each stall must be treated as a separate rateable occupation is essentially based on the issue of control.25

21 22 23

See Chapter 5, p 60. (1880) 49 LJMC 69. Ibid, at 433; and see Williams v Wednesbury and West Bromwich Churchwardens and Overseers Union Assessment Committee [1890] QB 327; and see Westminister City Council v Southern Rly Co [1936] AC 511. 24 [1991] RA 61. 25 See Laing (John) and Son Ltd v Kingswood Area Assessment Committee [1949] 1 KB 344.

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Stallage Further, in the case of Re the Appeal of Heilbuth26 self-contained workshops and business starter units in a business centre occupied for short periods of occupation as monthly licences did not prevent each stallholder from being considered as being in separate rateable occupation. This was despite the fact that access to the business centre as a whole was controlled by the operator of the business centre and the occupiers of each unit had to supply duplicate keys for their units to the operator. The business users had sufficient control for the purposes of their businesses, and there was no immediate intention on the part of the operator to move them to another place. Finally, it is to be noted that whilst empty rate charges generally fall upon the owner, in the circumstances where a market, and in particular an open outdoor market, has been vacated, then it is likely that this will be regarded as ‘land’ for rating purposes. Accordingly, it is likely to attract a nil empty rates charge. Summary In essence, in determining rateable liability each case will be decided on its own merits and the tests set out above provide a framework for an assessment to be made. It is also important to acknowledge that much will depend on the terms of the grant or the statute which provides the market operator with the right to fix and collect tolls and fees. Further, it is considered that policy considerations governing the actions of the VOA have not altered. However, the possible explanation for the perception that there has been a change in approach on the part of the VOA is that the contractual basis of granting leases and licences may have been the subject of review by the parties in particular instances, so as to place the individual stallholders in ‘paramount’ control of their individual pitches and stalls. The result of this has meant that the VOA is obliged to recognise that multiple occupations and hereditaments are present, thereby rendering the individual stallholder responsible for the payment of rates as the rateable occupier. This also means that the stallholder can then take advantage of the rules relating to small business relief.

3 STALLAGE Payments made for stalls or standing places (stallage) or pens (pennage) in a market, or for making holes in the ground for support (piccage), are profits of the soil and must be taken into account in estimating the rateable value of the market place27. Profits arising out of land in the case of rights of markets and fairs are charged to income tax under the Income Tax (Trading and Other Income) Act 2005) as trading profits on the person entitled to or receiving the profits.. A test as to whether the charge is attributable to the use of the soil (as opposed to the right to hold a market) is whether its payment confers upon the payer some right, privilege or advantage of user of the soil over and above that made available to every member of the public attending the market with goods to sell28. Payments satisfying such a test enhance the value of the occupation.

26 27

28

(VO) (1999) RA 109. Roberts v Overseers of Aylesbury (1853) 1 E & B 423; and see Worcester Corpn v St Clements Overseers (1858) 22  JP  Jo 319; R  v Derby Justices (1856) 28  LTOS  89; R  v Barnard Castle Inhabitants (1863) 27 JP 534; and as to deductions see Brecon Markets Co v St Mary’s, Brecon (1877) 36 LT 109. Bedford (Duke) v Overseers of St Pauls, Covent Garden (1881) 51 LJMC 41 at 45, per Bowen J; Oswestry Corpn v Hudd (Valuation Officer) [1966] 1 WLR 363 at 380, per Russell LJ.

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Chapter 10  Accounts, Rates and Taxes Payments need not necessarily be made in respect of each separate stall, but may be in respect of a separate portion of the market place specifically allotted for the sale of certain types of goods29. It is enough if payment is made for some standing room in the market, as distinct from the mere entrance into it, even though the exclusive occupation of the soil is of short duration30, or the market owner is liable to alter the location of the portion of soil so occupied from time to time31.

ILLUSTRATION In Deptford Foreign Cattle Market, payments were taken on the landing of cattle there for ‘wharfage, lairage, market dues and charges’. Consignees had a right to keep cattle in the market for ten days but had no right to have them kept in any particular pens but only in such pens as the clerk of the market authority might direct, and the clerk was entitled to have the cattle shifted from one pen to another. Held that the payments were for the use and occupation of the soil, and therefore rateable: Mayor of London v Assessment Committee of Greenwich Union32.

4 TOLLS Franchise tolls, whether granted by charter or payable under statute, are incorporeal hereditaments and are not incident to the occupation of the soil of the market place33. They are usually payable in respect of goods sold in the market place, and are quite different in their nature from the compensation paid to the owner of the soil, or to his lessee, for the use of the soil34. The payment of such tolls is the fruit of the incorporeal hereditament and not the profit of the soil of the market place; and payment constitutes a condition of the public right to resort to the market place and does not confer on the payer any position or privilege35. As such, tolls should not be taken into account in estimating the rateable value of the market place. This is the position whether tolls are payable upon the entry of goods into the market or upon the sale of goods in the market place, and whether they are granted by charter or payable by statute36. It matters not that the market place is laid out in such a way that cattle may be exposed for sale only in pens; for if such pens, or other amenities such as roofing, drainage, clean flooring and lighting are common to all, then no right or advantage in the soil may be implied so as to give rise to an assessment to rates37.

ILLUSTRATION By a local Act of 1848 ‘persons occupying or using any stand, stall, shed, pen or place in the market place … or bringing into such market place … any marketable commodities … cattle or other livestock … specified in Schedule (B)’ to the Act were required to

29 30 31 32 33 34 35 36 37

Bedford (Duke) v Overseers of St Pauls, Covent Garden (1881) 51 LJMC 41. R v Barnard Castle Inhabitants (1863) 27 JP 534. London Corpn v Assessment Committee of Greenwich Union (1883) 48 LT 437. (1883) 48 LT 437. R v Casswell (1872) LR 7 QB 328; R v Bell (1816) 5 M & S 221; Horner v Stepney Assessment Committee (1908) 24 TLR 500; Oswestry Corpn v Hudd (Valuation Officer) [1966] 1 WLR 363. Roberts v Overseers of Aylesbury (1853) 1 E & B 423. Oswestry Corpn v Hudd (Valuation Officer) [1966] 1 WLR 363 at 378, per Russell LJ. R v Casswell (1872) LR 7 QB 328; London Corpn v Overseers of St Sepulchre (1871) LR 7 QB 333n; Oswestry Corpn v Hudd (Valuation Officer) [1966] 1 WLR 363. Oswestry Corpn v Hudd (Valuation Officer) [1966] 1 WLR 363.

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Income Tax pay ‘such stallage, rents, and tolls as the council shall … appoint, not exceeding’ those in Schedule (B). A second local Act of 1885 repealed and replaced Schedule (B) and after itemising the charges for every bull, cow and other types of cattle, provided for the ‘several rents tolls and stallages before mentioned to be payable and paid for and in respect of the occupation or use of any pen, stall, standing place, bench, compartment, or space of ground as well by the original taker or occupier thereof for a part or portion of the day in case he shall not occupy the same the whole day as also by any subsequent taker or occupier of the same for the residue … of the same day’. In addition to the above payments, Oswestry Corporation received entry tolls for each head of cattle entering the market for sale as provided for by the revised Schedule in the 1885 Act. Although the evidence showed a history which included tolls referable only to a franchise of market, it showed also that the cattle market had since its earliest days involved a layout which did not permit cattle to be exposed otherwise than in the pens provided. Held, dismissing the Valuation Officer’s appeal, that on the true construction of the local Acts the entry tolls paid for cattle were purely for bringing cattle into the market in pursuance of a general public right so to do, and were not attributable to the use of the soil of the market place. Accordingly, they had the character and quality of franchise tolls and ought not to be taken into account in ascertaining the rateable value of the market place: Oswestry Corporation v Hudd (Valuation Officer).

However, charges made by the occupier of a market for admission to it are necessarily incidental to the use of the soil if they cannot be shown to be derived from a franchise, whether by charter, prescription, statute or otherwise; and such charges must be taken into consideration in estimating the value of the occupation38. This rule, it seems, must apply equally whether the market can be supported by franchise, or not. The onus of showing that a charge is derived from a franchise lies upon the person who asserts that it is39. It is not enough that the payments are called ‘tolls’40 or ‘market dues and charges’41.

5 INCOME TAX Profits and losses arising out of land in the case of specified concerns – including earnings derived from the exercise of markets and fair rights – are taxable not as property income, but as if the concern were a trade, and profits calculated on a notional trading basis were trading profits42. Tax is assessed and charged on the person receiving or entitled to the profits43. The general rules for computing the amount of the profits or gains are contained in the Income Tax (Trading and Other Income) Act 2005, ss 25 to 35. Under these rules, tax is charged on the full amount of profits or gains of the tax year, ie, the year of assessment beginning on 6 April and running to the following 5 April44. Profits are calculated for a year of assessment in accordance with generally accepted accounting practice, by reference to the profits for the basis period for that year45. The general

38 39 40 41 42 43 44 45

Percy v Ashford Union (1876) 34 LTNS 579. Ibid, per Field J. Roberts v Overseers of Aylesbury (1853) 1 E & B 423. London Corpn v Assessment Committee of Greenwich Union (1883) 48 LT 437. Income Tax (Trading and Other Income) Act 2005, s 12(4)(e). Ibid s 8. Ibid s 7(1); Income Tax Act 2007, s 4. Income Tax (Trading and Other Income) Act 2005, s 7(2).

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Chapter 10  Accounts, Rates and Taxes rule is that the basis period for a tax year is the period of 12 months ending with the accounting date in that tax year, ie the date to which the accounts are made up46. Local authorities are exempt from all charge to income tax in respect of their income47. Thus, those local authorities who are market authorities are exempt from income tax on profits derived from the exercise of their market and fair rights. Provisions for collection and recovery of tax are contained in the Taxes Management Act 1970, Part VI.

6 CORPORATION TAX Companies (as defined) are liable to corporation tax on their profits, not income tax48. The corporation tax provisions broadly follow the scheme of the income tax provisions. Profits or losses arising out of land which arise from the exercise of market and fair rights are treated as profits of a notional trade49. Profits of the deemed trade are subject to corporation tax50. Profits are computed in accordance with generally accepted accounting practice51. Corporation tax is charged on the profits arising in the financial year, which runs from 1 April to the following 31 March52. Corporation tax is computed and charged by reference to accounting periods on the full amount of profits arising in the accounting period. Where the accounting periods do not coincide with a financial year, profits for the accounting periods are apportioned to the financial years in which they fall53. The basic computational provisions are set out in ss 46 to 55 of the same Act54. Administrative provisions are contained in the Finance Act 1998, Sch 18.

7 VAT Historically, the hiring out of market stall sites has been viewed by Her Majesty’s Revenue and Customs as a licence to occupy land. It is therefore considered to be an exempt supply for VAT purposes, subject to the option to pay tax55. However, more 46 47 48 49 50 51 52 53 54 55

Ibid ss 198–202. Income Tax Act 2007, s 838(1). Corporation Tax Act 2009, ss 2, 3. Ibid s 39(4)(e). Ibid s 35. Ibid s 46. Ibid s 8(1). Ibid s 8(3)–(5). Ibid ss 46–55. See HM Revenue and Customs guidance on licences to occupy land (ie Notices 742 (Land and Property) and 742A (Opting to Tax)). Notice 742, para 2.5 A licence to occupy land, provides as follows: ‘A licence to occupy is a written or oral agreement which falls within the European concept of leasing or letting of immovable property, but falls short of being a formal lease for the purpose of UK land law. For a licence to occupy to exist, the agreement has to have all characteristics of a ‘leasing or letting of immovable property’. This is the case if the licensee is granted right of occupation of a defined area of land (land includes buildings, see para 2.1), for an agreed duration in return for payment, and has the right to occupy that area as owner and to exclude others from enjoying that right. All of these characteristics must be present. Where a licence to occupy is granted together with other goods and services as part of a single supply, the nature of the overarching supply will determine how it should be categorised for VAT purposes’. This point was established in the case of Tameside Metropolitan Borough Council v Commissioners of Customs and Excise [1979] VATTR 93. In this case the Tribunal held that the short duration (10 hours maximum) of letting market stalls did not prevent it from qualifying as a licence to occupy land. It is to be further noted that HMRC had indicated at an earlier stage they would be updating their guidance following the Zombory  case, and that there would be consultation on the issue. However, hitherto no consultation has been forthcoming.

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VAT recently the Upper Tribunal seems to have provided a new gloss on the position as to the liability of market stalls for the payment of VAT56 where it was decided that the grant of a licence by the market operator to a stallholder to use a stall or pitch at a craft fair was not an exempt supply of facilities over land57. Instead, it is perceived as a standard rated supply of facilities consisting in the ‘provision of a service of participation as a seller at an expertly organised and expertly run [craft] fair’58. The Upper Tribunal, in effect, decided that the services provided were additional and significant and went beyond the mere provision by licence of a pitch or stall, and were not incidental to the leasing or letting of land59. On 27 July 2020 HMRC updated the guidance in its VAT Government and Public Bodies Manual on the VAT treatment of local authority lettings of market stalls and pitches. The guidance previously opined that letting were normally exempt. However, in a change to this, the guidance now states that the letting of market stalls etc is normally a business activity. Therefore, in most cases, it is subject to VAT at the standard rate unless the supply has the characteristics of a licence to occupy land and this is the main (or overarching) supply being made. In which case it is exempt subject to an option to tax.  However, the revised guidance notes a specific exemption for the three London Wholesale Markets and also largely exempts street trading on the basis it is a statutory function outside of the VAT regime. It will be interesting to find out what, if any change, this revised guidance makes to the position of market stalls and pitches.

56 See Zombory-Moldovan (trading as Craft Carnival) v Revenue and Customs Commissioners [2016] UKUT 433 (TCC), [2016] STC 2436. 57 Ie, under the Value Added Tax Act 1994, Sch 9 Group 1 (the grant of any interest in or right over land or of any licence to occupy land). 58 See Zombory-Moldovan (trading as Craft Carnival) v Revenue and Customs Commissioners [2016] UKUT 433 (TCC) at [47], [2016] STC 2436. 59 It is asserted by HMRC that there has been no change in their policy or practice, and para 2.5 of Notice 742 ‘Land and Property’ still applies, This means that the majority of traditional markets should still be able to operate without the burden of Value Added Tax. However, it does appear that HMRC has adopted a more rigorous approach to the exemption provided. One explanation may be perceived from the fact that this was not a case where the market owner was in the ordinary course of events letting pitches in a permanent market but was involved in the organisation and promotion of specific events of a particular nature, ie a craft fair and was selective in the choice of stallholders so that the event would provide a high quality of goods and participants. Such an event therefore may be seen as significantly different from the usual circumstances of a market operation where land is provided for the provision of market stalls together with ancillary services. It is a question of fact and degree. Perhaps the distinction to be made is between the objective factual basis of what is actually supplied that determines the position – not the regulatory conditions imposed relating to the pitch.

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CHAPTER 11

Practice, Procedure and Evidence 1 SCIRE FACIAS The appropriate process for obtaining the repeal or forfeiture of a grant, franchise, charter or letters patent, for holding a market or fair is that by writ of scire facias formerly issued in the Crown s Office List of the Queen’s Bench Division1. The process does not apply, however, unless the grant is of record2. The action of scire facias to repeal a grant, franchise, charter or letters patent is a proceeding taken by or on behalf of the Crown upon information that the grant is void by reason of the following: (1) It had been inadvisedly made, or improperly obtained eg  by fraud or misrepresentation3, (2) It has become forfeited through misuse or abuse eg the grantee has something which is prohibited or not authorised by the charter4, (3) By reason of the non-fulfilment of conditions expressly or impliedly attached to the grant5,

1

2 3 4 5

The writ is a prerogative original judicial writ and is not affected by the Crown Proceedings Act 1947. It must be distinguished from scire facias on the Revenue side of the Queen’s Bench Division which was abolished by s 13 of, and Sch 1, para 1(3) to, the Crown Proceedings Act 1947 (now itself repealed). It must also be distinguished from the obsolete writ of scire facias formerly used in the process of execution. The reason why such proceedings are preserved is because proceedings on the Crown side were not included in the definition of ‘civil proceedings’ in the Crown Proceedings Act 1947, s 38(2). Where the grant on its face appears to be good, it is presumed to be good unless the contrary is proved, see Grant’s Law of Corporations (1850), p  40. On 27  July 2000 a Practice Direction was issued detailing the change of name from the Crown Office List to the Administrative Court, see footnote 8, below. Although it is considered to be obsolete as a remedy, note the remarks of Lord Goddard in A-G (at the relation of Allen) v Colchester Corpn (or BC) [1955] 2 QB 207 at 215, where it was suggested that the writ would still be available at the suit of the Attorney-General where the owner of a franchise of ferry failed in his duty. It remained as a remedy for the ‘calling into the Chancery of Crown grants and franchsies for their cancellation, and would now be issued from the Crown Office’. See also footnote 17. R v Hughes (1866) LR 1 PC 81. The grant or charter must be sealed or enrolled in a court of record. Quaere the position where rights are acquired by prescription. R v Boucher (1842) 3 QB 641; La Banque d’Hochelaga v Murray (1850) 15 App Cas 414. Jenkin v Pharmaceutical Society of Great Britain [1921] 1 Ch 392 at 398; and see R v Passmore (1789) 3 Term Rep 199 at 244, per Ashhurst J. R v Eastern Archipelago Co (1853) 1 E & B 310; affirmed sub nom Eastern Archipelago Co v R (1853) 2 E & B 856; Great Eastern Rly Co v Goldsmid (1884) 9 App Cas 927 at 965; Peter v Kendal (1827) 6 B & C 703 at 710; 3 Bl Comm 261; 4 Co Inst 72 at 88; R v Aires (1717) 10 Mod Rep 258 at 354 sub nom R v Eyre I Stra 43; Butler’s Case (1680) 2 Vent 344; affd sub nom R v Butler (1685) 3 Lev 220; Bassett’s Case (1568) Dyer 276b; See also Dyer, 197, 198; R v Miles (1797) 7 TR 367. Foster on Scire Facias; Godson on Patents, 2nd ed, p 269; 2 Tidd’s Practice, 9th ed, pp 1093 et seq; Chitty, Law of the Prerogatives of the Crown 330, 331; 2 Saund Rep 72a; 1 Webster’s Patent Cases, 64n(a), 669n(f); Grady and Scotland’s Practice, 290; 2 Richardson’s CP Practice, 391 et seq. To every Crown grant, there is annexed by the common law an implied condition that it may be repealed by scire facias by the Crown, or by a subject grieved using the prerogative of the Crown on the fiat of the Attorney-General, per Sir John Jervis CJ in Eastern Archipelago v R (1853) 2 E & B 856 at 914. The fact that there is available the concurrent common law remedy in nuisance was no reason for refusal of scire facias by the Crown since the King had an undoubted right to repeal a patent whereby he or his subject suffered prejudice: Butler’s Case (1680) 2 Vent 344; affd sub nom R v Butler (1685) 3 Lev 220.

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Chapter 11  Practice, Procedure and Evidence (4) Where the charter has been granted under a mistake as to facts or as to a misapprehension as to its construction or effect6. The grounds for instituting proceedings by scire facias have been already referred to in earlier pages of this work7. The process of scire facias was formerly issued from the Petty Bag Office in Chancery. Since the abolition of that office in 1889 it then issued from the Crown Office until 2000 when the name of the Crown Office was changed to the Administrative Court8. It can only issue upon a fiat of the Attorney-General, who has the right and duty of controlling the action, and of determining upon what and whose information, and on what terms and security as to costs, he will permit the action to be prosecuted9. The Attorney-General endorses his fiat upon a draft of the proposed writ, which must be submitted to him10. The writ issues as of right to every subject aggrieved, though not as of course (de cursu) to any subject asking for it11. The process may be issued from the Administrative Court to the Sheriff of the county12 in question and it directs the sheriff to make known13 to the defendant that he must appear and show cause why the grant, charter or letters patent should not be cancelled. The Sheriff, by a summons to the defendant, warns him to appear in answer to the writ. It is not necessary to file declarations and other pleadings but they must be delivered to the opposing party14. If in the event judgment is obtained in favour of the applicant, either after trial or in default, the judgment orders that the Crown grant, charter or letters patent is to be restored to Chancery and there to be cancelled and the seal cut off and the enrolment vacated15. But, as we have seen, markets and fairs when forfeited to the Crown are not extinguished but continue in esse in the Crown’s hands16.

6 7 8

See Grant’s Law of Corporations (1850) pp 20–21. See pp 19, 105, above. RSC, 30 January 1889; Short and Mellor, Crown Office Practice, 2nd ed, 399; Great Seal (Offices) Act 1874, s 5. On 27 July 2000 a Practice Direction was issued detailing (a) the change of name of the Crown Office List to the Administrative Court; and (b) the appointment of a lead nominated judge with overall responsibility for the speed, efficiency and economy with which the court’s work was to be conducted, see Practice Direction (Administrative Court: Establishment) (2000) 1 WLR 1654, and (2000) 4 All ER 1071. 9 Robertson’s Civil Proceedings by and against the Crown, 537; Eastern Archipelago Co v R (1853) 2 E & B 856, at 914, per Jervis CJ. 10 Webster’s Patent Cases, 64n(a); Foster on Scire Facias, 249; Robertsons Civil Proceedings by and against the Crown, 487; See also RSC Ord 15, r 11. Formerly the practice was for the AttorneyGeneral not to grant his fiat until he had received a warrant under the sign manual directing him to cause the writ to be issued; and the warrant had to be obtained by a petition or a memorial to the Crown and was only issued upon the Attorney-General’s advice. But the modern practice seems to be for the Attorney-General to act on his own initiative. See Richardson’s CP Practice, 391–398; Tidd’s Practice, 9th ed, 1094; Chitty, Prerog of Crown, 331; 1 Webster’s Patent Cases, 669n(f); Foster on Scire Facias, 247. 11 R v Prosser (1848) 11 Beav 306; Eastern Archipelago v R (1853) 2 E & B 856. It was held in the latter case (affirming the decision of the QBD) that it was not necessary for the Crown to make a writing under the Great Seal or sign warranties as a condition precedent to the forfeiture of the latter patent. It could repeal the grant ex meno motu. See also Butler’s Case, (1680) 2 Vent 344. 12 Petty Bag Act 1849, s 29, now repealed by Courts Act 1971, s 56(4). 13 Hence the title, scire facias. 14 Petty Bag Act 1849, s 30. As to the procedure rules of 1848 and 1849, see S R & O Revised 1908 Vol 12, p 925. 15 For the form of judgment see Bynner v R (1846) 9 QB 523, Ex Ch; R v Eastern Archipelago Co (1853) 1 E & B 310; affirmed sub nom Eastern Archipelago Co v R (1853) 2 E & B 856. If the judgment is in favour of the applicant the judgment orders that the Crown grant be restored to Chancery, there to be cancelled, in which case the parties attend in Chancery, the seal is then cut off and the enrolment vacated. 16 See p 107, above.

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The Right to Injunctive Relief The process of scire facias appears to have fallen into disuse and has become obsolete. It is therefore uncertain that such proceedings will in future be taken in connection with a market or fair although in principle as a process it would seem still to be an extant remedy17.

2 QUO WARRANTO Formerly18 there was a remedy by an information in the nature of quo warranto19 but such proceedings were abolished by the Administration of Justice (Miscellaneous Provisions) Act 1938, s 9(1), and replaced by statutory provisions, now re-enacted in the Senior Courts Act 1981, s 30. This provides that in any case where any person acts in an office in which he is not entitled to act, and an information in the nature of quo warranto would have lain against him, provided that the proceedings are brought by a person who would have been entitled to apply for such information (a ‘competent relator’), the High Court may grant an injunction restraining him from so acting and if the case so requires, declare the office to be vacant. The section applies to any substantive office of a public nature and permanent character which is held under the Crown or which has been created by any statutory provision or royal charter. The proper procedure for such an application is by way of judicial review20. The order is not issued as of course (de cursu) and the court may inquire into the conduct and motives of the applicant.

3 DECLARATORY RELIEF In appropriate circumstances a person may make an application for a declaration to ascertain and determine the rights of parties or for the determination of a point of law. It is an important procedural device for ascertaining and determining the rights of the parties and for the determination of points of law and utilising the provisions of CPR 40.2021. This provides that the court may make binding declarations whether or not any other remedy is claimed. The power is discretionary. For a market case where declaratory relief was sought and granted see In Shops plc v Derby City Council22.

4 THE RIGHT TO INJUNCTIVE RELIEF Section 37 of the Senior Courts Act 1981 (which replaced s 45 of the Supreme Court of Judicature Act 1925) provides that:

17

See the remarks of Lord Goddard in A-G (at the relation of Allen) v Colchester Corpn (or BC) [1955] 2 QB 207 at 215, where it was suggested that the writ would still be available at the suit of the Attorney-General where the owner of a franchise of ferry failed in his duty. See also Foster at p 12. 18 See pp 103, 104, above. 19 For the former practice, see Short and Mellor, Crown Office Practice, 2nd ed, pp 172 et seq. 20 See Everett v Griffiths [1924] 1  KB  941 at 958, a case where it was held, inter alia, that the application made by the plaintiff seeking to disqualify the defendant from sitting as a member of the Islington Board of Guardians should have been brought by way of information in the nature of a quo warranto; and see the Senior Courts Act 1981, s 31. For the practice and procedure relating to judicial review, see Chapter 12, Public Law – Judicial Review. 21 Formerly Order 15, Rule 16 of the Rules of the Supreme Court. 22 (1997) 95 LGR 161.

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Chapter 11  Practice, Procedure and Evidence ‘(1) the High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the Court to be just and convenient to do so. (2) any such order may be made either unconditionally or on such terms and conditions as the court thinks just.’

This must now be read with Part 25 CPR and in particular CPR 25.123, and the notes thereto24. These provisions provide the court with wide and flexible powers to grant injunctions which can be exercised in any case which it is right or just to do so having regard to settled reasons or principles25. However, the question whether an injunction ought to be granted is to be determined by reference to the circumstances and the state of the law at the date when the question falls to be determined, whether before or at trial, and not at the date of the issue of the proceedings. Further, it will only be granted in support of a legal right, and at the suit of the person whose legal right has been infringed.

A Interlocutory relief26 In the case of a plaintiff seeking to enjoin a defendant by means of an interlocutory injunction, which is a temporary and discretionary remedy sought pending disposal of the issues at trial (and which in a case of real urgency may be sought without notice) the court is invited to anticipate the results of the determination of such issues prior to trial. It is therefore reluctant to do so unless adequate safeguards are accorded to the parties. ‘… When an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff’s legal right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the nineteenth century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do27.’

However, at the same time: ‘… the Court is not justified in embarking upon anything resembling a trial of the action upon conflicting affidavits in order to evaluate the strength of either party’s case28.’

23

24 25 26 27 28

It should be noted that the majority of the market cases cited below are judgments where injunctive relief has been sought are under the former provisions contained in RSC Ord. 29 r. 1 of the White Book, and prior to the Civil Procedure Rules 1998 being brought into effect on 26 April 1999 (as subsequently amended). These decisions should therefore be viewed in the light of the subsequent changes in the practice and procedure rules brought about by the CPR. The same principles apply to the county court (County Courts Act 1984, s 38). Since the Human Rights Act 1998 the test to be applied may be whether granting relief is just and proportionate rather than just and convenient, see South Bucks District Council v Porter [2003] 2 AC 558. It is to be noted that the CPR refers to the word ‘interim’ instead of ‘interlocutory’. However, for the purposes of this text the word ‘interlocutory’ is preferred as many of the cases cited in the text utilised the pre-CPR procedural rules. Per Lord Diplock in American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 406. See also The Siskina [1979] AC 210, per Lord Diplock. Ibid, at 409.

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The Right to Injunctive Relief (1) A serious question to be tried Although on an application for the grant of an interlocutory or interim injunction anything resembling a trial of the action itself should be avoided, it is necessary to determine on enquiry the essential preliminary point as to whether there is a serious question to be tried entitling the plaintiff to interim relief. In this regard, it has been said that such expressions as ‘a probability’ or ‘a prima facie case’ or ‘a strong prima facie case’ are confusing29. If such an enquiry reveals that there is a serious question to be tried30, and that the claim ‘is not frivolous or vexatious’, and that the material before the court does not fail to disclose that the plaintiff ‘has any real prospect of succeeding in his claim for a permanent injunction at the trial’31, then (provided it is appropriate) it is necessary to consider the question whether the balance of convenience is in favour of granting or refusing the interlocutory relief sought. (2) Balance of convenience and damages The determination of the question of balance of convenience involves the consideration of the governing principle as to whether damages would be an adequate remedy to the plaintiff if relief is refused at the interlocutory stage, but the plaintiff succeeds at trial of the action; and the converse, whether damages would be an adequate remedy for the defendant if relief is granted to the plaintiff at the interlocutory stage but the defendant succeeds at trial. ‘It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises … Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that he has not done before, the only effect of the interlocutory injunction, in the event of his succeeding at the trial, is to postpone the date at which he is able to embark upon a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of him succeeding at the trial’32.

However, consideration of the question of the balance of convenience will not arise in circumstances when the relevant matters are all before the court and are plain and uncontroversial, or when there is plainly no defence, eg where the defendant is acting in breach of a right, covenant or statute33. This is of particular relevance where a local authority has commenced proceedings pursuant to s  222(1) of the Local Government Act 1972 in order to enforce its market rights, eg where a ‘same day’ rival market is involved, or where breaches of planning law are involved (below). (3) When interlocutory or interim relief will be granted Thus, provided the plaintiff establishes that there is a serious question to be tried, and that the defendant’s conduct is unjustified, and that damages are not an adequate remedy in the event of his succeeding at the later trial, the court will normally grant an interlocutory injunction. This will be so even though the plaintiff is unable to show a reasonable prospect of obtaining a permanent injunction at trial. Further,

29 30 31 32 33

Ibid, at 407. That is, one for which there is some supporting material and of which the outcome is uncertain (see Cayne v Global Natural Resources plc [1984] 1 All ER 225). American Cyanamid, footnote 30, above, at 408. Ibid, at 408. Hampstead and Suburban Properties Ltd v Diomedous [1969] 1 Ch 248; Warder v Cooper [1970] Ch 495; Manchester Corpn v Connolly [1970] Ch 420.

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Chapter 11  Practice, Procedure and Evidence an injunction may be granted even though the plaintiff would obtain thereby substantially all or even the whole of the remedy or relief claimed in the action. However, it has been said that where the grant or refusal would have the practical effect of putting an end to an action, the court should approach the case on the broad principle of what it can do in its best endeavour to avoid injustice, and to balance the risk of doing an injustice to either party. In such a case the court should bear in mind that to grant the injunction sought by the plaintiff would mean giving him judgment in the case against the defendant without permitting the defendant the right of trial. Accordingly, the established guidelines requiring the court to look at the balance of convenience when deciding whether to grant or refuse an interlocutory injunction do not apply in such a case, since, whatever the strengths of either side, the defendant should not be precluded by the grant of an interlocutory injunction from disputing the plaintiff’s claim at a trial34. It must also be remembered that although the court has jurisdiction to grant a mandatory injunction upon an interlocutory application, it is only done in exceptional circumstances and will not be granted on affidavit evidence where the issues of fact are strongly contested. (4) The cross-undertaking as to damages The question of a local authority being obliged to give a cross-undertaking as to damages has also arisen for consideration. In the case of Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd35 (a case involving breaches of the Shops Act 1950 (now repealed) and the former laws against Sunday trading), the local authority declined to give a cross-undertaking in damages on the basis that it was entitled to the same exemption as the Crown when seeking an interlocutory injunction. At first instance the judge granted an injunction without requiring the local authority to give a cross-undertaking. The Court of Appeal allowed the appeal against this order and discharged the injunction on the basis that the special privilege afforded to the Crown did not extend to local authorities. Further, it was held that the defendants should be protected by a cross-undertaking pending the decision of the European Court as to the position of Sunday trading and the interpretation of Article 30 of the Treaty of Rome. On appeal by the local authority to the House of Lords, the appeal was allowed and it was held that: (a) Section 71(1) of the 1950 Act was sufficiently broad in its terms to embrace any proceedings necessary to secure observance of the Act and accordingly a local authority could institute not only criminal proceedings but also civil proceedings for an injunction in its own name under s 222 of the 1972 Act to secure observance of the former 1950 Act when proceedings were necessary. Furthermore, the court could exercise its jurisdiction to grant an injunction to restrain a breach of the criminal law notwithstanding that the defendant had a defence, eg a Community law defence, to the alleged crime, since the existence of an alleged defence was not a matter of jurisdiction but was instead to be taken into account in the exercise of the court’s discretion when deciding whether it was just and convenient to grant interlocutory relief36.

34 35

Cayne v Global Natural Resources plc [1984] 1 All ER 225. [1993] AC 227, [1992] 3 All ER 717. See also United States Securities and Exchange Commission v Manterfield [2010] 1 WLR 172. 36 [1993] AC 227. R v Braintree District Council ex p Willingham (1982) 81 LGR 70 and dicta of Lord Roskill and Lord Templeman in Stoke-on-Trent City Council v B & Q (Retail) Ltd [1984] 2 All ER 332 at 335–336, 341–342 applied.

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The Right to Injunctive Relief (b) Where the Crown brought a law enforcement action, in which an injunction was sought to restrain a subject from breaking a law where the breach would be harmful to the public or a section of it, the court had a discretion not to require an undertaking in damages from the Crown and that special privilege afforded to the Crown as law enforcer not to give a cross-undertaking in damages on the grant of an interlocutory injunction also applied to other public authorities, including a local authority, when exercising a law enforcement function in the public interest. Since the appellant local authority was under a duty to enforce the law under the former 1950 Act, including bringing proceedings for an injunction, which in practice were the only proceedings by which the law could effectively be enforced, the judge was entitled to decide, in the exercise of his discretion, that no undertaking in damages should be required of the local authority on the grant of an interlocutory injunction37. (c) The mere fact that the respondent might have a Community law defence founded on Art 30 of the EC Treaty did not compel the court to require an undertaking in damages from the local authority since if the European Court were to hold that s 47 of the 1950 Act (now repealed) was invalid as being in conflict with Art 30 of the EC Treaty the United Kingdom government would be under an obligation, irrespective of any undertaking in damages given by the local authority, to make good any damage caused to individuals by the breach of Art 30 for which it was responsible by its failure to amend or repeal s 47. Accordingly, any undertaking by the local authority as to damages would be superfluous. Moreover the local authority would be liable on the undertaking irrespective of whether the respondent was found to have a right to damages. Even if the respondent was held to be entitled to damages the effect of requiring an undertaking from the local authority would be wrongly to impose liability in damages on the council instead of on the United Kingdom Government which would properly be the party so liable. It followed that the court was not bound by Community law to require an undertaking in damages from the local authority if an interlocutory injunction was granted and the judge was right to decide the question on ordinary principles of English domestic law38. (d) Since it was clear that the respondent intended to continue to act in breach of s 47 of the Act (now repealed) unless restrained and that proceedings by way of injunction were the only way open to the council to enforce the provisions of the Act, the judge was fully entitled to decide, in the exercise of his discretion, that no undertaking in damages should be required of the council. (5) The importance of interlocutory relief for the market owner The availability and use of the procedure invoking the court’s jurisdiction in order to obtain interlocutory relief have considerable practical importance for the market owner. For instance, the jurisdiction can be invoked in those cases where the market owner has sought to restrain certain activities on the part of a defendant which amount to disturbance of his market franchise. Such an application, whether by way of interlocutory relief or at the trial of the action, seeks the protection of the court in the exercise of its discretion in any case in which it is just and right to do so. The court also has the power independently to enforce obedience to the law as enacted, notwithstanding that the relevant statute may provide a sanction for its 37 38

Dictum of Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1974] 2 All ER 1128 at 1152–1153 explained. Bougoin SA v Ministry of Agriculture, Fisheries and Food [1985] 3 All ER 585 doubted.

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Chapter 11  Practice, Procedure and Evidence breach. This power is of particular importance to local authorities, who prior to its repeal had increasing difficulty in enforcing the provisions of the Shops Act 1950 against organisations deliberately prepared to flout the law by trading on Sundays. But recourse to the civil courts was not confined to persistent breaches of the Shops Act 1950, and there are a number of cases in which the jurisdiction of the court has been invoked as a means of enforcing planning decisions39, although planning considerations alone may not be sufficient. Thus, the courts have a reserve power which will be utilised in order to support and supplement the law as enacted where the circumstances justify judicial intervention. Such power is not restricted to cases where other means have been exhausted. Indeed it may be utilised in circumstances where other means of ensuring compliance have not been commenced provided that it can be shown the offender is not merely infringing the law but that he is deliberately and flagrantly flouting it40. A more contemporary example of this principle can be seen in Delyn Borough Council v Solitaire (Liverpool) Limited41 where Jacob J  considered whether the grant of a planning permission could itself amount to the establishment of a market within the meaning of the Food Act 1984, s  50. The plaintiff Council established in 1991 a statutory Saturday market in the centre of Holywell under s 50. In July 1994 the defendants re-opened a Saturday market within three miles of the Council’s new market pursuant to planning permissions granted by the Council in 1981 and 1983. In proceedings for an injunction to prevent the defendants from continuing to operate their Saturday market within the common law distance, it was held that a grant of planning permission does not confer on the owner of land a market right or a universal ‘right’ destroying any legal obstacles having nothing to do with the planning laws; nor will it amount to a statutory authority giving immunity from suit. Planning permission does no more than remove the impediment on use or development of land imposed by planning laws. Jacob J also, however, held that the defendants did have an arguable defence on the basis that modern public law might, in some circumstances, interfere with the exercise of a market right; for example, where lack of good faith on the part of a local authority could be demonstrated, or where a trader had lawfully established a long-standing and thriving market which, especially when coupled with a grant of planning permission, gives rise to a ‘legitimate’ or ‘reasonable’ expectation that the authority will not obstruct it. The balance of justice and convenience, and the merits of the claim, however, favoured the granting of a temporary interlocutory injunction against the defendants pending hearing of the case. On 3 October 1996 Solitaire withdrew their defence and agreed in an out of court settlement to pay the Council’s entire legal costs. The Council’s market rights were thereby preserved and its Holywell Saturday market protected.

B Disturbance of the market owner’s franchise In those cases where relief has been sought by a market owner in order to restrain disturbance of its franchise, it is necessary to consider in what circumstances the courts will grant such relief. The vast majority of the reported cases relating to disturbance involve applications made at the interlocutory stage by way of motion42

39 40 41 42

See, for example, A-G v Chaudry [1971] 1 WLR 1614; A-G v Ashborne Recreation Ground Co [1903] 1 Ch 101; Kent County Council v Batchelor (1976) 75 LGR 151, Kent County Council v Batchelor (No 2) [1979] 1 WLR 213; Westminster City Council v Jones (1981) 80 LGR 241. Stafford Borough Council v Elkenford [1977] 1 WLR 324 and see Stoke-on-Trent City Council v B & Q (Retail) Ltd [1984] 2 WLR 929. (1995) 93 LGR 614. Now by way of notice of application under CPR Pt 25.

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The Right to Injunctive Relief in the Chancery Division in which interim relief had been sought pending the trial of the action. In the main, these cases relate to applications brought by market owners against entrepreneurs who have sought to challenge the monopoly of market by attempting to establish rival markets, in whatever form, within the common law distance of 6⅔ miles. Such applications have usually been successful in preventing the holding of rival markets, pending trial of the action. Thereafter, in many cases, the case itself has never proceeded to a full hearing. Often (as is a common practice in the Chancery Division) the motion itself was treated as the trial of the action. In other cases, where interim relief has either been granted or been refused, a speedy trial has been ordered. It must be said, however, that as almost all of the reported cases are decisions made at the interlocutory stage (some of which have been upheld on appeal), they must be treated with some circumspection. The evidence required to satisfy a court at this stage is not of the standard required at the trial of the action, in that the contentions raised by the plaintiff or the defendant on affidavit may not have been challenged in the opposing affidavits at the interlocutory stage and will not have been tested by cross-examination. Thus, although these cases will be authoritative with regard to the circumstances as to when the court will grant or refuse interlocutory relief, they may not necessarily be authoritative, for example, as to whether a particular set of activities constitutes a rival market. There are several points of importance to which regard must be had if a market owner is to succeed in obtaining interlocutory relief prior to trial. In order to establish whether or not there is a serious issue to be tried there are three preliminary considerations: (1) it is necessary to establish the market authority’s monopoly right pursuant to charter, prescription or statute; (2) it is necessary to demonstrate that the defendant is disturbing that right; (3) if it is a ‘different day’ market it is necessary to demonstrate actual loss (or the ‘likelihood of loss’43, as it was put in one case) on the part of the plaintiff. If, on consideration of these factors, it can be established that there is a serious issue to be tried, then the court will go on to consider the question of the balance of convenience and damages.

C Evidence of right Practitioners should be aware of a number of procedural hurdles which have been encountered in cases over recent years. First, the source of the deponent’s belief should be clearly stated. In Leicester City Council v Maby44 the plaintiff Corporation nearly came to grief on a motion for interlocutory relief. Goff J was concerned as to the failure of the deponent’s solicitor to specify in his evidence the source of his belief with regard to the holding of the market which, as the solicitor stated, had been held in the market place ‘… on such days for as long as anyone can remember …’45. Clearly a relevant issue was whether the Corporation had made out a prima facie case that they had such a common law right. As this was a question of the right being in dispute, and not merely the question of its infringement, it should be a strong

43 44 45

Per Pennycuick V-C in Birmingham Corpn v Perry Bar Stadium Ltd [1972] 1 All ER 725; and see pp 82, 83, above. (1971) 70 LGR 209. Ibid, at 211.

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Chapter 11  Practice, Procedure and Evidence prima facie case. Therefore, such a statement by the solicitor was ‘… inadmissible even on a motion …’46. Further, in another paragraph in the same affidavit the same solicitor failed to explain the source of his knowledge as to the history of the market to which he had deposed, and which presumably had been obtained from the archives of the Corporation. Thus, the judge could attach little or no weight to this although had such an explanation been given it might have been admissible as having been derived from knowledge gained in his capacity as an officer of the plaintiff Corporation. However, fortunately for the plaintiff Corporation the local Acts to which the attention of the judge had been drawn themselves contained recitals which in one form or another referred to the existence of the market on the relevant day. Referring to the judgment of Harman LJ in Wyld v Silver47, Goff J held that: ‘… those statements in the local Acts appear to me to afford the requisite strong prima facie evidence … It was argued that those provisions in the local Acts could not avail the Corporation because they do not recite that the Corporation have any rights in the market or what those rights were, but for the purpose of an interlocutory application I  cannot accept that submission. Those statutory references are, on the authority which I have cited, strong prima facie evidence of the factual existence of a market at least since 1846 and, of course, one of the species of evidence to prove a common law market is to prove long user, the other being, of course, reputation. For the purposes of a motion, in my judgment, the Corporation have well discharged the onus upon them by producing those statutory references’48.

Secondly, it is clearly necessary for the market authority to establish precisely in its evidence to the court the exact status of its market rights. If it is possible to provide evidence from sources other than placing sole reliance upon a statutory market established under the Food Act 1984, it is advisable to do so having regard to the case of East Lindsey District Council v Hamilton49. Thirdly, in relation to the production of public documents, such as a royal charter, the general rule is that if the charter is in the plaintiff’s possession it could be proved by affidavit evidence on motion by establishing that it was in his possession and that the document exhibited to the affidavit was a correct copy or extract from the original. To make such a statement the deponent must have examined the copy against the original. If the deponent does not do this the evidence adduced is clearly insufficient, even for the purposes of interlocutory proceedings, as being secondary evidence, and an injunction will be refused50.

46 47 48 49

50

(1971) 70 LGR 209, at 211–212. [1963] Ch 243 at 258ff. Leicester City Council v Maby (1971) 70 LGR 209, at 211. (27 July 1983, unreported). This was a case under the Food and Drugs Act 1955, (now repealed and re-enacted as the Food Act 1984) where it was held by Whitford J, in this case at first instance that whilst statutory markets are entitled to the same degree of protection as franchise markets unless the statute otherwise provides, the only protection available to markets set up under the 1955 Act was that afforded by bringing into operation, by byelaw, the provisions of s  55. The decision was reversed on appeal (The Times, 2 April 1984) the Court of Appeal holding (per Oliver LJ) that the Council should be entitled to argue, when the matter came to trial, that s 49(3) of the 1955 Act (now re-enacted as s 50(3) of the Food Act 1984 as amended by the Food Safety Act 1990) extended to statutory markets the protection enjoyed by franchise markets against the establishment of a rival market within the local authority’s district. The case, however, went neither to further appeal or to trial. See also Hailsham Cattle Market Co v Tolman [1915] 1 Ch 360, and Halton Borough Council v Cawley [1985] 1 WLR 15, in which it was held that the common law right to protection was available to any market even though created under the provisions of a statute and despite the fact the rival market was outside the local authority’s district. Warwick Corpn v Maby (1971) 115 Sol Jo 965.

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The Right to Injunctive Relief

D Evidence of disturbance of right Provided that the right to the monopoly of market can be established, evidence of disturbance of that right is usually not too difficult to demonstrate, except in those cases where the defendant is able to contend successfully that the activities generated by him do not constitute a concourse of buyers and sellers. Such evidence of disturbance can be provided by employees or agents of the market owner deposing to the activities of the defendant. Reliance can be placed on advertisements in the local press or trade journals, and in hand bills, posters, etc, all of which may indicate by advertisement to the trade and/or to the public the time and venue of the rival market. It is also usual for evidence to be obtained from eyewitnesses who have been present when the rival market has operated, and who can depose to the size of the undertaking, the number of stalls, the identity of the stall holders, the nature of the goods sold and the number of persons present thereat. The market owner may be assisted in his endeavours in circumstances when the defendant has made it clear that he is not willing to abandon the project, or is not willing to comply with an order of the court, or has refused to give certain undertakings as to the activities carried out by him. There have also been cases where the defendant has attempted to conceal his activities, and to mislead the market authority and the courts. Not unnaturally such considerations have not assisted defendants seeking to contend that their activities do not offend the law. The bona fides of the defendants is put in issue at the interlocutory stage, and this may have a considerable effect upon the court when it considers the question of the balance of convenience. In several cases the court has taken a somewhat circumspect view of the defendant’s behaviour. In The Mayor, Aldermen and Burgesses of the Royal Borough of Kingston-upon-Thames v Sherman and Waterman Associates Ltd51, as Walton J indicated in his judgment, the plaintiffs: ‘… did not obtain that full and frank statement of the defendants’ intentions which one would have expected the defendants to have made if they were really doing something which they thought they had a right to do. Ultimately, Kingston had to find out by the backstairs what was actually happening, and, as a result, they only obtained an ex parte injunction on the very eve of the opening of the market and, indeed, it proved too late to prevent a few stalls opening’52.

There were attempts at concealment, and also a deliberate failure on the part of the defendants to put their cards on the table after having been invited to do so by the plaintiffs at a very early stage. These factors, combined with the great difficulties which the plaintiffs faced in connection with service of the proceedings, and also the fact that ‘the market was not advertised in the press in the normal manner, in which any honest market would have been expected to be advertised . . ,’53 did not find favour with the court, and indicated clearly to the judge that ‘the whole operation was planned as a clandestine one destined to present both the Council and the court with a fait accompli … .’54 Again, in Bassetlaw District Council v Zaccaria55 there was strong evidence of concealment. The defendants initially advertised in a trade journal (the Worksop Trader) which included the statement, ‘The organisers have asked not to be named. It would appear legal action is expected to be taken by Bassetlaw Council’, and 51 52 53 54 55

(6 July 1976, unreported). Ibid, transcript, p 6. (6 July 1976, unreported), at pp 14–15. Ibid, transcript, p 6. [1980] CLY 300 (and transcript).

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Chapter 11  Practice, Procedure and Evidence apparently elsewhere in this journal the organiser gave his reasons for starting up a Sunday market despite previous bans placed by High Court orders56. Further means of identifying persons concerned in the sale had been obstructed; for example, car number plates had been covered up, and there was an absence of any information as to the names and addresses of the stall holders. One name and address obtained from a trader proved to be false. In the unreported case of Birmingham City Council v In Shops plc57, the defendants were criticised by Hoffman J for deliberately attempting to create a fait accompli without informing the plaintiffs about what they were doing as part of their tactics in negotiation. They overplayed their hand, it was said, and only had themselves to blame for any loss of goodwill. An injunction was granted in the circumstances restraining the defendants from operating a rival market. Shams As has been indicated above, it sometimes proves more difficult for the market authority to provide the necessary evidence of disturbance of its franchise where there is an attempt to circumvent its rights by the creation of what purports to be, for example, a department store, or an arcade of shops, or a supermarket. Ultimately, the success or failure of the defendant’s contention in this regard must rest on the standard and quality of the evidence provided. If the scheme proposed or operated by the defendant can be shown to be a sham, however, then evidence of disturbance of the monopoly of market will necessarily follow. Cases in which it has been held by the courts that schemes or activities have constituted shams tend to have been concerned with Sunday trading and the Shops Act 1950 (now repealed), rather than with rival markets, the sham being the method adopted by the defendant to avoid the provisions of the Shops Act 1950. It is submitted that similar considerations apply to the latter. However, in Leicester City Council v Oxford and Bristol Stores Ltd58 the Vice-Chancellor held on an interlocutory application that the plaintiff Council had failed to show that the defendant’s scheme, which, it was contended, was in the nature of a department store rather than a concourse of buyers and sellers, was a mere sham entitling the plaintiff Council to interlocutory relief. The fact that the modus operandi had been altered, after about a fortnight, from that of a concourse of sellers as well as buyers to a scheme under which it was claimed that there was merely a series of sales by the defendant company as the sole vendor, together with other possible areas of doubt and uncertainty which, not unnaturally, the plaintiff Council desired to challenge and investigate, was not enough to support the contention that there was a serious issue to be tried: ‘… what is needed is something which in fact is a “serious question” and shows a “real prospect of success”, and not a mere possibility of one59.’

56

Ibid, transcript, p 3. See also Waller v Hardy (1972) 70 LGR 331, where the defendants, who ran a furniture shop, attempted to avoid the Sunday trading provisions by ostensibly selling carrots and giving away with each carrot a free gift. One carrot sold for £250 and others for £20, the price including purchase tax. It was held by the Queen’s Bench Division that an intention to buy furniture could not be changed into an intention to buy carrots merely by describing the articles sold as carrots and the furniture as free gifts. 57 [1992] NPC 71. 58 (21 December 1978, unreported), p 90, above. 59 Ibid, transcript, p 10.

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The Right to Injunctive Relief

E Evidence of damage Reference has already been made to the well-established principle that in the case of a ‘same day’ market, injury and damage is presumed to be a disturbance of the old. In the case of a ‘different day’ market, however, injury and actual damage must be proved. In the case of Birmingham Corpn v Perry Barr Stadium Ltd60, a ‘different day’ market, for the purposes of the motion (and accepted by counsel for one of the defendants) was considered sufficient by Pennycuick V-C  that the plaintiff Corporation would show a ‘likelihood of damage’. ‘It is apparent that if some other party, unauthorised by the plaintiff Corporation, established a market within the City of Birmingham, the value of the plaintiff Corporation’s monopoly rights must be reduced. Obviously if it is known that traders can get away with establishing a market without recourse to the licence of the plaintiff Corporation, other traders are less likely to spend their money on obtaining a licence from the plaintiff Corporation. There is also the point as to interference with the existing markets carried on by the plaintiff Corporation itself61.’

The decision in the Birmingham Corporation case was followed in Leicester City Council v Maby62. In this case the unfortunate solicitor for the Corporation was once again criticised by Goff J for his failure to produce evidence of actual damage (which, as the judge indicated, it should have been possible to do, in view of the fact that the rival market had been in operation for some three months). But the judge endorsed the remarks of Pennycuick MR in the Birmingham Corporation case and the observations of Sir George Jessel MR, at first instance, in Elwes v Payne63 and granted the relief sought. In the Kingston-upon-Thames case64 Walton J followed his reasoning and held, for the purposes of the motion, that evidence of the likelihood of damage was sufficient to justify the granting of interlocutory relief: ‘I must make it perfectly clear what, so far as I can see, the nature of that damage is. It is not, I think, that people from outside Putney accustomed to go to the Kingston market will be pulled to the Putney market. That seems to me, at any rate on the evidence in front of me at the moment, to be rather unlikely. But man being a lazy animal, what is much more likely to happen is that the good people of Putney who have been accustomed to resorting to Kingston on a large number of matters and then to go on and complete their shopping in Kingston market will now, since their market is not only just around the corner in Lacy Road, not bestir themselves to go to Kingston, Or, if they go to Kingston, they will not collect their market shopping in Kingston, but will collect it on their own doorstep. That appears to me to be in the nature of the damage65.’

Again, Walton J  in Northampton Borough Council v Midland Development Group of Companies Ltd66 held that (following Morpeth Corpn v Northumberland Farmers’ Auction Mart Co67) even if damage had to be shown in the case of a same day market, it would not be necessary to show economic damage to the holder of the market, but would be quite sufficient to show damage to his stall holders. In this case, unchallenged evidence had been given that the holding of the rival market would seriously impair the viability of many of the marginal stalls. 60 61 62 63 64 65 66 67

[1972] 1 All ER 725, p 83, above. Ibid, at 730. (1971) 70 LGR 209, p 83 above. [1879] 12 Ch D 468 (reversed on appeal [1879] 12 Ch D 475). (6 July 1976, unreported). Ibid, transcript, pp 13–14. (1978) 76 LGR 750, p 89, above. [1921] 2 Ch 154.

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Chapter 11  Practice, Procedure and Evidence However, irrespective of whether or not damage is to be presumed in the case of a same day market, or damage must be proved in the case of a different day market, it is clearly to the market owner’s advantage, and may have an important bearing on the question of balance of convenience, if the market owner is able to produce firm evidence of injury and damage, especially if that injury and damage are challenged by the defendant in his evidence. Thus, if it can be demonstrated by the market owner that there has been a fall in trade in his market, or a decrease in turnover at any markets licensed by him, with the consequential loss of toll or stallage, or if it can be shown that there has been a loss of income to individual stall holders, especially if it can be demonstrated that the loss would affect the viability of the more marginal stalls, then such evidence can only be of assistance to the market owner’s case both at the interlocutory stage and at the trial of the action. Conversely, the failure of the market owner to produce such evidence could have serious consequences for his case (as almost happened in the case of Leicester City Council v Maby68). It is appreciated that it may be difficult to quantify such damage, especially if the rival undertaking has not in fact been commenced. The longer the rival market has been in existence, however, the easier it should be for the market owner to quantify his loss, and failure by him to do so must weaken his case, particularly at the interlocutory stage69.

F Balance of convenience If, after consideration of the factors, there is a serious question to be tried, then, if it is appropriate, the court will consider the question of balance of convenience and damages. A number of points can be discerned from the cases in the interpretation of the principle by the courts in market cases. (1)

A local authority market owner is certainly good for any damages which might ultimately be awarded to a defendant, ie a local authority should clearly be in a position to make good any loss sustained by a defendant who at the later trial succeeds in his opposition to the grant of the injunction. However, it must be remembered that since the case of Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd70 a cross-undertaking in damages is not an essential prerequisite to the grant of an injunction, but lies within the discretion of the court71.

(2) If a defendant is permitted to continue his activities, pending trial of the action, such may well threaten the profits, viability and existence of the market owner’s existing market, and those activities may be copied by others to the further detriment of the existing market. (3) If a defendant has incurred substantial capital expenditure, then the balance of convenience may favour a refusal to grant an interlocutory injunction unless the defendant has incurred such expenditure after having been warned not to do so by the market owner. Such disregard for the plaintiff’s apparent rights will indicate a firm and continuing intention to establish a market which may well be disadvantageous to a defendant on an interlocutory application. Any apparent flagrant invasion of the market owner’s rights, especially in circumstances where the profits are high, will not commend itself to a court. 68 69

(1971) 70 LGR 209. For measure of damages, see Stoke-on-Trent City Council v W&J Wass Ltd (1988) 87 LGR 129, CA and pp 83 et seq, above. 70 [1993] AC 227, [1992] 3 All ER 717, [1992] 3 WLR 170. 71 See above, p 164.

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The Right to Injunctive Relief However, if a defendant is genuinely willing to undertake to desist from such activities then interlocutory relief is usually not granted. But such cases are rare. (4)

If a market owner wishes to prevent activities on the part of a defendant which are apparently a disturbance of his rights he should act speedily, otherwise the status quo could be affected by the establishment and operation of such a rival undertaking. If the market owner does act with speed, then the status quo will be maintained until trial, unless other factors in the assessment of the balance of convenience are not in favour of granting the relief prayed.

(5) A  further consideration relates to the ease with which the prospective loss on the part of the plaintiff or the defendant can be quantified. The loss to the plaintiff market owner is often incalculable or substantial. The defendant not only often fails to provide evidence of his ability to pay damages but also his loss usually can be easily quantified; for instance, by the loss to him of stallage at the prospective rival market. In the case of an established market owner the loss may be very difficult to calculate.

G Powers of local authorities under the Local Government Act 1972, s 222(1) At common law a local authority was in no different a position than any other plaintiff and could only sue for interference with its private rights or for interference with a public right when it had suffered special damage peculiar to itself. Breach of statute such as the Shops Act 1950 (now repealed) could not constitute an interference with the private rights of a local authority nor cause it special damage. Accordingly, at common law a local authority could not bring civil proceedings complaining of such breaches. Such proceedings could only be instituted by the Attorney-General. Now, however, since the enactment of the Local Government Act 1972, s 222(1), in a proper case a local authority can utilise its powers under the section ‘to restrain’ anticipated breaches of the criminal law without recourse to the Attorney-General. Such powers are additional to and are not in derogation of the power of the AttorneyGeneral ex officio or ex relatione to enforce obedience to the public law72. Section 222(1) provides that: ‘Where a local authority considers it expedient for the promotion or protection of the interests of the inhabitants of their area– (a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name; (b) …’

In recent decades there was a marked increase in organisations prepared to flout deliberately the provisions of the Shops Act 1950 (now repealed) by trading on Sundays by selling goods other than those permitted by Sch 5 thereto. The penalties provided by s 59 (as increased by the Criminal Justice Act 1982, ss 35–48) were clearly inadequate to deter such organisations, many of which found Sunday trading a highly profitable venture, particularly with regard to DIY articles. It is in these circumstances that a number of cases have reached the civil courts in which the local authorities concerned have sought, pursuant to their powers under s 222(1), to invoke the aid of the civil courts to ensure compliance with the criminal

72 See Stoke-on-Trent City Council v B & Q (Retail) Ltd [1984] 2 WLR 929.

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Chapter 11  Practice, Procedure and Evidence law, and to restrain such breaches by way of injunction. Such actions have, in the main, been successful. The use of such a power by a local authority however, to invoke the assistance of the civil courts in the aid of the criminal law is, in the view of Lord Diplock in Gouriet v Union of Post Office Workers73: ‘… appropriate … only in the most exceptional of cases. It is not accurate to describe it as preventative justice. It is a deterrent and punitive procedure …’

which may be anticipatively invoked before any crime, even inchoate, has actually been committed. However, as profits from Sunday trading were considerable, and as the fines provided by the Shops Act 1950 were not likely to be a deterrent, and as law-abiding citizens were placed in a disadvantageous position in relation to those who were willing to flout the law, the civil courts appeared to be increasingly willing to grant such relief as a means of ensuring compliance with the criminal law. As a result the courts are now more sympathetic towards local authorities, and are apparently more prepared to recognise the difficulties inherent in prosecuting individual offenders for persistent breaches of eg, market rights and planning legislation. All local authorities have finite resources and considerable strain can be placed upon small departments in relation to the expenditure of time, effort and money in attempting to enforce the criminal law. It is in such circumstances that the civil courts have stepped in and granted relief. A precursor of s 222(1) of the Local Government Act 1972 was contained in the Local Government Act 1933, s 276 (itself a replacement of an earlier enactment), which provided that, ‘where a local authority deem it expedient for the promotion or protection of the interests of the inhabitants of their area, they may prosecute or defend any legal proceedings’, but the local authority had no power, if it thought criminal proceedings an inadequate remedy, to bring proceedings in its own name for injunctive relief. In Prestatyn UDC v Prestatyn Raceway Ltd74 it was held by Goff J75 that, in a case where a local authority wished to take proceedings in respect of a public nuisance, it was bound to sue on the relation of the Attorney-General and not in its own name. Thus, the previous enactment did not authorise the institution by a local authority of proceedings for the suppression or prevention of a public nuisance in the absence of the Attorney-General’s fiat. Clearly, the additional wording contained in the new section was designed to alter this position and to reverse the decision of Goff J, and to confer limited powers on a local authority to enable it to sue in its own name and without the intervention of the Attorney-General in order to ensure compliance with public duties, in cases where, prior to the Act, it had been necessary to obtain his concurrence76. This was the view taken by Oliver J  in Solihull Metropolitan Borough Council v Maxfern Ltd77 who considered that the intention of the legislature was to vest the discretion formerly exercised by the Attorney-General in the local authority in cases where the local authority thought it necessary to promote or protect public rights in its area78.

73 74 75 76 77 78

[1978] AC 435 at 498. See also the sentiments expressed by Lord Wilberforce at 481. [1970] 1 WLR 33. Applying the dictum of Kay LJ in Tottenham UDC v Williamson & Sons Ltd [1896] 2 QB 353 at 354–355. See also Hampshire County Council v Shonleigh Nominees Ltd [1970] 1 WLR 865. Stoke-on-Trent City Council v B & Q (Retail) Ltd [1984] 2 WLR 929. [1977] 1  WLR  127 (Sunday market, shopping ‘club’, a sham). See also the reported further part of the proceedings in Solihull Metropolitan Borough Council v Maxfern Ltd (No 2) (1977) 75 LGR 392. Approving the passage in The Supreme Court Practice at 15/11/5.

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The Right to Injunctive Relief This interpretation was approved by the House of Lords in Stoke-on-Trent City Council v B & Q (Retail) Ltd79. The discretion of the Attorney-General had previously been exercised in proceedings involving, for example, the granting of injunctions to restrain breaches of planning provisions (A-G v Bastow80 and A-G v Smith81), or where there had been persistent contraventions of byelaws (A-G v Kerr & Ball82), and although the Solihull case confirmed that a local authority could now in such circumstances sue in its own name, the constraining words ‘… for the promotion or protection of the interests of the inhabitants of their area …’ awaited judicial consideration. The phrase was not judicially defined by Oliver J  in the Solihull case, since although the case concerned a market and breaches of the Shops Act 1950 (now repealed), the only argument before the court was as to whether an action for the enforcement of a public right had still to be instituted in the name of the AttorneyGeneral notwithstanding s 222 of the 1972 Act. The Court of Appeal’s decision in Stafford Borough Council v Elkenford Ltd83 also concerned a Sunday market and breaches of the Shops Act 1950 (now repealed); which the defendants had attempted to circumvent by the setting up of a proprietary club. The use of the land also contravened the then Town and Country Planning Act 1971. However, again, the scope of the constraining words of the section was not considered, the point not being taken. This case also came before Oliver J at first instance, and counsel for the defendant company submitted that, as injunctive relief is an ancillary remedy, he who seeks it must first demonstrate that the statutory remedy has been exhausted and that it is inadequate. He also submitted that an injunction should be granted only where there are persistent breaches of statute which demonstrate the inadequacy of the statutory remedy, and he cited as an example A-G  v Harris84, where the two defendants had been prosecuted and convicted for illegal street trading on no fewer than 142 and 95 occasions respectively. Whilst Oliver J accepted that the court must at least consider the extent to which statutory remedies have been exhausted before exercising its discretion, he quoted with approval the dictum of Lord Denning MR in A-G v Chaudry85. ‘Whenever Parliament has enacted a law and given a particular remedy for the breach of it, such remedy being in an inferior court, nevertheless the High Court always has a reserve power to enforce the law so enacted by way of an injunction or declaration or other suitable remedy. The High Court has jurisdiction to ensure obedience to the law whenever it is just and convenient to do so86.’

The learned judge did not consider that the court was restricted to granting injunctions only in those cases where permanent damage to the public interest is being done, as, for instance, in A-G v Ashborne Recreation Ground Co87 (threat to build in front of the building line), or where the intervention of the court is required as a matter of urgency because, for example, there is an element of public danger, as in A-G v Chaudry88 (defendant restrained from using building as a hotel pending

79 80 81 82 83 84 85 86 87 88

[1984] 2 WLR 929. [1957] 1 QB 514. [1958] 2 QB 173. (1915) 79 JP 51. [1977] 1 WLR 324. [1961] 1 QB 74 (Sunday Market, proprietary ‘club’, a sham). [1971] 1 WLR 1614. Ibid, at 1624. [1903] 1 Ch 101. [1971] 1 WLR 1614.

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Chapter 11  Practice, Procedure and Evidence the grant of a certificate under the then London Building Acts). The High Court has a wider jurisdiction where it is a case of a defendant: ‘… who is quite deliberately organising and maintaining a system which, from first to last, is designed to break the law, relies for its existence on breach of the law, and assists and encourages others to break the law and to expose themselves to the risk of prosecution. It is a state of the conscious and deliberate provision of facilities by the use of which the individual traders in the market are invited and encouraged to participate in or assist regular and persistent contraventions of an Act of Parliament. And it is a case where the company’s own evidence makes it perfectly plain that it intends to go on doing what is complained of. These considerations, as it seems to me, take the case right outside the ordinary run of cases where the court declines its assistance until exhaustion of the statutory remedies. It is perfectly plain that the fines provided by the Act are not in the slightest degree likely to deter the company from engaging in what is obviously a lucrative activity by which it obtains an advantage which is not open to those more law abiding tradesmen who consider it their duty, however unpalatable it may be, to observe the decrees of Parliament89.’

The Court of Appeal supported the reasoning of Oliver J and dismissed the appeal against the grant to the local authority of the relief it sought by way of motion. Lord Denning was of the opinion that a local authority can, where there is a plain breach of a statutory provision which is likely to continue, apply immediately for an injunction: ‘When there is a plain breach of the Act I do not think that the authorities concerned need wait at all for finality anywhere. They can take proceedings in the High Court before any other proceedings are even started. It is open to the court in its discretion to grant an injunction straight away, at all events when the breach of the law is plain and where there appears to be intention by the defendants to continue with the breach90.’

However, Bridge LJ was somewhat more cautious in his approach: ‘The reason why it is ordinarily proper to ask whether the authority seeking the injunction has first exhausted the statutory remedies is because in the ordinary case it is only because those remedies have been invoked and have proved inadequate that one can draw the inference, which is the essential foundation for the exercise of the court’s discretion to grant an injunction, that the offender is, in the language of Oliver J, “deliberately and flagrantly flouting the law”. In the appropriate case it may be possible, as Lord Denning MR has said, to draw that inference before there has been any resort to the statutory remedies at all. It would have to be shown that the scale of the operations was such that it could be legitimately inferred that they would continue unless and until effectively restrained by law. In some cases it may be apparent from the start that the profits the defendants are likely to make are such that nothing short of an injunction will be effective to restrain them. Finally, of course, in such a case it must be plain beyond doubt that there is no defence to a prosecution under the Act91.’

The judgment of Bridge LJ was expressly approved by the House of Lords in Stoke-on-Trent City Council v B & Q (Retail) Ltd92. In another club case, Bassetlaw District Council v Zaccaria93, the Court of Appeal upheld the decision of Whitford J that a ‘members’ club’ was designed to avoid the provisions of the Shops Act and was a camouflage incapable of concealing the true 89 90 91 92 93

[1977] 2 All ER 519 at 525. [1977] 1 WLR 329. Ibid, at 330; and see also Runnymede Borough Council v Ball [1986] 1 WLR 353. [1984] 2 WLR 929. [1980] CLY 300 (and transcript).

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The Right to Injunctive Relief nature of the transactions, which were sales between traders and persons coming to the site. The district council involved had not prosecuted under the Shops Act (now repealed) before commencing proceedings for injunctive relief, and it was considered by the legal department concerned that such prosecutions would prove ineffective in securing the cessation of breaches. The scope of s 222(1) was considered to a limited degree in Kent County Council v Batchelor94. In this case the local authority had previously obtained an interlocutory injunction against a farmer restraining him from damaging or destroying trees on his land which had previously been made the subject of a tree preservation order. The local authority sought to have the defendant committed for breach of the terms of the injunction (a previously successful committal order having been quashed by the Court of Appeal on the ground that there was insufficient evidence). The defendant opposed this application and applied to have the interim injunction discharged on the grounds (inter alia) that the original proceedings should have been brought by the Attorney-General by way of a relator action and, in any event, the Attorney-General could exercise his discretion only where criminal acts were being committed and the penalties were wholly inadequate, or where urgent action was required. Talbot J  rejected the defendant’s arguments and confirmed that the effect of s 222(1) was to enable a local authority to institute civil proceedings without first necessarily obtaining the concurrence of the Attorney-General. Furthermore, a local authority was not limited to obtaining an injunction in circumstances where the penalties for criminal offences were wholly inadequate. A local authority’s statutory duty to protect areas of natural beauty did not stop at making tree preservation orders, but extended to enforcing those orders in order to protect areas of natural beauty, and to ensure that they are preserved. Since this concerned the interest of the inhabitants of its area, the local authority was empowered by s 222(1) to take proceedings to protect such areas. The subsection again appears to have been considered to a limited degree by Goulding J  in Stoke-on-Trent City Council v Saxon Scaffolding Ltd95, where the headnote states that: ‘The public interest … was much wider than nuisances by noise, excessive traffic and the like, and a local authority could bring an action against a single shop as in the present case without joinder of the Attorney-General. The offences alleged on the motion might yet be prosecuted in the Magistrates’ Court; while the defendant might be in jeopardy of more serious penalties in that court than under the Shops Act 1950, there was nothing constitutionally wrong with granting the injunction sought.’

Similar considerations applied in Westminster City Council v Jones96, a case which concerned a failure by the defendant to comply with the terms of a stop notice, and to cease using premises for the purposes of an amusement arcade. The plaintiffs sought an injunction (under s 222(1)) which was granted by Whitford J. In this case the court was not prepared to wait even one month for criminal proceedings relating to the stop notice to be heard, and considered it right that an injunction should be granted against a defendant who was determined to flout the law for as long as possible, and who was in flagrant disregard of the views of the local authority and in defiance of the notice. Again, Whitford J in Barking and Dagenham London Borough Council v Essexplan Ltd97 considered the scope of the subsection to a limited degree, in a case where 94 95 96 97

[1979] 1 WLR 213. (26 October 1979, unreported). (1981) 80 LGR 241. (1983) 81 LGR 408.

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Chapter 11  Practice, Procedure and Evidence the organisers of a market contended that, pending applications for registration of stall holders as Jewish traders pursuant to the provisions of s 53 of the Shops Act 1950 (now repealed), they were entitled to operate a Sunday market. The learned judge held that, as s 71(1) imposes a duty on councils to secure compliance with the provisions of the Shops Act 1950, such compliance with these provisions must be in the interests not only of those who live within the council’s area but also of all inhabitants of the country.

H The Wolverhampton and Stoke-on-Trent cases However, a new element was introduced into the debate regarding the scope of a local authority’s powers pursuant to s 222(1) by the reported decision of Nourse J in the case of Wolverhampton Borough Council v B & Q (Retail) Ltd98 (and followed, albeit with some apparent reluctance, by Goulding J in another reported decision against B & Q (Retail) Ltd99) in which the learned judge dismissed the plaintiff’s motion for an interlocutory injunction, which sought to restrain deliberate and persistent breaches of the 1950 Act by the defendant company. Within the area of Wolverhampton Borough Council, B & Q  (Retail) Ltd operated three DIY retail shops selling building materials and tools. On various Sundays between late spring and summer of 1982 the company carried on trading in contravention of s  47 of the 1950 Act (now repealed) at all three premises. Despite a warning letter from the Environmental Health Control Committee of the local authority in October 1982, and the company’s conviction at Wolverhampton Magistrates’ Court in November 1982 of 24 offences under s 47, when it was fined £50 in respect of each offence and ordered to pay £120 costs, further contraventions occurred. The basis of the decision of the learned judge at first instance rested on a submission by defence counsel (the same point apparently not having been taken in any previously reported case since the enactment of s 222), that as the motion was to restrain breaches of the criminal law it could only be made by the Attorney-General in relator proceedings, unless the evidence disclosed circumstances in which the plaintiff could properly consider it to be expedient, for the promotion or protection of the interests of the inhabitants of its area, that the application should be made. It was held by Nourse J that the facts disclosed by the evidence did not establish that the case fell within s 222(1), and, accordingly, the proceedings were not properly constituted. Nor was a local authority’s desire to prevent the commission of crime in its area, said to be sufficient. Although a local authority might consider it to be in the interests of the inhabitants that its area should be respectable and as free from crime as possible, that was equally the concern of the public in general: ‘… it was not a special interest of the inhabitants of a particular area … it could not be assumed that the plaintiff’s Environmental Health and Control Committee had a number of purely local considerations in mind. The evidence did not point to any particular prejudice to the inhabitants as opposed to the public in general100.’

If s  222(1) were to be construed widely it might result in a very considerable number of cases being removed from the discretion of the Attorney-General and, as counsel submitted, this would involve the usurpation of his function, the importance of which had been emphasised in the Gouriet case101 and which demonstrated that

98 (1983) 127 Sol Jo 68. 99 Poole Borough Council v B & Q (Retail) Ltd (1983) Times, 29 January. 100 (1983) 127 Sol Jo 68. 101 [1978] AC 435.

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The Right to Injunctive Relief it should be exceptional for the aid of the civil court to be involved in support of the criminal law. As the learned judge stated in his judgment: ‘The solemnity thus attaching to a decision made by the Crown’s Senior Law Officer, whose office and experience in both fields give him a unique grasp of politico-legal considerations, emphasise that the power to make it was not to be regarded as having been removed from him and entrusted to a local authority unless the circumstances in which it was made fell fairly and squarely within s 222 …102.’

However, the Court of Appeal allowed the appeal of Wolverhampton Borough Council against the decision of Nourse J  at first instance, and also dismissed the appeal of B & Q (Retail) Ltd against the decision of Whitford J to grant an injunction to Stoke-on-Trent City Council. In a third appeal heard at the same time (Barking and Dagenham London Borough Council v Home Charm Retail Ltd), the defendant company’s appeal against the decision of Falconer J to grant injunctive relief was allowed103. This decision, insofar as Stoke-on-Trent was concerned, was the subject of an unsuccessful appeal by B & Q to the House of Lords, where the decision of the Court of Appeal was affirmed104. The principles which can be distilled from this case, and which are still of considerable relevance, are as follows: (1)

Parliament has in some instances conferred limited powers on local authorities to institute and maintain proceedings to ensure compliance with public duties and has supplemented the power of the Attorney-General to act in the national interest with the power for a local authority to act in the interests of the public within its area.

(2) The terms of s  222(1) are sufficiently explicit to enable a local authority to bring proceedings in its own name without recourse to the Attorney-General. Such power was additional to and does not derogate from the power of the Attorney-General to enforce obedience to the public law. (3) However, the power of a local authority to act arises only if it considers it expedient for the promotion or protection of the interests of the inhabitants of its area, and is in any event subject to the well-established principles relating to judicial review enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corpn105. (4) Furthermore, as a matter of caution, something more than infringement of the criminal law (in this case the Shops Act 1950, s 47 (now repealed)) must be shown before it is proper for the assistance of the civil process to be invoked by the local authority. It must be demonstrated that the offender is deliberately and flagrantly flouting the criminal law and that his unlawful operations will continue unless and until effectively restrained by law, and that nothing short of an injunction will be effective to restrain him106. (5) Per curiam. In carrying out the duty imposed on it by the Shops Act 1950, s 71(1) (now repealed) a local authority had first to decide whether the conduct 102 103 104 105 106

(1983) 127 Sol Jo 68. [1983] 3 WLR 78. [1984] 2 WLR 929. [1948] 1 KB 223. Dictum of Bridge LJ in Stafford Borough Council v Elkenford Ltd [1977] 1 WLR  324 at 330: applied in Runnymede Borough Council v Ball [1986] 1  WLR  353 and in Wychavon District Council v Midland Enterprises (Special Events) Ltd (1988) 86 LGR 83.

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Chapter 11  Practice, Procedure and Evidence in question prima facie constituted a contravention of the Act. If so, then it had to consider whether it is necessary to institute and carry on proceedings in respect of that prima facie contravention in order to secure observance of the provisions of the Act. In this connection, in similar enforcement cases the local authority is entitled to have regard in the particular case or cases in question to the financial consequences of any suggested action. If, for example, there is a serious or doubtful question of law involved which may invoke a series of appeals and thus cast a heavy financial burden on ratepayers, whatever the result but especially if the prosecution ultimately fails, the local authority after taking proper legal advice is not debarred from taking that factor among others into account before reaching its final decision whether or not it is necessary to institute and carry on proceedings107. Thus, the scope of a local authority’s power under s 222(1) has been clarified by these decisions. But what lessons can be drawn from these judgments, and to what considerations should a local authority have regard before embarking upon injunctive relief to restrain breaches of the criminal law which it has a duty to enforce, bearing in mind that the section can be used in support of a wide range of breaches? First, it must be remembered that this decision does not extend the general principle that a local authority is not entitled to use the civil courts to control criminal conduct and injunctive relief should not be sought as a general means of planning control. Secondly, it is vitally important for a local authority to adopt correct procedures. In its deliberations on the merits of commencing proceedings pursuant to s 222, a local authority should consider the action taken hitherto by way of warnings to the offender, and subsequent prosecutions, if any. It should consider whether further warnings and/or prosecutions are likely to have any effect. If so, then clearly this should be the next step. On the other hand, the record of the offender in other areas or the terms in which any warning has been rejected may lead the local authority reasonably to infer that a further prosecution, or even a first prosecution, would have no deterrent effect, and would be a waste of time and money. Generally speaking, however, injunctive relief will be more readily granted if criminal sanctions have failed to deter. Thirdly, it is important that those matters be incorporated into a written report to the appropriate committee possessing delegated powers. The committee’s attention must be specifically drawn to s 222 and the limitation thereunder. The resolution should specifically state that it is considered expedient for the promotion or protection of the interests of the inhabitants of that area that proceedings for injunctive relief be instituted. If there has been some procedural failure then consideration must be given to the question of a subsequent ratification in order to regularise the position. Fourthly, it goes without saying that these matters must be fully deposed to on affidavit by the appropriate officers of the local authority concerned.

5 THE EUROPEAN LAW DIMENSION In recent history there were a concerted set of challenges upon the rights held by the market owner, whether as an individual, or as a local authority as the statutory market owner. First, there were numerous attempts by individual rival market operators to seek to challenge the efficacy of such rights in the courts some of which have involved reliance upon competition law. Secondly, there were challenges from

107

Dictum of Webster J in R v Braintree District Council, ex p Willingham (1983) 81 LGR 70 at 79 approved.

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The European Law Dimension central Government based upon a perceived de-regulation perspective within a European based legislative framework.

A Nature of the challenges The nature of the challenges can thus be divided into two basic categories. First, there have been numerous reported and unreported cases in the courts, in particular in the 1990’s, where rival market operators have contended at common law, successfully or unsuccessfully, that the market owner does not possess or is unable to seek to assert his market rights. These have been mounted on a variety of different grounds. These include the failure of the market owner to provide sufficient evidence of title, or sufficient evidence of loss and damage or the likelihood of loss and damage in an ‘other day’ rival market case. The second area of challenge is legislative-based. This can be characterised as follows, namely: (1) that deriving from central Government which has sought to impose a form of deregulation on market owners, (2) that deriving from European legislation, in particular the Treaty of Rome, and more recently the European Services Directive. An example of (1), imposed regulation, was the attempt made in the early 1990s to de-regulate market rights with the proposed enactment of draft clauses contained in the Deregulation and Contracting Out Bill108, and later withdrawn. An example of (2) is found in cases where reliance has been based upon various Articles contained in the Treaty of Rome, now the Consolidated Version of the Treaty on the Functioning of the European Union. This category can be sub-divided into two parts. First, those challenges which related to local authorities operating in their role as law enforcement agencies seeking to suppress breaches of the Shops Act 1950 (now repealed) by rival shop or market undertakings where the provisions of the Treaty of Rome have been raised. These have arisen particularly in relation to Article 36 (ex-Article 30 TEC), which deals with the prohibition between the member states of quantitative restrictions on imports and all measures of an equivalent effect. Secondly, there has been the more recent development where rival market operators have sought to challenge the whole basis of private market law as being in breach of what is now Article 105 (ex-Article 85 TEC), which deals with the question of restriction or distortion of competition), and Article 106 (ex-Article 86 TEC) which deals with the question of abuse of dominant position. Such challenges have also sought to pray in aid the provisions of Article 36 (ex-Article 30 TEC) and Article 52 (ex-Article 48 TEC), the latter being directed to the position of market traders and the rights of self-employed nationals of one state to establish themselves within another member state. A more recent entrant into the legislative framework of the United Kingdom, is the adoption of the European Service Directive by the European Union States in December 2006, and the effect this may be perceived to have, if any, on market rights in the United Kingdom. The European Service Directive was adopted by the Provision of Services Regulations 2009109 which came into force on 28 December 2009. B The Shops Act challenge The development seeking to challenge the provisions of the Shops Act 1950 (‘the 1950 Act’) (now repealed) seems to have first been recorded with arguments advanced by the defendants in the case of Wychavon District Council v Midland Enterprises (Special Events) Ltd110 to the effect that the restrictions on Sunday trading imposed

108 See p 141, above. 109 SI 2009/2999. 110 (1988) 86 LGR 83.

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Chapter 11  Practice, Procedure and Evidence by the Shops Act 1950 were incompatible with Article 30 of the Treaty of Rome. These arguments were rejected by the court. Thereafter, this theme was taken up in a case brought before the Cwmbran Justices by Torfaen District Council in which the magistrates’ court was required to give a decision on an information laid before it alleging that B & Q plc contravened the provisions of ss 47 and 59 of the Shops Act 1950. The particular allegations related to retail premises owned by B & Q plc being open for serving customers on Sundays in Cwmbran for transactions other than those permitted by Sch 5 to that Act. In April 1988 the court referred the matter to the European Court of Justice for a preliminary ruling under Article  177 of the Treaty of Rome (now Article  208), raising three questions on the interpretation of Articles 30 and 36 (now Articles 36 and 42). At about the same time convictions were imposed by Peterborough Magistrates’ Court upon W H Smith Do-It-All Ltd and Payless DIY Ltd in respect of unlawful Sunday trading. These were the subject of appeals to the Crown Court and eventually by way of cases stated to the Divisional Court. These were eventually dismissed after lengthy argument relating to the provisions of Article 30 (now Article 36)111. Eventually in November 1989112 in the Torfaen case the European Court of Justice held that the national rules such as those imposed by the Shops Act 1950 with regard to the opening hours of retail premises constituted a legitimate part of economic and social policy consistent with the objects of public interest pursued by the EEC Treaty. They reflected certain political and economic choices insofar as their purpose was to ensure working and non-working hours were so arranged as to accord with national or regional socio-cultural characteristics. Such rules were not designed to govern patterns of trade between member states but were a matter for member states. Whether the effects of specific national rules extended what was necessary to achieve the aim in view was a question of fact to be determined by the national court. Thus, it followed that the prohibitions in Article 30 (now Article 36) against measures having an effect equivalent to a quantitative restriction on imports did not apply to national rules prohibiting Sunday trading where the restrictive effects on Community trade which might result therefrom did not exceed the effects intrinsic to rules of that kind. In paragraph 14 of its answer to the first of the three questions posed by Cwmbran Justices the European Court of Justice stated as follows: ‘The same consideration [i.e. the national rules governing the hours of work, delivery and sale in the bread and confectionery industry constitute a legitimate part of economic and social policy, consistent with the objects of public interest pursued by the Treaty] must apply as regards national rules governing the opening hours of retail premises. Such rules reflect certain political and economic choices insofar as their purpose is to ensure that working and non-working hours are so arranged as to accord with national or regional socio-cultural characteristics, and that, in the present state of community law, is a matter for the member states. Furthermore, such rules are not designed to govern the patterns of trade between member states113.’

In short, the European Court held that the validity of the law restricting Sunday trading in England and Wales depended on whether: 111 112 113

Smith (WH) Do-It-All Ltd v Peterborough City Council, Payless DIY  Ltd v Peterborough City Council [1991] 1 QB 304, [1991] 4 All ER 193, [1991] 3 WLR 1131. Case C-145/88: Torfaen Borough Council v B & Q plc [1990] 2 QB 19, [1990] 1 All ER 129. The opinion of Mr Walter van Gerven, Advocate-General to the European Court, was given in June 1989; [1989] ECR 3851. [1990] 2 QB 19 at 53.

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The European Law Dimension (a)

It pursued an object justified under EEC law. In the Torfaen case it was held to be justified as the restriction on Sunday trading protected people from having to work on Sundays.

(b) The test of ‘proportionality’ was satisfied, that is, whether the effects of the restriction on trade between member states were disproportionate to its legitimate aim. In the Torfaen case it was held that it was up to the national courts to determine whether on the facts the test was satisfied. Although argument was directed towards the two further questions posed by the Cwmbran Justices, in the Torfaen case, the European Court of Justice said it was unnecessary to answer these questions in view of the answer to the first question114. The judgment in the Torfaen case was intended to be an authoritative interpretation of the EEC  Treaty sufficient to enable the domestic courts to decide the case. Unfortunately, since the judgment there have been arguments over what the judgment in fact actually means, in particular, with regard to the issue of proportionality. The words ‘insofar as’ were considered in the case of Stoke-on-Trent City Council v B & Q plc115 by Hoffman J where it was held that the meaning of ‘insofar as’ was not ‘if it is the case that’ but rather ‘because’ and the European Court was deciding that the purpose of s 47 of the Shops Act 1950 (now repealed) satisfied this description. In any event, as Hoffman J stated, it seemed: ‘… plain and obvious that the purpose of section 47 was to arrange working and nonworking hours in shops in England and Wales so as to accord with the “regional sociocultural characteristics” by which people generally do not work on Sundays116.’

However, in the Stoke-on-Trent City Council v B & Q plc117 case Hoffman J had to consider a number of further points raised by counsel for B & Q  particularly with regard to the second question before the European Court in the Torfaen case, which the court had declined to answer on the basis that it was a question of fact to be determined by the national court. Thereafter the House of Lords, after allowing a petition by the defendants in November 1990, declined to rule upon the appeal which had been the subject of the ‘leapfrogging’ procedure, and referred the whole question raised in the Stoke-on-Trent City Council v B & Q  plc case back to the European Court. The hearing of the appeals was adjourned pending receipt of the answers from the European Court of Justice. On 8 July 1992 Mr Walter van Gerven, Advocate-General to the European Court, delivered his long-awaited opinion on the Torfaen case and two other cases118. This opinion was endorsed by the European Court when it delivered its full judgment in the matter on 16 December 1992119. The conclusion reached supports the judgment of the European Court in the Torfaen case. The opinion stated that as a matter of principle it is not for the national court to determine the proportionality of a national measure under Community law on the evidence before it and in circumstances where the measure is held to be disproportionate to declare it to be incompatible with Community law and determine the consequences under national law of that declaration. The European Court of Justice in its judgment provided the unequivocal answer that Article  30 (now Article  36) is to be interpreted as meaning that the 114 115 116 117 118 119

[1990] 2 QB 19 at 53. Stoke-on-Trent City Council v B & Q plc, Norwich City Council v B &Q plc [1991] Ch 48. Ibid, at 64. [1991] Ch 48. Case C-306/88: Rochdale Borough Council v Anders (see [1988] 3 All ER 490; and see [1993] 1 All ER 520n). Case C-304/90: Reading Borough Council v Payless DIY Ltd. Case C-169/91: Stoke-on-Trent City Council and Norwich City Council v B & Q plc. [1993] 2 WLR 730.

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Chapter 11  Practice, Procedure and Evidence prohibition which it lays down does not apply to national legislation prohibiting retailers from opening their premises on Sundays. As a result of this ruling the House of Lords, in March 1993, dismissed the appeals in the Stoke-on-Trent City Council v B & Q plc case120.

C Market rights and the Treaty of Rome Market rights are essentially of a private nature and being incorporeal hereditaments have the same status as any other private property rights. They can be enforced or not enforced depending upon the circumstances. There should be no question of these rights giving rise to a law enforcement action as in the case of a public statute even in the case where the franchise itself may have been modified or superseded by statute. Whether the market rights in question are held by individuals or by local authorities, they still remain private rights albeit of benefit to the public. In the case of a local authority it is not, as a public body, under any public duty to enforce these rights. However, it may render itself susceptible to judicial review if it fails to adopt or follow correct procedures in seeking to invoke its rights. Organisations seeking to challenge these private rights might attempt to draw a distinction between the rights held by a statutory market owner and the rights held by the owner of a franchise. However, case law has affirmed and re-affirmed that a market established under a local or public Act enjoys all the incidents and privileges of a market created by charter unless the statute otherwise provides. This means that the incorporeal rights associated with a charter market are ascribed to a statutory market. Thus private rights, albeit under a public Act such as the Food Act 1984, should not therefore easily be susceptible to review under the provisions of the Treaty of Rome. D The Treaty of Rome – substantive consideration of its provisions Until the judgment in the case of Leeds City Council v Watkins121 there had been no decision on the merits as to the applicability of Articles  30, 81 and 82 (now Articles 36, 105 and 106) of the Treaty of Rome to market law. In particular, there had been no substantive decision as to whether or not a court could be persuaded to uphold the contentions that these provisions of the Treaty of Rome apply to private market rights. However, there had been a number of cases where such issues have been raised. In one unreported case (Birmingham City Council v In Shops plc122) assertions were made with regard to the provisions of Article 86 (now Article 106 ) of the Treaty of Rome on the basis that the exercise of what were called the ‘monopoly rights’ held by Birmingham Corporation constituted the abuse of a dominant position within a substantial part of the common market so as to affect trade between member states contrary to the Article. A further contention was raised (but not pursued) in that case relating to Article 52 (now Article 48) of the Treaty of Rome to the effect that the Council was infringing the prohibition on discrimination against nationalities as only UK nationals could obtain the right to operate markets in Birmingham. This was a point which had been raised in a previous case and then rejected by the Court of Appeal in R  v Crown Court at Southwark, ex p Watts123.

120 [1993] 2 WLR 730 at 772–774. 121 [2003] UKCLR 467, and see p 86, below. 122 [1992] NPC 71; on appeal (1 June 1992, unreported). 123 2 May 1992, 156 LG Rev 343, and see p 116, (1989) 153 JP 666.

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The European Law Dimension The difficulty with the proposition based upon the Article 86 (now Article 106) point raised in the Birmingham City Council case124 was that no evidence at all had been adduced to support the allegation that the City Council was abusing its dominant position (if indeed it could be construed as having one). This case went almost immediately to the Court of Appeal where Scott LJ reiterated the aspect of lack of evidence, and, as he stated, in most cases where a breach of Article 86 is successfully alleged a very great deal of evidence is required. The case of Birmingham City Council v In Shops plc125 is also instructive not least because of the consideration of the question of the balance of convenience. It was said by Scott LJ that the raising of the Article 86 point particularly meant that the trial of the action would be likely to lie some fair distance in the future and could well result in a reference to the European Court. That would entail even greater delay in the case than the conduct of civil litigation inevitably entails. Thus, the Court of Appeal was minded not to discharge the injunction obtained by the City Council and concluded that Hoffman J was correct that the bounds of convenience favoured the grant of an interlocutory injunction pending the trial of the action. Article 30 of the Treaty of Rome then fell to be considered by Jacob J in South Pembrokeshire District Council v Wendy Fair Markets Ltd126. There the Council, being the holder of ancient market rights, sought an interim injunction pending trial against the defendants who were threatening to hold two separate markets within the common law distance of 6⅔ miles. The defendants, inter alia, sought to rely upon Article 30 (now Article 36) as a defence to the action. Article 36 provides: ‘Quantitative restrictions on imports and all measures having an equivalent effect shall, without prejudice to the following provisions, be prohibited between member-States.’

It was argued that the Dassonville principle127 applied. This was on the basis that since some goods from the EC were sold in the markets there was the possibility of a hindrance on inter-state trade either in the trading of one stall holder or in an individual product. This meant that the market right claimed would fail. Indeed, on this interpretation most market rights would fail. Against this the European Court of Justice has rejected this general approach in Torfaen and Stoke-on-Trent. Jacob J held that the Article 30 case law was unclear and that there was a triable issue. The facts needed to be fully determined before a reference was made to the ECJ, particularly as Article 105 and 106 points had also been pleaded both by way of defence and counterclaim which would have to be investigated irrespective of Article 36. As to the interlocutory injunction, this was granted on the ‘balance of convenience’ since the Council was faced with a direct challenge to its alleged monopoly and damages were not an adequate remedy should the Council succeed at the trial of the action. If no injunction were granted, pending such trial, this would enable third parties to establish markets pending resolution of the case. Further, the Council’s own market traders might suffer as a result of the defendants operating a competing market and there was some evidence that the Council’s own market traders had suffered during the time when the defendants had operated their market. Finally, the status quo lay in favour of the Council. In the case of Keck and Mithouard128 there has been a further gloss on the Dassonville principle in relation to its treatment of Article 30 which would appear to provide further support to the continued exercise by councils of their market rights. 124 [1992] NPC 71; on appeal (1 June 1992, unreported). 125 Ibid. 126 [1994] 1 CMLR 213. 127 Procureur du Roi v Dassonville (8/74) [1975] FSR 191; [1974] ECR 837. 128 Cases C-267, 268/91: [1993] ECR I-6097, [1995] CMLR 101, ECJ.

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Chapter 11  Practice, Procedure and Evidence In the South Pembrokeshire case129 no substantive ruling was made on the interlocutory hearing as to the applicability of these Articles, the matter being stood over for trial and a possible reference to the European Court. An injunction was granted in the meantime. However, it must be said that it would be surprising if a court would even consider the question of the application of Article  36 in a nonlaw enforcement action when successive courts including the European Court have rejected its applicability to Sunday trading.

E Leeds City Council v Watkins and Whiteley130 Leeds City Council (‘the Council’) brought two actions seeking final injunctions against Mr Watkins and Mr Whiteley to restrain them from holding Sunday markets (in this case car boot sales) on a seasonal basis without the licence or consent of the Council, and in breach of the Council’s charter and statutory market rights. The second defendant took no part in the proceedings. The Council’s franchise market rights to hold markets in the Leeds area derived from charters granted in 1626, 1661 and 1684. Those rights were to hold markets on Tuesday and Saturdays. The Council’s statutory market rights derived from the Leeds Corporation (Consolidation) Act 1905. Those rights included the power to alter the days on which the markets were held. The Council held markets on every day of the week and also licensed other operations. The Sunday car boot sales operated by Mr Watkins took place seasonally, the first being at a site in Drighlington (‘the Drighlington Site’), and the second at a site in Morley (‘the Morley site’). The Drighlington Site was approximately five and a half miles from Granary Wharf, where a Sunday market took place under a licence granted by the Council, and, accordingly, that could be used as a basis for enforcement as against the Drighlington site as it lay within the common law distance of the granary Wharf market. At the trial of the consolidated actions in the Chancery Division held in early 2003 Mr Watkins raised a number of defences to the injunctions sought, and challenged the right of the Council to enforce its market rights. He contended that even if the Council’s market rights were established he asserted that the granting of an injunction was inappropriate in the circumstances. It was also contended that the Council was seeking injunctive relief for collateral improper reasons. Substantively, Mr Watkins argued that the enforcement action was contrary to Chapters 1 and 2 of the Competition Act 1998, and to Articles 105 and 106 of the EC  Treaty in that the Council was acting in abuse of a dominant position. This was on the basis that they operated a policy designed to protect the Council’s own markets by a pretended operation of the statutory regime. It was further argued that the Council was a member of the National Association of British Market Authorities (‘NABMA’), and that this was an association of undertakings within the meaning of Article  1 of the EC  Treaty and the Chapter 1 prohibition, which was either making a decision and/or an agreement, and/or a concerted practice in restriction of competition. Expert evidence was given by two witnesses, Dr Bishop and Dr Roswell relating to the potential existence of a dominant position held by the Council. Smith J granted the injunctions and dismissed the counterclaim of Mr Watkins: (1)

It is settled law that the right of holding a market was an incorporeal hereditament which is called a franchise, the essential feature of which gives the holder sole and exclusive rights to hold markets within the common law distance of 6 2/3rds miles. It was clear that the various statutory provisions acted only to

129 [1994] 1 CMLR 213. 130 [2003] UKCLR 467.

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The European Law Dimension modify the existing proprietorial rights vested in the authority with regard to markets and the ability of the Council to seek to regulate rival markets under its statutory powers. It was no different from its rights at common law to seek to restrain a rival market within its area or within the common law distance of an existing market. (2) The grant of an injunction is the natural form of relief for a same-day market. (3) As to the competition law defences, it was held that the Council did not adopt an obstructive policy. Whilst the Council had originally sought to protect its franchise from competition, its motives changed following the coming into force of the Competition Act 1998. It now sought to regulate markets within a regulatory structure. The licensing scheme as developed and maintained was adopted: ‘as the result of legal advice they had, and that licensing scheme [was] not a charade. The Council officers operated a scheme according to its requirements and [did] not create obstacles in a disguised way to protect the existing market of the Council’ [71].

The Council was entitled to grant licences in accordance with an established regulatory procedure. Nor did the Council take into account the possible impact upon the Council’s own operations when considering an application. Complaints about the pricing policy adopted by the Council in respect of licensing were not sustainable. On the evidence there was no improper basis for the licences not having been granted at the time and, therefore, the Council could not have been said to have adopted an obstructive policy. It was further held by Smith J  that the evidence relating to the existence of a possible dominant position held by the Council was highly unsatisfactory. He found that Dr Roswell for Mr Watkins was ‘comprehensively destroyed as a credible witness… Her evidence as to market area was extremely imprecise and was without any evidential basis’ (see para [94]). Although the Council was an undertaking for the purposes of the EC Treaty and the Competition Act 1998 by virtue of its profitable operations and markets [para 115], it was not possible to conclude, on the basis of the evidence advanced, that the Council was in a dominant position. It did not matter that Dr Bishop’s evidence, for the Council, was also unsatisfactory and ‘showed an element of partisanship not acceptable for an expert witness’ [para 116]. Even if the Council had a dominant position in respect of a clearly identifiable market area within the meaning of Chapters 1 and 2 of the Competition Act 1998, and Articles 105 and 106 EC, there was absolutely no evidence to show that the Council had abused its dominant position [paras 112, 113]. There was no evidence which clearly identified the geographical or product market or which clearly identified the Council’s dominance in that market. Further, there was also no evidence of any impact upon trade between Member States [para 106]. Finally, having regard to the Hofner test131 there was no clear evidence which showed that NABMA is an undertaking for the purposes of the EC Treaty or the Competition Act 1998 [para 82], nor that all its members are undertakings [para 115]. There was no evidence that NABMA acted in an anti-competitive manner, nor that individual members did so [para 85]. There was also no evidence of collusion, either tacit or express, between NAMBA and groups of local authorities [para 107].

131 See Hofner v Macrotron [1991] ECR 1 – 1979.

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Chapter 11  Practice, Procedure and Evidence In the instant case, therefore, it was held that the Council was able to enforce its rights against the car boot sales operated by Mr Watkins at the Drighlington site. There were no grounds to disallow the Council’s entitlement to an injunction to protect an infringement of its market rights. The Council’s case was therefore made out for injunctions and the counterclaim was dismissed.

F Conclusion Perhaps the relationship between market rights and European competition law can best be summed up by the words of Hoffman J in the case of Stoke-on-Trent City Council v B & Q plc132 where he stated that: ‘the member states of the Community differ widely in their histories, customs and social and cultural values. It was certainly not the object of the Community to introduce uniformity in all these matters. The purpose of the Treaty was to bring about a European Common Market but not to interfere with national laws and customs which did not constitute obstacles to the establishment of such a market… It is the function of the European Court of Justice in Luxembourg to interpret the Treaty and for the national court to apply it. In its interpretation of the Treaty, the European Court has tried to tread a careful line which permits both boldness in advancing the objects of the Community and sensitivity to the domestic interests and member states.’

6 EVIDENCE OF MARKET RIGHTS Set out below is a summary of the evidence which is necessary to establish market and fair rights. The right to hold a market or fair may be proved by: (1) production of the original charter or letters patent, or properly attested copies thereof; or (2) reference to the public Act of Parliament by which the rights are given, or, if a private Act, by production of a Queen’s Printer’s copy of it; or (3) production of evidence of immemorial or long user, i.e. prescription or presumption of lost grant133. (1) Grants From the close of the 12th century to the year 1516, the King’s grants of franchises were made by charter, and thenceforward by letters patent. All these grants are recorded in the Charter Rolls and Patent Rolls deposited at the Record Office. The grants recorded in the Charter Rolls may be either grants of liberties which had not been previously granted, or confirmation charters, ie charters confirming previous grants with or without the addition of further privileges. When the original grant is recited in the confirmation charter, the latter is called an inspeximus charter134. The origin of a fair or market may be proved by a charter of one of the above kinds, or by letters patent.

132 133 134

[1991] Ch 48. The question of sufficiency of evidence of the entitlement to a fair was considered by the Court of Appeal in Wyld v Silver [1963] Ch 243; see pp 167 et seq, above. See Introduction to printed volume of the Rotuli Chartarum, by Sir T Duffus Hardy, 1837. Palmer’s Index, No 93, in the Record Office contains a list of grants of markets and fairs from 1 John to 22 Edw IV.

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Evidence of Market Rights Both charters and letters patent may be proved by the production of the original under the great seal, of which the court takes judicial notice135. Primary evidence of charters or letters patent may also it seems, be given (without accounting for the original) by an exemplification or enrolment136. An exemplification is an exact copy sealed with the great seal137. An enrolment is the roll of charters and letters patent now preserved in the Public Record Office138; and the enrolment is itself a public document, which need not be produced in court, but may be proved by an exemplification, or by an examined copy139, or by a copy examined and certified by the deputy keeper of the records or one of the assistant record keepers, and sealed or stamped with the seal of the Record Office140. (2) Acts of Parliament Most local and personal Acts passed before 1851 contain a section declaring them public, and every Act passed after the year 1850 is a public Act, unless the contrary is expressly provided141. The courts take judicial notice of public Acts. If, however, an Act is not public, it must be proved142. This is most conveniently done by producing a copy purporting to be printed by the Queen’s printer, or under the authority or superintendence of Her Majesty’s Stationery Office143. (3) Evidence of ancient user To establish a market or fair by prescription, or presumption of lost grant144, or to prove customary rights therein145, user within time of living memory will usually be proved by the evidence of living witnesses. Though not absolutely necessary146 it is always advisable to carry the evidence further back than the date to which the memory of the oldest living witnesses can carry it. For this purpose, evidence of reputation and documentary evidence of various kinds may be used and a careful search should therefore be made in the Record Office, and in the muniment room of the supposed owner of the franchise. (4) Acts of ownership Some documents are admissible in evidence as acts of ownership. Among these are old leases and conveyances of the market or fair, or of the tolls147, tables of tolls which have been exhibited in the market or used by collectors of toll148, appointments

135 136 137 138 139 140 141 142 143 144 145 146 147 148

Lane’s Case (1586) 2 Co Rep 16b at 17b. But note the difficulties which arose in Gloucestershire County Council v Farrow [1983] 2 All ER 1031; affirmed [1985] 1 All ER 878 (see p 106, above). See the Introduction to the Rotuli Chartarum by Sir T Duffus Hardy (1837), pp xviii and xix. See the Introduction to the Rotuli Chartarum by Sir T Duffus Hardy (1837), p vii. Ibid, pp i and vii; and see Public Records Act 1958. That is, a copy which a witness swears he has examined with the original and found to be correct. Public Records Act 1958, ss  9, 10; Evidence Act 1845, s  1; Evidence Act 1851, s  14. For the requisite evidence for the purposes of an interlocutory injunction, see pp 167 et seq, above and Warwick Corpn v Maby (1971) 115 Sol Jo 965. Interpretation Act 1978, ss 3, 22(1), Sch 2, para 2. R v Sutton (1816) 4 M & S 532, 542. See also Wyld v Silver [1963] Ch 243; Birmingham Corpn v Perry Bar Stadium Ltd [1972] 1 All ER 725; and Leicester Corpn v Maby (1971) 70 LGR 209. Evidence Act 1845, s 3; Documentary Evidence Act 1882, s 2. See pp 19–21, above. And see the comments of Walton J in Kingston-upon-Thames Royal Borough Council v Sherman and Waterman Associates Ltd (6 July 1976, unreported). See pp 65, 66, above. See pp 19–21, above. Penryn Corpn v Best (1878) 3 Ex D 292, 296; Bristow v Cormican (1878) 3 App Cas 641, 653; Malcolmson v O’Dea (1863) 10 HL Cas 593, 672, 614; De Rutzen (Baron) v Farr (1835) 4 Ad & El 53; Mosley v Walker (1827) 7 B & C 40, 43; Beaufort (Duke) v Smith (1849) 4 Exch 450, 471. Brett v Beales (1829) Mood & M 416, 419; Lawrence v Hitch (1868) LR 3 QB 521.

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Chapter 11  Practice, Procedure and Evidence of stewards, bailiffs, or other officers149, writs, pleadings, and other proceedings in actions brought by the owner for toll or disturbance, proceedings in the court of pie powder, and proceedings relating to the market or fair in the court leet or borough court150. If the documents are produced from proper custody, they are presumed in the absence of evidence to the contrary to be duly executed according to their purport151. (5) Declarations against interest Accounts made out by deceased bailiffs or stewards, wherein they debit themselves with tolls, which they profess to have collected personally, are admissible in evidence, as declarations by deceased persons against their interest, to prove that tolls were in fact paid152. And payments of rent for a market may be proved in the same way. (6) Evidence of reputation The public have a right to enter and buy and sell153, and it seems that the public interest in market rights is sufficient to let in evidence of reputation when the question is as to the existence of a market or the right to take toll154. If so, the mere statements of deceased persons, whether oral or written, which embody a common report, and were made before any controversy had arisen, are admissible and may be proved by a living witness155. Of greater value are formal written statements in the nature of reputation. Among writings of this kind are depositions156, rates and assessments157, recitals or descriptions in leases and conveyances158, or in Acts of Parliament159. Some evidence may be found in presentments of manorial and other customary courts160. Extracts from Domesday Book are probably admissible as evidence of this kind. That book contains many references to markets existing at the time of its compilation161. Reference can also be made to the Royal Commission on Market Rights and Tolls (1888–1891). (7) Verdicts and judgments Upon the same principle verdicts and judgments in previous actions in which the existence of a market or fair, or the right to take toll, was in issue are receivable in evidence in subsequent actions where the same matter is in issue, although the parties

149

Penryn Corpn v Best, above; Malcolmson v O’Dea, above; Caernarvon (Earl) v Villebois (1844) 13 M &W 313, 329. 150 Mosley v Walker, above. 151 R v Farringdon Inhabitants (1788) 2 Term Rep 466; Wynne v Tyrwhitt (1821) 4 B & Ald 376; Brett v Beales (1829) Mood & M 416. 152 De Rutzen (Baron) v Farr (1835) 4 Ad & El 53; Exeter Corpn v Warren (1844) 5 QB 773; Doe d Webber v Thynne (1808) 10 East 206; Doe d Ashburnham v Michael (1851) 17 QB 276; Beaufort (Duke) v Smith (1849) 4 Exch 450, 471; and see notes to Higham v Ridgway (1808) 10 East 109. 153 See pp 33, 34, 41, 60, 61, above. 154 Compare Caernarvon (Earl) v Villebois (1844) 13 M & W 313, 332; Brett v Beales (1829) Mood & M 416; Drinkwater v Porter (1835) 7 C & P 181; Pim v Currell (1840) 6 M & W 234. 155 See Crease v Barrett (1835) 1 Cr M & R 919, 929; Barraclough v Johnson (1838) 8 Ad & El 99; Thomas v Jenkins (1837) 6 Ad & El 525; R v Cotton (1813) 3 Camp 444; R v Bliss (1837) 7 Ad & El 550. 156 Freeman v Phillips (1816) 4 M & S 486. 157 See R v Cotton (1813) 3 Camp 444. 158 Plaxten v Dare (1829) 10 B & C 17; Brett v Beales (1829) Mood & M 416. 159 Caernarvon (Earl) v Villebois (1844) 13 M & W 313, 332; R v Sutton (1816) 4 M & S 532. See also Wyld v Silver [1963] Ch  243; Birmingham Corpn v Perry Bar Stadium Ltd [1972] 1 All ER 725; and Leicester Corpn v Maby (1972) 70 LGR 209. 160 See Beaufort (Duke) v Smith (1849) 4 Exch 450; Roe d Beebee v Parker (1792) 5 Term Rep 26; Talbot v Lewis (1834) 1 Cr M & R 495. 161 Extracts from Domesday may be proved by an examined or certified copy in accordance with the Public Records Act 1958, ss 9 and 10.

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Evidence of Market Rights are different, provided that they have the same relative interest162. So the proceedings, and the judgment and finding of the jury, in quo warranto proceedings163, allowances before Justices in Eyre164, inquisitions to ascertain the extent of Crown lands165, the returns to inquisitions post mortem166, and extents of manors167, may be given in evidence. The ‘Placita de Quo Warranto’168, ‘Abbreviato Placitorum’, and ‘Rotuli Hundredorum’ all contain many records relating to markets and fairs.

162 163 164 165 166 167 168

Pim v Currell (1840) 6 M & W 234; Brisco v Lomax (1833) 8 Ad & El 198, 214; Caernarvon (Earl) v Villebois (1844) 13 M & W 313, 331; Reed v Jackson (1801) 1 East 355; cf Beaufort (Duke) v Smith (1849) 4 Exch 450. Caernarvon (Earl) v Villebois (1844) 13 M & W 313, 331; Egremont (Earl) v Saul (1837) 6 Ad & El 924. Per Parke B in Caernarvon (Earl) v Villebois (1844) 13 M & W 313, 331; Doe d William IV v Roberts (1844) 13 M & W 520. Rowe v Brenton (1828) 8 B & C 737, 747. Mosley v Walker (1827) 7 B & C 40, 42, and see the Calendarum Inquisitionum post mortem, vol i introductory note (1806). See the statute Extenta Manerii 4 Ed 1, Stat 1 (Ruff); Incert Temp (Stat Realm); repealed by SLR Act 1863. The volume entitled ‘Placita de Quo Warranto’ was printed under the superintendence of the Record Commission in 1818. The volume contains records of most of the quo warranto proceedings in the reigns of Edw I, II and III. As to the nature and purpose of these proceedings, see Introduction to the volume, and Stuart Moore on Foreshore, pp 42–6 and 69–72.

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Chapter 12

Public Law – Judicial Review 1 BACKGROUND Most markets in England and Wales are statutory markets established and/or operated by local authorities in their role as market authorities for their areas. Such market authorities have either been established or acquired pursuant to the powers contained in s 50 of the Food Act 1984, or under previous similar legislation1. Their market rights and duties derive from this legislative framework, as interpreted by case-law. In some cases, local authorities also remain the grantees of Crown grants deriving from Charter or Letters Patent. However, occasionally the powers and duties governing such markets derive from local Acts, and not public Acts. An example of such are the enactments governing the markets operated by the Corporation of London2. The way in which a local authority in its role as a public body deals with its market rights and market operations, its redevelopment and future plans, and its relationship with its traders, renders it susceptible to judicial review. The invocation by a claimant of the judicial review process against a market authority derives from s 31 of the Senior Courts Act 1981 and CPR 543. The Human Rights Act 1998, s 6, is also relevant. These provisions provide the means by which an aggrieved person is able to challenge whether local authorities in particular have made valid decisions. The judicial review process is a means of challenging whether local authorities in the present circumstances have made valid decisions as public bodies. Underlying the statutory provisions is the concept of fairness. If a judicial review challenge is successful, it usually means that the decision made by the local authority is nullified and its shortcomings have to be addressed. However, this does not always mean that the original decision cannot be repeated, but it does mean that before a new decision is made the local authority is obliged to remedy any shortcomings in the lawfulness of the decision-making process such as failure to comply with their obligations as to fairness and reasonableness, and procedural requirements. To demonstrate the impact of judicial review on markets this chapter highlights a number of cases where challenges have been made to decisions made by local authorities on different aspects of the management and operation of their markets. The issue of market rights is dealt with extensively in other parts of this work and is, therefore, not covered in this chapter.

2 THE STATUTORY FRAMEWORK The relevant governing principles are contained in the following statutory provisions: (1) The Senior Courts Act 1981, s 31; 1 2

3

Notably the Public Health Act 1875, the Food and Drugs Act 1938, or the Food and Drugs Act 1955. In rare cases some markets in England and Wales still operate under Charter or Letters Patent granted to individuals, such as the Lord of the Manor. An example of this in Market Bosworth where the Dixie family who were until recently operating a franchise market pursuant to a Charter granted to the family by Charles II in 1665. The current position as to the ownership of the market rights in Market Bosworth is uncertain. See paragraphs 5 et seq, below.

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Chapter 12  Public Law – Judicial Review (2) Part 54 CPR, and in particular CPR r 54.1(2)(a); (3) Human Rights Act 1998, s 6. Section 31 of the Senior Courts Act 19814 provides the basis for an application for judicial review whereby certain types of relief can be sought from the High Court, such as (a)

a mandatory, prohibiting or quashing order;

(b) a declaration or an injunction under subsection (2); or (c)

an injunction under section 30;

Subsection (2) sets out the matters to which the High Court must have regard in making a declaration or an injunction including whether it is just and convenient to do so5. CPR Part 54, r 54.1(2)(a) provides the basis of a claim to review the lawfulness of (i) an enactment, or (ii) a decision, action of failure to act in relation ‘to the exercise of a public function’. The Human Rights Act 1998, s 6, provides as follows– ‘(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) … (3) In this section “public authority” includes (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature…..’

In other words, the procedure followed by a markets authority should be Article 6 of the ECHR compliant. The main potential grounds of challenge having regard to the Wednesbury principles6 and other leading cases, include the following aspects: (1) Error of law – A  local authority must direct itself properly in law, and the court has the power correct any error of law. If the decision was correct notwithstanding the error of law, or the decision would have been the same in any event7, the court may decline to quash the decision. (2) Unauthorised delegation of power – where a power is given to someone by a statute it cannot be delegated to someone else without lawful authority. (4) Acting as if discretion is fettered – a failure to exercise discretion in reaching a decision, for example because the decision-maker believes that they are constrained by some other rule. (5) Over-rigid adherence to policy – where a decision-maker formulates a policy to assist in the decision-making process. Thus, a rigid application of the policy

4 5 6 7

See Appendix 1, below. See also s 31(2A) of the Senior Courts Act 1981 in relation to whether it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. Ie, the test formulated by the Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. Or, pursuant to s 31(2A) of the Senior Courts Act 1981, it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

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The Statutory Framework rather than consideration of each case on its merits would be a failure properly to exercise discretion. (6) Irrelevant considerations being taken into account or a refusal to take into account relevant considerations –– in exercising discretion only relevant factors should be taken into account. (7) Unreasonableness – the decision made is one that is so unreasonable that it could have been made by no reasonable decision-maker, or the conduct was such that no sensible authority acting with due appreciation of its responsibilities would have adopted. This is a very high threshold test, and the courts are generally unwilling to interfere with decisions. (8) Failure to observe procedural rules – where procedural rules are mandatory, any failure to observe them will be ultra vires. (9) Real or apparent bias – such as where the decision-maker has an interest in the outcome of the decision or gives the appearance of being biased8. The test for apparent bias is whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker was biased9. (10) Breach of the right to a fair hearing – a person having a decision made concerning them should generally be given notice of the decision-making process, be informed of the case they must answer, be given adequate time to prepare their case, and be given an adequate opportunity to put forward their case. In other words, it needs to be Article 6 proof. (11) Failure to provide adequate reasons10. (12) Legitimate expectation11 – decision-makers may be required to stand by representations or established practices when making decisions, or, where there is a proposed change, give those affected the right to be heard. (13) Fundamental error of fact – the case of E v Secretary of State for the Home Department12 establishes that an error of fact could be a separate ground for judicial review based on unfairness. In order to succeed on this ground, it is necessary for the claimant to establish: (i) a mistake as to an existing fact; (ii) the fact must be uncontentious and objectively verifiable; (iii) he/she must not have been responsible for the mistake; and (iv) the mistake must have played a material part in the decision-maker’s reasoning. In recent years there have been a number of important decisions on the efficacy of judicial review in the context of markets and market trading13.

8 Dimes v Grand Junction Canal (1852) 3 HL Cas 759; In Re Medicaments and Related Classes of Goods (No.2) [2001] 1 WLR 700. See eg, Somerford PC v Cheshire East BC [2016] EWHC 619 (Admin) at [35]. 9 Porter v Magill [2002] 2 AC 357. 10 See South Bucks DC  v Porter [2004]  UKHL  33 at [36]. For an example of a failure to give lawful reasons for a decision to register a green, see R (Cotham School) v Bristol City Council [2018] EWHC 1022 (Admin) at [58]–[61]. 11 See eg R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213; R (Bibi) v Newham LBC [2002] 1 WLR 237; Nadarajah & Abdi v Home Secretary [2005] EWCA Civ 1363. 12 [2004] QB 1044. 13 See further, pp 119 et seq, above, where consideration is directed to a number of cases where the judicial review procedure has been invoked in street trading cases.

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3 WHETHER THE DECISION MADE IS AMENABLE TO REVIEW In R  v (Beer t/a Hammer Trout Farm) v Hampshire Farmers Markets Ltd14, the important issue was raised as to whether the decision made by the council was amenable to review.

Illustration (1) This was a case where farmers’ markets had been established by Hampshire County Council pursuant to s 33 of the Local Government and Housing Act 1989. Neither had lawful origins in the sense that they derived from charter or had been established under s 50 of the Food Act 1984, or earlier such statutory provisions. Those who wished to participate were invited to apply. This Mr Beer did, and he was accepted as a stallholder from the outset. (2) Subsequently, the council decided to hand over the running of these markets to stallholders. To that end it established a company limited by guarantee to take over the operation of the markets. The company’s registered address was initially at the council’s offices. The council continued to provide some finance and facilities such as the use of a computer at its offices. The company secretary was an employee of the council, who became the company’s business development manager and one of its directors, the other directors being the stallholders. The markets then continued to be held on public owned land to which the public had a right of access. (3) Mr Beer then applied to participate in the 2002 market programme. However, the company rejected his application and refused to grant him a licence. (4) The Court of Appeal dismissed the appeal, in the following terms, (a) unless the source of the power of a decision-maker originating from statute or prerogative clearly provided the answer, the question whether a decision was amenable to judicial review required careful consideration of the nature of the power and function to be exercised to see whether the decision had a sufficient public element, flavour or character to bring it within the purview of public law; (b) that, although the farmers’ markets were neither statutory nor charter markets, their essential feature was that they were held on publicly owned land to which the public had a right of access; (c) that the company was set up by the council using its statutory powers and it stepped into the council’s shoes, performing the same functions as the council had previously performed; (d)

that, from the date of the company’s incorporation until the time when it started operating the markets, and to some extent thereafter, the council assisted the company by providing facilities and finance;

(e) that the company was not simply a private company established to run markets for profit, but was established to take over on a non-profit basis the running of markets previously operated by the council in the exercise of its statutory powers in what was considered to be the public interest; and 14

[2004] 1 WLR 233, [2003] EWCA Civ 1056.

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Termination of Market Licence (f) that, accordingly, the company’s decision to refuse the claimant’s application for a licence was amenable to judicial review and it was acting as a public authority within the meaning of s 6(3)(b) of the Human Rights Act 1998 In an earlier case, R  v City of London Corporation, ex p Brewster15, where a judicial review application was made by the Smithfield Market Traders’ Association to review the decision of the City Corporation to refurbish Smithfield Market, the application failed. Whilst the decision was susceptible to judicial review, it was for the City Corporation to decide on an acceptable level of subsidy and to exercise their judgment accordingly. It was held that the City Corporation were not trying to close the market by stealth. They had conducted lengthy and persistent negotiations in fulfilling their duty to maintain the market and the matter of the standard of maintenance of the market was for them to decide. They were entitled to say – ‘enough is enough’.

4 TERMINATION OF MARKET LICENCE The case of R v Barnsley MBC, ex p Hook16 is a prime example of the difficulties that can be encountered by as local authority in its market operator dealing with trader disciplinary action. Mr Hook, a market trader of several years’ standing, was seen one evening urinating in a side street after the market had closed for the day. Following this incident there had been an exchange of words with council staff and a report made to the Markets Manager. Two days later Mr Hook was given notice to leave his stall at the market on the basis that he was no longer considered a suitable person to occupy a market stall and was banned for life. Subsequently It was held that the council’s decision was open to judicial review and Mr Hook was successful in his challenge. In particular, the court found that the council had failed Mr Hook by not giving him particulars of the charge or the evidence against him prior to the disciplinary hearing. Additionally, the Markets Manager, who had given the evidence against Mr Hook, had been present with the Committee, making the final disciplinary decision, whilst Mr Hook was excluded. The court held that the council’s decision was amenable to judicial review, and that the action on the part of the local authority was in breach of natural justice. It was under a duty to act judicially. The basis of the decision was the common law right of Mr Hook to have a stall in the market subject the payment of stallage. There was a breach of natural justice as the Markets Manager was present at the hearings 15

16

Queens’ Bench Division, Crown Office List, 20th December 1993, CO 2168/9O, [1993] EGCS 20, per Hidden J. See also R  (on the application of Corporation of London) v the Secretary of State for the Environment , Food and Rural Affairs and the Covent Garden Market Authority [2006] UKHL 30. In this case the House of Lords overturned the decision of the Court of Appeal ([2005] 1 WLR 1286), which itself had allowed the appeal against the original decision of Mitting J  (CO47542003). The Corporation of London had sought to judicially review (1) the decision of the Minister (now the Secretary of State for the Environment, Food and Rural Affairs) to grant consent to the Covent Garden Market Authority to authorise face-to-face trading in meat or fish in competition with the market rights held by the Corporation in relation to Smithfield and Billingsgate Markets, and (2) the decision of the Covent Garden Market Authority to the Corporation of its intention to extend the scope of three leases so as to allow such activities to occur. On a true construction of s 18(1)(f) of the Covent Garden Market Act 1961, it was held by the House of Lords that the judicial attack on the consent of the Minister must fail. If there is an interference with the Corporation’s market rights then the remedy is in tort, per Lord Scott of Foscote at [16]. R v Barnsley Metropolitan District Council, ex p Hook [1976] 1 WLR 1052, [1976] 3 All ER 452, 74 LGR 493.

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Chapter 12  Public Law – Judicial Review at all times and gave evidence to the relevant committee of the council and was present during the committee’s deliberations, all of which took place in the absence of Mr Hook. Where a council was exercising its discretionary power under statute to regulate the common law public right to buy and sell in a market, it is not merely dealing with the contractual right of a person to earn a living, but also with the common law right of a person to earn a living in the market. In R  v Basildon DC ex p Brown17 a regulation providing that a licence-holder shall attend his stall on every market day during business hours require the fulltime attendance of the licence-holder, save for unavoidable absences. Mr Brown was granted a licence for a stall at Basildon Town centre market by Basildon DC subject to the Council’s regulations. Regulation 4 specified that the licence-holder had to attend ‘at the stall on every market day during business hours’. Mr Brown sold fruit and vegetables, having purchased them from Covent Garden Market at 2.30 am. He then attended his stall from 7.30am until between 11.00am and 12.00 noon. At that point he closed the stall and departed to have a rest. However, the market remained open until between 4.30pm and 6.30pm The council terminated Mr Brown’s licence for non-attendance. The Divisional Court refused an application for an order of certiorari. The Court of Appeal dismissed the appeal (Lord Denning MR dissenting) on the basis that ‘during business hours’ meant full-time attendance, save for unavoidable absences and despite hardship to Mr Brown. The Council had been entitled to terminate his licence, and in determining the licence the council had not acted arbitrarily, unfairly or manifestly unreasonably. As a private market, and not a statutory market, it did not attract the common law principle of right to resort by members of the public. However, it was held that the status of the market was not relevant in the case whether the council has validly terminated the licence of Mr Brown, which it was found by the court that it had. The importance of providing proper notice and giving reasons for the decision to terminate a trader’s licence is highlighted in R v Wear Valley District Council, ex p Binks18 where a street trader was operating a hot food takeaway at a market place in Crook, County Durham. This was done pursuant to a licence granted by Wear Valley District Council. Ms Binks had her licence terminated by the Council without notice. She challenged the decision on the basis that it was given without notice, without reasons and with no opportunity to be heard. It was found that it did not matter whether the market was a lawful market, or an informal market – either was susceptible to judicial review. The ‘public element’ was sufficiently provided by the facts that the market was regulated by the local authority, and the public had a right of resort to the market place at all times. The challenge was successful on the basis that the decision of the Council was held to be unfair as it had failed to give notice of its intention to revoke Ms Binks’ licence, or to give reasons for its decision, or to give her an opportunity to be heard.

5 IMPACT OF REGENERATION SCHEMES ON EXISTING TRADERS A Compulsory Purchase Order of the Shepherd’s Bush Market led to concerns that the trading conditions in the new market would not be affordable or suitable for current traders. It was argued that the traders would be safeguarded through planning conditions and a Section 106 Agreement. Initially the Inspector failed to confirm 17 18

(1981) 79 LGR 655. R v Wear Valley District Council, ex p Binks [1985] 2 All ER 699.

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Allocating Stalls in a New Market the Compulsory Purchase Order, but it was subsequently approved by the Secretary of State. This led to a challenge of the Secretary of State’s decision in Horada v Secretary of State for Communities and Local Government19. The High Court dismissed the challenge on the basis that the Secretary of State had taken account of the material consideration of safeguarding the market and the traders and he was entitled to conclude that the planning conditions and the Section 106 Agreement would safeguard the traders. However, the decision was overturned by the Court of Appeal on the basis that where the Secretary of State disagrees with the Inspector, he must set out full and proper reasons for his decision. Another recent decision concerning a proposed redevelopment scheme relates to the Seven Sisters Indoor Market. The majority of the traders at the market were from Latin America or were Spanish speaking. Surrounding premises were occupied by Turkish, Cypriot, Columbian and Afro-Caribbean groups. Planning permission was granted for redevelopment but there were no proposals to relocate the market. The report providing details of the redevelopment made only brief reference to minority groups. The decision was challenged by a local resident in R  (Harris) Haringey London Borough Council (Equality and Human Rights Commission Intervening)20. The High Court dismissed the judicial review but an appeal to the Court of Appeal was upheld. In particular it was noted that the report made no reference to s 71(1) of the Race Relations Act 1976 (predecessor to the Equalities Act 2010) or to the substance of that duty. In order to comply with that duty, it is necessary to provide an ‘analysis of the material before the Council in the context of the duty’. This had not been done. One further case is R  (Long) v The Welsh Ministers v Monmouthshire County Council, Optimisation Developments Ltd21 where planning permission was granted for redevelopment involving both a supermarket and the local cattle market. The cattle market had been established under the Abergavenny Improvement Act 1854 and other legislation. Welsh Ministers passed an order repealing the 1854 Act. A challenge was made to this decision arguing that the law was still necessary to protect the cattle market and there had been a failure to consider the impact of the decision on the traders. The challenge was dismissed on the basis that the Welsh Ministers had a wide discretion and they had reached a rational decision that the 1854 Act was obsolete. The local authority should be able to make its own planning and development decisions.

6 ALLOCATING STALLS IN A NEW MARKET The London Borough of Hounslow decided to build a new market to replace the existing market. The new market was about two-thirds of the size of the existing market. In order to progress the allocation of stalls in the new market the Council held discussions with the Western International Market Tenants Association. Most, but not all of the traders, belonged to this Association. An allocations committee was set up. Adverse comments were made about some traders who were not members of the Association and were competitors of traders in the Association. This resulted in a judicial challenge in the case of R  (Angello and Others) v London Borough of Hounslow and Others22 This decided that the allocation process was flawed by 19 [2016] EWCA Civ 169. 20 [2010] EWCA Civ 703. 21 R (Long) v The Welsh Ministers v Monmouthshire County Council, Optimisation Developments Limited [2012] EWHC 3130. 22 R (Agnello and Others ) v London Borough of Hounslow and Others (2004) LLR 268.

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Chapter 12  Public Law – Judicial Review being tainted with bias. The court held that the adverse comments should have been put to the claimants and they should have been given an opportunity to respond. Further, the whole consultation process was flawed by failing to give the claimants an opportunity to comment on the proposed allocations as they were not members of the Association. This case highlights the importance of ensuring that all involved with an allocation process are kept informed of progress and given an equal opportunity to comment at relevant stages.

7 TERMS OF LETTING In any market letting it is important that the terms of any letting arrangements are as clear as possible. It is also important that each trader is given details or can access the relevant information about the letting arrangements. This issue was considered in Rickard v Forest Heath District Council23 where Mr Rickard obtained pitches at the local authority market to sell bedding plants on two days. Subsequently Forest Heath instructed Mr Rickard to cease trading. It appears that Mr Rickard was not given a copy of the regulations relating to the operation of the market and there was considerable confusion about the precise events which had resulted in the dispute between Mr Rickard and Forest Heath. Mr Rickard was successful in his challenge to the decision of Forest Heath Council emphasising the importance of ensuring that traders are aware of the conditions that apply to their trading.

8 MARKET CHARGES24 Decisions on the level of market charges are often the subject of scrutiny and in R v Birmingham City Council, ex p Dredger and Padget25 the local authority faced a challenge from market traders as to the proposed rent increases. It was held that it was incumbent on the local authority to provide sufficient details of its rent proposals and its reasons for introducing such proposals. This would have enabled the market traders the opportunity to make comments in response. It followed that had Birmingham provided such details it would then have had to consider any comments with an open mind and, if appropriate, respond appropriately. The market traders were entitled to adequate time to consider what Birmingham was proposing and respond accordingly. As Birmingham had failed in these responsibilities, then the challenge from the traders succeeded. In the recent case of R (Harvey) v Leighton Linslade Town Council26 market charges were once again the subject of a judicial review application. Here the challenge was to the decision of the Town Council to revise market pitch fees or rents at Leighton Buzzard Market. The issues were whether the decision was lawfully made, and whether there was a duty to consult. The decision made by the Town Council was: (1) to standardise the pitch size and the method of charging from imperial measurements to metric measurements; (2) to alter the method of calculating fees to a square metreage basis; (3) to create a uniform approach to fee charging; and (4) to increase the standard rate of fees charged. As a result of these proposed changes an element of differential charging was to be introduced, particularly in respect of regular and casual traders. Of course, the ability 23 24 25 26

(unreported, 1 April 1991). See also R v City of London Corporation, ex p Brewster, ibid, footnote 14, above. R  v Birmingham City Council, ex p Dredger (1993) 91  LGR  532, (1994) 6 Admin LR  533, (1993) COD 340. [2019] EWHC 760 (Admin).

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Summary of a market operator to introduce differential charges had previously been established in the case of Attorney-General v Colchester Corporation27 but it appears that this judgment was not relied upon to justify the Town Council’s actions. However, the focus of the case was the consultation undertaken by the Town Council. The Deputy Judge dismissed the application and held that there was no duty to consult. Even if there was such a duty, he held that the consultation that did occur fell with the principles laid down in the case of R v Brent London Borough, ex p Gunning28. It was found that there was no breach, and that there had been adequate consultation. However, the most notable aspect of this case is that the attention of the Deputy Judge does not appear to have been drawn to the judgment in A-G  v Colchester Corpn, being the leading case on market charges where there is a right to occupy a space in a market. Where the stallage charges for such a right, are not specifically regulated by custom, charter, or otherwise, the charges are the subject matter of a free contractual bargain made between the market owner and the trader29.

9 SUMMARY It is acknowledged that the effect of a successful judicial review application may result in a local authority being unable to implement a particular decision. In the case of R v Birmingham City Council, ex p Dredger and Padget30 the successful challenge resulted in the local authority having to repay rents previously obtained from market traders. However, it is important to emphasise that in cases similar to that case, the court is not called upon to decide what level of rent is appropriate. The focus of the court is on the procedures and issues to be addressed in reaching a decision on the particular issue under consideration. The grounds on which judicial review might be pursued can be divided into four broad areas: (1) The powers of the local authority to deal with the particular issue; (2)

Where the local authority has a discretion in dealing with an issue, what are the limits in exercising that discretion;

(3) Whether proper procedures have been followed to implement a proposal; (4) Has there been any meaningful consultation. However, it must be remembered that judicial review is constrained within a narrow framework. Decision-making authorities have wide scope to make decisions which are in fact immune from challenge. The merits of the decision cannot be considered. Matters of judgment are the exclusive province of the decision-maker. The assessment of facts and weighing of considerations is in the hands of the decision-maker alone and the court has no power to intervene31. An authority is entitled to attach what weight it pleases to relevant considerations. The court will not entertain a submission that undue weight was given to one consideration or too little weight was given to another32. If a matter would not have caused the decisionmaker to reach a different conclusion then it is irrelevant whether it was taken in to 27 28 29 30 31 32

[1952] Ch 586. [1984] 84 LGR 168. Ibid. See also Ricketts v Havering LBC (1981) 79 LGR 146. [1984] 84 LGR 168. City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447 at 1458H–9C. Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26 at 28.

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Chapter 12  Public Law – Judicial Review account33. If a judge is uncertain whether a matter would have made a difference to a decision, he cannot conclude that the decision was invalid34. Where there is a factual error which is insignificant or insubstantial then the relevant decision will not be quashed35. Where it can be shown that notwithstanding any error the decision-maker would have reached the same decision on the other factors stated, the court will not interfere36. It is also important to recognise that market traders are not entitled to be consulted on every detail of market management. It would make a nonsense of the whole system of markets management if market traders were entitled to be consulted on every detail of how the market was operating. Probably the most appropriate question to ask is the following – do the market traders have a legitimate expectation that consultation will take place? This can arise where formal procedures are in place or there is a previous practice of consultation. Further consultation should take place where, as a matter of fairness, the views of the market traders should be taken into account. Decisions to revoke market lettings can result in a trader losing the opportunity of earning a living and in this context, it is important that any action taken provides the correct notice and reasons why action is being taken, and that there has been a proper hearing relating to the subject matter of the complaint. Finally, a decision to revoke should be commensurate with the behaviour the subject matter of the complaint.

33 34 35 36

Bolton MBC v Secretary of State for the Environment (1990) 61 P & CR 343 at 352 (points 2 and 3). Bolton MBC at 353 (point 6). Simplex GE (Holdings) v Secretary of State for the Environment [1988] 3 PLR 25 at 41D and 42D. Simplex at 41G–H and 42D–E. See also s 31(2A) of the Senior Courts Act 1981 in relation to whether it is highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

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CHAPTER 13

Market Toolkit Whilst the primary purpose of this work is to inform and update the reader on the current state of the law with regard to markets, it is considered by the authors that it would also be helpful to provide resources to assist in the effective operation and management of markets. Markets have a great historical tradition, but in a modern trading environment there are many issues that need to be addressed. This Chapter therefore seeks to focus on creating a Markets Toolkit that can embrace some of the important issues and provide a ready-made resource for those responsible for the delivery of a markets service.

1 RESOLUTION SETTING OUT MARKET POWERS The starting point must be to provide clarification on the powers that govern the operation of markets. Earlier in this work reference has been made to the range of different powers that exist at the disposal of the market owner, and, particularly in the case when the market operator is a local authority. In such circumstances a resolution of the local market authority under s 50 of the Food Act 1984 (as amended) should be passed setting out the relevant information, and to provide that such resolution should be periodically reviewed and updated, as appropriate. This resolution should set out the powers under which the market operates and the days and times appropriate to the market. The market authority can also enact byelaws governing the market pursuant to Model Byelaw Set 101.

2 MARKET LICENSING POLICY Market rights continue to be of great importance, particularly to many local authority market operators who operate licensing arrangements in respect of their market powers. In order to implement these arrangements in an effective way it is essential to have regard to the case of Leeds City Council v Watkins and Whiteley2. One of the main reasons why Leeds City Council were successful in their application for an injunction was the fact that they operated a markets licensing system. This system enabled them to consider applications for other market events against a published criteria. Given the detail that is provided elsewhere in this work it is unnecessary to repeat the court’s findings. However, it is important that anyone interested in arranging a market event must be aware of the procedural requirements to be followed and the grounds on which any application will be judged. The existence of markets licensing arrangements helps to manage the overall market

1

On 7 September 2018 the Ministry of Housing, Communities and Local Government published its latest update to the model byelaw set for local authorities under their enabling power provided by s 60 of the Food Act 1984 to regulate the use of markets. This is known as ‘Model Byelaw Set 10’ and is accompanied by Guidance Notes. They are intended as a guide to local authorities in their preparation of byelaws for regulating the use of their markets. 2 Leeds City Council v Watkins [2003] EWHC 598 (Ch), 2003 UKCLR 467. This case is subject of detailed analysis in Chapter 11, p 186 et seq.

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Chapter 13  Market Toolkit offer within a particular area, and importantly also sets common standards that will apply to all market events that are held. The Council’s markets licensing policy should set out the powers of the local market authority; its approach to markets in its area; and the basis on which the application will be considered. The markets licensing policy should be seen as reasonable, proportionate and be readily available to those who might be affected. In order to provide further assistance in introducing or reviewing a markets licensing policy, an outline policy is in Appendix 3.

3 MANAGEMENT ARRANGEMENTS Whilst recent research indicates that local authorities still operate the majority of markets in the United Kingdom, it is apparent that there is an increasing number of local authorities seeking to hand over the management of their markets to private or other operators. Markets are not alone in seeing this approach, as this is a trend that applies to a wide range of other local authority services. Where a new management arrangement is created it is important to clarify where the market powers continue to reside. It is anticipated that in the majority of cases they will remain with the local market authority as the new management arrangements are likely be time limited and the local authority will want to ensure that the market powers are exercised in accordance with their requirements. However, this can bring added responsibility for the local authority because the new operator will not want to see their commitment and investment in a market undermined by the opening of another market close by. It will probably mean that there is added emphasis on the local authority operating an effective markets licensing policy. The content of a markets management agreement will vary depending on circumstances, but in order to assist in addressing some of the issues that need to be considered a format of a markets management agreement is in Appendix 2.

4 ALLOCATIONS POLICY Allocating space on a market is often a contentious issue particularly where the market operator is of the view that there are already sufficient traders dealing in particular goods. This issue assumes added importance where a market operator has empty spaces that need to be filled. Support for the argument that a market operator is entitled to refuse an application from a trader where the goods involved are already represented on the market comes from the Street Trading legislation. Provision is included in both the Local Government (Miscellaneous Provisions) Act 1982 3 and the London Local Authorities Act 19944, which enables that an application can be refused on the basis that there are already enough traders trading in a street (or adjoining streets) trading in the goods which the trader desires to trade in if his application is successful. It is an important feature of many markets that there is a cross section of goods available for purchase. The market operator is entitled to determine how an appropriate mix of goods is achieved provided that an allocations’ policy exists which sets out the principles used by the market operator in allocating space. In some markets this is done by allocating different types of goods to particular areas of the market. It is commonplace, for example in some markets, to bring together food,

3 4

See the Local Government (Miscellaneous Provisions) Act 1982, Sch 4, para 3(6)(b). See the London Local Authorities Act 1994, Sch, para 25(6)(a).

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Ensuring effective communication butchers and fruit and vegetable traders. In other markets there will be an assessment that the market can accommodate a certain number of traders in particular goods. Reference is made earlier in this work to the European Law Dimension5. This section contains an analysis of how European legislation has impacted on different aspects of market law. In terms of an allocations policy the most obvious area where European legislation might be relevant is the competition rules under Articles 105 and 106 of the Treaty of Rome. These Articles deal with the prohibitions on anticompetitive agreements and abuse of the dominant position and are replicated in UK legislation by Chapters 1 and 11 of the Competition Act 1998. However, by adopting an allocations policy which describes the market operator’s approach to letting arrangements, it is unlikely that the market operator will be in breach of Articles 105/106 and Chapters 1 and 11 because the allocations policy does not prevent or restrict competition. Or, to the extent that it does so, it would be justifiable under Article 105(3) as a necessary and proportionate restriction designed to promote a flourishing market to the ultimate benefit of consumers. Indeed, support for this view comes from the Office of Fair Trading guidance on the application of competition law to land agreements6 where it is stated that: ‘Provisions in commercial property agreements which relate to the use of premises are also generally unlikely to raise competition concerns. This would include , for example, where the owner of a site such as a shopping centre or retail park restricts the specific line or lines of business that might be carried out by a lessee, in order to achieve is desired “retail mix” and to ensure the attractiveness of a shopping centre to consumers’.

5 SUCCESSION Many market traders come from a family background but the nature of the letting arrangement is often personal. In this context it is recommended that consideration be given to a succession policy in respect of family members. Assistance in drafting a succession policy can be found in the current street trading legislation7 where there are specific provisions dealing with succession rights in respect of named family relationships. Further, all markets have trading positions which are viewed as being more advantageous than others and when these trading positions fall vacant it is important that the position of other traders is considered. This means that in addition to considering the position of family members the market operator must also embrace within the succession policy procedures for dealing with the allocation of space at the market for existing traders who might want to exchange their trading position for a potentially more advantageous one. In drafting a succession policy, consideration should be given to the length of time a trader has been trading at the market and the allocations’ policy relating to the operation of the market.

6 ENSURING EFFECTIVE COMMUNICATION It is clear from earlier Chapters of this work that decisions made in respect of many aspects of markets management are susceptible to judicial challenge. By way of example:

5 6 7

See Chapter 11, p 180 et seq. OFT 1280a, March 2011, 4.30. See London Local Authorities Act 1994, Sch, para 26.

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Chapter 13  Market Toolkit (a)

Rent increases – R v Barnsley MBC, ex p Hook8;

(b) Disciplinary action – R v Birmingham City Council, ex p Dredger9; (c) Allocation of stalls in a new market – R  (Agnello and Others) v London Borough of Hounslow and Others10. It is therefore important that effective communication systems exist for sharing information and receiving feedback. This does not mean that every small detail relating to the operation of a market needs to be the subject of consultation. However, where the issue is significant and is likely to have an impact on traders then it is important that the trader viewpoint is heard and taken into account before a decision is made. Many markets have now established Markets Forums where representatives of management and traders get together on a periodic basis. Where the market is being managed by an external contractor this provides an additional dimension to the meetings and enables performance to be monitored in an effective way. Whatever system of communication exists it is important that all traders have the opportunity of sharing in the consultation process. If, for example, a Traders Association exists at a market but this Association only includes a proportion of the traders at the market, then steps must be taken to ensure that the remaining traders are included so that everyone has an opportunity to contribute. Consultation must be meaningful and issues raised must be considered and, if they cannot be accepted, then an explanation provided as to why a different view is taken. Taking disciplinary action against a trader is a serious matter and any market operator contemplating such action will want to have a formal disciplinary procedure in place which sets out the procedure to be followed and the consequences where action is required. Given that disciplinary action might result in a trader losing the opportunity to trade at a market it is important that disciplinary procedures are clear and understood by everyone involved.

7 MARKET POLICIES AND PROCEDURES In a modern trading environment, there are so many different policies and procedures that apply to the operation of a market. In this Chapter the authors have already highlighted some of the most important but there remains a long list of other essential requirements. In the context of the terrible terrorist attack which happened adjacent to Borough Market in London in 2017 and the earlier terrorist attack on the Christmas Market in Germany in 2016 it is important that all markets have up to date evacuation policies and procedures. The health and safety of everyone using the market is vitally important and there are a range of policies and procedures that need to exist including a regular risk assessment of the market. As many markets now focus significantly on their food offer, compliance with Food Hygiene Regulations should be of prime consideration. All these policies and procedures should be included in a comprehensive Markets Manual and the majority should be available for public inspection and normally viewed via the market operator’s website.

8 (1976) 1 WLR 1052, [1976] 3 All ER 452, 74 LGR 493. 9 (1993) 91 LGR 532, (1994) 6 Admin LR 553, (1993) COD 340. 10 (2004) LLR 268.

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Getting help

8 GETTING HELP In this chapter we have highlighted some of the main areas that need to be addressed  and provided some guidance on what needs to be done. However, if further  help is required the National Association of British Market Authorities (NABMA) has already put together specimen policies and procedures in respect of all the issues that have been highlighted and these are available to members. Advice can also be sought and obtained on any of the policies and procedures from NABMA. Further information and assistance can be obtained on the NABMA website at www.nabma.com.

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Chapter 14

The Irish Dimension 1 MARKETS AND FAIRS IN IRELAND A The historical perspective1 Market and fairs in Ireland are of considerable antiquity and stem from the Gaelic tradition as exemplified in the margad [h], ‘market2’, and óenach or aonach, ‘fair’. Their origins seem to derive from two sources, namely: (1) provincial or tribal gatherings established in order to celebrate the harvest, and (2) assemblies, where gifts were exchanged between Kings and trade took place amongst followers. Markets and fairs underwent a slow gestation during the 8th and 9th Centuries often generated as a result of the involvement of the larger monasteries which themselves had grown in their own right into trading centres and functioned as assembly and exchange sites throughout Ireland. Monasteries were not urban areas as such, but were centres of population, power and influence in the areas, over which they dominated prior to the foundation of the first towns in Ireland by the Vikings. B Fairs It appears in fact to be impossible to dissever the idea of the fair from the gathering on the day of a festival in early English or Irish history, and it may fairly be supposed that the gatherings in their original form were held in heathen times on those great occasions when the national sacrifices were offered, and the public assemblies were held. Although little is known of the divisions of the ancient calendar, there appear to have been gatherings for these purposes at the solstices, and at the end of the harvest. The year began with the Yule feast, and a great festival was held in September, when thanks were given for the harvest, and offerings made to secure a prosperous winter. Another great anniversary was occupied by the November sacrifices, and these great anniversaries coincided with popular assemblies and assizes. This conclusion is borne out by what can be gleaned from the ancient Irish fairs. These, according to O’Curry: ‘were not, like their modern representatives, mere markets, but were assemblies of the people to celebrate funeral games and other religious rites during pagan times, to hold parliaments, promulgate laws, listen to the recitation of tales and poems, engage in or witness contests in feats of arms, horse-racing, and other popular games. They were analogous in many ways to the Olympian and other celebrated games of ancient Greece.’3

O’Curry quotes a minute description from the Book of Leinster (dating from about 1150AD), and the Book of Ballymote, of one of the most famous of these gatherings called the fair of Carman held where Wexford now stands. The following extracts will sufficiently illustrate the nature of such ancient assemblies.

1

This text is drawn upon passages contained in the final Report of the Royal Commission on Market Rights and Tolls published in 1891, and see Appendix 3, below. See also Fergus Kelly: A Guide to Early Irish Law, Dublin – Institute of Advanced Studies 1988, and Michael Ritcher: The Enduring Tradition – Dublin, Gill and Macmillan, 1988. 2 From the Latin word ‘mercatus’, and the Norse word ‘markadr’, and see Chapter 1, footnote 1. 3 Manners and Customs of the Ancient Irish (1873). Vol. III, p 523.

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Chapter 14  The Irish Dimension After describing the death of Garman and his begging them to institute a ‘fair of mourning’ for him, the Book of Ballymote proceeds as follows: ‘The people of time of Cathair Mor … There were seven races there, and a week for considering the laws and the rights of the province for three years. It was on the last day that the Leinstermen of Gabhra South held their fair, which was called ‘the steed-contest of the Ossorians.’ The Forud of their king was on the right of the King of Carman. The Forud of the King of O’Failge on his left: and their women were seated in the same manner.” In another part of the description the following lines occur: “Seven mounds without touching each other: Where the dead have often been lamented: Seven plaints sacred without a house: For the funeral games of Carman: Three markets in that auspicious country: A market of food, a market of live stock: And the great market of the foreign Greeks: Where gold and noble clothes were wont to be’4.

O’Curry points out that these fairs were regulated by strict byelaws, a breach of which was punishable by death. No one who attended them could be arrested on account of any previous transactions, nor could the property of any one be distrained going to, at, or returning from a fair. Women, he says, were especially protected, and an enclosure was set apart for their exclusive use, which was called a ‘cot or cotha’. Besides this Wexford fair, there were other provincial assemblies of the same kind at Tailte in Meath; at Cruachan, the burial place of the Kings of Connaught; at Nenagh in Tipperary; at Aenach-of-the-burgh on the Boyne; and at the burial places of the Kings of Leinster and Munster5.

C Markets The concept of the market as a permanent trading institution appears to have been introduced into Ireland by the Vikings. From the 9th century onwards the concept of the market took root, although these assemblies were informal and casual arrangements for the supply and sale of goods. Such assemblies were undoubtedly the forerunners of commercial activity where the functions of buying and selling goods at fixed locations started to develop. Economic activity took place by means of economic exchange and bartering at a time before the introduction of money and constituted a market at a somewhat basic level based upon Viking trading posts. These centres later emerged as towns; some of which began to be established at significant Irish port sites. The Anglo-Normans, who arrived in Ireland in the late 12th century, rapidly established control over much of the east and south of Ireland although this wave became absorbed into the existing socio-economic culture. However, a second wave 4

5

See O’Curry Manners and Customs of the Ancient Irish (1873), Vol. III, pp. 523–547; Vol. II, pp 39–47; and Introduction, pp cclv., ccxxvi. Another version (Vol. III., p 531) describes the markets as follows: ‘Three markets there; to wit, a market of food and clothes; a market of live stock, cows and horses, &c.; a market of foreigners and exiles selling gold and silver, &c. The professors of every art, both the noble arts and the base-acts, and non-professionals were there, selling and exhibiting their works to kings; and rewards were given for every work of art that was just or lawful to be sold or exhibited or listened to.’ The common Irish word for a fair was aenach or aonach, which appears in a large number of placenames. Nenagh is the same word with the addition of the article. The name of Monasteranenagh in Limerick seems to connect the fair with some grant to the monastery founded in the 12th century, but it appears from the Annals of the Four Masters that there had been a fair there in more ancient times called ‘Aenach-beag’. Ballymenagh, ‘the town of the fair’, occurs in Limerick, Tipperary, and Derry: Lissaneena, ‘the fort of the fair’, in Cork and Sligo. Ballymeanig in Kerry and Ardaneanig near Killarney and again in the county of Clare, are other forms. N’as is a word of similar meaning which has given its name to Naas in Kildare and to several places in Leinster. Joyce, Irish Names of Places, I. 203–7. The word ‘Enoch’ a fair, is also used as a place-name in Galloway: see Sir Herbert Maxwell’s Topography of Galloway.

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Markets and Fairs in Ireland of Anglo-Normans then followed and by the 13th century, markets and fairs, market towns and associated commercial activity developed in Ireland with the spread and consolidation of Anglo-Norman power through colonisation and settlement. As an example, the Hiberno-Norse town of Cork, was taken in 1177 by the Normans, and during the 13th century the influx of people into the Cork area, coupled with agricultural innovation and the production of surpluses, led to a growth of internal and external trade. As portrayed in ‘Serving a City – The Story of Cork’s English Market’6, Anglo-Norman lords who established boroughs on their newly acquired lands sought Royal licence to establish weekly markets or yearly fairs to promote the economic fortunes of their boroughs and to generate revenue for themselves. As documented in the case of Cork, such markets were held in definite locations at specific times and required protection and regular supervision if they were to attract trade and render tax in the form of tolls to a lord. Markets were essential to the existence of boroughs and urban areas through the development of local trade. As with much of Western Europe, the 13th century in Ireland was a period of unparalleled population and economic expansion, and it can be portrayed as the heyday of the Norman achievement. The rapid development of trade and commerce was the driving force for a developing market-oriented economy, in particular in the east and south of the island of Ireland. The growth of towns and the concomitant development of fairs and markets became the hallmark of the most advanced regions of Britain in the 13th century, and a similar pattern emerged in those parts of Ireland successively colonised by the Normans. By means of Royal charters markets were established during this period throughout Ireland in a similar way to that which such markets had developed in Britain, with the concept of the market franchise and the monopoly of market based upon the common law distance, and the enforcement of market rights by means of the tort of disturbance. Markets were granted either to the various city and town corporations, or to individuals such as the Marquis of Downshire. In the case of Cork during the reign of Henry III in 1242 onwards successive corporations were granted the exclusive right to hold markets within the city, and in 1299 the Sheriff of Cork listed 36 markets and market towns that by then formed a network of commercial activity especially in the north and east of what is now Co. Cork. A similar pattern emerged in relation to fairs, in that charters of rights to hold fairs from the King to local lords developed throughout the 13th century in Ireland7. The 1220s and the 1250s marked the high point in 13th century Ireland of the grant of fair franchises together with the grant of market charters and letters patent. The book ‘Fairs and Markets of Ireland’ provides a detailed examination of the development of fairs and markets in Ireland and the way in which the grantees of the monopoly of fairs and markets were those who had successfully petitioned the King for a charter. Such petitioners fell into several categories. Lords accounted for the largest owners of market and fair charters followed by bishops and then corporations and burgesses. The Anglo-Norman lay elite also sought fair and market licences in order to promote the fortunes of their settlements, and to formalise trade and enhance their revenues. This was particularly so within Co. Cork.

6 Diarmuid ó Drisceoil and Donal ó Drisceoil, the Collins Press 2011. 7 See Fairs and Markets of Ireland – A  Cultural Geography by Patrick J  O’Connor, Oireacht na Mumhan Books 2003, for an overview of the economic geography of fairs and markets in Ireland. This work makes no reference to the Royal Commission on Market Rights and Tolls which published its Final Report in 1891 after having taken extensive evidence in Ireland as well as Britain. This work also does not make any reference to the monopoly of market and the tort of disturbance. These features were, and still remain, an essential feature of the significant role that markets played in the economic development of Britain and Ireland.

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Chapter 14  The Irish Dimension By the early 14th century the mechanisms of trade, towns, markets and fairs had begun to collapse resultant upon invasion, disease, pestilence, lawlessness and disorder. The common law area shrank and Gaelic lords recovered their lordships. In the 14th century very few charters were being confirmed within the Pale, or in the Marches beyond. By the beginning of the 15th century even staunch AngloNorman towns had felt the slump in commerce and old trading patterns were in serious decline. However, by the 16th century there was some revival in market trade, and the older town corporations were granted new market charters such as in Kildare and Kilkenny. Another development as a result of Elizabethan policy was for Gaelic patrons to obtain the grant of market and fair charters. From the beginning of the 17th century to the early 19th century, social, cultural and economic activity grew apace in what has been described as ‘the last western European country to abandon the medieval world’8. The driving force was the growth in trade which resulted in the further development of towns and markets and fairs within such urban areas. The number of letters patent granted in respect of markets and fairs especially during the reign of James I (1603–1625) developed apace and this had the effect of creating new settlements. Letters patent were granted to the new proprietorial colonial order leading to the creation of new towns and villages and the regeneration of older town centres. The new town or village settlement was formed with the triangular green at its centre comprising the market place. This settlement often took its name from its New English or Scottish proprietor to whom charter rights were granted for the holding of weekly market and annual fairs in the market place. The rapid development of the grant of letters patent for markets and fairs followed a similar pattern to the development in England, with the owners of such granted rights seeking to safeguard their property rights and to ensure that no rival landowner could lay claim to a franchise in the same area. At this stage the proprietors of such markets and fairs fell into three categories. The first category was comprised of the landed proprietors or landlords; being the New English, the Old English and the Gaelic, and who accounted for in excess of 80% of the grants, The second category were the town corporations incorporated by charter in the first half of the 17th century. The third category was the Church who continued to hold markets and fairs, although following the Reformation, Protestant bishops often succeeded to the old diocesan centres, and to the proprietorship of markets and fairs within such centres. However, during this period it was in Ulster where new landowners were most assiduous in their pursuit of letters patent in respect of markets and fairs at central points within their estates, an example of such being the Marquis of Downshire. The pattern continued during the 18th century with the continuing expansion of trade in Ireland. Locations of fairs expanded rapidly in the second half of the 18th century in all 32 counties of Ireland. However, during the first half of the 19th century there was a downturn in the number of grants, which may have resulted from a weakening in the proprietor’s economic position together with Royal crisis, and a stagnation of towns and villages, except in the north of Ireland. This culminated in the Great Famine of 1845–1851 when the population fell by about two million. In 1852–3 the Fairs and Markets Commission reported, which sought to provide a complete list of all the extant markets and fairs in Ireland by place and county, together with their proprietor’s dates (if any) of the first and subsequent letters patent, the days provided for in such patents, and the days or dates on which the fairs and markets were currently being held during that year. According to the information provided by the Report, markets were being held at 349 locations throughout Ireland, 8

See LM  Cullen, The Emergence of Modern Ireland 1600–1900 London, Batsford Academic, 1981, 25.

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Markets and Fairs in Ireland and fairs were being held at 1,297 locations. However, the Report demonstrated major discrepancies, in that in a third of those cases where markets were being held, no letters patent could be identified to authorise their legal origins. The proportion in respect of fairs is almost identical. Two legal factors gave rise to consideration in that: (1) in those cases where there was no lawful origin by virtue of a charter or letters patent from the Crown were those markets and fairs being held illegally, and (2) in those cases where markets and fairs were being held on days other than those provided for in the letters patent, were such markets and fairs being held illegally. In 1887 the Royal Commission on Market Rights and Tolls was established in order to inquire into the question of market rights and tolls in the United Kingdom of Great Britain and Ireland. The Royal Commission provides a primary historical source of unparalleled value. The terms of reference were specifically the Commission sought to enquire as to the extent to which market rights are in the hands of– (1)

Local Authorities;

(2) Trading companies; and (3) Private persons or bodies of persons other than trading companies. The Royal Commission also decided, inter alia, generally how and under what authority such rights are exercised, and how far market rights, market byelaws and regulations, market tolls, rents, stallages, and dues, and tolls affecting market towns are restrictive of trade, and also to report generally as to the alterations which may be desirable in the existing law relating to markets, having due regard to the interests of those concerned. Upon the issue of the Royal Commission, a series of questions was prepared to elicit the fullest information as to the management of markets, their costs, and the profits derived from tolls, stallages, rents and other sources. In 1889 the First Report of the Royal Commission on Market Rights and Tolls was published by Mr C.I. Elton QC and Mr B.F.C. Costelloe, Between 1888 and 1891 the Commissioners conducted extensive inquiries into market and fair rights throughout Great Britain and Ireland hearing evidence from the owners of market rights and other witnesses at local level. Inquiries were also made as to the operation of foreign markets in France, Belgium, Prussia, Saxony, Austria, and the United States. Some 12 volumes of evidence, and other material such as statistics, were published. In 1891 the final Report was published9. Its first and paramount conclusion was that it was desirable to put an end to the system under which no person is allowed to hold a market within a certain distance of an already existing market, due regard being had to the interests of the existing possessors of the monopoly rights. The conclusions of the Royal Commission on Market Rights and Tolls were never implemented in Britain and Ireland, and market and fair rights continue to be exercised extensively in England and Wales by franchise and statutory market owners. In the case of Ireland, the position since independence is somewhat more uncertain having regard to the current status of the Royal Prerogative. No recent case law exists on the subject insofar as franchise rights are concerned, the last reported case of note being that of the Marquis of Downshire v O’Brien10. However, there have been pronouncements in a number of recent cases in the Irish courts insofar as statutory market rights are concerned particularly in relation to their interaction with casual trading, to which reference is made below11.

9 10 11

The conclusions of the Royal Commission have been reproduced in Appendix 3, below. (1887) 19 LR Ir 380. See pp 226 et seq.

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Chapter 14  The Irish Dimension

D The Royal Prerogative in Ireland Insofar as the Republic of Ireland is concerned, in principle the Royal Prerogative has not survived the constitutional changes brought about by the amendments made to Article 51 of the 1922 Irish Constitution by Article 49 of the 1937 Constitution. However, as with many aspects of legal interpretation, all is not quite as it seems. In certain respects, it is probable that aspects of the Royal Prerogative have not ‘faded out’ being the phrase used in Kelly in his seminal work ‘The Irish Constitution’12. The opening sentence of Article 51 of the 1922 Constitution, until its amendment by the 1937 Constitution on 11 December 1936, provided as follows: ‘The Executive Authority of the Irish Free State (Saorstát Éireann) is hereby declared to be vested in the King, and shall be exercisable, in accordance with the law, practice and constitutional usage governing the exercise of the Executive Authority in the case of the Dominion of Canada, by the Representative of the Crown.’

Article  51 then went on to envisage that the Executive Council (i.e. what corresponded to the Government in the 1937 Constitution) was to ‘aid and advise’ in the exercise of this Executive Authority. The Crown continued to be represented in the Irish Free State by the Governor-General whose role was purely symbolic and ceremonial, the Executive Council having effective executive power. The assumption was therefore made that those parts of the Royal Prerogative which were not otherwise unconstitutional had survived for the benefit of the Executive Council, and that it had survived in some shape or form after 192213. In 1936 the then Government, having already previously announced its intention to promote a new Constitution which would remove all trace of the Crown, decided that the abdication of King Edward VIII on 10 December 1936 provided the appropriate occasion for the radical amendment of the 1922 Constitution. On 11  December 1936 the Dáil enacted the legislation which removed the Governor-General from the Constitution, together with virtually all trace of the King, by repealing in its entirety the opening sentence of Article 51 (as reproduced above). Article 49 of the 1937 Constitution provides as follows: (1) All powers, functions, rights and prerogatives whatsoever exercisable in or in respect of Saorstát Éireann immediately before the 11th day of December 1936, whether in virtue of the Constitution then in force or otherwise, by the authority in which the executive power of Saorstát Éireann was then vested are hereby declared to belong to the people. (2) It is hereby enacted that, save to the extent to which provision is made by this Constitution or may hereafter be made by law for the exercise of any such power, function, right or prerogative by any of the organs established by this Constitution, the said powers, functions, rights and prerogatives shall not be exercised or be capable of being exercised in or in respect of the State save only by or on the authority of the Government. (3)

The Government shall be the successors of the Government of Saorstát Éireann as regards all property, assets, rights and liabilities.

12

5th Edition, 2018, Bloomsbury Professional, ed by Dr G  Hogan and Professor G Whyte, Part 8, Succession to the Prerogative – 8.2.02 et seq. The following text draws upon parts of this valuable work. 13 See Laurentiu v Minister for Justice [1999] 4IR 26, at p 91, and see Webb v Ireland [1988] IR 353 in which the Supreme Court seems to have accepted that certain common law rules which had been construed as aspects of the Royal Prerogative could have survived in a re-constructed constitutional form if otherwise compatible with the democratic and republican character of the State.

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Markets and Fairs in Ireland However, as Kelly states: ‘The King survived only in a hidden form – like a face camouflaged by foliage in a children’s puzzle – namely in a new sentence interpolated into Article 51. This provides as follows: “Provided that it shall be lawful for the Executive Council, to the extent and subject to any conditions which may be determined by law to avail, for the purposes of the appointment of diplomatic and consular agents and conclusion of international agreements, of any organ used in a constitutional organ for the like purposes by any of the nations referred to in Article 1 of this Constitution [viz “the Community of Nations forming the British Commonwealth of Nations”]’14

This ‘organ used as a constitutional organ’ turned out to be the King as recognised by Australia, Canada, Great Britain, New Zealand, and South Africa. This arrangement continued until the external executive functions were transferred to the President by the Republic of Ireland Act 1948. Thus, for all intents and purposes from 1948 the disappearance of the Crown from the Irish state was fulfilled and any remaining prerogative rights did not survive and ceased to be part of the law of Saorstát Éireann. As it was put in the case of Byrne v Ireland15: ‘All royal prerogatives to be found in the common law of England and the common law of Ireland prior to the enactment of the Constitution Saorstát Éireann 1922 ceased to be part of the law of Saorstát Éireann because they were based upon concepts expressly repudiated by Article 2 of that constitution and, therefore, were inconsistent with the provisions of that constitution and were not carried over by Article 73 thereof’

Following this, in the case of Webb v Ireland16 the question of the non-survivability of prerogative rights was again considered in the case of treasure trove where it was held in judgments at both first instance and in the Supreme Court that the prerogative right did not survive the 1922 Constitution. It should be noted that although it was held that the prerogative rights such as treasure trove had not survived, the Supreme Court nonetheless found for the State on other grounds. Thus, in principle it would seem that none of the ancient prerogative rights survives for the public benefit. However, such an absolutist view ignores the position with regard to the creation of corporations by letters patent or, indeed, the franchise rights of markets and fairs granted by the Crown in former centuries to corporations and to private individuals. It has been suggested that only those aspects of the Royal Prerogative which are to be construed as incompatible with the democratic and republican character of the State no longer survived, while other parts such as those founded on the public interest or public benefit did so pass. In the case of Howard v Commissioners of Public Works17 the question was raised whether the building of ‘interpretative centres’ in two sites of outstanding natural beauty proposed by the Commissioners of Public Works required a prior grant of planning permission. This raised the difficult question as to whether the Commissioners, as an emanation of the State, could avail themselves of the supposed rule whereby the State was exempt from the application of statute – a similar position to the status of the Royal Prerogative. It was held by a majority that the supposed rule had not survived the enactment of the Constitution and as a question of construction

14 At 8.2.04. 15 [1972] IR 241 at 273. 16 [1988] IR 353. 17 [1994] 1 IR 101.

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Chapter 14  The Irish Dimension of the constitutional framework the common law in Ireland had been divested of its association with the entire doctrine and history of the Crown Prerogative. Do these three cases, namely Byrne, Webb and Howard therefore render the provisions of Article 49 of the 1937 Constitution ineffectual and redundant? As Kelly puts it, not only is this a remarkable interpretation having regard to a provision of the Constitution, but also it seems somewhat disingenuous to have arrived at such a conclusion without having regard to the constitutional history of the Irish Free State. Instead, it is apparent that the Crown and its prerogative were understood to have survived into the newly independent State. This interpretation is made when regard is had to the statutory development of the Irish Free State, both positive and negative, and the opinions of judges who played a role in the drafting of the Constitution, together with the record of what actually had occurred in the 50 or 60 years prior to the judgments in the three cases mentioned above. To adopt the approach that progenitors had misunderstood the nature of the edifice that they constructed and operated was to ‘adopt an unreal and intellectually unamiable position’18. An aspect of this ‘unreal and intellectually unamiable position’ is found in the case of Howard where members of the Supreme Court were willing to admit to the existence of the rule whereby the State was exempt from the application of statute albeit not one based upon the notions of the Royal Prerogative but implied by way of a constitutional reconstruction. Similarly, in the case of Webb the former Royal Prerogative as to treasure trove survives albeit in a different constitutional context. The question therefore is posed as to whether it is possible that the former Royal Prerogative out of which grants were made whereby charter rights to operate markets and fairs were vested in corporations and individuals has survived under the 1922 and 1937 Constitutions? Further, even if the Prerogative itself may not have survived have the rights so granted under it themselves survived? It is suggested that certain rights formerly regarded as prerogative rights can and have survived in a democratic republic and that such rights are not ‘inseparable from the institution of kingship”19. There are therefore conflicting views that prerogative rights may survive in a democratic state and that such rights are or are not ‘inseparable from the institution of kingship’20. In this regard there is dicta in the cases of Simmonds v Cork County Council21, Skibbereen UDC  v Quill22, Listowel Livestock Mart Ltd v William Bird and Sons Ltd23 which can be construed as supportive of this position. In the cases of Director of Public Prosecutions (Long) v McDonald and O’Mahony v Biggs24 Henchy J (with whom Griffin and Walsh JJs concurred) found no difficulty in finding in the context of byelaws made under the Road Traffic Act 1961 for the regulation and control of traffic and pedestrians that there was a presumption of immemorial usage from which a lost grant might be presumed for the holding of a lawful market.

18 See Kelly, Hidden Treasure and the Constitution (1988) 10 DULJ 5. 19 See Cork County Council and Burke v Commissioners of Public Works [1945]  IR  561 where the court examined the question as to whether a prerogative right could exist in a republican constitution. A  number of early American cases were reviewed with regard to the question of exemption of the State from the application of certain statutes. 20 Per Black J in the Cork County Council case. 21 [2002] IEHC 17. 22 [1986] 1 IR 123. 23 [2009] 4 IR 631, in which Clarke J stated that ‘…while the grant of such rights was seen in English law as being derived from the law of prerogative, it was not suggested in these proceedings that there is anything inconsistent with the constitutional framework of this jurisdiction in the continued existence of such rights and entitlements derived from pre-independence royal grant.’ (paragraph 27). 24 [1983] ILRM 223, see p 227, below.

216

Markets and Fairs in Ireland This limitation of the scope and application of byelaws made under s 92 is necessary because a fair or a market is a property right. It is a franchise conferring a right to hold a concourse of buyers and sellers to dispose of commodities. The property rights involved in that franchise are required by Art 40.3, of the Constitution to be protected as far as practicable by the laws of the State. The Legislature, by s 92 (of the Road Traffic Act 1961) obviously considered that the common good warranted that a fair or market held on a public road could be encroached on by byelaws made under that section, but only to the extent of securing the free passage of vehicular traffic through the public road on the occasion of the fair or market. Thus, although the aspect of the Royal Prerogative and its survival post the 1922 and 1937 Constitutions was not expressly addressed in this judgment the assumption seems to have been made by the court that franchise markets rights are required to be protected by Art 40.3 of the 1937 Constitution. Essentially it would seem that a justifiable case can be made out for accepting that franchise market rights granted under the Royal Prerogative have survived the enactment of the 1922 and 1937 Constitutions. If this interpretation is correct then precedent which had developed prior to 1922 in Great Britain and Ireland as to market rights and the entitlement of the owner of a market or fair to the peaceful enjoyment of his franchise, and to protection from disturbance within the common law distance, should still be of application despite the provisions of Article 49 of the 1937 Constitution. This is particularly striking when regard is had to the terms of Article 40.3. In this context reference should also be made to a number of pre-1922 Irish cases dealing with the question of both market and fair rights25. However, insofar as markets created by statute and in particular the development in England of the principle that a market established under a local or public act enjoys all the instance and privileges of a market created by charter, unless the statute otherwise provides26 the position is perhaps somewhat clearer. Such markets were not created by virtue of the Royal Prerogative but by Parliament, and the law regarding the remedies for the tort of disturbance and the cordon sanitaire derives from case law and not from the Royal Prerogative. It is true that the case law insofar as a statutory market is concerned seeks to mirror the case law derived in respect of charter rights granted originally under the royal charter, but that in itself should not prevent a statutory market owner from seeking to rely upon such case law when invoking its statutory market rights against a rival market operator. Time will tell as to whether this interpretation is correct. Therefore, in principle, and subject to the interaction of franchise rights with the provisions of the Casual Trading Act 199527, it would appear that such rights are still capable of being exercised within the Irish jurisdiction. Thus, the holders of franchise or statutory market rights on the basis of their monopoly could in principle still seek to exercise and enforce such rights in order to suppress rival markets or fairs.

25 See Downshire (Marquis) v O’Brien (1887) 19 LR Ir 380; Loughrey v Doherty [1928] IR 103; Middleton (Lord) v Power (1886) 19  LR  Ir1; R  (Kennedy) v County Court Justices (1911) 45 ILT 217; Wynne v Martin Batty’s Reports 110. 26 See above pp 21 et seq. 27 It is now provided by s  7(4) of the Casual Trading Act 1995 that where a market or fair right remains unexercised for a period of not less than 10 years then the market right shall stand extinguished. It is also provided by s 7(1) a local authority may acquire any market right in respect of a market or fair either by agreement or compulsorily, see p 220, below.

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Chapter 14  The Irish Dimension

2 CASUAL TRADING IN IRELAND A Casual trading In general, ‘casual trading’ means the selling of goods in a place to which the public have access as of right, or in any other place that is designated as a casual trading area. This is to be contrasted with ‘occasional trading’ which means the selling of goods by retail in premises or a place to which the public do not have access as of right, and in relation to which the seller has been in continuous occupation for less than three months including the date of selling. The essential difference between the two forms of trading is that casual trading takes place on the public thoroughfare, or in a place designated as a ‘casual trading area’ whilst ‘occasional trading’ takes place on privately owned premises in which the seller is not in long-term continuous occupation. B The Casual Trading Act 199528 The purpose of the Casual Trading Act 1995 (‘the 1995 Act’) was to decentralise to local authorities the control and regulation of casual trading in Ireland. It was enacted on 18  July 1995 and repealed previous legislation including the Casual Trading Act 1980 (‘the 1980 Act’)29. Under the earlier statutory framework in place before the 1995 Act came into force, licences were issued for the entire country by the Department of Enterprise, Trade and Employment, and the licence fee was fixed at €441. There also existed local permits which carried fees of up to €438. The list of exemptions under the previous law was wider than that now specified under the 1995 Act and previously extended to goods such as fruit and vegetables, and newspapers. It is to be emphasised that the fact that the removal of those exemptions previously exempted under the 1980 Act does not render such activities unlawful but makes them subject to regulation. C The main provisions of the 1995 Act (1) Interpretation Section 1 provides a number of definitions for the purposes of the 1995 Act, including the definition of a ‘market right’. This is as follows: ‘… means a right conferred by franchise or statute to hold a fair [or] market, that is to say, a concourse of buyers and sellers to dispose of commodities.’

(2) The definition of casual trading Casual trading is defined by s 2 of the 1995 Act as: ‘selling goods at a place (including a public road) to which the public have access as of right or at any other place that is a casual trading area.’

The 1995 Act provides for three exemptions from the scope of regulation. These are defined by sub-s (2) as follows: (a)

selling by a licensed auctioneer;

(b) door-to-door selling;

28 29

This section had been written with due regard to the annotated version edited by Mr Timothy C Bird BCL, BL, in the Irish Current Law Statutes. The full annotated version of the 1995 Act is included in Appendix 1, below. SI 267/1995 brought into effect all the sections of the 1995 Act on 1 May 1996, save for ss 6 and 17(1)(b).

218

Casual Trading in Ireland (c)

selling in aid of a charity or for some purpose from which no private profit is made, such as famine-relief organisations, hospitals, organisations that help the poor, churches, mission societies, schools, and sports clubs.

Sub-section (3) provides that the Minister for Enterprise and Employment may, by, regulations, amend (whether by the addition, deletion or alteration of classes) the classes of selling specified in sub-s (2)30. Sub-section (4) empowers local authorities under bylaws to add to the classes of selling specified in sub-s (2) in their functional areas. Formerly, s 2(2)(h) of the 1980 Act provided an exemption for ‘selling at a market or fair held in pursuance of a market right’. In the case of Skibbereen UDC v Quill31 the defendants were charged with trading without a licence in the town of Skibbereen contrary to ss 3 and 5 of the 1980 Act. They defended the charges on the basis of the exemption provided by s 2(2)(h) of the 1980 Act. Lynch J, inter alia, held that the trading engaged in by the defendants came within the exemption on the basis that the market right was defined as a right conferred by franchise or statute to hold a fair or market. Such a franchise was granted in 1675 in Skibbereen, and the charter was purchased by the Skibbereen UDC in 1949 but was never exercised. The local authority did not avail itself of the powers contained in what is now s 8 of the 1995 Act (formerly s 9 of the 1980 Act) to seek to extinguish the market right owned by it. It was held by Lynch J that the non-user of a franchise to hold a market or fair does not extinguish the franchise or right to do so. However, the learned judge also held that there was no obligation on the market owner to hold markets in accordance with the terms of the charter. (3) Casual trading licences Section 3 of the Act provides for general restrictions on casual trading. A  person shall not engage in casual trading unless that person is, or is the servant or agent of, a person who holds a casual trading licence which is for the time being in force, and the casual trading is in accordance with the provisions of the licence. There are limitations specified by sub-s (2)(a) on such casual trading. However, sub-s (2) (b) provides that the restriction on a casual trader effected by sub-s (2)(a) shall not apply during the currency of a casual trading licence issued by the Minister for Enterprise and Employment under the 1980 Act to that casual trader in respect of a local authority which has not designated a casual trading area under the 1980 Act. Section 4 provides that a local authority shall, subject to certain specified provisions, grant a casual trading licence to an applicant who pays the fees (if any) fixed by byelaws under s  6 and who fulfils certain conditions as specified. The licensing system enables a local authority, either to issue a general licence without territorial limitation in its own jurisdiction, or to confine it to casual trading areas (known as ‘designated areas’), or to issue licences for special events. Conditions may be attached to a licence, and it may be revoked at any time if any of its conditions are contravened. It is an offence to fail to comply with the conditions. Furthermore, local authorities are empowered to refuse to grant a licence32, or to 30

31 32

See for instance SI  191/2004 which was promoted by the Competition Policy Section of the Department of Jobs, Enterprise, and Innovation within the framework of the Competition Act 2002, as amended. These regulations exempt from the provisions of the 1995 Act the selling of strawberries, raspberries, blueberries, gooseberries, blackberries, loganberries, tayberries and currants and potatoes having loose skins and which have been harvested prior to maturity between 1 May and 30 September in any year. The exemption is only applicable to growers of the products concerned, their servants or agents. [1986] IR123, but see the position under the 1995 Act and dicta in Simmonds v Kilkenny Borough Council [2007] IEHC 208, per Smyth J, at p 21. See the case of Hand v Dublin Corporation [1991] ILRM 556, below.

219

Chapter 14  The Irish Dimension revoke a licence, when a person commits an offence connected with casual trading, or connected with the importation, sale or possession of goods whilst the holder of a licence. Sub-section (9) provides that the application form for a casual trading licence shall be in the prescribed form, and the local authority can seek such further information as it may request for the purposes of the exercise of its powers and functions under the section. If the person fails to comply with this sub-section, the local authority may refuse to grant the person the licence. Section 5 provides for the display of casual trading licences at the designated places, and a person who contravenes the section shall be guilty of an offence. (4) Byelaws and guidelines Section 6 provides the local authority with general powers to make bye-laws relating to the control, regulation, supervision and administration of casual trading in its functional area. This includes making byelaws relating to the designation of casual trading areas, the maximum area to be occupied by a person in a casual trading area, the regulation of access to casual trading areas, the fixing of fees, and the provision of trading places for disabled persons and reinforcement rules. It also provides for the procedure to be followed by a local authority in the making of byelaws and for appeals. A  new section, s  6A, was inserted into the 1995 Act by s  98 of the Consumer Protection Act 2007. This makes provision for the Minister to prepare and issue guidelines in writing regarding the performance of local authorities of their functions under s 6 in relation to byelaws. The current guidelines were those issued in July 2006 by the Minister for Enterprise, Trade and Employment for Local Authorities for the carrying of their functions under the 1995 Act. (5) Acquisition and extinguishment of market rights Section 7 of the Act also provides that a local authority may acquire any market right or fair in its functional area by agreement, or compulsorily. Provisions of the Local Government (No 2) Act 1960 and the Housing Act 1966 shall apply in relation to a market right in respect of a market or fair as they apply in relation to land. This section repeats s 8 of the repealed 1980 Act. Additionally, and somewhat controversially as it has subsequently transpired, the section further provides that where a market right in respect of a market or fair in the functional area of a local authority remains unexercised for a period of not less than ten years after the commencement of the section, then, the market right concerned ‘shall stand extinguished’ (sub-s (4)). The relevant date for the purposes of calculation is 1 May 199633. This section should be read in the context of s 8 which empowers a local authority to extinguish a market owned by it in certain circumstances (see below). Section 8 provides further powers on the part of the local authority in relation to market rights owned by them. Sub-section (1) provides that a local authority may carry on, manage and regulate a market or fair to which a market right owned by it relates as if it were a market established by it under s 103 of the Public Health Act (Ireland) Act 1878, and shall have all such powers as may be necessary for those

33

It is probable that sub-s (4) was enacted in response to the judgment of Lynch J in Skibbereen UDC v Quill [1986] 1 IR 123 where he held that the franchise created by charter and subsequently purchased by the local authority was not extinguished by lack of exercise.

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Casual Trading in Ireland purposes34. A local authority may also by order extinguish a market right owned by it (see sub-s (2))35. However, it is provided by sub-ss (3) to (5) that: (1) It shall not extinguish a market right under the section unless it provides, or has already provided, alternative facilities in the same vicinity as the market or fair to which the right relates and comprising or including facilities reasonably corresponding in all respects, having regard to all the circumstances, to the market or fair; (2) Where a local authority acquires a market right compulsorily under the Act it shall not discontinue the holding of the market or fair to which it relates unless it provides, or has already provided, alternative facilities in the same vicinity as the market or fair to which the right relates and comprising or including facilities reasonably corresponding in all respects, having regard to all the circumstances, to the market or fair; (3) Whenever a local authority proposes to extinguish a market it has to follow a formal process by giving notice in writing of the proposal to any person appearing to the local authority to have an interest in the right, and to publish notice of the proposal in at least two newspapers circulating in the area in which the market or fair to which the right relates is held; (4) A  person who is aggrieved by such a proposal to extinguish a market right may within 21 days appeal to the district court against the extinguishment. The court may on the hearing of the appeal, if it is of the opinion that the extinguishment would, notwithstanding the alternative facilities to be provided or already provided by the local authority and having regard to all the circumstances, constitute an undue interference with the facilities enjoyed by the public in relation to the market right, prohibit the proposed extinguishment or authorise the extinguishment subject to such conditions (if any) as it may deem appropriate and specify; (5) A local authority shall not proceed with the proposal to extinguish a market right under the section before the expiry of 30 days from the date of compliance by the local authority with the notice provisions, referred to above, or if an appeal is brought against the proposal, before the final determination of the appeal.

34 See Simmonds v Cork County Council [2002]  IEHC  17 (22  February 2002). This was a case where an interlocutory injunction was sought and obtained against a local authority who sought to implement Casual Trading Bye laws in Bantry, and to regulate the market rights by moving the market traders from Wolfe Tone Square to an area of reclaimed land adjoining the foreshore comprising a car park. It was proposed by the local authority that the market traders would be required to trade from this designated area and to obtain casual trading licences for that purpose. Market and fairs rights in Bantry derived from the Crown and had been exercised since the 17th Century. As stated by Aindrias O  Caoimh J  in his judgment, an issue arose as to the effect of this requirement by the local authority which would mean that traders would lose their ancient franchise market rights to trade in the Square and the markets and fairs would be extinguished. ‘…the power to move a market at law is limited and accordingly the power to regulate casual trading may not extend to defeat proprietary rights of members of the public in the absence of clear statutory authority.’ [para 24]. 35 In this context it should be noted that this power on the part of a local authority to extinguish a market is limited to the circumstances where it owns the market rights. Thus the power is of no effect in the case where the franchise right still continues to be held by a private person pursuant to the original grant by way of a royal charter or letters patent.

221

Chapter 14  The Irish Dimension Section 9 provides that it shall be an offence to give false information to a local authority in relation to a licence, to alter or to use a licence with intent to deceive or defraud a licence. (6) Enforcement Sections 10–12 provide for enforcement of the byelaws, whereby any authorised officer of the local authority, or a member of the Garda Siochana, may inspect any place where they believe casual trading is being carried on, require the trader to produce his/her licence, ask to see any documents relating to the trading and other such functions. If the person concerned does not comply with these requirements they can be told to remove themselves and their goods or to be arrested. There is also provision for the disposal of goods seized by the Gardai. By s 13 of the Act each local authority is required to keep a register of licence holders which must be kept in an electronic form. Section 14 provides for penalties which attach to offences under the Act. A  person who commits an offence under the Act can be prosecuted summarily or on indictment. The penalties provided are monetary, although there is provision for imprisonment of the person concerned upon conviction upon indictment for a maximum period of six months. The section streamlines the jurisdiction of the courts. Section 15 provides that regulations under the Act shall be laid before each House of the Oireachtas. Section 16 amends certain provisions of the Occasional Trading Act 1979. Section 17 provides for the repeal of the 1980 Act and makes appropriate transitional provisions. Section 18 contains the short title of the Act and makes provision for the commencement of the Act. The Consumer Strategy Group reported in May 2005 and recommended, inter alia, that the Minister for Enterprise, Trade and Employment should have powers to issue statutory guidelines to local authorities to ensure a consistent approach to casual trading be adopted throughout the country. A High Level Inter Departmental Committee was established to consider the various recommendations of the Group. In respect of casual trading the Group made the following recommendations: (1)

That the guidelines issued by the Department of Jobs, Enterprise and Innovation should contain a specific provision advising local authorities of the need to encourage the sale of fresh fruit and vegetables;

(2) That the guidelines be reviewed after an appropriate period to ascertain what effect they were having; and (3) That the 1995 Act be amended to permit the Minister to introduce statutory guidelines at some stage in the future, if required. At its meeting on 13  December 2005 the Government endorsed the recommendations of the High Level Inter Departmental Committee and approved the preparation of a general scheme of a Bill to implement the recommendations into law. The principal recommendation made was to establish a new National Consumer Agency. The intention in issuing the guidelines was to attempt on a voluntary basis best practice for the operation of casual trading by all the stakeholders involved, such as traders, local authorities and the Gardai, with the ultimate aim of providing more choice for consumers in the retail sector. Following this the Consumer Protection Act 2007 was enacted. Section 98 inserted a new s 6A into the 1995 Act in order to provide guidelines with respect to performance of functions under s 6 of that Act36.

36

See s 6A, at p 220, above.

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Casual Trading in Ireland

D The Report of the Competition Authority On 22 August 2002 the Competition Authority published a report entitled ‘Report on the Implementation of the Casual Trading Act 1995’ pursuant to s  11 of the Competition Act 1991 (as amended) (‘the Report’). The purpose of the Report was to investigate how the 1995 Act had been implemented by local authorities, and to examine its effect on competition in local markets. The study also examined whether measures employed by local authorities were necessary for the achievement of public interest objectives such as, amongst other relevant matters, public order and safety. To this end the Competition Authority commissioned market research consultants (MRBI) to conduct a data collection exercise and to survey those persons most affected by the 1995 Act. Thus, a large-scale survey was undertaken of casual traders and permanent businesses across the State together with in-depth interviews with various bodies. The Report found that at that stage only 58 of the 88 local authorities within the State had introduced byelaws under the Act, and that traders in possession of licences issued by those local authorities who had complied with the legislation numbered approximately 1,350. It found that the most commonly traded goods were clothing, and fruit and vegetables, though in general the range of goods traded in local markets was quite substantial. It also found that licence fees varied greatly across local authorities ranging from €13 up to €1,770 per annum. Given that some traders operate in more than one local authority, the total fee such traders would pay would be greater than this. The Report also found that many local authorities stated that the 1995 Act had provided them with the necessary control to manage casual trading more efficiently. It was also stated that the Act had, and would, put an end to many arguments over pitches and types of goods sold. Further, it was found that all local authorities interviewed in-depth felt that the 1995 Act would enable them to eliminate illegal trading. There was, however, some divergence in attitudes towards casual trading in general. The vast majority of urban local authorities felt that casual trading was to be encouraged as it added to the atmosphere of a town as well as attracting consumers who would also shop with the permanent businesses. A significant number of rural authorities felt that casual trading was to be discouraged in that it had a negative effect on the area and on permanent businesses based there. It was also noted that a high demand for licences occurred in urban authorities, whilst rural authorities suggested that demand was low in their areas. The views of casual traders themselves were sought and are summarised in Chapter 6 of the Report. Licensed traders tended to feel that, if properly implemented, the 1995 Act would be of benefit, whilst unlicensed traders were more sceptical. All traders felt that they obtained relatively little from the local authorities, in terms of facilities and space, in return for their licence fees. They were also of the opinion that the 1995 Act was unfair in not allowing them to directly appeal the level of the licence fees charged. It was felt by IOMST (the Irish Organisation of Market and Street Traders) that the 1995 Act was frequently being used to unfairly discourage casual trading. The principal issues raised by traders were: (1) Licence fees charged by local authorities varied very widely throughout the country, and could be very high; (2)

No account was taken by local authorities of the practical difficulties of traders, such as the size of stalls, the parking of vans, and other related issues;

(3) Local authority members could be faced with a conflict between their duties under the 1995 Act and their private interests; (4) Local authorities saw casual traders as a nuisance rather than part of the commercial life of a town; 223

Chapter 14  The Irish Dimension (5)

Casual traders who wished to move from area to area had to pay a fee in each local authority area where they wished to trade (there are 88 local authorities); and

(6)

Local authorities had been very reluctant to use their powers to exempt specified activities from the application of the 1995 Act within their own areas and this had impacted particularly severely on fruit and vegetable growers who had enjoyed a general exemption to engage in roadside sales under the 1980 Act.

The Executive Summary to the Report provides a summary of the views of those consulted in the following terms: ‘..it seems that, with very few exceptions, stakeholders believe that if the Act was correctly and fully implemented, as was envisaged by the Department of Enterprise, Trade and Employment, it would ultimately benefit casual traders, local businesses, public order and safety and consumers alike. The main areas where MRBI found that the Act was not being implemented as envisaged were: (a) one-third of local authorities have no byelaws, and thus the Act has not been implemented at all in these areas – this also hinders the implementation of the Act in other areas; (b) licence fees are typically set without consulting casual traders and seemingly without regard to the level of facilities being provided; that is, they often appear to be set arbitrarily; (c) in some areas, the designated trading area is in a location which ignores the potentially beneficial spill-over effects, both to the public and to sellers, of placing casual traders near to the permanent businesses (in the case of event trading, the designation of a trading area is sometimes unmindful of public order and safety or disproportionately cautious); and, (d) pitch sizes are frequently too small for some casual traders’ stalls.’

The Report also noted that there was a lack of consistency in the implementation of the 1995 Act. It noted that there were large variations in the fees charged by different local authorities, there were differences in levels of facilities being provided, there were attempts by local authorities to allocate efficiently scarce pitches and licences, and it was also suggested that there was a possibility that local authorities in some areas were using fees to raise revenue. The Report noted that a policy of setting fees to maximise revenue would be regarded as unreasonable and could constitute a barrier to entry and a distortion of competition. The Report also considered the apparent rise in private trading where markets are held on private land. The 1995 Act does not apply to such trading, and it was noted that unless it is appropriately applied throughout the State, casual trading itself may suffer, with attendant negative implications for local economies. Chapter 11 of the Report sets out the recommendations of the Competition Authority arising out of the research and analysis conducted during the study, and the reasoning behind the recommendations. The recommendations made are as follows: (1)

The 30 local authorities that have not yet introduced byelaws under the Casual Trading Act 1995, should do so without delay.

(2) Local authorities should consult casual traders and other interested parties when introducing or amending byelaws and making decisions under the 1995 Act. (3) Guidelines should be drawn up at a national level to direct local authorities in implementing the 1995 Act. (4) The determination of pitch sizes set by local authorities under the 1995 Act should not act as a barrier to entry for any type of trader; local authorities could designate a number of larger pitches for certain classes of trader. (5) Fee set under the 1995 Act, should be based solely on the administrative cost of issuing licences and any costs associated with providing facilities. 224

Market Rights (6) Section 6(4) of the 1995 Act, should be amended to read ‘..local authorities shall have regard to the facilities and services provided by it to persons engaged in casual trading’. (7) Licences issued under the 1995 Act, should be allocated on a historical basis or a first-come, first-served basis, with a waiting list operating for pitches that become free. (8) The possibility of mutual recognition of licences among the local authorities should be investigated so that an event trader might need to apply only once in full for a licence under the 1995 Act. (9) Local authorities should be required to make available to the public a list of its licence fees under the 1995 Act, together with a breakdown of the various costs leading to those calculations. This same information should be collated centrally. (10) The 1995 Act should be amended to enable fees, and amendments to fees, to be challenged in the District Court with a provision to appeal to the Circuit Court, as are other aspects of byelaws. The current position is that none of these recommendations has currently been implemented.

3 MARKET RIGHTS There have been a number of reported and unreported cases in the Irish courts, most notably being challenges to the provisions of the 1995 Act, and its predecessor the 1980 Act. A number of these have involved legal argument on markets and market rights in Ireland insofar as the implementation of the casual trading provisions and the extinguishment of market rights are concerned. This work has been cited by Counsel and extracts from it relating to market rights form part of the obiter dicta in several judgments of the Irish High Court and Supreme Court. There have also been a number of challenges in the courts as to the provisions of the 1980 and 1995 Acts the vires of its implementation by some local authorities. It should be stated that this chapter is not directed to an examination of casual trading in Ireland, and the reader’s attention should be directed elsewhere for such information37. 37

For such cases see eg, Lyons v Kilkenny Corporation (unreported, 13 February 1987), (where a byelaw imposing further charges made under the 1980 Act, s 7(8), was held to be ultra vires); Comerford v O’ Malley [1987]  ILRM  595 (a case under the 1980 Act as to whether the local authority’s designation of an area as a casual trading area was perverse and ultra vires – the matter was remitted to the local authority for re-consideration of its decision); Crosby v Delap [1992] ILRM 564 (whether the selling of cooked food cooked at place of sale was in breach of the 1995 Act, s 3); Shanley v Galway Corporation [1995] 1 IR 396 (where it was held that the local authority had not acted ultra vires in designating a specific area as a casual trading area as the 1980 Act, s 5, gave it a very wide discretion. It was also held that the constitutional right to work and earn a living under Art 40, s 3 of the Constitution of Ireland 1937 is not an absolute right and a local authority may impose conditions for the common good. The delegation by the Oireachtas to the local authority to impose conditions on casual trading and its exercise of power was valid and did not contravene natural justice or the constitutional right of the plaintiff to earn a living – following Hand v Dublin Corporation [1991] 1 IR 409 and AG v Paperlink [1984] ILRM 373. Further Art 40, s 3(2) does not impose upon the State any obligation to oversee the exercise by a local authority of the functions delegated to it by the Oireachtas under the 1995 Act); Byrne v Tracey and Wicklow Corporation [2001] IEHC 239 – a case where judicial review was sought of the respondents’ decision to designate or retain a previously designated casual trading area known as ‘the Square’ in Blessington. The basis of this application was that the applicant had a legitimate expectation that the Square would be retained as a casual trading area since it was the ancient and historical trading area of the town granted by letters patent by the Archbishop of Dublin in 1669 to hold markets on Thursdays. The application failed through want of evidence.

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Chapter 14  The Irish Dimension It has already been noted above that under s 8 of the 1995 Act a local authority may extinguish any market right owned by it, once it has provided alternative corresponding facilities in the same vicinity as the market or fair to which the right relates. The 1995 Act provides an appeal procedure to the District Court against any proposed extinguishment. Since the 1995 Act came into force there have been a number of legal challenges in the courts against such proposals for extinguishment of market rights, and it appears that in the main the local authority concerned has been unsuccessful in this endeavour (see below).

4 RECENT IRISH CASE LAW The following cases are those in which market rights have been the subject of detailed examination by the Irish Courts: Duffy v Dublin Corporation38; DPP (Long) v McDonald and O’Mahony v Biggs39; Skibbereen UDC v Quill40; Hand v Dublin Corporation41; Bridgeman v Limerick Corporation42; Simmonds v Cork County Council43; Simmonds v Kilkenny Borough Council44; and Listowel Livestock Mart Limited v William Bird & Sons Limited45.

A Duffy v Dublin Corporation46 Three issues arose for consideration in Duffy. First, the proposed closure of the market by the City Corporation; secondly, whether there was an obligation on the part of the Corporation to keep market open; thirdly, the meaning of the phrase ‘it shall be lawful’. Section 79 of the Dublin Improvement Act 184947 (‘the 1849 Act’) provides that ‘it shall be lawful’ for the Corporation of Dublin at any time, and from time to time, as they think fit to purchase lands to be appropriated and used as a market as therein mentioned. Section 80 of the 1849 Act provides that ‘it shall be lawful’ for the corporation to build and provide upon the land to be purchased, and for ever afterwards to maintain and improve, one or more market place or market places for the sale of cattle. Pursuant to these sections, the Corporation purchased land and provided a cattle market thereon in the year 1864. Owing to changes in the marketing of cattle, the market’s trade diminished to such an extent that a substantial subsidy from the local rates was required to keep the market open. The Corporation decided to close the market, and Mr Duffy and other plaintiffs, being members of an association of cattle salesmen, brought an action in the High Court in which they claimed a declaration that the defendants were obliged by statute to continue to hold markets for the sale of cattle at the market on the appointed days. On appeal by the plaintiffs from the dismissal of the claim it was held by the Supreme Court in disallowing the appeal, first, that in accordance with its ordinary meaning, the phrase ‘it shall be lawful’ was equivalent to the conferring of a power. Secondly, that the context of ss  79 and 80 of the 1849 Act did not justify the application of any other meaning to the phrase. Thirdly, that, accordingly, those 38 [1974] IR 33. 39 [1983] ILRM 223. 40 [1986] IR 123. 41 [1991] 1 IR 409. 42 [2000] IEHC 121, affirmed [2001] IR 517. 43 [2002] IEHC 17. 44 [2007] IEHC 208. 45 [2009] 4 IR 631. 46 [1974] IR 33. 47 Section 71 of the 1849 Act enacted that the Markets and Fairs Clauses Act 1847 (with one exception) was incorporated with and forms part of the 1849 Act.

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Recent Irish Case Law sections merely enabled the defendants to do the acts there specified, and did not oblige them to do such acts: ‘If it was mandatory on the defendants to maintain the market, then it would also be mandatory on them to improve it, but in the absence of clear and unambiguous words there should not be imputed to the legislature, in any Act expressly passed for the improvement of the City of Dublin, an intention to impose on the defendants a perpetual obligation to maintain and improve a market place regardless of the cost to the rate payers or the absence of public demand or its unsuitability… Section 80 of the Act of 1849 does no more than its marginal note indicates:“Council empowered to provide market places.” That section gives a power, but no more than a power, to build, provide, maintain and improve market places. There is nothing in the wording of the section or in the rights or interests of the public for whom the discretion was enacted, or in the general context of the statute as a whole, to suggest that the power should be treated as a duty. Therefore, the defendants were within their rights in deciding not to maintain a market place any longer on the north circular road site.’

B Director of Public Prosecutions (Long) v McDonald and O’Mahony v Biggs48 Section 89 of the Road Traffic Act 1961 (‘the 1961 Act’) empowers the making of byelaws for the regulation and control of traffic and pedestrians, and s 90 empowers the making of byelaws for the control and regulation of the parking of vehicles on public roads. Section 92 provides for the making of byelaws to provide free passage of vehicular traffic through public roads on the occasion of fairs or markets. The defendants were street traders who sold their wares at fairs and markets using their motor vehicles as mobile shops. They were prosecuted and convicted in the District Court for breaches of byelaws made under ss  89 and 90. They appealed unsuccessfully by way of case stated to the High Court and then appealed to the Supreme Court contending: (1) the byelaws were bad for being unreasonable; (2) they were bad for lack of good faith in their making, and (3) that byelaws under ss 89 and 90 were not applicable to the circumstances of these cases. In the first set of cases (‘the Carlow Prosecutions’) it appears from the case stated that no evidence was adduced to show that a market existed under either statute or express grant in any street in Carlow. However, there was uncontradicted evidence that from at least 1950 until 1956 a regular market was held in Tullow St., Carlow, apparently without let or hindrance from anybody, and that many of the defendants and their predecessors traded there from their vans on market days. In 1956, at the instigation of the Garda Siochana because of traffic congestion, the traders in the 48

[1983] ILRM 223 referred to in Byrne v Tracey and Wicklow Corporation [2001] IEHC 239, see footnote 35. In Byrne a judicial review was sought of the respondents’ decision refusing to designate or retain a previously designated casual trading area known as ‘the Square’ in Blessington. The basis of the review sought was, inter alia, that the applicant had a legitimate expectation that the Square would be retained as a casual trading area from which he could continue to trade since it was the ancient and historical trading area of the town granted by letters patent by the Archbishop of Dublin in 1669 to hold markets on Thursdays ‘in pursuance with ancient custom’. It was held by Frederick Morris J that no evidence had been tendered other than one page of the purported grant, and it was not known whether the market right was ever used and if so by whom, nor was there any evidence offered of the status of the right at the time of the hearing. Further, there was no sufficient evidence to establish a presumption of the existence of a market by immemorial user from which a long grant could be presumed, see DPP (Long) v McDonald, above. Thus the applicant had failed to establish the existence of a market right in Blessington.

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Chapter 14  The Irish Dimension market in Tullow St. were asked to transfer to Barrack St. This they did, and from 1956 until 3 May 1976 (the date of the alleged offences) the market was regularly and continuously held in Barrack St. The defendants in the second set of cases (‘the Dungarvan Prosecutions’) had contravened byelaws made under ss  89 and 90 by parking their vans in Grattan Square, Dungarvan for over one hour during a market. Uncontradicted evidence showed that a market had been held during living memory in the Square on the third Wednesday of each month. It was held by the Supreme Court that submissions (1) and (2) were not supported by the evidence. However, as to the third submission, on the facts when a market had been held for such a long period as the market at Barrack St. there was a presumption of immemorial usage from which a lost grant might be presumed. The holding of a regular market uninterruptedly there since 1956, and indeed elsewhere in Dungarvan since 1950, raised the presumption that it was a lawful market. Insofar as the Grattan Square market was concerned the evidence established that there had been a lawful market at Grattan Square on the occasion of each of the offences giving rise to the second set of cases. In each set of cases, byelaws made under s 92 would be required to make the conduct complained of unlawful. Since the only byelaws relied on by the prosecution in each set of cases were made under ss  89 and 90 which were accordingly not applicable, the appeals in each of the two cases stated were allowed: ‘There is a third way provided in the Act for the resolution by byelaws of a special kind of local traffic problem on the roads. This is to be found in section 92. Byelaws made under this section are designed to provide ‘free passage of vehicular traffic through public roads on the occasion of fairs or markets’. Unlike byelaws made under section 89 or section 90, such byelaws are made, not by the Commissioner of the Garda Siochana, but by the relevant local authority acting on its own. Furthermore, the scope of their operation is more limited in time and place, for they are permitted to be made only for the purpose of securing the free passage of vehicular traffic through public roads on the occasion of fairs or markets. This limitation of the scope and application of byelaws made under section 92 is necessary because a fair or a market is a property right. It is a franchise conferring a right to hold a concourse of buyers and sellers to dispose of commodities. The property rights involved in that franchise are required by Art. 40.3, of the Constitution to be protected as far as practicable by the laws of the State. The Legislature, by section 92 obviously considered that the common good warranted that a fair or market held on a public road could be encroached on by byelaws made under that section, but only to the extent of securing the free passage of vehicular traffic through the public road on the occasion of the fair or market. Such an inroad on the property right was obviously deemed by the Legislature to be constitutional. Therefore, on a comparison of the power to make bye-laws under section 89 or section 90 with the power to make byelaws under section 92, I am satisfied that the legislative intent was that when what is to be controlled is vehicular traffic in a fair or market held in a public place (which s. 3(1) defines as ‘any street, road or other place to which the public have access with vehicles whether as of right or by permission and whether subject to or free of charge’), the bye-laws must be made under s. 92’ (per Henchy J).

(1) The Carlow Prosecutions ‘80.  The law would appear to be that when a market has been held for such a long period there is a presumption of immemorial usage from which a lost grant may be presumed. What period of user will raise that presumption will vary from case to case, but the authorities show that the unexplained user of an easement or other incorporeal right for a period of twenty years is presumptive evidence of the existence of the right from time

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Recent Irish Case Law immemorial. The cases also show that the rule is not inflexible and that the period of twenty years is fixed only as a convenient guide. I  am inclined to view that the holding of a regular market uninterruptedly in Barrack St. since 1956 raises a presumption that it is a lawful market. Further, I consider that to that prescriptive period may be added the period from 1950 to 1956, for, as the judicial authorities show, where a market or fair is granted to be held in a district, such as a borough, township, or manor, it may be held throughout that district or in any one or more places within that district, but where it is granted to be held in a place defined by metes and bounds it must be held within those metes and bounds. There is no suggestion that the Carlow market (if such exists) was defined by metes and bounds. In these Carlow cases it does not lie with the prosecuting authorities to say that the market now held in Barrack St. since 1956 is not lawful continuation of the market, which was held before that year in Tullow St., for it was the Garda Siochana authorities who persuaded the market traders in 1956 to transfer the market from Tullow St. to Barrack St. They cannot now suggest – nor do they – that what they persuaded the traders to do in 1956 was an illegality. My deduction from the evidence is that the conduct alleged to constitute the offences charged arose out of trading in what may be a lawful market. If it is, the control of trading in that market so as to make the conduct complained of unlawful would require the bye-laws to have been made under s. 92. Apparently no such bye-laws were made. The only bye-laws relied on by the prosecution are those made under ss. 89 and 90, but they may have no application to the conduct complained of in these prosecution. It would be inappropriate in dealing with these District Court prosecutions (in which the only parties represented were the Garda Siochana and the defendants) to express a conclusion which might be taken to be a judgment in rem in favour of the existence of a lawful market in Barrack St. on the occasion in question. It has to be said, however, that the evidence was such that an onus was placed on the prosecution to show that a lawful market was not being held on that occasion. That onus was not discharged by the prosecution. The summonses, therefore, should have been dismissed.’ (pages 226/227)

(2) The Dungarvan Prosecutions ‘These prosecutions differ from the Carlow prosecutions in that apparently a charter for the market in question was said to exist. However, the charter or a copy of it was not produced in the District Court, so it is not permissible to act on hearsay evidence as to its existence or contents. As against that, there was categorical and uncontradicted evidence that, so far as living memory goes, a market has always been held in the Square on the third Wednesday of each month. Prima facie at least, therefore, the occasion of each offence charged was a lawful market, for it was agreed by the prosecution that the parking objected to in each prosecution took place on the third Wednesday of each month and was for the purpose of selling goods in the course of the market held in the Square on that day. For the reasons I have given in dealing with the Carlow prosecutions, I consider that byelaws made under sections 89 and 90 were not intended by Parliament to deal with the conduct complained of. If the prohibitions in these byelaws could be said to apply to a fair or a market, they could be used to cripple or put out of existence, without any compensation, the particular fair or market. And that could be unconstitutional. Moreover, if byelaws made under sections 89 and 90 could be used to prevent obstruction of traffic by fairs and markets, the enactment of section 92 would have been superfluous and pointless. Such an exercise in futility should not be imputed to Parliament. The inescapable conclusion is that, whereas local problems as to the control of traffic and pedestrians and parking may be dealt with by byelaws made under sections 89 and 90, the control and regulation of vehicular

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Chapter 14  The Irish Dimension traffic through a public road where a fair or market is being held can be effected only by byelaws made under s. 92(1), and then only to the extent allowed by that subsection. Accordingly, because the evidence supports a prima facie conclusion that a lawful market was being held in Grattan Square on the occasion of each of the offences charged, I would rule that the convictions made in each of the Dungarvan prosecutions should be set aside and all the summonses dismissed, on the ground that the byelaws alleged to have been contravened were not shown to apply to the facts of these cases.’

C Skibbereen U.D.C. v Quill49 In 1949 the complainant local authority purchased the franchise to hold markets and fairs on Wednesdays and Saturdays granted by King Charles II in 1675 in the town of Skibbereen. Since that date the local authority has not held or promoted any markets in the area, except for the years from 1968 to 1972 when they collected tolls from two persons trading in the areas on Saturdays. Section 2(2)(h) of the 1980 Act provided an exemption so that casual trading did not include selling at a market or fair held in pursuance of a market right50. A ‘market right’ is defined in s 1 of the 1980 Act as a right conferred by franchise or statute to hold a fair or market, that is to say a concourse of buyers and sellers to dispose of commodities. Summonses were issued by the local authority against the defendants charging them with offences contrary to ss 3 and 5 of the 1980 Act. These alleged that the defendants had carried on casual trading in a casual trading area without a licence or permit or (in the case of some of the defendants) in contravention of the conditions contained in the permits that had been granted to them. The defendants contended that they were not engaged in casual trading within the meaning of the 1980 Act because they were selling at a market held in pursuance of a market right and were therefore within the exception provided for in s  2(2)(h). At the trial of the action in the District Court the District Judge on his own motion had stated a case for determination by the High Court of certain questions of law raised in the action. It was held by Lynch J, in ruling on the points of law: (1) That the franchise created by the charter was not terminated by the complainant’s lack of exercise of the market rights. There was no obligation on the complainant to hold markets in accordance with the terms of the charter; (2) That whether or not the complainant held markets under the charter, those members of the public wishing to trade had rights, which were in the nature of proprietary rights, to attend at the market place on the date specified in the charter to engage in trading. Such trading was within the exception provided for in section 2(2)(h) of the 1980 Act. It is also to be noted that the 1675 franchise was granted expressly without metes and bounds. In his judgment Lynch J found as follows: ‘In the foregoing circumstances the owner’s failure to hold the market amounts to no more than a neglect on its part to collect the tolls and other charges to which it would have been entitled under the franchise. The non-user of a franchise to hold a market or fair does not extinguish the franchise or right to do so. Thus, non-collection of tolls over a long period

49 50

[1986] 1 IR 123, referred to in Byrne v Tracey and Wicklow Corporation [2001] IEHC 239. This exemption was expressly not re-enacted in the 1995 Act, see the judgment of Smythe J in Simmonds v Kilkenny Borough Council [2007] IEHC 2, at p 21 where he stated that the 1995 Act ‘… very pointedly and deliberately removes as an exclusion from the expression ‘casual trading’ in section 2(2) selling at a market or fair in pursuance of a market right.’

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Recent Irish Case Law would not extinguish the right of the owner of the franchise to resume collecting proper tolls at any time if he thought fit.’

The judge also made reference to the provisions of s 9 of the 1980 Act which, as he stated, clearly recognised that other persons besides the grantee of the franchise, or owner of the market, may have an interest in the market which must be taken into account and provided for before a market right can be extinguished. ‘The conclusion also follows from the authorities which were cited to me by Counsel from which it is clear that once a franchise to hold a market is granted, potential sellers have rights in the nature of proprietary rights to use the market apart from the proprietary right of the owner of the franchise to hold the market… It should also be remembered that non-user by the grantee of the franchise to hold a market may be a cause for forfeiture of the franchise to the Crown (now the State) however, such forfeiture does not in itself extinguish the market which remains in existence for the benefit of the locality, the tolls (if any) being payable to the Crown or the State instead of to the owner.’

D Hand v Dublin Corporation51 This Supreme Court case emphasises the principle that Parliament has sole and exclusive power to make laws for the Irish State. Specifically, Parliament had expressly enacted that the Minister should not grant a licence to a person who had been convicted of two or more relevant offences which, although minor were not trivial and thereby indicated its opinion of its gravity. The plaintiffs’ argument in relation to proportionality failed. The plaintiffs were street traders who had been convicted at least twice under the provisions of the 1980 Act. They had been in contravention of the relevant provisions of that Act during most of the period in which they were trading in Henry Street in Dublin. There were 85 ‘places’ allocated in Henry Street to casual traders who had both a licence and a permit for the Christmas period for which there were upwards of 900 applicants each year. The plaintiffs applied to the Minister for a licence in November 1985 in respect of the following year and each plaintiff was refused under the provisions of s 4(6) of the 1980 Act. Section 3 of that Act required the holding of a casual trading licence and a casual trading permit in order to engage in casual trading. Such licences were issued by the Minister under the provisions then contained in ss 4 and 5. The plaintiffs sought a declaration that the provisions of ss 4 and 5 of the 1980 Act were null and void on various grounds. The High Court dismissed the plaintiffs’ claim, who then appealed to the Supreme Court on some of the grounds the subject matter of the original claim, and in addition made further submissions as to the deprivation of their rights. The Supreme Court dismissed their appeal. The submissions made as to proportionality to the effect that the Minister should not have refused a licence on the basis that the convictions of two or more relevant offences were minor were rejected. The case R v Barnsley MBC, ex p Hook52 was expressly not followed. It was held that none of the issues in that case was relevant to the issues which the court had to determine in the instant case. Further it was held that the right to earn a livelihood was not unqualified and, assuming without deciding that it was a property right, s 4(6) of the 1980 Act did not constitute an

51 52

[1991] 1R 409. [1976] 1WLR 1052.

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Chapter 14  The Irish Dimension unjust attack on the plaintiffs’ rights to obtain a licence protected by Article  40, s 3(2) of the Constitution of Ireland 193753.

E Bridgeman v Limerick Corporation54 In this case the Supreme Court held that an area designated for casual trading under the scheme enacted in Ireland under the 1995 Act for the control and regulation of such trading does not create a franchise market within the definition, and it was not the intention of the legislature to do so. This is confirmed by the wording of ss 7 and 8 of the 1995 Act which expressly empowers a local authority to acquire and extinguish market rights, as defined in s 1 of that Act. ‘I do not think that it was the intention of the Oireachtas, in enacting the Act of 1995 and enabling byelaws to be made, designating areas in which casual trading could take place, to create a “market” as thus defined [as quoted in Halsbury’s Laws of England (3rd Ed.) Vol 25, at p. 381]. That view is confirmed by the wording of the Act of 1995 which expressly empowers a local authority, in sections 7 and 8 to acquire and extinguish a “market right” and defines such a right as ‘a right conferred by franchise or stature to hold a fair or market, that is to say, a concourse of buyers and sellers to dispose of commodities’. Those provisions are patently inapplicable to the casual trading licences which the local authority is empowered to grant under the Act, and in respect of which, a self contained statutory scheme is provided for their grant and revocation.’55

The background to the case On 13 July 1998 Limerick Corporation made byelaws pursuant to s 6 of the 1995 Act in relation to the control, regulation, supervision and administration of casual trading in its functional area. The Corporation designated a casual trading area in the vicinity of the milk market comprising certain roads. The applicant sought a judicial review of the decision by way of order of Certiorari, declarations and injunctions, on the basis that the byelaws contravened the provisions of the Limerick Markets Act 1852 (as amended), and in particular s 32. That section expressly prohibits the holding of markets, other than markets provided and established under the 1852 Act within the municipal boundaries of the borough of Limerick, and within a circuit of one mile therefrom, on the basis that such bye-laws must not contravene or purport to authorise the contravention of existing legislation. For their part Limerick Corporation relied upon the following grounds: (1) The Limerick Market Acts 1852–1992 have no function whatsoever in regulating the type of trade in which the applicant is employed and accordingly the applicant lacked locus standi to maintain the application by him; (2) The casual trading area proposed by the Limerick Corporation Casual Trading Bye-laws 1998 is not a market within the meaning of the Limerick Markets Acts and is therefore not created in contravention of any provision of those Acts; (3) In particular the byelaws in question authorise no breach of s 74 of the 1852 Act because the byelaws give rise to no necessary breach of the section;

53

‘The State shall, in particular, by its laws protect as best it may from unjust attack and in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.’ 54 [2001] 2 IR 517. 55 Per Keane CJ at pp 524–525, affirming the decision of Finnegan J  at first instance [2000] IEHC (2 June 2000).

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Recent Irish Case Law (4) The power to enforce the provisions of the Limerick Market Acts is vested solely in the trustees of the said markets established under the Acts; (5) The Limerick Corporation Casual Trading Bye-laws 1998 were passed by the Corporation in consequence of a statutory duty to do so under s 6(1) in execution of its statutory duty to issue casual trading licences in respect of its functional area or part thereof pursuant to s 4(1) of the 1995 Act; (6)

The activities of licensed hawkers were always permitted within or without the Limerick market area which activities are now regulated by the 1995 Act in succession to earlier regulation contained in the 1980 Act and before that the Street Trading Act 1926 and the Hawkers Act 1888;

(7) The applicant having failed to avail himself of the procedures for challenging the byelaws provided by s 6(6) of the 1995 Act, it was urged that the High Court should refuse in its discretion the application made by the applicant. Finnegan J, at first instance, after having referred to the definition of a ‘market’ at common law in the case of Marquis of Downshire v O’Brien56, found that on a true construction of the 1852 Act that the word ‘market’, when it is intended to refer to the market place, is coupled with the word ‘place’. Elsewhere, where not coupled with the word ‘place’ it is intended to refer to a concourse of buyers and sellers, and that is the sense that the word ‘market’ is used in the second sub-clause of s 32 of the 1852 Act. Accordingly, he found that the effect of the section was to prohibit the holding of a concourse of buyers and sellers within the municipal boundaries of Limerick and within a circuit of one mile therefrom. However, he further found that having regard to the scheme of the Act, and in particular the preamble thereto, the same does not prohibit a concourse of buyers and sellers in relation to goods, products or produce other than livestock and specified agricultural produce. The byelaws passed under the Limerick Corporation Trading Bye-laws 1998 do not create a market in livestock and the specified agricultural produce. He therefore found that the provisions of s 4 of the 1995 Act with regard to licences would enable the Limerick Corporation to ensure that no market which would infringe the provisions of s 32 of the 1852 Act would be held within the casual trading area. Accordingly, the creation of a casual trading area per se does not infringe the provisions of s  32 of the 1852 Act and therefore the application made by the applicant failed upon both grounds upon which he relied.

F Simmonds v Cork County Council57 In Bantry in County Cork, market and fairs rights are owned by the local authority, but historically derive from the Crown and have been exercised since the 17th Century. In 2001 the local authority sought to regulate the market rights and to implement the Casual Trading Bye-laws in Bantry by relocating casual traders from their traditional market place in Wolfe Tone Square in the town centre (which has the market rights attached to it) to an area designated for the purpose. This was an area comprising a car park created on reclaimed land outside the town and adjoining the foreshore. It was proposed by the local authority that the market traders would be required to trade from this designated area and to obtain casual trading licences for that purpose. It was also proposed that the market rights should be extinguished on such removal under the provisions contained in the 1995 Act. This proposal was challenged by casual traders in the District Court, and they were granted an interlocutory injunction allowing them to trade in the original market area. The court found that the local 56 57

(1887) LRIR 380, at p 390. [2002] IEHC 17 (22 February 2002).

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Chapter 14  The Irish Dimension authority had not followed the correct procedures required to extinguish the market rights. As noted by Aindrias O Caoimh J in his judgment, an issue arose as to the effect of this requirement by the local authority which would mean that traders would lose their ancient franchise market rights to trade in the Square and the markets and fairs would be extinguished. ‘…[T]he power to move a market at law is limited and accordingly the power to regulate casual trading may not extend to defeat proprietary rights of members of the public in the absence of clear statutory authority.’ [para 24]

G Simmonds v Kilkenny Borough Council58 In 1609 a market franchise was granted by a Charter of James I to the Corporation to hold markets in Kilkenny. As so found by Smyth J, this franchise right was discontinued and extinguished by the enactment of the Kilkenny Markets Act 1861, and in particular by the provisions of s 28. Once the construction of a new general market in Kilkenny for the sale of fruit and other agricultural produce and other items had occurred it was then lawful for the Corporation to remove the existing market and market places to the new purpose-built general market. The rights to trade in the existing markets were then extinguished. Accordingly, it was held that there was no longer an extant market right to trade at the Parade in Kilkenny, or any other place in the Borough, under the Charter, as asserted by the plaintiff. Furthermore, it was noted by Smyth J that there was a fundamental difference between the provisions of the 1980 Act and the 1995 Act in that the latter ‘very pointedly and deliberately removes’ selling at a market or fair in pursuance of a market right as an exclusion from the expression ‘casual trading’ in s 2(2), whereas in the former this was included as an exemption. This, he held, emphasised the essential distinction between a franchise or statutory market right, and the scheme of regulation imposed for casual trading under the 1995 Act. However, the judge also found that the effect of the provisions of the 1995 Act meant that a person selling at a market or fair would still require a casual trading licence, would be subject to the regulation of the 1995 Act and thus would still require a casual trading licence if the area in question had been designated by the local authority as a casual trading area. H The Listowel Livestock Mart Limited v Bird59 Market and fair rights and obligations conferred by two 17th century letters patent granted by James I  in 1612, and James II in 1686, were held by the plaintiff (as successor in title to the original grantee) in the town of Listowel, County Kerry. The markets and fairs to be operated in accordance with the terms of the letters patent were not described by reference to any specific place within Listowel. ie were not limited by metes and bounds. The plaintiff had acquired land, known as the Market Place, in the 1950s for the purposes of establishing a mart in the town and thereafter conducted regular sales at the site. The plaintiff and defendants had entered into leases providing for an entitlement on the part of the defendants to occupy the Market Place for a period of approximately two weeks each year, spanning the Listowel Races festival, for the purpose of providing amusements and other facilities. In recent years the plaintiff had moved its regular sales to a new location just outside of the town of Listowel, and in 2004 the Market Place was offered for sale and the parties entered into a contract. The defendants asserted that the existence of the rights and obligations flowing from the 17th century charters continued to affect 58 [2007] IEHC 2. 59 [2009] 4 IR 631.

234

Recent Irish Case Law the lands in question. The effect of this was they could not be sold without either providing another site which was convenient and located within Listowel or ensuring that the lands remained available for market and fair use. The plaintiff commenced proceedings in the High Court seeking orders and declarations to the effect that no public entitlements arising under the letters patent attached to the lands known as the Market Place and that the defendants did not hold any estate, right, title or interest entitling them to conduct rides, stalls or amusements on the said lands. The defendants counterclaimed seeking orders and declarations to the effect that they were entitled forever to enter on the lands provided that they paid a toll and confined themselves to the dates set out in the letters patent, arguing that the market and fair obligations under the letters patent had been ‘appropriated’ to the lands in question. Clarke J made a number of important findings. In granting orders and declarations in favour of the plaintiff and dismissing the defendant’s counterclaim he found as follows: (1) That the grant was made for the benefit of the public as well as for the benefit of the grantee and that certain obligations lay on the grantee including one to hold the market or fair concerned. (2) That the principal public entitlement in respect of a fair or market was a right of coming into the place of the market and frequenting it for the purposes of buying and selling, subject to the limitation that that right could only be exercised when the market or fair was open and could be confined to a specific category of goods where the market or fair was limited, in its terms, to those goods. Persons had, in the course of a fair or market, an entitlement to sell their goods by public auction, (following Nicholls v Tavistock Urban District Council60). (3)

That mere non-user would not, as a matter of common law, extinguish a public right to a market or fair. Subject to the 1995 Act, rights still subsisted in relation to the markets and fairs granted by the charters in this case. Wyld v Silver61 and Skibbereen U.D.C. v Quill62 followed.

(4) That any person who would have an entitlement to benefit from a public right to a market or fair had an entitlement to maintain appropriate proceedings to enforce the right. Such a right was an incident of the public entitlement concerned coupled with the absence of an entitlement on the part of others to excuse the wrong. The fact that the defendants’ purpose might not have been, in reality, directed towards the conduct of markets or fairs in accordance with the charter was not a material consideration in considering whether enforceable public rights remained in relation to those lands. Wyld v Silver followed63. (5) That the obligation to hold a market in a general district was an obligation lying upon the owner of the market right concerned and did not attach to any particular piece of land. Such a general market right, not confined by metes and bounds, could not, therefore, be said to apply to any specific piece of ground even if the lands in question had happened to be used for the purposes of the market. Skibbereen U.D.C. v Quill64 followed. Wyld v Silver65 distinguished. 60 [1923] 2 Ch 18. 61 [1963] 1 QB 169. 62 [1986] IR123. 63 [1963] 1 QB 169. 64 [1986] IR 123. 65 [1963] 1 QB 169.

235

Chapter 14  The Irish Dimension A  number of paragraphs of the judgment of Clarke J  require a more detailed appraisal. Under the heading ‘The current status of the letters patent in relation to the lands’, he stated as follows: ‘The existence of market rights or fairs held under charter goes back to the Middle Ages. Over the centuries, in these islands, the right to conduct a market or fair was conferred in many locations, most normally, it would appear from the many authorities, on either a local corporation or a local grandee…. While the grant of such rights was seen in English law as being derived from the law of prerogative, it was not suggested in these proceedings that there is anything inconsistent with the constitutional framework of this jurisdiction in the continued existence of such rights and entitlements derived from pre-independence royal grant. (paragraph 27) Turning of the obligations of the owner of a market place, it is clear that the grant is made for the benefit of the public as well as for the benefit of the grantee and that certain obligations, therefore, lie on the grantee. It was accepted on behalf of the plaintiff that amongst the obligations which rest on the owner of the market and fair rights is one to hold the market or fair concerned. However, three key issues were raised. (paragraph 29) First, it is said that the obligation does not relate to any specified piece of land unless, perhaps, as it not the case here, the precise boundaries within which the fair or market is to be conducted are themselves specified in the grant (a so called “metes and bounds” grant) (paragraph 30). Secondly, it is said that the consequences of a failure to hold markets and fairs do not include an entitlement on the part of third parties to require that they be held. Rather, it is said, that the owner of the market and fair rights loses an entitlement to prevent others from holding a competing market or fair (in breach of the monopoly conferred by the patent). In addition, it is said that a failure to hold might result in a forfeiture of the entitlement. However, it is argued that no remedy lies in the hands of a member of the public who might have wished to attend the fair, either as a buyer or a seller, to enforce its continuance (paragraph 31). As a combination of both of those points it is argued that, even if there remains some residual entitlement on the part of a member of the public to enforce the obligations of the owner of a market right, any such entitlement cannot extend to one affecting any particular lands owned by that person in the absence of the market rights concerned being defined by charter as being referable to specific identified lands (paragraph 32).’

Under the heading ‘Attachment of market and fair rights to land’ Clarke J stated that there did not appear to be a case dealing directly and solely with the issue as to whether there was an ‘attachment’ of general market and fair rights and obligations to a specific site. The judge referred to a number of cases in this regard and in particular to the case of Wyld v Silver66 from which he found a number of propositions from the judgments: ‘Firstly, the right to hold the fair concerned was determined to be a public right which could not be lost by mere non-user. The basis for that being that no individual could lose a public right which was held for the benefit of the public generally, or a section of it, and indeed, no one generation could lose the public right which ought to inure for the benefit of future generations.’ (para 41)

Thus, mere non-user will not as a matter of common law extinguish a public right to a market or fair. The judge also found that the fact that the market or fair in question

66

[1963] 1 QB 169.

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Recent Irish Case Law had a different provenance in that it was established by an Act of Parliament rather than by Royal Charter did not make any difference (citing Lynch J  in Skibbereen U.D.C. v Quill67). Further, the question arose for consideration as to how such rights are to be enforced and by whom. Clarke J  found that any person who would have an entitlement to benefit from a public right to a market or fair has an entitlement to maintain appropriate proceedings: ‘Such a right is an incidence of the public entitlement concerned coupled with the absence of an entitlement on the part of others to excuse the wrong.’ (para 45).

As the judge stated, the key question comes down to one of whether the rights and obligations in respect of the markets and fairs under consideration in the case can be said to attach to the lands in question: ‘It seems to me, therefore, that the obligation to hold a market in a general district is an obligation lying upon the owner of the market rights concerned and does not attach to any particular piece of land. Such a general market right, not confined by “metes and bounds”, cannot therefore be said to apply to any specific piece of ground even if the lands in question have happened to be used for the purposes of the market. The fact that it is possible to confer market rights on a person who owns no land within the relevant area makes it clear that the obligations on the owner of the market does not necessarily apply to any particular piece of land’ (see Lynch J in Skibbereen U.D.C. v Quill68). (para 54).

The case of Wyld v Silver was concerned with a fair on a specific piece of land. The judge was not satisfied that any public entitlements that may exist in the case can be said to attach to the lands in question. As to non-user under the 1995 Act, after analysing the extent of the use of the market and fair rights and obligations over a number of years, the judge was satisfied that none of the fair rights nor the Tuesday or Saturday market rights in Listowel had in fact been exercised for much longer than a ten year period. In those circumstances he would have in any event been satisfied that the rights had been extinguished under the provisions of the 1995 Act. He was also satisfied that where separate markets and/or fairs are created by a charter or charters, the non-user provision in the Act apply separately to each of them. As to removal, the judge found that it was abundantly clear on the authorities that the entitlement to remove the market must be exercised within the confines of the area described in the letters patent creating the market or fair in the first case. It seemed clear to him, and indeed agreed by the parties, that any subsisting obligations (whatever they may be) can be validly removed to a suitable location within the parameters defined by the relevant charters (convenient location). Finally, as to the constitutional issue relating to the Royal Prerogative, and referred to above, the reference made in paragraph 27 of the judgment of Clarke J should be reiterated: ‘While the grant of such rights was seen in English law as being derived from the law of prerogative, it was not suggested in these proceedings that there is anything inconsistent with the constitutional framework of this jurisdiction in the continued existence of such rights and entitlements derived from pre-independence royal grant.’ (paragraph 27)

67 [1986] IR 123. 68 Ibid.

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Appendices

Appendices Appendix 1 – UK and Irish Statutes UK Statutes Irish Statutes

p 243 p 245 p 497

Appendix 2 – Precedents Precedent 1 – Model Byelaw Set 10: Guidance Notes Precedent 2 – Model Byelaw Set 10 Precedent 3 – Regular Trading Application Form Precedent 4 – Regular Trader Holiday Form Precedent 5 – Rules and Regulations for a Stall Licence Precedent 6 – Tenancy at Will Precedent 7 – Market Management Agreement

p 521 p 525 p 528 p 532 p 540 p 542 p 548 p 553

Appendix 3 – Other Materials Markets Licensing Policy  HM Land Registry Practice Guide 15: overriding interests and their disclosure HM Land Registry Practice Guide 18: franchises HM Land Registry Practice Guide 66: overriding interests that lost their automatic protection in 2013 The Royal Commission on Market Rights and Tolls

p 563 p 567

241

p 572 p 578 p 584 p 596

Appendix 1 UK and Irish Statutes

Appendix 1 – UK and Irish Statutes UK statutes – A  number of statutes set out below were enacted within the United Kingdom as it existed prior to 1922 and therefore may have extended to the whole of the United Kingdom including what is now the Irish State. It is necessary therefore to refer to each statute to assess its applicability in the Irish State for the reason that unless such legislation has been repealed either wholly or partially in the Irish State post 1922, that statute will continue to remain in force. An example of such a statute enacted in Great Britain and Ireland pre 1922 is the Markets and Fairs Clauses Act 1847 many of the sections of which are still in force in Ireland.1 Metropolitan Police Act 1839 Railways Clauses Consolidation Act 1845 Markets and Fairs Clauses Act 1847 Town Police Clauses Act 1847 Metropolitan Streets Act 1867 Metropolitan Streets (Amendment) Act 1867 Metropolitan Fairs Act 1868 Fairs Act 1871 Pedlars Act 1871 Fairs Act 1873 Public Health Act 1875 Pedlars Act 1881 Markets and Fairs (Weighing of Cattle) Act 1887 Markets and Fairs (Weighing of Cattle) Act 1891 Law of Property Act 1925 Markets and Fairs (Weighing of Cattle) Act 1926 Public Health Act 1961 Local Government Act 1972 Local Government (Miscellaneous Provisions) Act 1976 Highways Act 1980 Animal Health Act 1981 Senior Courts Act 1981 Local Government (Miscellaneous Provisions) Act 1982 Food Act 1984 City of London (Various Powers) Act 1987 London Local Authorities Act 1990 Sunday Trading Act 1994 London Local Authorities Act 1994 Employment Rights Act 1996 Human Rights Act 1998 London Local Authorities Act 2007 London Local Authorities Act 2012 City of London (Various Powers) Act 2013

p 247 p 252 p 255 p 263 p 264 p 265 p 266 p 268 p 269 p 276 p 278 p 279 p 280 p 281 p 283 p 284 p 286 p 288 p 296 p 298 p 301 p 312 p 315 p 325 p 337 p 352 p 377 p 387 p 408 p 416 p 417 p 452 p 487

1 The Irish Statute Law Revision Act 2007 repealed many pre-1922 statutes. It also contains the definitive list of 1,364 ‘retained’ statutes, ie those pre-1922 UK Acts of Parliament in force as of 2007. See the Chronological Table for Public Acts (otherwise known as the ‘Legislation Directory’) available at www.irishstatutebook.ie.

245

Appendix 1  Statutes Irish Statutes Public Health (Ireland) Act 1878 Casual Trading Act 1995

p 497 p 498

246

UK Statutes METROPOLITAN POLICE ACT 1839 (2 & 3 Vict, c 47) An Act for further improving the Police in and near the Metropolis [17th August 1839] 38.  Fairs not to be carried on between 11 pm and 6 am etc The business and amusements of all fairs(1) holden within the metropolitan police district(2) shall cease at the hour of eleven in the evening, and shall not begin earlier than the hour of six in the morning; and if any house, room, booth, standing, tent, caravan, waggon, or other place shall, during the continuance of any such fair, be open within the hours of eleven in the evening and six in the morning for any purpose of business or amusement, in the place where such fair shall be holden, [ … ](3) the person having the care or management thereof, and also every person being therein who shall not quit the same forthwith upon being bidden by such constable so to do; and the person so then having the care or management of any such house, room, booth, standing, tent, caravan, waggon, or other place, shall be liable to a penalty, not more than [level 1 on the standard scale](4) and every person convicted of having been therein, and of not having quitted the same forthwith upon being bidden by a constable so to do, shall be liable to a penalty not more than [level 1 on the standard scale](4). (1) This section does not appear to apply to fairs which are not markets (see above, pp 1, 2 and 48) but which consist merely of amusements; cf Collins v Cooper (1893) 68 LT 450; Walker v Murphy [1914] 2 Ch 293; affd [1915] 1 Ch 71, CA. (2) As from 1 April 2000 the Metropolitan Police District comprises Greater London (excluding the City, Inner Temple and Middle Temple); Greater London Authority Act 1999, s 323. (3) Repealed by the Police and Criminal Evidence Act 1984, ss 26(1), 119(2), Sch 7, Pt I. (4) Maximum penalties increased to £25 by the Criminal Law Act 1977, s 31(6); and by virtue of the Criminal Justice Act 1982, s 46, the reference to those amounts is converted to a reference to level 1 on the standard scale set out in the Criminal Justice Act 1991, ss  17(1), 101(1), Sch 12, para 6.

39.  Fairs within the metropolitan police district may be inquired into, and may be declared unlawful, either altogether or beyond a stated period If it shall appear to the commissioners of police that any fair [ … ](1) holden within the metropolitan police district has been holden without lawful authority(2), or that any fair lawfully holden within the said district has been [ … ](1) holden for a longer period than is so warranted, it shall be competent to such commissioners to direct one of the superintendents belonging to the metropolitan police force to summon the owner or occupier of the ground upon which such fair is [ … ](1) holden to appear before a magistrate at a time and place to be specified in the summons, not less than eight days after the service of the summons, to show his right and title to hold such fair, or to hold such fair beyond a given period (as the case may be); and if such owner or occupier shall not attend in pursuance of such summons, or shall not show to the magistrate who shall hear the case sufficient cause to believe that such fair has been lawfully holden for the whole period during which the same has been [ … ] (1) holden, the magistrate shall declare(3) in writing such fair to be unlawful, either altogether or beyond a stated period (as the case may be); and the commissioners shall give notice of such declaration by causing copies thereof to be affixed on the parish 247

Appendix 1  Statutes church and on other public places in and near the ground where such fair has been [ … ](1) holden; and if, after such notices have been affixed for the space of six days, any attempt shall be made to hold such fair if it shall be declared altogether unlawful, or to hold it beyond the prescribed period if it shall be declared unlawful beyond a certain period, the commissioners of police may direct any constable to remove every booth, standing, and tent, and every carriage of whatsoever kind conveyed to or being upon the ground for the purpose of holding or continuing such fair, and [ … ](4) every person erecting, pitching, or fixing, or assisting to erect, a pitch, or fix, any such booth, standing, or tent, and every person driving, accompanying, or conveyed in every such carriage, and every person resorting to such ground with any show or instrument of gambling or amusement [shall be guilty of an offence](4); and every person convicted before a magistrate of any of the offences last aforesaid shall be liable to a penalty not more than [level 1 on the standard scale] (5). (1) The words omitted were repealed by Statute Law Revision Act 1874 (No 2) (37 & 38 Vict, c 96). (2) As to the control of a fair held or proposed to be held within the Metropolitan Police District on ground other than that on which it has been held during the past seven years, see Metropolitan Fairs Act 1868, below, p 266 et seq. As to the limitations of the hours of holding a fair in that district, see s 38 of this Act, above. See also above, pp 35 et seq and 53 et seq as to the general restrictions on the places and days on which fairs may be held. (3) Whether or not the magistrate has declared the fair unlawful, if the owner or occupier enters into recognizances to have the question of lawfulness decided by the High Court, the notice of declaration of unlawfulness and other measures are suspended until judgment of the High Court is given; see s 40, below. (4) Words omitted repealed and words inserted by the Police and Criminal Evidence Act 1984, ss 26, 119(2), Sch 6, para 2, Sch 7, Pt I. (5) Words substituted by virtue of the Criminal Justice Act 1982, ss 37, 46.

40. On owner, etc, of ground entering into recognizance, the declaration of illegality shall be suspended until the right and title to the fair has been tried in the Queen’s Bench Provided nevertheless, that if the owner or occupier of the ground where on any such fair has been [ … ](1) holden shall, when summoned before the magistrate, enter into a recognizance in the final sum of two hundred pounds (which recognizance such magis­trate is hereby authorized to take) with condition to appear in the Court of Queen’s Bench(2) on the first day of the next term and to answer to any information which Her Majesty’s attorney [ … ](3) general may exhibit against such owner or occupier touching his right and title to such fair, and to abide the judgment of the court thereon, and to pay such costs as may be awarded by the court, which costs the said court is hereby authorized to award, then, notwithstanding the magistrate may have declared such fair to be unlawful, the commissioners of police shall forbear from giving notice of such declaration, and from taking any further measures thereon, until judgment shall be given by the said court against the right and title to such fair; and the magistrate taking such recognizance shall forthwith transmit the same to one of Her Majesty’s principal secretaries of state, to the end that the same may be filed in the said court, and such further directions may be given thereon as to such secretary of state may seem fit. (1) The word omitted was repealed by Statute Law Revision Act 1874 (No 2) (37 & 38 Vict, c 96). (2) The jurisdiction of the Court of Queen’s Bench is now vested in the High Court; see Supreme Court of Judicature (Consolidation) Act 1925 (15 & 16 Geo V, c 49), s 18(2) (now repealed). (3) Words omitted repealed by the Law Officers Act 1997, s 3(2), Sch.

248

Metropolitan Police Act 1839 54. Prohibition of nuisances by persons in the thoroughfares. Every person shall be liable to a penalty not more than [level 2 on the standard scale] (1), who, within the limits of the metropolitan police district, shall in any thoroughfare or public place, commit any of the following offences; (that is to say,) 1. Every person who shall, to the annoyance of the inhabitants or passengers expose for show or sale (except in a market lawfully appointed for that purpose) or feed or fodder any horse or other animal, or show any caravan containing any animal or any other show or public entertainment, or shoe, bleed, or farry any horse or animal (except in cases of accident), or clean, dress, exercise, train, or break any horse or animal, or clean, make, or repair any part of any cart or carriage, except in cases of accident where repair on the spot is necessary: 2. Every person who shall turn loose any horse or cattle, or suffer to be at large any unmuzzled ferocious dog, or set on or urge any dog or other animal to attack, worry, or put in fear any person, horse, or other animal: 3. Every person who by negligence or ill-usage in driving cattle shall cause any mischief to be done by such cattle, or who shall in anywise misbehave himself in the driving, care, or management of such cattle, and also every person not being hired or employed to drive such cattle who shall wantonly and unlawfully pelt, drive, or hunt any such cattle: 4. Every person having the care of any cart or carriage who shall ride on any part thereof, on the shafts, or on any horse or other animal drawing the same, without having and holding the reins, or who shall be at such a distance from such cart or carriage as not to have the complete control over every horse or other animal drawing the same: 5. Every person who shall ride or drive furiously, or so as to endanger the life or limb of any person, or to the common danger of the passengers in any thoroughfare: 6. Every person who shall cause any cart, public carriage, sledge, truck, or barrow, with or without horses, to stand longer than may be necessary for loading or unloading or for taking up or setting down passengers, except hackney carriages standing for hire in any place not forbidden by law, or who, by means of any cart, carriage, sledge, truck, or barrow, or any horse or other animal, shall wilfully interrupt any public crossing, or wilfully cause any obstruction in any thoroughfare: 7. Every person who shall lead or ride any horse or other animal, or draw or drive any cart or carriage, sledge, truck, or barrow, upon any footway or curbstone, or fasten any horse or other animal so that it can stand across or upon any footway: 8. Every person who shall roll or carry any cask, tub, hoop, or wheel, or any ladder, plank, pole, showboard, or placard, upon any footway, except for the purpose of loading or unloading any cart or carriage, or of crossing the footway: 9. Every person who, after being made acquainted with the regulations or directions which the commissioners of police shall have made for regulating the route of horses, carts, carriages, and persons [ … ](2) for preventing obstructions during public processions and on other occasions herein-before specified, shall wilfully disregard or not conform himself thereunto: 10. Every person who, without the consent of the owner or occupier, shall affix any posting bill or other paper against or upon any building, wall, fence, or pale, or write upon, soil, deface, or mark any such building, wall, fence, or pale with chalk or paint, or in any other way whatsoever, [ … ](3): 11. [ … ](4) 249

Appendix 1  Statutes 12. Every person who shall sell or distribute or offer for sale or distribution, or exhibit to public view, any profane, [ … ](5) book, paper, print, drawing, painting or representation, or sing any profane, indecent, or obscene song or ballad, [ … ](5), or use any profane, indecent or obscene language to the annoyance of the inhabitants or passengers: 13. [ … ](6) 14. Every person, [ … ](7), who shall blow any horn or use any other noisy instrument, for the purpose of calling persons together, or of announcing any show or entertainment, or for the purpose of hawking, selling, distributing, or collecting any article whatsoever, or of obtaining money or alms: 15. Every person who shall wantonly discharge any fire-arm or throw or discharge any stone or other missile, to the damage or danger of any person, or make any bonfire, or throw or set fire to any firework: 16. Every person who shall wilfully and wantonly disturb any inhabitant by pulling or ringing any door-bell or knocking at any door without lawful excuse, or who shall wilfully and unlawfully extinguish the light of any lamp: 17. Every person who shall fly any kite or play at any game to the annoyance of the inhabitants or passengers, or who shall make or use any slide upon ice or snow in any street or other thoroughfare, to the common danger of the passengers. [ … ](8) (1) Maximum penalties increased to £50 by the Criminal Law Act 1977, s 31(6); and by virtue of the Criminal Justice Act 1982, s 46, the reference to those amounts is converted to a reference to level 2 on the standard scale set out in the Criminal Justice Act 1991, ss  17(1), 101(1), Sch 12, para 6. (2) Words omitted repealed by the Statute Law (Repeals) Act 1973, s 1(1), Sch 1, Pt VI. (3) Words omitted repealed by the Criminal Damage Act 1971, s 11(8), Schedule, Pt I. (4) Paragraph repealed by the Street Offences Act 1959, s 5(2), Schedule. (5) Words omitted repealed by the Indecent Displays Control Act 1981, s. 5(2), Sch. (6) Paragraph repealed by the Public Order Act 1986, s 40(3), Sch 3. (7) Words omitted repealed by the Post Office Act 1969, s 137(1), Sch 8, Pt I. (8) Words omitted repealed by the Police and Criminal Evidence Act 1984, s 119(2), Sch 7, Pt I.

60. Prohibition of other nuisances. Every person who, in any street or public place within the limits of the metropolitan police district, shall be guilty of any of the following offences, shall be liable to a penalty not more than [level 1 on the standard scale](1) for every such offence; (that is to say,) 1. Every person who in any thoroughfare shall burn, dress, or cleanse any cork, or hoop, cleanse, fire, wash, or scald any cask or tub, or hew, saw, bore, or cut any timber or stone, or slack, sift, or screen any lime: 2. Every person who shall throw or lay in any thoroughfare any coals, stones, slates, shells, lime, bricks, timber, iron, or other materials (except building materials, or rubbish thereby occasioned, which shall be placed or enclosed so as to prevent any mischief happening to passengers): 3. Every person who in any thoroughfare shall beat or shake any carpet, rug, or mat (except door mats before the hour of eight in the morning), or throw or lay any dirt, litter or ashes, or any carrion, fish, offal, or rubbish, or throw or cause any such thing to fall into any sewer, pipe, or drain, or into any well, stream, or watercourse, pond, or reservoir for water [ … ](2) 4. [ … ](3) 5. [ … ](2) 6. [ … ](2) 250

Metropolitan Police Act 1839 7. Every person who shall expose any thing for sale in any park or public garden, unless with the consent of the owner or other person authorized to give such consent, or upon or so as to hang over any carriageway or footway, or on the outside of any house or shop, or who shall set up or continue any pole, blind, awning, line, or any other projection from any window, parapet, or other part of any house, shop, or other building, so as to cause any annoyance or obstruction in any thoroughfare: 8. Every person who, to the danger of passengers in any thoroughfare, shall leave open any vault or cellar, or the entrance from any thoroughfare to any cellar or room underground, without a sufficient fence or handrail, or leave defective the door, window, or other covering of any vault or cellar, or who shall not sufficiently fence any area, pit, or sewer left open in or adjoining to any thoroughfare, or who shall leave such open area, pit, or sewer without a sufficient light after sunset to warn and prevent persons from falling thereinto. (1) Maximum penalties increased to £25 by the Criminal Law Act 1977, s 31(6); and by virtue of the Criminal Justice Act 1982, s 46, the reference to those amounts is converted to a reference to level 1 on the standard scale set out in the Criminal Justice Act 1991, ss  17(1), 101(1), Sch 12, para 6. (2) Words omitted and paragraph repealed by the Public Health (London) Act 1891, Sch 4; (b) residue local. (3) Paragraph repealed by the Removal of Matter Act 1906, s 1.

251

Appendix 1  Statutes

RAILWAYS CLAUSES CONSOLIDATION ACT 1845 (8 & 9 Vict, c 20) An Act for consolidating in One Act certain Provisions usually inserted in Acts authorizing the making of Railways [8 May 1845] With respect to the recovery of damages not specially provided for, and of penalties, and to the determination of any other matter referred to justices, be it enacted as follows: Clauses 140–161 inclusive of this Act are, by s 52 of the Markets and Fairs Clauses Act 1847, incorporated with that Act, and any special Act which incorporates that section. In printing these clauses below, the word ‘undertakers’ has been substituted for the word ‘company’ pursuant to the directions in s 52 of the Act of 1847. 140.  Provision for ascertainment of damages not otherwise provided for— Enforcement by distress(1) In all cases where any damages, costs, or expenses are by this or the special Act(2), or any Act incorporated therewith, directed to be paid, and the method of ascertaining the amount or enforcing the payment thereof is not provided for(3), such amount, in case of dispute, shall be ascertained and determined(4) by two justices(5); [ … ](6). (1) Repealed in part in Northern Ireland only by the Statute Law Revision (NI) Act 1980, s 1, Sch, Pt I. (2) For the meaning of ‘special Act’, see s 2 of Markets and Fairs Clauses Act 1847, below. (3) These clauses do not, it seems, apply to the recovery of damages sustained by reason of the exercise by undertakers of the powers of constructing their undertaking; see the Markets and Fairs Clauses Act 1847, s 11. (4) Damages, costs and expenses to which this section applies can be recovered only in the manner provided by this section; Blackburn Corpn v Parkinson (1858), 1 E & E 71. (5) Definition ‘Justice’ in s 3 repealed by the Courts Act 2003; s 55 applied in relation to England and Wales by the Statute Law (Repeals) Act 1993. As to the procedure, see s 142 of this Act, below. (6) Words omitted repealed by the Statute Law (Repeals) Act 1993.

141.  [ … ](1) (1) Repealed (except in Northern Ireland) by the Transport Act 1962, ss 93(1), 95(1), Sch 12, Pt I.

142.  Method of proceeding before justices in questions of damages, etc Where in this or the special Act(1) any question of compensation, expenses, charges, or damages, or other matter, is referred to the determination of any one justice, or more, it shall be lawful for any justice, upon the application of either party, to summon the other party to appear before one justice, or before two justices, as the case may require, at a time and place to be named in such summons; and upon the appearance of such parties, or in the absence of any of them, upon proof of due service of the summons, it shall be lawful for such one justice, or such two justices, as the case may be, to hear and determine such question, and for that purpose to examine such parties or any of them, and their witness, on oath; and the cost of every such inquiry shall be in the discretion of such justices, and they shall determine the amount thereof. (1) See note (2) to s 140, above.

252

Railways Clauses Consolidation Act 1845 143.  [ … ](1) (1) Repealed by the Transport Act 1962, ss 93(1), 95(1), Sch 12, Pt II.

144.  Penalty for defacing boards used for such publication(1) If any person pull down or injure any board put up or affixed [for the purpose of publishing any byelaw of the company or any penalty imposed by this or the special Act](2), or shall obliterate any of the letters or figures thereon, he shall forfeit for every such offence a sum not exceeding [level 1 on the standard scale](3) and shall defray the expenses attending the restoration of such board. (1) Maximum penalty increased to £25 by the Criminal Law Act 1977, s 31(6); and by virtue of the Criminal Justice Act 1982, s 46, the reference to that amount is converted to a reference to level 1 of the standard scale set out in the Criminal Justice Act 1991, ss 17(1), 101(1), Sch 12, para 6. (2) Substituted by the Transport Act 1962, ss 84(4), 93(1). (3) Substituted by the Criminal Justice Act 1982, ss 37, 46.

145.  Penalties to be summarily recovered before two justices Every penalty or forfeiture imposed by this or the special Act, [ … ](1) the recovery of which is not otherwise provided for, may(2) be recovered by summary proceedings before two justices… .(3) (1) Repealed by the Transport Act 1962, ss 93(1), 95(1), Sch 12, Pt II. As to forfeitures under the Markets and Fairs Clauses Act, 1847, see ibid, ss 50 and 59. (2) A  penalty or forfeiture to which this section applies may be recovered only in the manner provided by this section and cannot be recovered by action; London and Brighton Rly Co v Watson (1879) 4 CPD 118. (3) The words omitted were repealed by the Summary Jurisdiction Act 1884 (47 & 48 Vict, c 43), s 4 and Schedule, and Statute Law Revision Act 1892 (55 & 56 Vict, c 19). Those words related to the service of the summons, procedure before the justices and orders for payments of costs; as to which see now Magistrates’ Courts Act 1980 and Prosecution of Offences Act 1985, Pt II.

146.–147.  [ … ](1) (1) Repealed by the Summary Jurisdiction Act 1884, s 4, Schedule and the Statute Law Revision Act 1892; ss 148, 149 (as it applies to England and Wales).

148.–149.  [ … ](1) (1) Repealed (as they apply to England and Wales) by the SL(R) Act 1993.

150.  [ … ](1) (1) Repealed by the Justices of the Peace Act 1949, s 46(2), Sch 7, Pt III.

151.  [ … ](1) (1) Repealed by the Summary Jurisdiction Act 1884, s 4, Schedule and the Statute Law Revision Act 1892; ss 148, 149 (as it applies to England and Wales).

152.–153.  [ … ](1) (1) Repealed (as they apply to England and Wales) by the SL(R) Act 1993.

154.  [ … ](1) (1) Repealed in relation to England, Wales and Scotland by the Serious Organised Crime and Police Act 2005, ss 111, 174(2), Sch 7, Pt 1, para 5(1), (3), Sch 17, Pt 2 and in Northern Ireland by SI 2011/288, arts 15(4), 41(2), Sch 1, para 4, Sch 2.

253

Appendix 1  Statutes 155.  [ … ](1) (1) Repealed by the Summary Jurisdiction Act 1884 (47 & 48 Vict, c 43), s 4 and Schedule, and the Statute Law Revision Act 1892.

156.  [ … ](1) (1) Repealed by the Statute Law (Repeals) Act 1976.

Appeal 157.–159.  [ … ](1) (1) Repealed by the Transport Act 1962, ss 93(1), 95(1), Sch 12, Pt I.

160.  [ … ](1) (1) Repealed by the Perjury Act 1911 (1 & 2 Geo V, c 6), s 17 and Schedule; see now ibid, s 1.

161.  [ … ](1) (1) This section was repealed by Statute Law Revision Act 1875 (39 & 40 Vict, c 20).

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MARKETS AND FAIRS CLAUSES ACT 1847 (10 & 11 Vict, c 14) An Act for consolidating in One Act certain Provisions usually contained in Acts for constructing or regulating Markets and Fairs(1). [23rd April 1847] 1.  This Act to extend to such markets or fairs as shall be authorised by Acts hereafter to be passed which shall declare that this Act shall be incorporated therewith This Act shall extend only to such markets or fairs as shall be authorised by any Act of Parliament hereafter to be passed which shall declare that this Act shall be incorporated therewith; and all the clauses of this Act, save so far as they shall be expressly varied or excepted by any such Act(2), shall apply to the undertaking authorised thereby, so far as the same shall be applicable to such undertaking(3), and shall, with the clauses of every other Act which shall be incorporated therewith(4), form part of such Act, and be construed therewith as forming one Act (1) This Act, except ss 6–9 and 52–59, is incorporated, as respects England and Wales, with the Animal Health Act 1981 (see s 54(2) thereof). (2) As to incorporation with variations and exceptions, see Rutherford v Straker (1887) 42 Ch D 85n and p 22, above. (3) So, if the undertaking is merely a market, it will not be affected by provisions of this Act which relate exclusively to a fair or a slaughterhouse, unless the incorporating Act, by appropriate words, renders such provisions applicable. So, also, as the Act assumes that a special Act will have provisions on which the clauses of this Act can operate, there may be some clauses or parts thereof which are inoperable because the special Act has made no provision to which they can apply and an obligation is not to be merely implied in such a case; cf. Dartford RDC  v Bexley Heath Rly Co [1898] AC 210. Where, however, the special Act contains provisions which are inconsistent with this Act, this Act will be varied or excepted so far as it is inconsistent, cf City and South London Rly v London County Council [1891] 2 QB 513, but the inconsistency must be clearly established; see R v London Corpn (1867) LR 2 QB 292; Metropolitan District Rly Co v Sharpe (1880) 5 App Cas 425 at 431. See also Sparrow v Oxford, etc Rly Co (1852) 21 LT Ch 731; Great Western Rly v Swindon, etc Rly Co (1884) 22 Ch  731; Great Western Rly v Swindon, etc Rly (1884) 22 Ch D  677; affd (1884) 9 App Cas 787; Re Cherry’s Settled Estates (1862) 31 LJ Ch 351; Re Mill’s Estate? (1886) 34 ChD 24. This Act may also be expressly varied or excepted by the special Act; see s 5 (repealed by Statute Law (Repeals) Act 1993). (4) As to the incorporation of other Acts, see note to the heading of s 2, below.

Interpretation And with respect to the construction of this Act, and any Act incorporated therewith, be it enacted as follows:— The headings to the various portions of this Act are to be referred to for determining the sense of any doubtful expression in a section occurring under a particular heading; see Hammersmith Rly Co v Brand (1869) LR 4 HL 171. This Act assumes that it will be incorporated in a special Act; see note (2) to s 1, above; such Acts are usually local Acts but this Act is also incorporated in part by the Animal Health Act 1981, s 54, below, which incorporates the whole of this Act except ss 6–9 and 54–59. The only Act which, by this Act, is incorporated therewith is the Railways Clauses Consolidation Act, 1845, ss 140–161; see s 52 of this Act.

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Appendix 1  Statutes 2.  ‘The special Act’—’Prescribed’—’The lands’—’The undertaking’—’The undertakers’ The expression ‘the special Act’ used in this Act shall be construed to mean any Act which shall be hereafter passed authorising the construction or regulation of a market or fair, and with which this Act shall be incorporated; and the word ‘prescribed’ used in this Act in reference to any matter herein stated shall be construed to refer to such matter as the same shall be prescribed or provided for in the special Act, and the sentence in which such word occurs shall be construed as if instead of the word ‘prescribed’ the expression ‘prescribed for that purpose in the special Act’ had been used; and the expression ‘the lands’ shall mean the lands which shall by the special Act be authorised to be taken or used for the purposes thereof(1); and the expression ‘the undertaking’ shall mean the market or fair, and the works connected therewith, by the special Act authorised to be constructed or regulated(2); and the expression ‘the undertakers’ shall mean the persons authorised by the special Act to construct or regulate the market or fair. (1) Under s  3 of this Act, ‘lands’ includes messuages, lands, tenements and hereditaments, or heritages, of any tenure. (2) Under s 3 of this Act, ‘the market or fair’ means the market or fair, and the works connected therewith, by the special Act authorised to be constructed or regulated.

*   *   *   *   *   * Citing the Act And with respect to citing this Act, or any part thereof be it enacted as follows:— 4.  Short title In citing this Act in other Acts of Parliament, and in legal instruments, it shall be sufficient to use the expression ‘The Markets and Fairs Clauses Act 1847.’ Holding of market, etc *   *   *   *   *   * 12.  Before the market or fair shall be opened, notice to be given by undertakers Before the market or fair shall be opened for public use the undertakers shall give not less than ten days’ notice of the time when the same will be opened, and such notice shall be given by the publication thereof in some newspaper circulating within the limits of the special Act, and by printed handbills posted on some conspicuous place within those limits. 13.  Sales elsewhere than in market, or in shops, etc, prohibited After(1) the market place is opened for public use(2) every person other than a licensed hawker(3) who shall sell or expose for sale in any place within the prescribed limits(4), except(5) in his own dwelling place or shop(6), any articles(7) in respect of which tolls(8) are by the special Act authorised to be taken in the market, shall for every such offence be liable to a penalty(9) not exceeding [level 1 on the standard scale](10). (1) The effect of this section on the undertakers’ right of action for disturbance of their market is discussed above, pp 98–100. (2) This section (unlike ss 12 and 14–16) applies only to a market, and not to a fair. It seems that it would not apply to a fair regulated by a special Act merely because such Act incorporated this Act. This section comes into force as soon as the market place has been opened for public use.

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Markets and Fairs Clauses Act 1847 The operation of the section is not confined to the days on which or the hours during which the market is held; Hailsham Cattle Market Co v Tolman [1915] 1 Ch 360; affirmed [1915] 2 Ch 1, CA; but a local Act may, by a grant of exemption for certain sales on market days, virtually exclude this section and make it inapplicable to non-market days for all sales; ibid. (3) A licensed hawker was a hawker licensed under the Hawkers Act 1888 (repealed by the Local Government Act 1966, ss  35(1), 43(2), Sch  3, Pt I, Sch  6, Pt I  and not replaced). It also however includes a pedlar trading as such who holds a certificate for the district under the Pedlars Acts 1871 (34 & 35 Vict c 96) and 1881 (44 & 45 Vict c 45); see s 6 of the Act of 1871. For the purposes of the Pedlars Acts, a ‘pedlar’ means ‘any hawker, pedlar, petty chapman, tinker, caster of metals, or other person who without any horse or other beast bearing or drawing burden, travels and trades on foot and goes from town to town or to other men’s houses, carrying to sell or exposing for sale any goods, wares, or merchandise, or procuring orders for goods, wares, or merchandise immediately to be delivered’ (Act of 1871, s 3). The Acts prohibit any person from acting as a pedlar without the prescribed certificate, which lasts for one year from the date of its issue, but provides that it shall not be necessary for a certificate to be obtained by certain persons, including commercial travellers and sellers of vegetables, fish, fruit, or victuals; Act of 1871, ss 4, 5, 23; Act of 1881, s 2. The Act of 1871, s 6, provides that a certificate under that Act shall, for the purposes of the Markets and Fairs Clauses Act 1847, and any Act incorporating the same, have the same effect as a hawker’s licence, and that the term ‘licensed hawker’ in the Markets and Fairs Clauses Act shall be construed to include a pedlar holding such a certificate. A person, however, who holds only a pedlar’s certificate is exempted from the provisions of the above s 13 only while trading as a pedlar; and formerly he was not exempted therefrom if he traded as a hawker with a horse and cart without a hawker’s licence; Woolwich Local Board of Health v Gardiner [1895] 2 QB 497; nor is a person without a pedlar’s certificate exempted therefrom by reason that the Act of 1871, s  23, renders it unnecessary in certain circumstances for him to take out a pedlar’s certificate: Openshaw v Oakeley (1889) 60 LT 929. See, however, note (5) below, as to sales in the market. Where a special Act prohibited persons from selling tollable articles in the streets without a licence from the undertakers, and made no exception in favour of licensed hawkers or certificated pedlars, it was held that such hawkers and pedlars were subject to the prohibition: Openshaw v Oakeley (1889) 60  LT  929; but such prohibition does not prevent them from selling non-tollable articles: Loftos v Gleave (1890) 55  JP  149; Loftos v Kiggins (1890) 55 JP 151. (4) ‘The prescribed limits’ mean ‘the limits prescribed for that purpose in the special Act’; see s 2, above. If the special Act provides that such Act shall for all purposes be in force within a specified district, the boundaries of that district are the prescribed limits: Caswell v Cook (1862) 11 CBNS 637; and see Kilminster v Fitton (1886) 53 LT 959; Collier v North (1876) 35 LT 345. In the case of a market under the Animal Health Act 1981, s 54(3), the limits of the land acquired or appropriated for the purposes of the market are the prescribed limits. There have been several decisions upon the question as to what constitutes a sale within the prescribed limits. The effect of these decisions, with regard to contracts for the sale and delivery of tollable articles, seems to be as follows: (a) The section does not affect a delivery within the limits under a contract made outside the limits, provided that the goods were outside the limits at the time when the contract was made, and were appropriated to the contract before they were brought within the limits: Bourne v Lowndes (1858) 22 JP 354; Stretch v White (1861) 25 JP 485; and see Pletts v Campbell [1895] 2 QB 229; Pletts v Beattie [1896] 1 QB 519; and this is so although the property in the goods has not passed and is at the risk of the buyer until delivery since the word ‘sell’ is to be understood in its popular sense and not in its strict legal sense: Lambert v Rowe [1914] 1  KB  38. There must, however, be a binding contract and where in pursuance of a regular course of dealing goods are brought to a customer within the limits and there sold to him without a prior binding contract, the sale will be within the section; see Jenkins v Thomas (1910) 104 LT 74. According to the Irish cases of Newtownards Town Comrs v Woods (1877) IR 11 CL 506; Gracey v Banbridge Urban District Council [1905] 2 IR 209 the section does not affect a delivery within the limits, under a contract of sale by sample within the limits, if the bulk of the goods was outside the limits at the time when the contract was made; but these cases seem to be at variance with the cases next mentioned.

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Appendix 1  Statutes (b) The section applies to cases in which the goods are delivered within the limits without having been appropriated to the contract before being brought within the limits; and it seems to be immaterial in these cases whether the contract was made within the limits or outside them: Exeter Corpn v Heaman (1877) 37 LT 534; Torquay Market Co v Burridge (1883) 48 JP 71; see Pletts v Campbell, Pletts v Beattie, above. A fortiori, the section applies where the contract was made within the limits and the goods appropriated to the contract were within the limits at the time when the contract was made: Mayor of Londonderry v M’Elhinney (1875) 9 Ir Rep CL 61. It applies notwithstanding that the seller previously bought the goods in the market: Black v Sackett (1869) 10 B & S 639. Where, under a local Act toll is payable on ‘the cart in which goods are exposed for sale’ there is no exposure for sale by a baker of bread which he brings to a customer’s house merely for the purpose of delivery; see White v Yeovil Corpn (1892) 61 LJMC 213, or by a mineral water man who takes his loaded cart to the houses of customers and after taking an order in the house, delivers from the cart the goods ordered; see Newton-in-Makerfleld Urban Council v Lyon (1900) 69 LJKB 230; and in such a case where the toll is only on the cart containing the goods and not on the sale of the goods, there can be no conviction under s 13 of the Act of 1847 for selling the goods; see Jenkins v Thomas (1910) 104 LT 74. See also Luke v Charles (1861) 25 JP 148. (5) The only place expressly excepted is the seller’s own dwelling-place or shop, but the section can scarcely be construed as prohibiting sales in the market-place while the market is in progress. A pedlar’s certificate is not required by persons selling or exposing for sale goods, wares or merchandise in any public mart, market or fair legally established: Pedlars Act 1871, s 23(3). (6) It is a question of fact whether a place is a man’s own dwelling-place or shop; but in determining that question regard must be had to the object of the section, which is, on the one hand, that the market should be protected from the establishment, within the district, of a rival market, but, on the other hand, that the established traders of the district who carry on their business in their own dwelling-places or shops should not be interfered with; Llandaff and Canton District Market Co v Lyndon (1860) 8 CBNS 515, 524; Pope v Whalley (1865) 6 B & S 303; Ashworth v Heyworth (1869) LR 4 QB 316; Fearon v Mitchell (1872) LR 7 QB 690; McHole v Davies (1875) 1 QBD 59. ‘Dwelling-place’ has been said by Earle CJ to be a wider expression than ‘dwelling-house’ which occurs in some local Acts, and to be capable of including a yard attached to a dwellinghouse; Llandaff and Canton District Market Co v Lyndon, above; and per Cockburn CJ in McHole v Davis, above; but in Fearon v Mitchell, above, Cockburn CJ thought that no distinction was to be drawn between the two expressions: and in that case, and in McHole v Davies, above, it was held that a large yard adjoining a man’s dwelling-house and used by him for extensive sales of cattle and sheep, was neither his dwelling-place nor his shop. In considering whether a place is a shop, ‘it is necessary to have regard to the nature, character, and extent of the trade’ which is carried on therein; per Mellor J, Fearon v Mitchell (1872) LR 7 QB 690. In Fearon v Mitchell it was held that a large hall, used for sales of cattle by public auction, was not a shop, but a rival market. An auction-room may be a shop, and if a place is a shop ‘the mode of selling therein cannot deprive it of the ordinary privilege attached to a shop’; per Byles J, Wiltshire v Willett (1861) 11 CBNS 240. So a place may be a shop although goods are sold wholesale and partly on commission: Haynes v Ford [1911] 2 Ch 237, 248, CA; or are sold by auction: Hailsham Cattle Market Co v Tolman [1915] 1 Ch 360 at 367; on appeal [1915] 2 Ch 1, CA; but prima facie auctioneers’ premises are not shops: per Blackburn J and Cockburn CJ in Fearon v Mitchell, above. A distinction is drawn not only between ‘shop’ and ‘rival market’, but also between ‘shop’ and ‘stall’. ‘Shop’ imports something more than a mere place for sale; it imports a place for storing also, so far as the nature of the commodities admit of storing; per Mellor J in Pope v Whalley (1865) 6 B & S 303; Haynes v Ford [1911] 2 Ch 237, 248, CA; and it means a man’s ‘real permanent private shop’, as distinguished from a mere temporary stall; per Blackburn J in Pope v Whalley, above. In determining whether a particular structure is a shop or stall, it is proper to consider whether the building is of a substantial character, or a mere alteration of what was formerly a stall; whether it admits of the entrance of buyers; whether it protects the goods from the weather, and admits of their being left therein at night with reasonable safety; and also what is the nature and duration of the tenant’s holding of it; but no one of

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(7)

(8)

(9) (10)

these considerations is conclusive of itself; ibid per Blackburn J. Thus it was held in Ashworth v Heyworth (1869) LR 4 QB 316, that a wooden shed which was affixed to a house and stood upon premises held therewith, and which had for many years been used for exposing goods for sale, was a shop; and in Hooper v Kenshole (1877) 2 QBD 127, that a covered and enclosed skittle-alley was not the shop of a hawker who hired it for two days to sell his goods therein; see also Perkins v Arber (1873) 37 JP 406. In Pike v Jones (1922) 128 LT 373, it was held that a stall with a mere canvas roof from which all goods were removed each day was not a shop. A ship moored to a wharf in a canal is not a shop: Wiltshire v Baker (1861) 11 CBNS 237. In Spurling v Bantoft [1891] 2 QB 384, a cattle market was established in a borough by the corporation, acting as a sanitary authority. Prior to the establishment of such market, they had granted to a cattle salesman a lease of a yard, with a covenant for quiet enjoyment. It was held that the lease and covenant did not exempt the tenant from the operation of this section. ‘Article’ is the word usually employed to cover all marketable commodities, and a horse may be an article within the meaning of the section: Llandaff and Canton District Market Co v Lyndon (1860) 8 CBNS 515. In local Acts other expressions are often used; see for example, Shepherd v Folland (1884) 49 JP 165, where it was held that ‘potatoes’ are ‘provisions’ within a prohibition of corn, grain, meat, fish, poultry or other ‘provisions’; Morgan v Kingdom (1875) 39 JP 471, where it was held that ‘bottled gingerade’ is not within meat, fish, vegetable, fruit, butter, cheese or other marketable commodities; Loftos v Gleave (1890) 55 JP 149 (‘hatguards’ not within ‘flesh, cheese, butter or other things whatsoever’); Johnson v Atkinson (1909) 73 JP 510 (‘coal’ not within ‘hay, straw, grass, vetches or other article, commodity or thing’); Whittle (Hy) Ltd v Stalybridge Corpn (1967) 65 LGR 344 (‘bread and confectionery’ ‘not within ‘meat, fish, poultry, vegetables, fruit’). ‘Toll’ here means a market toll payable in respect of articles sold or exposed for sale in the market, and does not include a toll in the nature of stallage or rent payable for the occupation of a stall in the market place: Caswell v Cook (1862) 11  CBNS  637; and where tolls are leviable under the local Act on the cart in which the goods are loaded and not on the sale of goods, a sale is not within the section: Jenkins v Thomas (1910) 104 LT 74. For the recovery of penalties, see s 52. The offence cannot be condoned by payment of toll, nor toll claimed in lieu of penalty: Carter v Parkhouse (1870) 22 LTNS 788; Quilligan v Limerick (1883) 14 LR Ir 265. Maximum penalty increased to £25 by the Criminal Law Act 1977, s 31(6); and by virtue of the Criminal Justice Act 1982, s 46, the reference to that amount is converted to a reference to level 1 of the standard scale set out in the Criminal Justice Act 1991, ss 17(1), 101(1), Sch 12, para 6. The effect of this section may be considerably altered by the provisions of the special Act, with which it must be read; see Rutherford v Straker (1887) 42 Ch D  85n; Hailsham Cattle Market Co v Tolman [1915] 1 Ch 360; affirmed [1915] 2 Ch 1, CA; see further above, pp 22, 98 et seq.

14.  Market days After the market place or place for fairs is opened for public use(1) the undertakers(2) shall hold markets and fairs therein(3) on the prescribed days(4) (if any), and on such other days as the undertakers shall appoint from time to time by any byelaw to be made in pursuance of this(5) or the special Act(6). (1) See s 12, above. (2) For the meaning of undertakers, see s 2, above. (3) The section provides no remedy for non-compliance with its provisions, which seem to be imperative; and if they are imperative, then (subject to the provisions of the special Act) mandamus is the proper legal remedy (4) Ie, prescribed for that purpose in the special Act; see s 2, above. (5) As to the making of byelaws under this Act, see ss 42, 43, below. As to the general statutory restriction on the holding of markets on Good Friday and certain feast days, see above, pp 54, 55. See also the Sunday Trading Act 1994, below. (6) For the meaning of special Act, see s 2, above.

*   *   *   *   *   * 259

Appendix 1  Statutes Tolls And with respect to the stallages, rents, and tolls to be taken by the undertakers, be it enacted as follows:— Sections 31–41 are incorporated with respect to markets under the Animal Health Act 1981, s 54(2), see below, p 305, but the tolls require the approval of the Minister of Agriculture, Fisheries and Food. Sections 36–41 apply to tolls in respect of the weighing of cattle levied by a market authority under the Markets and Fairs (Weighing of Cattle) Act 1887, s 8.

*   *   *   *   *   * 36.  Stallages, tolls, etc, may be varied from time to time The undertakers (1) may from time to time change the stallages, rents, and tolls(2) to be taken in respect of the market or fair, or for the slaughterhouses(3), or for weighing and measuring(4), provided that the stallages, rents, and tolls in no case exceed the amounts authorised by the special Act(5). Sections 36–1 are applied by the Markets and Fairs (Weighing of Cattle) Act 1887, s 8, and see the note to the heading to ss 31–41, above. (1) ‘Undertakers’ are defined in s 2, above. (2) Tolls taken in respect of a market provided under the Animal Health Act 1981 must be approved by the Minister of Agriculture, Fisheries and Food; see ibid, s  54(3), (4), below, p 305. (3) As to slaughterhouses, see ss 17–19. (4) As to weighing and measuring, see ss  21, 22, 24, and as to payment of tolls therefor, see ss 33, 34. (5) For the meaning of the special Act, see s 2, above.

*   *   *   *   *   * Byelaws And with respect to the byelaws to be made by the undertakers, be it enacted as follows:— Clauses 42–49 are incorporated by the Animal Health Act 1981, s 54(2) with respect to markets provided under that Act; see below, p  305. The byelaws must be approved by the Minister of Agriculture, Fisheries and Food and his approval is sufficient without any other approval or allowance, notice of application for approval being given and the proposed byelaws being published before the application in accordance with the Markets and Fairs Clauses Act 1847; see s 54(3) of the Act of 1981, below, p 305. A local authority which maintains a market, whether or not a market authority under the Food Act 1984, may make byelaws under s 60 of that Act, see below, p 329. Expressions used in any byelaws made since 1889 have, unless the contrary intention appears, the same respective meanings as in the Act conferring the power to make them: Interpretation Act 1978.

42.  Byelaws may be made for all or any of the purposes herein named The undertakers(1) may from time to time make such byelaws as they think fit for all or any of the following purposes(2) (that is to say):— For regulating the use of the market place and fair(3), and the buildings, stalls, pens and standings therein, and for preventing nuisances or obstructions therein, or in the immediate approaches thereto; For fixing the days, and the hours during each day, on which the market or fair shall be held(4); 260

Markets and Fairs Clauses Act 1847 For inspection of the slaughterhouses, and for keeping the same in a cleanly and proper state, and for removing filth and refuse at least once in every twenty-four hours, and for requiring that they be provided with a sufficient supply of water, and preventing the exercise of cruelty therein(5); For regulating the carriers resorting to the market or fair, and fixing the rates for carrying articles carried therefrom within the limits of the special Act(6); [ … ](7) For preventing the sale or exposure for sale of unwholesome provisions in the market or fair(8). And the undertakers may from time to time, as they shall think fit, repeal or alter any such byelaws(9); provided always, that such byelaws shall not be repugnant to the laws of that part of the United Kingdom where the same are to have effect(10), or to the provisions of this or the special Act, or of any Act incorporated therewith(11); and such byelaws shall be reduced to writing under the common seal of the undertakers, if they be a body corporate, or the hands and seals of two of the undertakers, if they be not a body corporate, and, if affecting other persons than the officers and servants of the undertakers, shall be printed and published as herein provided(12). (1) ‘Undertakers’ are defined in s 2, above. (2) The contents of byelaws are controlled by this section and s 43. As to the procedure for making byelaws, see ss 44–47; and as to evidence of the byelaws, see s 49. Byelaws are invalid if they are not made in accordance with ss 43–47, and the special Act; pp 114, 115 or are repugnant to the general law or the provisions of this or the special Act, pp 116, 117 and text to notes (10), (11), below, or are unreasonable; see above, p 117. The repeal and alteration of the byelaws are provided for in this section. (3) For the meaning of ‘market place and fair’, see note (2) to s 2, above. See also note (2) above, and as to byelaws regulating a market or fair and held to be invalid or unreasonable, see above, pp 116 et seq. (4) See note (2) above. As to market days, see s 14 above and as to the restriction of the days on which markets and fairs may be lawfully held, see above, pp 53 et seq. (5) See note (2) above. As to the provision of slaughterhouses, see ss 17–19. (6) See note (2) above. The expression ‘within the limits of the special Act’ is not defined in the Act and its meaning must be sought in the special Act. A  definition of this phrase should, therefore, be inserted in the special Act. (7) Repealed by the Weights and Measures Act 1963, ss 63(6), 65, Sch 9, Pt II. See note (2) above. As to the provision of weighing machines and measures and their use, see ss 21–30. (8) See note (2) above, (9) Presumably subject to the same restrictions and by the same procedure as the byelaws are made; as to which, see note (2) above. (10) See also Dyson v London and North Western Rly Co (1881) 7 QBD 32; Parry v Berry (1717) 1 Com 269; and see above, pp 116 et seq. (11) See Elwood v Bullock (1844) 6 QB 383; and see above, p 110. For the meaning of the ‘special Act’, see s 2, and as to Acts incorporated therewith, see note to heading to s 2, above. (12) For the provisions as to printing and publishing, see ss  47, 49. Byelaws relating solely to officers and servants of the undertakers seem to be impliedly included in the purposes of the section but do not require printing or publishing under the Act; see note (1) to s 43.

43.  Byelaws may be enforced by penalties The undertakers, by the byelaws so to be made by them(1), may impose such reasonable penalties as they shall think fit, not exceeding [level 1 on the standard scale](2) for each breach of such byelaws(3); [ … ](4). The words omitted relate to Scotland. (1) See s 42, as to the purposes for which byelaws may be made. The purposes also include, it seems, byelaws which relate solely to the officers and servants of the undertakers since it is specially provided by s 44 that such byelaws do not require confirmation and, by s 42, that they do not require to be published.

261

Appendix 1  Statutes (2) Maximum penalty increased to £25 by the Criminal Law Act 1977, s 31(6) (standard scale level 1, see note (10) to s 13, above). (3) The undertakers are given some discretion (which they ought to exercise) with respect to the amount of the penalty to be imposed by a byelaw for a breach. But if the penalty imposed for a breach exceeds the standard scale the byelaw is void; and since the penalty is required to be reasonable it seems that a byelaw which imposes an unreasonable penalty is void, although the penalty does not exceed the standard scale. Subject to these observations it seems to be sufficient, in making a set of byelaws, to provide by one of them that ‘every person who is guilty of any breach of any of these byelaws shall be liable for each such breach to a penalty not exceeding the standard scale’. See further above, pp 116 et seq, as to the validity of byelaws. (4) Repealed by the Statute Law (Repeals) Act 1993, s 1(1), Sch 1.

262

Town Police Clauses Act 1847

TOWN POLICE CLAUSES ACT 1847 (10 & 11 Vict, c 89) An Act for consolidating in One Act certain provisions usually contained in Acts for regulating the Polic of Towns [22nd July 1847] Obstructions and nuisances 28.  Penalty on persons committing any of the offences herein named. Every person who in any street, to the obstruction, annoyance, or danger of the residents or passengers, commits any of the following offences, shall be liable to a penalty not exceeding [level 3 on the standard scale](1) for each offence, or, in the discretion of the justice before whom he is convicted, may be committed to prison, there to remain for a period not exceeding fourteen days, [ … ](2); (that is to say,) [ … ](3) Every person who suffers to be at large any unmuzzled ferocious dog, or sets on or urges any dog or other animal to attack, worry, or put in fear any person or animal: [ … ](4) [ … ](3) [ … ](5) Every person who rides or drives furiously any horse or carriage, or drives furiously any cattle: [ … ](3) [ … ](6) [ … ](7) [ … ](3) Every person who wantonly discharges any firearm, or throws or discharges any stone or other missile, or makes any bonfire, or throws or sets fire to any firework: [ … ](3) (1) Substituted by virtue of the Criminal Justice Act 1982, s 46. (2) Words omitted were repealed by the Police and Criminal Evidence Act 1984, s 119(2), Sch 7, Pt I. (3) Words omitted were repealed by virtue of the Deregulation Act 2015, s  115(3)(r), Sch  23, para 45(a). (4) Words omitted were repealed by the Rabies Act 1974, s 9(2), Schedule. (5) Words omitted were repealed by the Statute Law (Repeals) Act 1975, s 1(1), Schedule, Pt X. (6) Words omitted were repealed by the Street Offences Act 1959, ss 1(5)(b), 5(2), Schedule. (7) Words omitted were repealed by the Sexual Offences Act 2003, ss 139, 140, Sch 6, para 3, Sch 7.

263

Appendix 1  Statutes

METROPOLITAN STREETS ACT 1867 (30 & 31 Vict, c 134) An Act for regulating the Traffic in the Metropolis, and for making Provision for the greater Security of Persons passing through the Streets, and for other Purposes. [20th August 1867]

Part I General Regulations 3. Definitions: The following expressions for the purposes of this Act shall, unless the context requires a different construction, have the meanings herein-after assigned to them; that is to say, … … … … … … … … … … . . (1) “Commissioner of Police,” beyond the limits of the City of London … (2), shall mean “the Commissioner of Police of the Metropolis,” and within such limits “the Commissioner of the Police Force of the City of London … (2):” “Street” shall include any highway or other public place, whether a thoroughfare or not; and any of the royal parks, gardens, and possessions which are managed by the Commissioners of Works in pursuance of the Crown Lands Acts, 1851, shall, for the purposes of this Act, be deemed to be public places: [(3)“the limits of this Act” means— (a) the City of London; (b) the area enclosed in a circle of which the centre is Charing Cross, and the radii are six miles in length as measured in a straight line from Charing Cross.] The word “cattle” shall include bull, ox, cow, heifer, calf, sheep, goats, and swine, also horses, mules, and asses, when led in a string or loose. (1) Definition repealed by Statute Law (Repeals) Act 1989 (c 43), s 1(1), Sch 1, Pt X. (2) Words repealed by Statute Law (Repeals) Act 1989 (c 43), s 1(1), Sch 1, Pt X. (3) Words in s 3 inserted (5.11.1993) by 1993 c 50, s 1(2), Sch 2, Pt II, para 16.

6.  As to the deposit of goods in streets within general limits of Act. No goods or other articles shall be allowed to rest on any footway or other part of a street within the [ … ](1) limits of this Act, or be otherwise allowed to cause obstruction or inconvenience to the passage of the public, for a longer time than may be absolutely necessary for loading or unloading such goods or other articles. Any person doing any act in contravention of this section shall be liable for each offence to a penalty not exceeding forty shillings. [ … ](2) (1) Word omitted was repealed by the Statute Law (Repeals) Act 1993, s 1(1), Sch 1, Pt XV, Gp 1. (2) Words omitted were repealed by the Metropolitan Streets Act Amendment Act 1867, s 1.

264

Metropolitan Streets Act (Amendment) Act 1867

METROPOLITAN STREETS ACT (AMENDMENT) ACT 1867 (31 & 32 Vict, c 5) An Act for the amendment of ‘The Metropolitan Streets Act, 1867.’ [7th December 1867] 1.  Amendment of section 6 of 30 & 31 Vict. c. 134. The sixth section of the Metropolitan Streets Act, 1867, prohibiting the deposit of goods in the streets, shall not apply to costermongers, street hawkers, or itinerant traders, so long as they carry on their business in accordance with the regulations from time to time made by the Commissioner of Police, with the approval of the Secretary of State; [ … ](1) (1) Words omitted were repealed by the Statute Law Revision Act 1875, s 1, Schedule.

265

Appendix 1  Statutes

METROPOLITAN FAIRS ACT 1868 (31 & 32 Vict, c 106) An Act for the Prevention of the holding of unlawful Fairs within the Limits of the Metropolitan Police District [31st July 1868] 1.  Short title This Act may be cited for all purposes as ‘The Metropolitan Fairs Act 1868’. 2.  Restriction of right to hold fair, where fair not held for seven years(1) Where any fair(2) is holden or notice is given of any fair proposed to be holden on any ground within the Metropolitan Police District(3) other than that on which a fair has been holden during each of the seven years immediately preceding, it shall be competent for the Commissioner of Police to direct one of the superintendents of the Metropolitan Police Force to summon the owner or occupier of the ground upon which such fair is holden to appear before a magistrate forthwith, or at a time to be specified in the summons, to show his right and title to hold such fair; and if such owner or occupier do not attend in pursuance of such summons, or does not show to the magistrate who hears the case sufficient cause to believe that such fair is lawfully holden, the magistrate shall declare in writing such fair to be unlawful, and the Commissioner shall give notice of such declaration by causing copies thereof to be affixed on and near the ground where such fair is holden or proposed to be holden; and after such notice has been affixed for the space of six hours the Commissioner of Police may direct any constable to remove every booth, standing, and tent, and every carriage of whatsoever kind, conveyed to or being upon the ground for the purpose of holding or continuing such fair, and to take into custody every person erecting, pitching, or fixing, or assisting to erect, pitch, or fix, any such booth, standing or tent; and every person hiring, accompanying, or conveyed in every such carriage, and every person resorting to such ground with any show or instrument of gambling or amusement, and every person convicted before a magistrate of any of the offences aforesaid, shall be liable to a penalty of not more than [level 1 on the standard scale](1). (1) Maximum penalty increased to £25 by the Criminal Law Act 1977, s 31(6); and by virtue of the Criminal Justice Act 1982, s 46 the reference to that amount is converted to a reference to level 1 of the standard scale set out in the Criminal Justice Act 1991, ss 17(1), 101(1), Sch 12, para 6. (2) The legality of any fair and the place of holding may, it seems, be questioned under the section. It may also be questioned under the Metropolitan Police Act 1839, ss 39, 40, above, pp 247, 248. See also s 4 of this Act, below. (3) As to what is included in the Metropolitan Police District, see note (2) to s 38 of the Metropolitan Police Act 1839 above, p 247.

3.  Service of summons, and description of owner, etc, therein A summons under this Act may be served on the owner or occupier of any ground personally, or by leaving the same at his usual or last known place of abode(1), or, if the name of such owner or occupier or his place of abode is not known to the police, by putting up such summons in a conspicuous place on the ground where the fair is holden or proposed to be holden, and it shall not be necessary to name the owner or occupier in the summons but may be described as the owner or occupier of the ground. (1) ‘Place of abode’ means place of residence; see R v Lilley, ex p Taylor (1910) 104 LT 77.

266

Metropolitan Fairs Act 1868 4.  Powers of Act accumulative All powers conferred by this Act shall be deemed to be in addition to and not in derogation of any other powers conferred by any other Act of Parliament, and any such other powers may be exercised as if this Act had not passed. See the Metropolitan Police Act 1839, ss 39, 40, above, pp 247, 248.

5. Construction This Act, so far as is consistent with the tenor thereof, shall be construed as one with the Acts relating to the Metropolitan Police. See in particular, the Metropolitan Police Act 1839, ss 39, 40, above, pp 247, 248.

267

Appendix 1  Statutes

FAIRS ACT 1871

(34 & 35 Vict, c 12) An Act to further amend the Law relating to Fairs in England and Wales. [25th May 1871] 1.  Short title This Act may be cited as ‘The Fairs Act 1871’. 2. Interpretation In this Act the term ‘owner’ means any person or persons or body of commissioners, or body corporate, entitled to hold any fair, whether in respect of the ownership of any lands or tenements, or under any charter, letters patent, or Act of Parliament, or otherwise howsoever. As to the right to hold fairs under the titles referred to in the section, see above, pp 17 et seq.

3.  Order for abolition of fair In case it shall appear to the Secretary of State for the Home Department(1), upon representation duly made to him by the magistrates of any petty sessional district(2) within which any fair is held, or by the owner of any fair in England or Wales, that it would be for the convenience and advantage of the public that any such fair should be abolished, it shall be lawful for the said Secretary of State for the Home Department, with the previous consent in writing of the owner(3) for the time being of such fair, or of the tolls or dues payable in respect thereof, to order that such fair shall be abolished accordingly: Provided always, that notice of such representation, and of the time when it shall please the Secretary of State for the Home Department to take the same into consideration, shall be published once in the London Gazette, and in three successive weeks in some one and the same newspaper published in the county, city, or borough in which such fair is held, or if there be no newspaper published therein, then in the newspaper of some county adjoining or near thereto, before such representation is so considered. (1) Functions under this section transferred to the Secretary of State, by the Secretaries of State for Children, Schools and Families, for Innovation, Universities and Skills and for Business, Enterprise and Regulatory Reform Order 2007, SI 2007/3224, art 14. (2) The power of the magistrates has been transferred to the council of the district or London borough in which the fair is held by the Local Government Act 1894, ss 21(3), 27(1)(e) and the Local Government Act 1972, ss 1(1B), 179(3). (3) ‘Owner’ is defined in s 2, above.

4.  Publication of order When and so soon as any such order as aforesaid shall have been made by the Secretary of State for the Home Department, notice of the same shall be published in the London Gazette and in some one newspaper of the county, city or borough in which such fair is usually held, or if there be no newspaper published therein, then in the newspaper of some county adjoining or near thereto, and thereupon such fair shall be abolished.

268

Pedlars Act 1871

PEDLARS ACT 1871 (34 & 35 Vict, c 96) An Act for granting Certificates to Pedlars [21st August 1871] Preliminary 1.  Short title This Act may be cited as ‘The Pedlars Act 1871’. 2.  [ … ](1) [Repealed by the SLR (No 2) Act 1893.] (1) Section repealed by the Statute Law Revision (No 2) Act 1893.

3  Interpretation— ‘Court of summary jurisdiction’ In this Act, if not inconsistent with the context, the following terms have the meanings hereinafter respectively assigned to them; that is to say,— The term ‘pedlar’ means any hawker(1), pedlar, petty chapman, tinker, caster of metals, [ … ](2) or other person who, without any horse or other beast bearing or drawing burden, travels and trades on foot(3) and goes from town to town(4) or to other men’s houses, carrying to sell or exposing for sale(5) any goods, wares, or merchandise, or procuring orders for goods, wares, or merchandise immediately to be delivered,[ … ](2): [ … ](6) [ … ](7) (1) Hawkers were formerly required to be licensed under the Hawkers Act 1888 (repealed by the Local Government Act 1966, ss 33, 35(1), 43(2)(a), Sch 3, Pt I, Sch 6, Pt I). For the purposes of the Markets and Fairs Clauses Act 1847 (above) the term ‘licensed hawker’ is construed to include a pedlar holding a certificate under that Act: see s 6. (2) Words omitted were repealed by the Provision of Services Regulations 2009, SI 2009/2999, reg 45(1). (3) To fall within the definition a person must both travel and trade on foot: see Watson v Malloy [1988] 3 All ER 459 at 463, 86 LGR 766 at 773. In this case it was suggested that the distinction between a ‘pedlar’ and one who sets up a stall in different towns each week is that the former trades as he travels and the latter travels to trade: ibid at 463 per Hutchinson J. Compare Sample v Hulme [1956] 3 All ER 447n, where it was held that persons who travelled to a street in a van and then went from house to house on foot were travelling and trading within the meaning of this section. See also the cases cited in note 65, p 121, above for the distinction between acting as a street trader and a pedlar. A person who cannot bring his activities within its definition will probably be subject to the restrictions against street trading contained in Sch 4 to the Local Government (Miscellaneous Provisions) Act 1982, below. (4) See A-G v Woolhouse (1827) 12 Price 65 and Manson v Hope (1862) 2 B & S 498. (5) This has been held to include bartering or exchanging goods for other goods: Druce v Gabb (1858) 30 LTOS 98. A person soliciting orders for goods which are not in his possession at the time but which are subsequently delivered is not ‘carrying to sell’ or ‘exposing for sale’ under this section and therefore does not require a certificate: R v M’Knight (1830) 10 B & C 734. See also s 23, below. (6) Definitions repealed by the Statute Law Revision (No 2) Act 1893, and the Police Act 1964, s 64(3) and Sch 10, Pt I. (7) Definition repealed by the Statute Law (Repeals) Act 1993, s 1(1), Sch 1, Pt 1.

Certificates to be obtained by Pedlars 4.  No one to act as a pedlar without certificate No person shall act as a pedlar without such certificate as in this Act mentioned, or in any district where he is not authorized by his certificate so to act. 269

Appendix 1  Statutes Any person who— (1) acts as a pedlar(1) without having obtained a certificate(2) under this Act authorizing him so to act; (2) [ … ](3) shall be liable for the first offence to a penalty not exceeding [level 1 on the standard scale](4) and for any subsequent offence to a penalty not exceeding [level 1 on the standard scale](4). (1) For meaning, see s 3, above. (2) See ss  5 and 17, below, and the Pedlars Act 1881, below. By the Local Government (Miscellaneous Provisions) Act 1982, Sch  4, para l(2)(a), below and the London Local Authorities Act 1990, Pt III, as amended by the London Local Authorities Act 2004, s 20(1), Sch  4, para  2(a), trading by a person acting as a pedlar under the authority of a pedlar’s certificate granted under this section is not street trading for the purposes of the 1982 Act. (3) Words omitted were repealed by the Pedlars Act 1881, s 2, Schedule. (4) The maximum penalties were increased to £25 each by the Criminal Law Act 1977, s 31(6), and by the Criminal Justice Act 1982, s 46 a reference to the level on the standard scale is substituted for the amount of the penalty.

5.  Grant of certificate The following regulations shall be made with respect to the grant of pedlar(1) certificates: (1) Subject as in this Act mentioned, a pedlar’s certificate shall be granted(2) to any person by the chief officer of police [for the police area](3) in which the person applying for a certificate has, during one month previous to such application, resided(4) on such officer being satisfied that the applicant is above seventeen years of age, is a person of good character, and in good faith intends to carry on the trade of a pedlar(5): (2) An application for a pedlar’s certificate shall be in the form specified in Schedule 2 to this Act, or as near thereto as circumstances admit: (3) There shall be paid for a pedlar’s certificate previously to the delivery thereof to the applicant a fee of [£12.25](6): (4) A pedlar’s certificate shall be in the form specified in Schedule 2 to this Act, or as near thereto as circumstances admit: (5) A pedlar’s certificate shall remain in force for one year from the date of the issue thereof, and no longer: (6) On the delivery up of the old certificate, or on sufficient evidence being produced to the satisfaction of the chief officer of police that the old certificate has been lost, that officer may, either at the expiration of the current year, or during the currency of any year grant a new certificate in the same manner as upon a first application for a pedlar’s certificate. In Great Britain one of Her Majesty’s Principal Secretaries of State, and in Ireland(7) the [Department for Social Development may by order provide](8) for the expiration of all pedlars’ certificates at the same period of each year, and in doing so shall provide for the apportionment of the fees payable in respect of any such certificate. (1) For meaning, see s 3, above. (2) For provisions relating to an appeal against refusal of a certificate, see s 15, below, for the power of a magistrates’ court to deprive a pedlar of a certificate see s  16, below, and for exemption from the need to obtain a certificate, see s 23, below. (3) Words substituted by the Police Act 1996, s 103, Sch 7, para 2. (4) ‘Reside’ implies a degree of permanence (and temporary absence can be discounted provided there is an intention to return): see, for example, R  v St Leonard’s Shoreditch, Inhabitants (1865) LR 1 QB 21; Levene v IRC [1928] AC 217; Brokelmann v Barr [1971] 2 QB 602.

270

Pedlars Act 1871 (5) It is not necessary for a person to obtain all or even most of his livelihood from peddling: he need show only that he derives some part of his living from regularly trading as a pedlar: Murphy v Duke [1985] QB 905. (6) The fee was substituted by virtue of the Pedlars’ Certificates (Variation of Fee) Order 1985, SI 1985/2027, art 2. (7) Now applicable only to Northern Ireland. (8) Substituted by the Northern Ireland (Modification of Enactments – No. 1) Order 1999, SI 1999/663, art 2(1), Sch 1, para 6(1).

6.  Effect of certificate [ … ](1) For the purpose of the Markets and Fairs Clauses Act 1847(2), and any Act incorporating the same, a certificate under this Act(3) shall have the same effect, within the district for which it is granted, as a hawker’s license, and the term ‘licensed hawker’ in the first-mentioned Act shall be construed to include a pedlar(4) holding such a certificate. (1) (2) (3) (4)

Words omitted were repealed by the Pedlars Act 1881, s 2, Schedule. Above. For grant of certificate, see s 5, above. For meaning, see s 3, above.

7.  [ … ](1) (1) Words omitted were repealed by the Pedlars Act 1881, s 2, Schedule.

8.  Register of certificates to be kept in each district There shall be kept in each [police area](1) a register of the certificates [ … ](2) granted [ … ](2) in [the area](1) under this Act, in such form and with such particulars as may from time to time be directed in Great Britain by one of Her Majesty’s Principal Secretaries of State, and in Ireland(3) by the [Department for Social Development] (4). The entries in such register, and any copy of any such entries, certified by the chief officer of police to be a true copy, shall be evidence of the facts stated therein. (1) (2) (3) (4)

Words substituted by the Police Act 1996, s 103, Sch 7, para 3. Words omitted were repealed by the Pedlars Act 1881, s 2, Schedule. Now applicable only to Northern Ireland. Substituted by the Northern Ireland (Modification of Enactments – No. 1) Order 1999, SI 1999/663, art 2(1), Sch 1, para 6(2).

9.  Forms of application to be kept at chief police office Forms of applications for certificates(1) shall be kept at every police office in every [police area](2), and shall be given gratis to any person applying for the same; and all applications for certificates shall be delivered to the police office of the division or subdivision of the [police area](2) within which the applicant resides(3), and certificates, when duly signed by the chief officer of police, shall be issued at such office. (1) For grant of certificate, see s 5, above. (2) Substituted by the Police Act 1996, s 103, Sch 7, para 4. (3) See note (4) to s 5, above.

10.  Certificate not to be assigned A person to whom a pedlar’s certificate is granted(1) under this Act shall not lend, transfer, or assign the same to any other person, and any person who lends, transfers, 271

Appendix 1  Statutes or assigns such certificate to any other person shall for each offence be liable to a penalty not exceeding [level 1 on the standard scale](2). (1) For grant of certificate, see s 5, above. (2) For penalty, see note (3) to s 4, above. (2) For penalty, see note (3) to s 4, above.

11.  Certificate not to be borrowed No person shall borrow or make use of a pedlar’s certificate(1) granted to any other person, and any person who borrows or makes use of such certificate shall for each offence be liable to a penalty not exceeding [level 1 on the standard scale](2). (1) For grant of certificate, see s 5, above. (2) For penalty, see note (3) to s 4, above.

12.  Penalty for forging certificate Any person who commits any of the following offences; (that is to say), (1) Makes false representations with a view to obtaining a pedlar’s certificate(1) under this Act: (2) [ … ](2) (3) [ … ](3) (4) [ … ](2) (5) [ … ](2) shall [be liable to imprisonment for a term not exceeding six months or to a fine not exceeding level 2 on the standard scale, or to both such imprisonment and fine](4). (1) (2) (3) (4)

For grant of certificate, see s 5, above. Paragraphs repealed by the Forgery and Counterfeiting Act 1981, s 30, Sch 1, Part I. Words omitted were repealed by the Pedlars Act 1881, s 2. The maximum penalty was increased to £50 by the Criminal Law Act 1977, s 31(6), and, by the Criminal Justice Act 1982, s 46, a reference to the level on the standard scale is substituted for the amount of the penalty.

13.  [ … ](1) (1) Repealed as to England and Wales by the Statute Law (Repeals) Act 1989, s 1, Sch 1, Pt I.

14.  Convictions to be indorsed on certificate If any pedlar(1) is convicted of any offence under this Act, the court, before which he is convicted shall indorse or cause to be indorsed on his certificate(2) a record of such conviction. The indorsements made under this Act on a pedlar’s certificate shall be evidence of the facts stated therein. (1) For meaning, see s 3, above. (2) For grant of certificate, see s 5, above.

15.  Appeal against refusal of certificate by chief officer of police If the chief officer of police(1) refuses to grant [ … ](2) a certificate(3), the applicant may appeal to a court of summary jurisdiction having jurisdiction in the place where such grant [ … ](2) was refused, in accordance with the following provisions: (1) The applicant shall, within one week after the refusal, give to the chief officer of police notice in writing of the appeal: (2) The appeal shall be heard at the sitting of the court which happens next after the expiration of the said week, but the court may, on the application of either party, adjourn the case: 272

Pedlars Act 1871 (3) The court shall hear and determine the matter of the appeal, and make such order thereon, with or without costs to either party, as to the court seems just: (4) An appeal under this Act to a court of summary jurisdiction in England(4) or Ireland(5) shall be deemed to be a matter on which that court has authority by law to make an order in pursuance of the Summary Jurisdiction Acts(6), and in Scotland the court may adjudicate on matters arising under this section, in accordance with the enactments relating to the exercise of their ordinary jurisdic­tion: (5) Any certificate [ … ](2) granted [ … ](2) in pursuance of an order of the court, shall have the same effect as if it had been originally granted [ … ](2) by the chief officer of police. (1) (2) (3) (4) (5) (6)

See note (3) to s 5, above. Words omitted were repealed by the Pedlars Act 1881, s 2, Schedule. For grant of certificate, see s 5, above. For meaning, see Interpretation Act 1978, ss 5, 22(1), Sch 1, Sch 2, para 5(a). Now applicable only to Northern Ireland. See now the Magistrates’ Courts Act 1980.

16.  Deprivation of pedlars of certificates by court Any court before which any pedlar(1) is convicted of any offence(2), whether under this or any other Act, or otherwise, may, if he or they think fit, deprive such pedlar of his certificate; and any such court shall deprive such pedlar of his certificate if he is convicted of begging. Any court of summary jurisdiction may summon a pedlar holding a certificate under this Act to appear before them, and if he fail to appear, or on appearance to satisfy the court that he is in good faith carrying on the business of a pedlar, shall deprive him of his certificate. (1) For meaning, see s 3, above. (2) A record of conviction must be endorsed on the certificate: see s 14, above.

Duties of Pedlars 17.  Pedlar to show certificate to certain persons on demand Any pedlar(1) shall at all times, on demand, produce and show his certificate(2) to any of the following persons; (that is to say,) (1) Any justice of the peace; or (2) Any constable or officer of police; or (3) Any person to whom such pedlar offers his goods for sale; or (4) Any person in whose private grounds or premises such pedlar is found: And any pedlar who refuses, on demand, to show his certificate to, and allow it to be read and a copy thereof to be taken by, any of the persons hereby authorised to demand it, shall for each offence be liable to a penalty not exceeding [level 1 on the standard scale](3). (1) For meaning, see s 3, above. (2) For grant of certificate, see s 5, above. (3) For penalty, see note (3) to s 4, above.

18.  [ … ](1) (1) Repealed by the Police and Criminal Evidence Act 1984, ss  7(1)(d), 26(1), 119(2), Sch  7, Pts I, VI.]

273

Appendix 1  Statutes 19.  [ … ](1) (1) Repealed by the Police and Criminal Evidence Act 1984, ss 7(1)(d), 26(1), 119(2), Sch 7, Pts I, VI.]

Legal Proceedings 20.  Summary proceedings for offences, etc In England and Ireland all offences and penalties under this Act may be prosecuted and recovered in manner directed by the Summary Jurisdiction Acts(1) before a court of summary jurisdiction. In Scotland all offences and penalties under this Act shall be prosecuted and recovered before a court of summary jurisdiction under the provisions of [Part II of the Criminal Procedure (Scotland) Act 1975](2), and all necessary powers are hereby conferred on such court. [ … ](3) (1) Summary Jurisdiction Acts: see now Magistrates’ Courts Act 1980. (2) Words substituted by virtue of the Criminal Procedure (Scotland) Act 1975, s 460(1)(b). (3) Words omitted repealed by the Northern Ireland Act 1962, s 30(2)(d), Sch 4, Pt IV and the Statute Law (Repeals) Act 1993, s 1(1), Sch 1, Pt I.

21.  Application of fees All fees received under this Act in England(1) and Ireland(2) shall be applied in manner in which penalties recoverable under this Act are applicable. All fees received under this Act in Scotland shall be accounted for and paid to the collector of the [ … ](3) [police area](4) in which they are received, [ … ](3) (1) (2) (3) (4)

See note (3) to s 15, above. Now applicable only to Northern Ireland. Words omitted repealed by the Local Government (Scotland) Act 1947, s 381(1), Sch 14 Words substituted by the Police Act 1996, s 103(1), Sch 7, para 5.

Miscellaneous 22.  Deputy of chief officer of police Any act or thing by this Act authorised to be done by the chief officer of police(1) may be done by any police officer under his command authorised by him in that behalf, and the term ‘chief officer of police’ in this Act includes, in relation to any such act or thing, the police officer so authorised. (1) See note (3) to s 5, above.

23.  Certificate not required by commercial travellers, sellers of fish, or sellers in fairs Nothing in this Act shall render it necessary for a certificate(1) to be obtained by the following persons as such; (that is to say,) (1) Commercial travellers or other persons selling or seeking orders for goods, wares, or merchandise to or from persons who are dealers therein and who buy to sell again, or selling or seeking orders for books as agents authorised in writing by the publishers of such books. (2) Sellers of vegetables, fish, fruit, or victuals. (3) Persons selling or exposing to sale goods, wares, or merchandise in any public mart, market, or fair legally established(2). (1) For grant of certificate, see s 5, above. (2) This will not apply to a market held without a grant or statutory authority: Benjamin v Andrews (1858) 5 CBNS 299.

274

Pedlars Act 1871 24.  Reservation of powers of local authority Nothing in this Act shall take away or diminish any of the powers vested in any local authority or any general or local Act in force in the district of such local authority. 25.  [ … ](1) (1) Repealed by the Statute Law Revision Act 1883, s 1, Schedule.

SCHEDULES (Sch 1 repealed by the Police Act 1964, s 64(3), Sch 10, Part I)

SCHEDULE TWO

Section 5

Form A Form of Application for Pedlar’s Certificate 1. I, AB, [Christian and surname of applicant in full] have during the last calendar month resided at in the parish of in the county of 2.  I am by trade and occupation a [here state trade and occupation of applicant, eg, that he is a hawker, pedlar, etc] 3. I am      years of age. 4.  I apply for a certificate under the Pedlars Act, 1871, authorising me to act as pedlar within the        [police area](1). Dated this         day of (Signed)       AB

[Here insert Christian and surname of applicant.]

(1) Words substituted by the Police Act 1996, s 103(1), Sch 7, para 6.

Form B Form of Pedlar’s Certificate In pursuance of the Pedlars Act 1871, I  certify that AB [name of applicant] of in the county of aged years, is hereby authorised to act as a pedlar within the [police area](1) for a year from the date of this certificate. [To be altered, if necessary, to correspond to any order of the Secretary of State or Lord Lieutenant of Ireland as to time of expiration of licenses] Certified this          day of AD (signed) [Here insert name and description of the officer signing the certificate] The certificate will expire on the  day of      , AD (1) Words substituted by the Police Act 1996, s 103(1), Sch 7, para 6.

Form C [ … ](1) (1) Repealed by the Statute Law Revision Act 1883, s 1, Schedule.

275

Appendix 1  Statutes

FAIRS ACT 1873

(36 & 37 Vict, c 37) An Act to amend the Law relating to Fairs in England and Wales [7th July 1873] 1.  Short title This Act may be cited as ‘The Fairs Act 1873’. 2. Extent This Act shall not extend to Scotland or Ireland. 3.  Definition of terms In this Act the term ‘owner’ means any person or persons, or body of commissioners or body corporate, entitled to hold any fair, whether in respect of the ownership of any lands or tenements, or under any charter, letters patent, or otherwise howsoever(1). (1) As to the right to hold fairs under the title referred to in the section, see above, pp 13 et seq.

4.  [ … ](1) (1) Repealed by the Statute Law Revision (No. 2) Act 1893, s 1, Sch 1.

5.  [ … ](1) (1) Repealed by the Statute Law Revision (No. 2) Act 1893, s 1, Sch 1.

6.  Power of Secretary of State to alter days of holding fairs In case it shall appear to [ … ](1) a Secretary of State, upon representation duly made to him by the justices(2) acting in and for the [petty sessional division](3) within which any fair is held, or by the owner(4) of any fair in England and Wales, that it would be for the convenience and advantage of the public that any such fair shall be held in each year on some day or days other than that or those on which such fair is used to be held or on the day or days on which such fair is used to be held and any preceding or subsequent day or days, or on or during a less number of days than those on which such fair is used to be held, it shall be lawful for a Secretary of State to order that such fair shall be held on such other day or days, or on the same day or days and any preceding or subsequent day or days, or on or during any less number of days as he shall think fit(5): Provided always, that notice of such representation and of the time when it shall please a Secretary of State to take the same into consideration shall if such representation shall have been made by justices be given to the owner of such fair, and shall if such representation shall have been made by the owner of such fair be given to the [clerk to the justices acting in and for] (6) the [petty sessional division](3) within which such fair is held, and shall also be published once in the London Gazette, and in three successive weeks in some one and the same newspaper published in the county, city, or borough in which such fair is held, or if there be no newspaper published therein, then in the newspaper of some county adjoining or near thereto, before such representation is so considered. (1) Words omitted were repealed by the Statute Law Revision (No. 2) Act 1893, s 1, Sch 1. (2) See the Fairs Act 1871, s 3, note (1), above. Notice of such representation must be given to the owner; see this section, above. (3) The words ‘petty sessional division’ in square brackets in both places they occur substituted by the Courts Act 2003, s 109(1), Sch 8, para 53(a). (4) ‘Owner’ is defined in s 3, above.

276

Fairs Act 1873 (5) As to the days on which fairs may be lawfully held, see, above, pp 53–55. (6) Words ‘clerk to the justices acting in and for’ in square brackets substituted by the Courts Act 2003, s 109(1), Sch 8, para 53(b).

7.  Order of Secretary of State to be published in certain newspapers.—All rights, etc, of owner to remain good When and as soon as any such order as aforesaid shall have been made by a Secretary of State, notice of the making of the same shall be published in the London Gazette and in some one newspaper of the county, city, or borough in which such fair is usually held, or if there be no newspaper published therein, then in the newspaper of some county adjoining or near thereto, and thereupon such fair shall only be held on the day or days mentioned in such order; and it shall be lawful for the owner of such fair to take all such toll or tolls, and to do all such act or acts, and to enjoy all and the same rights, powers and privileges in respect thereof, and enforce the same by all and the like remedies, as if the same were held on the day or days upon which it was used to be held previous to the making of such order.

277

Appendix 1  Statutes

PUBLIC HEALTH ACT 1875 (38 & 39 Vict, c 55) An Act for consolidating and amending the Acts relating to Public Health in England. [11th August 1875]

Part IV Local government provisions Police Regulations 171.  Incorporation of certain provisions of 10 & 11 Vict. c. 89. The provisions of the Towns Police Clauses Act 1847, with respect to the following matters, (namely.) (1) With respect to obstructions and nuisances in the streets; and [(2) With respect to fires;](1) and (3) With respect to places of public resort; and (4) With respect to hackney carriages; [ … ](2) (5) [ … ](2) shall, for the purpose of regulating such matters in urban [districts](3), be incorporated with this Act. The expression in the provisions so incorporated ‘the superintendent constable, and the expression ‘any constable or other officer appointed by virtue of this or the special Act, shall, for the purposes of this Act, respectively include any superintendent of police, and any constable or officer of police acting for or in the district of any urban authority; and the expression ‘within the prescribed distance shall for the purposes of this Act mean within any urban [district](3). Notwithstanding anything in the provisions so incorporated, a license granted to the driver of any hackney carriage in pursuance thereof shall be in force for one year only from the date of the license, or until the next general licensing meeting where a day for such meeting is appointed. (1) Repealed, in so far as it incorporates the Town Police Clauses Act 1947, s  32, by the Fire Brigades Act 1938, s 30(3), Sch 3, Pt I. (2) Word and s 171(5) omitted were repealed by the Public Health Act 1936, s 346, Sch 3, Pt I. (3) Word substituted by virtue of the Local Government Act 1972, s 179(3).

278

Pedlars Act 1881

PEDLARS ACT 1881 (44 & 45 Vict, c 45) An Act to amend the Pedlars Act 1871, as regards the district within which a certificate authorises a person to act as Pedlar [22nd August 1881] 1.  Short title This Act may be cited as the Pedlars Act 1881. This Act and the Pedlars Act 1871, may be cited together as the Pedlars Acts 1871 and 1881. 2.  Alteration of 34 & 35 Vict c 96, as to indorsement of a pedlar’s certificate A pedlar’s certificate granted under the Pedlars Act 1871, shall during the time for which it continues in force authorise the person to whom it is granted to act as a pedlar within any part of the United Kingdom … The words omitted were repealed by the SLR Act 1894.

[Schedule repealed by the SLR Act 1894.] This Act applies to Northern Ireland.

279

Appendix 1  Statutes

MARKETS AND FAIRS (WEIGHING OF CATTLE) ACT 1887 (50 & 51 Vict, c 27) An Act to amend the Law with respect to weighing cattle in Markets and Fairs(1). [8th August 1887] 1.  Short title This Act may be cited as the Markets and Fairs (Weighing of Cattle) Act 1887(2). (1) Sections 4, 5, 8, 9 repealed, so far as respects any London borough council which is a market authority for the purposes of Pt III of the Food and Drugs Act 1955, now replaced by the Food Act 1984, by the London Government Act 1963, s 93(1), Sch 18, Pt II. (2) This Act and the Markets and Fairs (Weighing of Cattle) Acts 1891 and 1926, below, pp 281, 284, may be cited as the Markets and Fairs (Weighing of Cattle) Acts 1887 to 1926; see s 4(2) of the Act of 1926, below; and this Act and the Act of 1891 are to be construed as one; see s 6 of the Act of 1891, below.

2.  Application of Act This Act, save as is hereinafter provided(1), shall apply to all markets and fairs in which tolls(2) are for the time being authorised to be taken and actually are taken in respect of cattle(3) by any company, corporation, or person; and every such company, corporation, or person is in this Act called the market authority. (1) See the power of the Minister to grant exemption from the Act given by s 9. Also, ss 4–9 of and the Schedule to this Act and the amending ss 1 and 2 of the Markets and Fairs (Weighing of Cattle) Act 1891, below, and ss 2 (in part) and 3 of and the Schedule to the Act of 1926, below, were repealed by the Food and Drugs Act 1938 (1 & 2 Geo V, c 56), ss 101, 103, Sch IV, so far as respects any local authority outside London which is a market authority for the purposes of that Act now replaced by the Food Act 1984. For market authorities within the latter Act, see ibid, s 61, below, and for their duty to provide weighing machines for weighing cattle and their duties and liabilities as to weighing under that Act, see ibid, s 57(2), below, p 331 and notes thereto. See also note (2) below and text thereto as to further restrictions on the application of this Act; see also p 129 above. (2) For the meaning of tolls, see above, p 59. The Act may therefore apply to markets to which the Markets and Fairs Clauses Act 1847 applies if tolls are payable: see ibid, ss 1, 31 et seq. See also ibid, ss 21 et seq. (3) ‘Cattle’ is defined in s 3, below.

3. Interpretation In this Act the word ‘cattle’ includes ram, ewe, wether, lamb, and swine.

280

Markets and Fairs (Weighing of Cattle) Act 1891

MARKETS AND FAIRS (WEIGHING OF CATTLE) ACT 1891 (54 & 55 Vict, c 70) An Act to amend the Markets and Fairs (Weighing of Cattle) Act 1887 [5th August 1891] 1.  Transfer of powers under 50 & 51 Vict, c 27, s 9 The powers under section nine of the principal Act(1) of the Local Government Board as to England and Wales … shall be transferred to and vest in the Board of Agriculture(2), … The words omitted were repealed by the Statute Law Revision Act 1908 (8 Edw VII, c 49), or relate to Scotland and Ireland. (1) The principal Act, by virtue of the repealed preamble to this Act, is the Markets and Fairs (Weighing of Cattle) Act 1887. Section 9 of that Act and s 1 of this Act were repealed as to markets of local authorities outside London under the Food and Drugs Acts; see note (l) to s 2 of the Act of 1887, above, p 280. (2) The powers of the Board of Agriculture were transferred to the Minister of Agriculture and Fisheries by the Ministry of Agriculture and Fisheries Act 1919 (9 & 10 Geo V, c 91), s 1. Now the Department for Environment, Food and Rural Affairs (‘Defra’).

2.  Amendment of 50 & 51 Vict, c 27, s 4, as to accommodation for weighing cattle(1) (1)  The market authority(2) of every market and fair to which the principal Act(3) for the time being applies(3) shall, unless exempted by order of the Board of Agriculture(4) from the requirements of this section, provide and maintain to the satisfaction of the Board sufficient and suitable accommodation for weighing cattle. (2)  Default in complying with the requirements of this section shall be deemed default in complying with the requirements of section four of the principal Act. (1) Sections 1, 2 repealed, so far as respects any London borough council which is a market authority for the purposes of Pt III of the Food and Drugs Act 1955, now replaced by the Food Act 1984, by the London Government Act 1963, s 93(1), Sch l8, Pt II. (2) ‘Market authority’ is defined in s 2 of the Markets and Fairs (Weighing of Cattle) Act 1887, above, which applies by virtue of s 6 of this Act, below. (3) The principal Act, by virtue of the repealed preamble to this Act, is the Markets and Fairs (Weighing of Cattle) Act 1887. That Act applies to any market or fair for cattle in which tolls are lawfully taken unless the market or fair is exempted by the Minister. Section 4 of that Act and s 2 of this Act were, however, repealed as to markets of local authorities outside London under the Food and Drugs Act 1955 (repealed), and special provision was made as to market authorities under that Act; see s 2 of the Act of 1887, above, p 280 and note (1) thereto. (4) Now Defra: see s 1 and notes thereto, above.

3.  [ … ](1) (1) Repealed, except as respects Northern Ireland, by the Statute Law (Repeals) Act 1975, s 1, Sch, Pt II.

4.  Application of Act to auction marts (1)  An auctioneer shall not, unless exempted by order of the Board of Agriculture1) from the requirements of this section, sell cattle(2) at any mart where cattle are habitually or periodically sold, unless there are provided at that mart similar facilities for weighing cattle as are required by the principal Act(3) and this Act(3) in the case of cattle sold at a market or fair to which the principal Act applies(4). (2)  [ … ](5) (3)  If any such auctioneer makes default in complying with the requirements of this section, the auctioneer, or, if he is in the employment of any person, the person 281

Appendix 1  Statutes by whom he is employed, shall for each offence be liable on summary conviction to a fine not exceeding [level 2 on the standard scale](6), or in the case of a continuing offence to a fine not exceeding ten pounds for every day during which the offence continues. (4)  [ … ](7) (1) Now Defra; see s 1, above, and notes thereto. The Minister may exercise his power to exempt an auctioneer where the circumstances are, in his opinion, such as to render the enforcement of requirements under the section inexpedient; see Markets and Fairs (Weighing of Cattle) Act 1926, s 2, below. (2) ‘Cattle’ are defined in s 3 of the Act of 1887, above, which applies by virtue of s 6 of this Act, below. (3) The principal Act, by virtue of the repealed preamble to this Act, is the Markets and Fairs (Weighing of Cattle) Act 1887. For the facilities for weighing under that Act, see ibid, s 4, under this Act, see ibid, s 2, above. It is sufficient if there are weighing facilities in the market-place although not actually in the auctioneer’s sale yard: see Knott v Stride (1913) 11 LGR 534. In the case of certain fat cattle the auctioneer must also disclose the weight; see s 1 of the Markets and Fairs (Weighing of Cattle) Act 1926, below. (4) The principal Act, that is the Act of 1887, applies to all markets and fairs at which tolls are lawfully taken unless the market or fair is exempted by the Minister; see ibid, s 2 and sub-s (1) thereto, above. This section (s 4) is not repealed as to markets of local authorities under the Food Act 1984. (5) Repealed, except as respects Northern Ireland, by the Statute Law (Repeals) Act 1975, s 1, Sch, Pt II. (6) Maximum fine increased to £50 by the Criminal Law Act 1977, s 31(6); and by virtue of the Criminal Justice Act 1982, s 46, the reference to that amount is converted to a reference to level 2 on the standard scale set out in the Criminal Justice Act 1991, ss 17(1), 101(1), Sch 12, para 6. (7) Words omitted were repealed by the Statute Law Revision Act 1908, s 1, Schedule.

5.  Application to Ireland 6.  Construction and short title This Act shall be construed as one with the principal Act, and may be cited as the Markets and Fairs (Weighing of Cattle) Act 1891, and the principal Act and this Act may be cited together as the Markets and Fairs (Weighing of Cattle) Acts 1887 and 1891. The principal Act, by virtue of the repealed preamble to this Act, is the Markets and Fairs (Weighing of Cattle) Act 1887.

SCHEDULE [Superseded by the Markets and Fairs (Weighing of Cattle) Returns Order 1905 (SR & O 1905 No 70) made under s 3(2), and repealed by Statute Law Revision Act 1908 (8 Edw VII, c 49).]

282

Law of Property Act 1925

LAW OF PROPERTY ACT 1925 (15 & 16 Geo V, c 20) An Act to consolidate the enactments relating to conveyancing and the law of property in England and Wales. [9th April 1925]

Part XII Construction, Jurisdiction, and General Provisions 201.  Provisions of Act to apply to incorporeal hereditaments. (1)  The provisions of this Act relating to freehold land apply to manors, reputed manors, lordships, advowsons, [ … ](1) perpetual rentcharges, and other incorporeal hereditaments, subject only to the qualifications necessarily arising by reason of the inherent nature of the hereditament affected. (2) This Act does not affect the special restrictions imposed on dealing with advowsons by the Benefices Act, 1898, or any other statute or measure, nor affect the limitation of, or authorise any disposition to be made of, a title or dignity of honour which in its nature is inalienable. (3)  [ … ](2) (1) Words repealed by the Tithe Act 1936, s 48(3), Sch 9. (2) Subsection repealed by the Trusts of Land and Appointment of Trustees Act 1996, s 25(2), Sch 4.

283

Appendix 1  Statutes

MARKETS AND FAIRS (WEIGHING OF CATTLE) ACT 1926 (16 & 17 Geo V, c 21) An Act to amend the Markets and Fairs (Weighing of Cattle) Acts 1887 and 1891. [15th July 1926] 1.  Disclosure of weight of fat cattle on sale by auction (1)  Subject to the provisions of this Act(1) an auctioneer shall not offer for sale in any market, fair, or mart, in or near which a weighing machine is provided for the purpose of complying with the provisions of the principal Acts(2), any cattle(3) which are fit for immediate slaughter unless they have been weighed on the weighing machine and their weight as so ascertained is disclosed to intending purchasers at the time of the offer for sale either by announcement made by the auctioneer or in some other manner calculated to bring it to their notice. (2)  Any auctioneer who offers for sale any cattle in contravention of this section shall be liable on summary conviction to a fine not exceeding [level 1 on the standard scale] for each head of cattle so offered for sale(4). (3)  In this section the expression ‘cattle’ means bulls, cows, oxen and heifers(5). (4)  The Minister(6) may by order declare that the foregoing provisions of this Act shall not apply as respects any market, fair or mart. (1) ‘Cattle’ has a limited meaning; see sub-s (3), above, and a market fair or mart may be exempt; see sub-s (4), above. See also note (2), below. (2) The principal Acts are the Markets and Fairs (Weighing of Cattle) Acts 1887, above, and 1891, above; see s 4, below. Weighing machines must be provided under s 4 of the Act of 1887, or s 4 of the Act of 1891, above, but a weighing machine provided will not be provided for the purpose of complying with those Acts if an exemption has been granted under s 9 of the Act of 1887, or s 4 of the Act of 1891, above, as extended by s 2 of this Act, below. Where also weighing machines for weighing cattle, sheep or swine are provided as required by s 57(2) of the Food Act 1984, they are deemed to have been provided ‘for the purpose of complying with the provisions of the principal Acts’ referred to in this section. A weighing machine although provided, will not be so provided, however, where the Minister has exempted the market authority under s 57(2) of the Act of 1984. (3) ‘Cattle’ are defined in sub-s (3), above. (4) Maximum fine increased to £25 by the Criminal Law Act 1977, s 31(6); and by virtue of the Criminal Justice Act 1982, s 46, the reference to that amount is converted to a reference to level 1 of the standard scale set out in the Criminal Justice Act 1991, ss 17(1), 101(1), Sch 12, para 6. (5) This section does not therefore apply to all the cattle as defined in s 3 of the Act of 1887, above. (6) The Minister is the Secretary of State for Defra, see s 4, below.

2.  Extension of powers of Minister to grant exemption from provisions of principal Acts [ … ](1) [The power of the Minister under [section 9 of the Act of 1887](2) to exempt any market or fair from the requirements of that Act as to the provision and maintenance of facilities for weighing cattle, and](3) the power of the Minister under section four of the Act of 1891(4) to exempt an auctioneer from the requirements of that section in respect of the sale of cattle at a mart, may be exercised [respectively] (3) with respect to any market or fair and with respect to any auctioneer where the circumstances are in the opinion of the Minister such as to render the enforcement of those requirements inexpedient. (1) Words omitted were repealed by the Statute Law (Repeals) Act 1975, s 1(1), Schedule. (2) Words substituted by the Statute Law (Repeals) Act 1975, s 1(2).

284

Markets and Fairs (Weighing of Cattle) Act 1926 (3) Words in square brackets were repealed, so far as respects any local authority outside London which is a market authority for the purposes of the Food and Drugs Act 1938 by the Food and Drugs Act 1938, s 101(1), Sch. 4 Pt. I, and any London borough council which is a market authority for the purposes of Pt III of the Food and Drugs Act 1955 (repealed), by the London Government Act 1963, s 93(1), Sch 18, Pt II. (4) For s 4 of the Act of 1891, see above, p 281.

3.  Tolls for weighing cattle(1) The Act of 1887 shall have effect as if for the Schedule to that Act (which prescribes tolls which may be demanded in respect of the weighing of cattle) there were substituted the Schedule to this Act. (1) Now of limited effect; see note to s 2, above. See the Schedule, below. The Schedule to the Act of 1887 is repealed as to markets of local authorities outside London under the Food and Drugs Acts and so also are this section and the Schedule, below, see note (l) to s 2 of the Act of 1887, above, p 280.

4.  Interpretation, short title, commencement, citation and extent (1)  In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them respectively, that is to say:— ‘The Minister’ means as respects England and Wales, the Minister of Agriculture, Fisheries and Food(1), … ‘The Act of 1887’ means the Markets and Fairs (Weighing of Cattle) Act 1887. ‘The Act of 1891’ means the Markets and Fairs (Weighing of Cattle) Act 1891. ‘The principal Acts’ means the Markets and Fairs (Weighing of Cattle) Acts 1887 and 1891. (2) This Act may be cited as the Markets and Fairs (Weighing of Cattle) Act 1926, and shall come into operation on the first day of January, nineteen hundred and twenty-seven; and this Act and the principal Acts may be cited together as the Markets and Fairs (Weighing of Cattle) Acts 1887 to 1926. (3)  This Act shall not apply to Northern Ireland. (1) For the words ‘the Minister of Agriculture and Fisheries’ were substituted the words ‘the Minister of Agriculture, Fisheries and Food’ by the Transfer of Functions (Ministry of Food) Order 1955, SI 1955/554, now Defra. The words omitted relate to Scotland. For the Acts of 1887 and 1891, see above, pp 280, 281.

Schedule(1) For every head of cattle other than sheep or swine For every five or less number of sheep or swine

Not exceeding [2p] [1p](2)

(1) See note (1) to s 2, above. See note to s 3, above. (2) The sums of 21/2p and 11/2p were substituted by the Decimal Currency Act 1969, s 10(1) and were rounded down as a consequence of the abolition of the halfpenny by Royal proclamation of 3 December 1984.

285

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PUBLIC HEALTH ACT 1961 (9 & 10 Eliz 2, c 64) An Act to amend the provisions of the Public Health Act 1936 … to make such amendments of the law relating to public health and the functions of county councils and other local authorities as are commonly made in local Acts … [3rd August 1961]

Part VI Miscellaneous 75.  Byelaws as to pleasure fairs and roller skating rinks (1)  A local authority may make byelaws— (a) for regulating the hours during which pleasure fairs and roller skating rinks may be open to the public; (b) for securing safe and adequate means of ingress to, and egress from, any pleasure fair or roller skating rink; (c) for the prevention and suppression of nuisances, and the preservation of sanitary conditions, cleanliness, order and public safety, at any pleasure fair or roller skating rink; [(d) without prejudice to the generality of the preceding paragraph, for preventing outbreaks of fire which might endanger— (i) stands stalls or other structures used or intended for use in connection with any pleasure fair, or (ii) caravans used or intended for use as sleeping accommodation in connection with any pleasure fair, and for reducing the risk of, and the spread of fire from, such outbreaks](1) and it shall be the duty of the local authority to enforce byelaws made by them under this section. [(1A)  No byelaw may be made under this section which applies to a pleasure fair or rolling skating rink, insofar as the byelaw relates to any matter in relation to which requirements or prohibitions are or could be imposed by or under the Regulatory Reform (Fire Safety) Order 2005.](2) (2)  In this section— (a) ‘pleasure fair’ means any place— (i) which is for the time being used wholly or mainly for providing, whether or not in combination with any other entertainment, any entertainment to which this section applies and (ii) for admission to which, or for the use of the contrivances in which, a charge is made; (b) ‘roller skating rink’ means any place which is for the time being used wholly or mainly for roller skating and for admission to which a charge is made. (3)  Subject to the provisions of the next following subsection, the entertainments to which this section applies are the following— (a) circuses; (b) exhibitions of human beings or of performing animals; (c) merry-go-rounds, roundabouts, swings, switchback railways; (d) coconut shies, hoop-las, shooting galleries, bowling alleys; (e) dodgems and other mechanical riding or driving contrivances; (f) automatic or other machines intended for entertainment or amusement; (g) anything similar to any of the foregoing. (4)  [ … ](3) 286

Public Health Act 1961 (5)  Different byelaws may be made under this section for pleasure fairs and roller skating rinks and for different kinds of pleasure fairs. (6)  Section two hundred and eighty-seven of the Public Health Act 1936 (which relates to powers of entry), shall have effect as if this section were contained in that Act. (7)  Section thirty-eight of the Public Health Acts Amendment Act 1890 (under which byelaws may be made for the prevention of danger from roundabouts, swings and shooting galleries), shall cease to have effect, but any byelaws under that section in force at the commencement of this Act shall continue in force and may be revoked at any time as if they had been made under this section. (8)  The Secretary of State shall be the confirming authority as respects byelaws [made by a local authority in England](4) under this section, and the Secretary of State shall not confirm any byelaw under this section unless he is satisfied that all bodies which appear to him to be representative of the interests of those who carry on pleasure fairs and entertainments to which this section applies have been consulted on the matters dealt with by the byelaw [and, in the case of a byelaw made in pursuance of sub-section 1(d) of this section, that the [fire and rescue authority under the Fire and Rescue Services Act 2004](5) for the area to which the byelaw applies have been consulted.](1) [(8A)  Subsection (8) does not apply to byelaws of a class prescribed by regulations under section 236A(1) of the Local Government Act 1972.](6) [(9) A  local authority in Wales which proposes to make a byelaw under this section must consult the appropriate representative bodies on the matters dealt with by the proposed byelaw. (10)  For the purposes of subsection (9), ‘the appropriate representative bodies’ are those bodies which appear to the authority to be representative of the interests of those who carry on pleasure fairs and entertainments to which this section applies. (11)  A local authority in Wales making a byelaw in pursuance of subsection (1) (d) of this section must consult the relevant fire and rescue authority on the matters dealt with by the proposed byelaw. (12)  For the purposes of subsection (11) ‘the relevant fire and rescue authority’ is the fire and rescue authority under the Fire and Rescue Services Act 2004 for the area to which the byelaw applies.](4) (1) Paragraph and words inserted by the Local Government (Miscellaneous Provisions) Act 1976, s 22(1), (3). (2) Subsection inserted by SI 2005/1541, art 53(1), Sch 2, para 6. (3) Repealed with savings by the Local Government (Miscellaneous Provisions) Act 1976, ss 22(2, 81(2), Sch 2. (4) Words and subsections inserted by the Local Government Byelaws (Wales) Act 2012, s 22(2), Sch 2, para 6(1), (2). (5) Words substituted by the Fire and Rescue Services Act 2004, s 53(1), Sch 1, para 16. (6) Subsection inserted by the Byelaws (Alternative Procedure) (England) Regulations 2016, SI 2016/165, reg 1(1), Sch 2, para 4(1), (2). In sub-s (2)(a), the meaning of ‘notified pleasure fair’ is applied by the Local Government (Miscellaneous Provisions) Act 1982, ss 1 and 19(12), Sch 1, para 22.

287

Appendix 1  Statutes

LOCAL GOVERNMENT ACT 1972 (1972, c 70) An Act to make provision with respect to local government and the functions of local authorities in England and Wales; to amend Part II of the Transport Act 1968; to confer rights of appeal in respect of decisions relating to licences under the Home Counties (Music and Dancing) Licensing Act 1926; to make further provision with respect to magistrates’ courts committees; to abolish certain inferior courts of record; and for connected purposes. [26th October 1972]

Part VII Miscellaneous powers of local authorities Subsidiary powers 111.  Subsidiary powers of local authorities. (1)  Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions. (2) For the purposes of this section, transacting the business of a parish or community meeting or any other parish or community business shall be treated as a function of the parish or community council. (3)  A local authority shall not by virtue of this section raise money, whether by means of rates, precepts or borrowing, or lend money except in accordance with the enactments relating to those matters respectively. (4)  In this section ‘local authority’ includes the Common Council. [ *   *   *   *   * Land transactions – principal councils 123.  Disposal of land by principal councils. (1)  Subject to the following provisions of this section, [ and to those of the Playing Fields (Community Involvement in Disposal Decisions) (Wales) Measure 2010,](1) a principal council may dispose of land held by them in any manner they wish. (2)  Except with the consent of the Secretary of State, a council shall not dispose of land under this section, otherwise than by way of a short tenancy, for a consideration less than the best that can reasonably be obtained. [(2A) A  principal council may not dispose under subsection (1) above of any land consisting or forming part of an open space unless before disposing of the land they cause notice of their intention to do so, specifying the land in question, to be advertised in two consecutive weeks in a newspaper circulating in the area in which the land is situated, and consider any objections to the proposed disposal which may be made to them. [(2AA)  Subsection (2A) does not apply to a disposal to which the provisions of regulations made under section 1 of the Playing Fields (Community Involvement in Disposal Decisions) (Wales) Measure 2010 apply.](1) (2B) Where by virtue of subsection (2A) above [or in accordance with the provisions of regulations made under section 1 of the Playing Fields (Community 288

Local Government Act 1972 Involvement in Disposal Decisions) (Wales) Measure 2010](1) a council dispose of land which is held— (a) for the purposes of section 164 of the Public Health Act 1875 (pleasure grounds); or (b) in accordance with section 10 of the Open Spaces Act 1906 (duty of local authority to maintain open spaces and burial grounds), the land shall by virtue of the disposal be freed from any trust arising solely by virtue of its being land held in trust for enjoyment by the public in accordance with the said section 164 or, as the case may be, the said section 10.](2) (3)  [ … ](3) (4)  [ … ](3) (5)  [ … ](3) (6)  [ … ](4) (7)  For the purposes of this section a disposal of land is a disposal by way of a short tenancy if it consists— (a) of the grant of a term not exceeding seven years, or (b) of the assignment of a term which at the date of the assignment has not more than seven years to run, and in this section ‘public trust land’ has the meaning assigned to it by section 122(6) above. (1) Words and subsection inserted by the Playing Fields (Community Involvement in Disposal Decisions) (Wales) Measure 2010, s 2(1), (2). (2) Subsections inserted by the Local Government, Planning and Land Act 1980, s 118, Sch 23, Pt V, para 14. (3) Subsections repealed by the Local Government, Planning and Land Act 1980 (c. 65), s 194, Sch 34, Pt XIII. (4) Subsections repealed (with savings in SI 1990/431, Sch 1, para 1(a)) by the Local Government and Housing Act 1989, s 194(2), Sch 12, Pt I.

*   *   *   *   *   *

Part XII Miscellaneous and General *   *   *   *   *   * General *   *   *   *   *   * 262.  Local Acts and instruments. (1) Subject to subsection (2) below, any local statutory provision to which this section applies and which is not continued in force by any other provision of this Act shall— (a) notwithstanding the changes of administrative areas and local authorities effected by or under this Act and, in the case of an instrument made under any enactment, notwithstanding the repeal of that enactment, continue to apply on and after 1st April 1974 to, but only to, the area, things or persons to which or to whom it applies before that date; (b) have effect subject to any necessary modifications and to the modifications made by subsections (3) to (5) below; but the continuation by this subsection of an instrument made under any enactment shall not be construed as prejudicing any power to vary or revoke the instrument which is exercisable apart from this subsection. 289

Appendix 1  Statutes (2)  Subsection (1) above shall have effect subject to the provisions of— (a) this Act, other than Part I of Schedule 29; (b) any Act passed after this Act and before 1st April 1974; and (c) any order made under section 254 above or the following provisions of this section. (3)  Any local statutory provision to which this section applies and which relates to functions exercisable by a local authority of any description by virtue of any public general enactment shall have effect as if for any reference to the authority by whom the functions are exercised immediately before 1st April 1974 or to their area there were substituted a reference to the authority by whom those functions are exercisable on and after that date or, as the case may be, to so much of the area of the latter authority as comprises the area of the former authority or any part thereof. (4)  In any local statutory provision to which this section applies and which does not fall within subsection (3) above— (a) for any reference to an existing county or its council there shall be substituted a reference to so much of the new county or counties as comprises the area of the existing county or any part thereof or, as the case may be, the council of that new county or the councils of those new counties; (b) for any reference to an existing county borough or county district or the council of either there shall be substituted a reference to so much of the new district or districts as comprises the area of the existing borough or district or any part thereof or, as the case may be, the council of that new district or the councils of those new districts. (5)  In any local statutory provision to which this section applies which has effect in an area in Wales and which does not fall within subsection (3) above— (a) for any reference to a rural parish there shall be substituted a reference to the corresponding community; (b) for any reference to the council of any such parish which has a council, whether separate or common, there shall be substituted a reference to the council of the corresponding community; and (c) for any reference to the parish meeting of any such parish which has no council there shall be substituted a reference to the council of the new district which comprises the corresponding community. (6)  Subsections (3) to (5) above shall have effect subject to any provision to the contrary made by, or by any instrument made under, this Act and, without prejudice to the foregoing, the Secretary of State may by order provide for the exercise of functions conferred by any local statutory provision to which this section applies and exclude the operation of any of those subsections where it would otherwise conflict with any provision of the order. (7)  So much of any local statutory provision— (a) as confers functions on the Secretary of State with respect to the determination of tolls or other charges with respect to any fair, or (b) as requires the submission to the Secretary of State of, or of proposals relating to, any scale of tolls or other charges with respect to any fair, shall cease to have effect. (8) Where any local statutory provision is continued in force in any area by subsection (1) above or is amended or modified in its application to any area by an order under section 254 above, the Secretary of State or any appropriate Minister may by that order, or in the case of a provision continued as aforesaid, by an order under this subsection— (a) extend the provision throughout the new local government area in which it is continued in force; 290

Local Government Act 1972 (b) provide that that provision as so continued, amended, modified or extended shall have effect in that area to the exclusion of any enactment for corresponding purposes, including any enactment contained in or applied by this Act; (c) make such modifications of any such enactment in its application to that area as will secure that the enactment will operate harmoniously with the said provision in that area; (d) repeal or revoke any local statutory provision to which this section applies and which appears to the Secretary of State or that Minister to have become spent, obsolete or unnecessary or to have been substantially superseded by any enactment or instrument which applies or may be applied to the area, persons or things to which or to whom that provision applies; (e) transfer to any authority appearing to the Secretary of State or that Minister to be appropriate any functions of an existing local authority under a local statutory provision to which this section applies which are not to become functions of some other authority under any provision of this Act except section 254 above and this section, or under any other instrument made under this Act, being functions exercisable by any existing local authority abolished by this Act; (f) without prejudice to paragraph (e) above, make such modifications of any local statutory provision to which this section applies in its application to any new local government area as appear to the Secretary of State or that Minister to be expedient. (9)  All local statutory provisions to which this subsection applies shall cease to have effect in metropolitan counties at the end of 1979 and elsewhere at the end of 1984, but— (a) the Secretary of State or any appropriate Minister may by order exempt any such provision from the foregoing provision of this subsection; (b) the Secretary of State may from time to time by order postpone the date on which all the local statutory provisions applying to the whole or part of any local government area, so far as they so apply, are to cease to have effect under this subsection. (10)  An order under subsection (8) above which extends the area for which any local statutory provision is in force shall be provisional only. (11)  An instrument containing any other order under subsection (8) above or an order under subsection (9) above shall be subject to annulment in pursuance of a resolution of either House of Parliament. (12)  This section applies to any local statutory provision which is in force wholly outside Greater London (except in the Isles of Scilly) and so much of any local statutory provision which is in force partly in Greater London as is in force outside Greater London, being in either case a provision in force immediately before 1st April 1974 and not expressly repealed or revoked by this Act, and subsection (9) above applies to any such local statutory provision of the following descriptions— (a) a provision of a local Act, the Bill for which was promoted by a local authority; (b) a provision of an Act confirming a provisional order made on the application of a local authority; (c) a provision of an order made on such an application which was subject to special parliamentary procedure; not being— (i) a provision by virtue of which functions are exercisable by a joint board continued in existence by virtue of section 263 below, (ii) a provision relating to a statutory undertaking, 291

Appendix 1  Statutes (iii) a provision relating to any person’s status, or the right of any person to be admitted, as a freeman of any place or the rights of any person by virtue of any relationship or association with such a freeman, (iv) a protective provision for the benefit of any person, or (v) a provision contained in the Green Belt (London and Home Counties) Act 1938. (13)  In subsection (12) above ‘local authority’ means — (a) the council of an administrative county, urban district or rural district; (b) the municipal corporation of a borough acting by the council of that borough; (c) any commissioners, trustees or other persons invested by any local Act with powers of town government or rating; (d) any local board constituted in pursuance of the Public Health Act 1848, the Local Government Act 1858, the Local Government (1858) Amendment Act 1861 or the Local Government Amendment Act 1863; or (e) without prejudice to the foregoing any body of persons constituted or designated as an urban or rural sanitary authority under the Public Health Act 1875; and ‘statutory undertaking’ means any railway, light railway, tramway, road transport, water transport, canal, inland navigation, ferry, dock, harbour, pier or lighthouse undertaking, any telephone undertaking, any market undertaking or any undertaking for the supply of electricity, gas, hydraulic power, [ … ](1) or district heating. (1) Word repealed by the Water Act 1973, s 40(3), Sch 9.

*   *   *   *   *   * 270.  General provisions as to interpretation. (1) In this Act, except where the context otherwise requires, the following expressions have the following meanings respectively, that is to say— [[ … ](1)](2) ‘appropriate Minister’, in relation to the making of an order or regulation or the giving of a direction with respect to any matter, meansthe Minister in charge of any Government department concerned with that matter; but the validity of any order, regulation or direction purporting to be made or given by any Minister by virtue of a power conferred on the appropriate Minister by this Act shall not be affected by any question as to whether or not that Minister was the appropriate Minister for the purpose; ‘bank holiday break’ means any bank holiday not included in the Christmas break or the Easter break and the period beginning with the last week day before that bank holiday and ending with the next week day which is not a bank holiday; [’the Broads’ has the same meaning as in the Norfolk and Suffolk Broads Act 1988;](3) ‘Christmas break’ means the period beginning with the last week day before Christmas Day and ending with the first week day after Christmas Day which is not a bank holiday; ‘the City’ means the City of London; [ … ](4) [‘combined authority’ means a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009;](5) 292

Local Government Act 1972 ‘the Commissions’ means both those Commissions; ‘Common Council’ means the Common Council of the City; ‘county’, without more, means, in relation to England, a metropolitan county or a non-metropolitan county[, but in the expressions ‘county council’, ‘council of a county’, ‘county councillor’ and ‘councillor of a county’ means, in relation to England, a non-metropolitan county only;](6) ‘district’, without more, means, in relation to England, a metropolitan district or a non-metropolitan district; ‘Easter break’ means the period beginning with the Thursday before and ending with the Tuesday after Easter Day; [‘economic prosperity board’ means an economic prosperity board established under section 88 of the Local Democracy, Economic Development and Construction Act 2009; ;](5) [‘elected mayor’ has[— (a) in relation to England, the same meaning as in Part 1A of the Local Government Act 2000, and (b) in relation to Wales, the same meaning as in Part II of the Local Government Act 2000](7);](8) ‘electoral area’ means any area for which councillors are elected to any local authority; [ … ](4) [‘executive’, ‘executive arrangements’ and ‘executive leader’ have[— (a) in relation to England, the same meaning as in Part 1A of the Local Government Act 2000, and (b) in relation to Wales, the same meaning as in Part II of the Local Government Act 2000](7);](8) ‘existing’, in relation to a local government or other area or a local authority or other body, except in sections 1 and 20 above, means that area or body as it existed immediately before the passing of this Act; ‘financial year’ means the period of twelve months ending with 31st March in any year; ‘grouped’, in relation to a parish or community, means grouped by or by virtue of any provision of this Act or any previous corresponding enactment under a common parish or community council, and ‘grouping order’ shall be construed accordingly; [’joint authority’ means an authority established by Part IV of the Local Government Act 1985;](9) [ … ](10) ‘land’ includes any interest in land and any easement or right in, to or over land; [[‘leader and cabinet executive’ means— (a) in relation to England: a leader and cabinet executive (England); (b) in relation to Wales: a leader and cabinet executive (Wales);](11)](8) [‘leader and cabinet executive (England)’ has the same meaning as in [Part 1A](12) of the Local Government Act 2000; ‘leader and cabinet executive (Wales)’ has the same meaning as in Part 2 of the Local Government Act 2000;](13) ‘local authority’ means a county council, [ … ](14), a district council, a London borough council or a parish [council but, in relation to Wales, means a county council, county borough council or community council;](15); ‘local government area’ means — (a) in relation to England, a county, Greater London, a district, a London borough or a parish; (b) [in relation to Wales, a county, county borough or community;](15) 293

Appendix 1  Statutes ‘local government elector’ means a person registered as a local government elector in the register of electors in accordance with the provisions of the Representation of the People Acts; ‘local statutory provision’ means a provision of a local Act (including an Act confirming a provisional order) or a provision of a public general Act passed with respect only to the whole or part of an existing local government area or a provision of an instrument made under any such local or public general Act or of an instrument in the nature of a local enactment made under any other Act; [‘mayor and cabinet executive’ and ‘mayor and council manager executive’ [has— (a) in relation to England, the same meaning as in Part 1A of the Local Government Act 2000, and (b) in relation to Wales, the same meaning as in Part II of the Local Government Act 2000](12);](8) ‘new’, in relation to any area or authority, means an area or authority established by or under this Act [including one established by virtue of any provision of the Local Government (Wales) Act 1994](16); ‘1933 Act’ means the Local Government Act 1933; ‘1963 Act’ means the London Government Act 1963; [‘open space’ has the meaning assigned to it by [section 336(1) of the Town and Country Planning Act 1990](17);](18) ‘prescribed’ means prescribed by regulations made by the Secretary of State; [‘preserved county’ means any county created by this Act as a county in Wales, as it stood immediately before the passing of the Local Government (Wales) Act 1994 but subject to any provision of the Act of 1994, or any provision made under this Act, redrawing its boundaries;](19) ‘principal area’ means a [non-metropolitan county](20), a district or a London borough [but, in relation to Wales, means a county or county borough](19); ‘principal council’ means a council elected for a principal area; ‘public body’ includes— (a) a local authority and a joint board on which, and a joint committee on which, a local authority or parish meeting are represented; (b) any trustees, commissioners or other persons who, for public purposes and not for their own profit, act under any enactment or instrument for the improvement of any place, for the supply of water to any place, or for providing or maintaining a cemetery or market in any place; and (c) any other authority having powers of levying or issuing a precept for any rate for public purposes; and ‘district’ means, in relation to a public body other than a local authority, the area for which the public body acts; [ … ](21) ‘specified papers’, in relation to a parish or community, means the public books, writings and papers of the parish or community (including any photographic copies thereof) and all documents directed by law to be kept therewith; [‘sub-national transport body’ means a sub-national transport body established under section 102E of the Local Transport Act 2008;](22) ‘the Temples’ means the Inner Temple and the Middle Temple; ‘Welsh Commission’ has the meaning assigned to it by section 53 above. (2)  In this Act and in any other enactment, whether passed before, at the same time as, or after this Act, the expression ‘non-metropolitan county’ means any county other than a metropolitan county, and the expression ‘non-metropolitan district’ means any district other than a metropolitan district. 294

Local Government Act 1972 (3)  Any reference in this Act to a proper officer and any reference which by virtue of this Act is to be construed as such a reference shall, in relation to any purpose and any local authority or other body or any area, be construed as a reference to an officer appointed for that purpose by that body or for that area, as the case may be. (4) In any provision of this Act which applies to a London borough, except Schedule 2 to this Act,— (a) any reference to the chairman of the council or of any class of councils comprising the council or to a member of a local authority shall be construed as or, as the case may be, as including a reference to the may or of the borough; (b) any reference to the vice-chairman of the council or any such class of councils shall be construed as a reference to the deputy mayor of the borough; and (c) any reference to the proper officer of the council or any such class of councils shall be construed as a reference to the proper officer of the borough. [(4A) Where a London borough council are operating executive arrangements which involve a mayor and cabinet executive [ … ](23), subsection (4) above shall have effect with the omission of paragraphs (a) and (b).](8) (5)  In this Act, except where the context otherwise requires, references to any enactment shall be construed as references to that enactment as amended, extended or applied by or under any other enactment, including any enactment contained in this Act. (1) Definition repealed by the Local Government (Wales) Measure 2011, s 176(2), Sch 4, Pt B. (2) Definition inserted by the Local Authorities (Executive and Alternative Arrangements) (Modification of Enactments and Other Provisions) (Wales) Order 2002, SI 2002/808, art 9. (3) Definition inserted by the Norfolk and Suffolk Broads Act 1988, s 21, Sch 6, para 10(9). (4) Definition repealed by the Local Government Act 1992, s 29(2), Sch 4, Pt II. (5) Definitions inserted by the Local Democracy, Economic Development and Construction Act 2009, s 119, Sch 6, para 38. (6) Words inserted by the Local Government Act 1985, s 102(1), Sch 16, para 8(a). (7) Words inserted by the Localism Act 2011, s 22, Sch 3, paras 1, 6(1)–(3). (8) Definitions and subsection inserted by the Local Government Act 2000, s 46, Sch 3, para 12. (9) Definition inserted by the Local Government Act 1985, s 84(1), Sch 14, para 34. (10) Definition repealed by the Deregulation Act 2015, s 59, Sch 13, para 6(7)(v). (11) Definition substituted by the Local Government and Public Involvement in Health Act 2007, s 74(1), Sch 3, para 10(1), (2). (12) Words substituted by the Localism Act 2011, s 22, Sch 3, paras 1, 6(1), (4) (5). (13) Definitions inserted by the Local Government and Public Involvement in Health Act 2007, s 74(1), Sch 3, para 10(1), (3). (14) Words repealed by the Local Government Act 1985, s 102(2), Sch 17. (15) Words substituted by the Local Government (Wales) Act 1994, s 1(4)–(6). (16) Words inserted by the Local Government (Wales) Act 1994, s 66(5), Sch 15, para 57. (17) Words substituted by the Planning (Consequential Provisions) Act 1990, s 4, Sch 2, para 28(3). (18) Definition inserted by the Local Government, Planning and Land Act 1980, s 118, Sch 23, para 20. (19) Definition and words inserted by the Local Government (Wales) Act 1994, s 1(4), (7), (8). (20) Words substituted by the Local Government Act 1985, s 102(1), Sch 16, para 8(b) (21) Definition repealed by the Statute Law (Repeals) Act 2004, s 1(1), Sch 1, Pt 10, Group 1. (22) Definition inserted by the Cities and Local Government Devolution Act 2016, s 23(1), Sch 5, paras 1, 5. (23) Words omitted were repealed by the Local Government and Public Involvement in Health Act 2007, s 74(1), Sch 3, para 10(1), (4).

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Appendix 1  Statutes

LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1976 (1976, c 57) An Act to make amendments for England and Wales of provisions of the law which relates to local authorities or highways and is commonly amended by local Acts; to alter certain supplemental provisions of the enactments relating to public health; to provide for certain powers of local authorities to execute works to be exercisable outside their areas; to provide for certain future local enactments and orders to have effect subject to certain other enactments; to amend section 126 of the Housing Act 1974; and for purposes connected with the matters aforesaid [15th November 1976]

Part I General Miscellaneous 36.  Power of local authorities to appoint times and charges for markets (1)  Any provision of a local Act which confers power on a local authority to make byelaws appointing days on which or the hours during which markets or fairs are to be or may be held shall be construed as conferring on the authority a power to appoint such days or hours by resolution. (2) A  local authority which maintains a market in pursuance of a local Act(1) may, notwithstanding anything in any enactment relating to the market, make in connection with the market such charges as the authority determines from time to time. (1) See the City of London (Spitalfields Market) Act 1990 (c ix), s 7(1) which applies s 36 to that Act.

*   *   *   *   *   * Supplemental 44.  Interpretation etc of Part I (1)  In this Part of this Act, except where the contrary intention appears— *   *   *   *   *   * ‘the Common Council’ means the Common Council of the City of London; *   *   *   *   *   * ‘local Act’ includes a provisional order confirmed by an Act; [‘local authority’ means a county council [… ](1) a district council, a London borough council, the Common Council and the Council of the Isles of Scilly and *   *   *   *   *   * (b) in sections 1, 16, 19, 30, 36, 39 and 41 of this Act, a parish council and a community council;](2) [ *   *   *   *   * (1) Repealed by the Local Government Act 1985, s 102, Sch 17. (2) Substituted by the Local Government Act 1985, s 84, Sch 14, para 53(b).

296

Local Government (Miscellaneous Provisions) Act 1976

Part III Supplemental 83.  Short title, commencement and extent (1) This Act may be cited as the Local Government (Miscellaneous Provisions) Act 1976. (2) [Commencement]. (3)  This Act does not extend to Scotland and Northern Ireland.

297

Appendix 1  Statutes

HIGHWAYS ACT 1980 (1980, c 66) An Act to consolidate the Highways Acts 1959 to 1971 and related enactments, with amendments to give effect to recommendations of the Law Commission [13th November 1980] *   *   *   *   *   *

Part IX Lawful and Unlawful Interference with Highways and Streets *   *   *   *   *   * Obstruction of highways and streets 137.  Penalty for wilful obstruction (1)  If a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway he is guilty of an offence and liable to a fine not exceeding [level 3 on the standard scale](1). (2)  [ … ](2) (1) By the Criminal Justice Act 1982, s  46, a reference to the level on the standard scale is substituted for the amount of the fine. (2) Repealed by the Police and Criminal Evidence Act 1984, s 119, Sch 7.

[137ZA  Power to order offender to remove obstruction (1)  Where a person is convicted of an offence under section 137 above in respect of the obstruction of a highway and it appears to the court that(a) the obstruction is continuing, and (b) it is in that person’s power to remove the cause of the obstruction, the court may, in addition to or instead of imposing any punishment, order him to take, within such reasonable period as may be fixed by the order, such steps as may be specified in the order for removing the cause of the obstruction. (2)  The time fixed by an order under subsection (1) above may be extended or further extended by order of the court on an application made before the end of the time as originally fixed or as extended under this subsection, as the case may be. (3)  If a person fails without reasonable excuse to comply with an order under subsection (1) above, he is guilty of an offence and liable to a fine not exceeding level 5 on the standard scale; and if the offence is continued after conviction he is guilty of a further offence and liable to a fine not exceeding [one-twentieth of the greater of £5,000 or level 4 on the standard scale](1) for each day on which the offence is so continued. (4)  Where, after a person is convicted of an offence under subsection (3) above, the highway authority for the highway concerned exercise any power to remove the cause of the obstruction, they may recover from that person the amount of any expenses reasonably incurred by them in, or in connection with, doing so. (5)  A person against whom an order is made under subsection (1) above is not liable under section 137 above in respect of the obstruction concerned(a) during the period fixed under that subsection or any extension under subsection (2) above, or (b) during any period fixed under section 311(1) below by a court before whom he  is convicted of an offence under subsection (3) above in respect of the order.](2) This section does not extend to Scotland: see s 345(3).

298

Highways Act 1980 (1) Words substituted by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015, SI 2015/664, reg 3(1), Sch 3, para 1. (2) Section nserted by the Countryside and Rights of Way Act 2000, s 64(1).

148.  Penalty for depositing things or pitching booths etc on highway If, without lawful authority or excuse— (a) a person deposits on a made-up carriageway any dung, compost or other material for dressing land, or any rubbish, or (b) a person deposits on any highway that consists of or comprises a made-up carriageway any dung, compost or other material for dressing land, or any rubbish, within 15 feet from the centre of that carriageway, or (c) a person deposits any thing whatsoever on a highway to the interruption of any user of the highway, or (d) a hawker or other itinerant trader pitches a booth, stall or stand, or encamps, on a highway, he is guilty of an offence and liable to a fine not exceeding [level 3 on the standard scale](1). (1) Fine: see note (1) to s 137.

149.  Removal of things so deposited on highway as to be a nuisance etc (1)  If any thing is so deposited 1) on a highway as to constitute a nuisance, the highway authority for the highway may by notice require the person who deposited it there to remove it forthwith and if he fails to comply with the notice the authority may make a complaint to a magistrates’ court for a removal and disposal order under this section. (2) If the highway authority for any highway have reasonable grounds for considering— (a) that any thing unlawfully deposited on the highway constitutes a danger (including a danger caused by obstructing the view) to users of the highway, and (b) that the thing in question ought to be removed without the delay involved in giving notice or obtaining a removal and disposal order from a magistrates’ court under this section, the authority may remove the thing forthwith. (3)  The highway authority by whom a thing is removed in pursuance of subsection (3) above may either— (a) recover from the person by whom it was deposited on the highway, or from any person claiming to be entitled to it, any expenses reasonably incurred by the authority in removing it, or (b) make a complaint to a magistrates’ court for a disposal order under this section. (4)  A magistrates’ court may, on a complaint made under this section, make an order authorising the complainant authority— (a) either to remove the thing in question and dispose of it or, as the case may be, to dispose of the thing in question, and (b) after payment out of any proceeds arising from the disposal of the expenses incurred in the removal and disposal, to apply the balance, if any, of the proceeds to the maintenance of highways maintainable at the public expense by them. (5)  If the thing in question is not of sufficient value to defray the expenses of removing it, the complainant authority may recover from the person who deposited it on the highway the expenses, or the balance of the expenses, reasonably incurred by them in removing it. 299

Appendix 1  Statutes (6)  A magistrates’ court composed of a single justice may hear a complaint under this section. For the meaning of ‘deposited’ see Scott v Westminster City Council (1995) 93 LGR 370.

*   *   *   *   *   *

Part XIV Miscellaneous and Supplementary Provisions Prosecutions, appeals, etc 310.  Summary proceedings for offences All offences under this Act or under byelaws made under it are, except as provided by sections 292(4) and 297(3) above, punishable on summary conviction. *   *   *   *   *   * Interpretation 328.  Meaning of ‘highway’ (1)  In this Act, except where the context otherwise requires, ‘highway’ means the whole or a part of a highway other than a ferry or waterway. (2) Where a highway passes over a bridge or through a tunnel, that bridge or tunnel is to be taken for the purposes of this Act to be a part of the highway. (3) In this Act, ‘highway maintainable at the public expense’ and any other expression defined by reference to a highway is to be construed in accordance with the foregoing provisions of this section.

300

Animal Health Act 1981

ANIMAL HEALTH ACT 1981 (1981, c 22) An Act to consolidate the Diseases of Animals Act 1935, the Diseases of Animals Act 1950, the Ponies Act 1969, the Rabies Act 1974, the Diseases of Animals Act 1975, and certain related enactments [11th June 1981]

Part I General General powers of Ministers to make orders and to authorise regulations 1.  General powers of Ministers to make orders The Ministers(1) may make such orders(2) as they think fit(3)— (a) generally for the better execution of this Act, or for the purpose of in any manner preventing the spreading of disease; and (b) in particular for the several purposes set out in this Act, and for prescribing and regulating the payment and recovery of expenses in respect of animals(4). (1) For definition of ‘The Ministers’, see s 86(l)(c), below. (2) See p 311, below. (3) The Courts may, nevertheless, exercise their inherent jurisdiction in appropriate cases to determine whether such powers have been exceeded. (4) For definition of ‘animals’, see s 87(1)–(3), below.

2.  Local authority regulations The Ministers(1) may make such orders(2) as they think fit(3) for authorising a local authority(4) to make regulations(5) for any of the purposes— (a) of this Act, or (b) of an order of the Minister(6) subject to such conditions, if any, as the Ministers for the purpose of securing uniformity and the due execution of this Act, think fit to prescribe. (1) For definition of ‘The Ministers’, see s 86(1)(c), below. (2) For orders which, by virtue of the Interpretation Act 1978, s 17(2)(b), have effect as if made under this section, see p 311 below. (3) See note (3) to s 1, above. (4) For definition of ‘local authority’, see s 50, below. (5) See ss 51 and 58, below. As to procedure, see the Animals (Miscellaneous Provisions) Order of 1927 SR & O 1927 No 290, arts 5(2) and 8 (as amended by SI 1976 No 919). (6) For definition of ‘order of the Minister’, see s 89(1), below.

Cleansing and movement 7.  Cleansing and disinfection (1)  The Ministers may make such orders1) as they think fit(2)— (a) for prescribing and regulating the cleansing and disinfection(3) of places used for the holding of markets, fairs, exhibitions, or sales of animals, or for lairage of animals, and yards, sheds, stables, and other places used for animals; (1) See p 311, below. (2) See note (3) to s 1 above. (3) An owner is bound to give facilities for disinfection but in the absence of knowledge is not liable for his foreman’s disobedience of an order: Searle v Reynolds (1866) 7 B & S 704.

301

Appendix 1  Statutes 8.  Movement generally (1)  The Ministers(1) may make such orders(2) as they think fit(3)— (e) for prohibiting or regulating the holding of markets, fairs, exhibitions and sales of animals(4). (1) (2) (3) (4)

For definition of ‘The Ministers’, see s 86(1)(c), below. See p 311, below. See note (3) to s 1 above. For definition of ‘animals’, see s 87(1)–(3), below.

Part II Disease Infection 25.  Movement of diseased or suspected animals The Ministers(1) may make such orders(2) as they think fit(3) for all or any of the following purposes— (a) for prohibiting or regulating the exposure of diseased or suspected animals(4) in markets or fairs or sale-yards, or other public or private places, where animals are commonly exposed for sale(5), and their placing in lairs or other places adjacent to or connected with markets or fairs, or where animals are commonly placed before exposure for sale; *   *   *   *   *   * ( ) (2) (3) (4) (5) 1

For definition of ‘The Ministers’, see s 86(l)(c), below. See p 311, below. See note (3) to s 1, above. For definition of ‘animals’, see s 87(1)–(3), below. On ‘exposure for sale’ see, for example, Crane v Lawrence (1890) 25  QBD  152; Ollett v Jordan [1918] 2 KB 41; Newman v Lipman [1951] 1 KB 333.

26.  Pleuro-pneumonia or foot-and-mouth disease found in transit (1)  The Minister(1) shall by orders(2) make such provision as he thinks necessary or expedient(3) respecting the case of animals(4) found to be affected with pleuro­ pneumonia or foot-and-mouth disease— (a) while exposed for sale or exhibited in a market, fair, sale-yard, place of exhibition, or other place; or (b) while placed in a lair or other place before exposure for sale; or (c) while in transit or in course of being moved by land, water or air; or (d) while being in a slaughter-house or place where animals are slaughtered or are kept with a view to slaughter; or (e) while being on common or unenclosed land; or (f) generally, while being in a place not in the possession or occupation or under the control of the owner of the animals. (2)  The Minister shall by orders under this section make such provision as he thinks fit for the consequences under this Act of animals being so found in the circumstances mentioned above— (a) as well with regard to the animals as with regard to the places where they are when so found, and other places; and (b) with regard to animals being or having been in the same shed or stable, herd or flock as, or in contact with, animals so found. 302

Animal Health Act 1981 (3)  The Minister may, by orders under this section relating to particular places, make such provision as he thinks fit for the consequences mentioned above. (4)  Every order under this section shall have full effect notwithstanding— (a) any provision of this Act requiring the declaration of a place infected with pleuro-pneumonia or foot-and-mouth disease, or relating to any consequence of such a declaration, or to any matter connected with such a declaration; and (b) any other provision whatsoever of this Act (1) For definition of ‘The Minister’, see s 86(l)(a), below. (2) For orders which, by virtue of the Interpretation Act 1978, s 17(2)(b), have effect as if made under this section, see p 311, below. (3) See note (3) to s 1, above. (4) For definition of ‘animals’, see s 87(1)–(3), below.

*   *   *   *   *   *

Part III Welfare and Export Care 37. Prevention of suffering(1) (1)  The Ministers(2) may make such orders(3) as they think fit(4) for the purpose of protecting animals from unnecessary suffering— (a) while exposed for sale(5); or (b) while awaiting removal after being exposed for sale. (1) To be repealed in relation to England and Wales by the Animal Welfare Act 2006, s 65, Sch 4 on a date to be appointed, s 68(3). (2) For definition of ‘The Ministers’, see s 86(l)(c), below. (3) See p 311, below. (4) See note (3) to s 1, above. (5) On ‘exposure for sale’, see note (5) to s 25, above.

*   *   *   *   *   *

Part IV Local authorities 50.  Local authorities for purposes of this Act (1)  In this Act ‘local authority’ has the meaning given by subsections (2) and (3) below but subject to subsection (4) below, [and to section 13(3) above](1). (2)  In the application of this Act to England and Wales ‘local authority’ means(2)— (a) as respects a London borough, the borough council, [(b) as respects a non-metropolitan county, the county council(3), [(bb)  as respects a county borough, the county borough council]](4) (c) as respects a metropolitan district, the district council](3) and the Common Council of the City of London shall be the local authority— (i) for the City of London, and (ii) in and for the whole of Greater London for the purpose of the provisions of this Act relating to imported animals. (3) (Applies to Scotland) 303

Appendix 1  Statutes (4)  Where the district(5) or part of a district of a local authority is or comprises, or is comprised in— (a) a port or part of a port, or (b) an aerodrome or part of an aerodrome, the appropriate Minister(6) may, if he thinks fit, in relation to either paragraph (a) or paragraph (b) above by order(7) make any body, other than the local authority under subsection (2) or subsection (3) above, the local authority for the purposes of the provisions of this Act relating to imported animals. (5)  A local authority shall execute and enforce(8) this Act and every order of the Minister so far as they are to be executed and enforced by local authorities(9). (1) Inserted by the Environmental Protection Act 1990, s 151(2). (2) See, however, sub-s (4) above as to the local authority where the district or part of a district of a local authority includes a port or part of a port; or an aerodrome or part of an aerodrome. (3) The original sub-s (2)(b) substituted by sub-s (2)(b), (c), by the Local Government Act 1985, s 16, Sch 8, para 18. (4) Added by the Local Government (Wales) Act 1994, s 66(6), Sch 16, para 61. (5) That is, the area for which the local authority exercises power under this Act: ibid, s 89(1). (6) For definition of ‘the appropriate Minister’, see s 86(1)(b), below. (7) Orders made under this section, or which by virtue of the Interpretation Act 1978, s 17(2)(b) have effect as if made under this section, are local in nature. (8) As to default powers of the Minister, see s 59, below. (9) The powers of a local authority are limited to its district: see s 51, below. As to default powers of the Minister, see s 59, below.

51.  Local authorities and their districts (1)  The provisions of this Act conferring powers on, or otherwise relating to, a local authority(1), or their inspectors(2) or officers shall, unless otherwise expressed, be read as having reference to the district(3) of the local authority. (2)  The powers so conferred shall, unless it is otherwise expressed, be exercisable and shall operate within and in relation to that district only. (1) For definition of ‘local authority’, see s  50, above and for powers of a local authority see ss 52–59, below. (2) For definition of ‘inspector’, see s 89(1), below. (3) The district of a local authority means the area for which the local authority exercises powers under this Act: see s 89(1), below. For definition of ‘local authority’, see s 50, above.

52.  Inspectors and other officers (1)  Every local authority(1) shall appoint as many inspectors(2) and other officers as the local authority think necessary for the execution and enforcement of this Act. (2) Every local authority shall assign to those inspectors and officers such duties, and salaries or allowances, and may delegate to any of them such authorities and discretion, as to the local authority seem fit, and may at any time revoke any appointment so made. (1) For definition of ‘local authority’, see s 50, above. (2) For definition of ‘inspector’, see s  89(1), below. It is usual to appoint the chief officers of police as inspectors for their districts. As to the duties of the inspectors to make returns, see s 81, below.

53.  Borrowing powers (1)  A local authority(1) may borrow for the purposes of this Act. (2)  (Applies to Scotland.) (1) For definition of ‘local authority’, see s 50, above.

304

Animal Health Act 1981 54.  Provision of wharves etc (1)  A local authority(1) may provide, erect and fit up wharves, stations, lairs, sheds and other places for the landing, reception, keeping, sale, slaughter or disposal of imported(2) or other animals, carcases, fodder, litter(2), dung and other things. (2)  There shall be incorporated with this Act the Markets and Fairs Clauses Act 1847, except sections 6 to 9, and 52 to 59(3). (3)  A wharf or other place provided by a local authority under this section shall be a market within that Act(4), and this Act shall be the special Act(5), and (a) the prescribed limits shall be the limits of lands acquired or appropriated for the purposes of this section(6), (b) byelaws shall be approved by the appropriate Minister(7), which approval shall be sufficient without any other approval or allowance where— (i) notice of application for approval has been given, and (ii) the proposed byelaws have been published before application, as required by that Act of 1847(8). (4)  A local authority may charge for the use of a wharf or other place provided by them under this section such sums as may be imposed by byelaws, and those sums shall be deemed tolls authorised by the special Act(9). (5)  All sums so received by a local authority in England and Wales— (a) shall be carried to a separate account(10); and (b) shall be applied in payment of interest and repayment of principal in respect of money borrowed by them under this Act(11), and (c) subject to paragraph (b), shall be applied towards the discharge of their expenses under this Act (6) The local authority shall make such periodical returns to the appropriate Minister as he may require of their expenditure and receipts in respect of the wharf or other place(12). (1) For definition of ‘local authority’, see s 50, above. (2) For definition of ‘animals’, see s 87(1), below, and for definitions of ‘imported’, ‘carcase’, ‘fodder’ and ‘litter’ see s  89(1), below. By virtue of s  87(4), this section also applies to poultry. (3) For the Markets and Fairs Clauses Act 1847 (part) see pp 255 et seq, above. The excluded sections 6–9 relate to the acquisition of land, and ss 51–60 relate to the recovery of damages and penalties. The acquisition of land under this Act is otherwise provided for by s 55, below, and enforcement, offences and proceedings by Part V, below. (4) As to a market within the 1847 Act see ibid, s 3 and p 22, above. (5) As to the special Act under the 1847 Act see ibid, s 2, p 256, above and p 22, above. (6) As to the prescribed limits under the 1847 Act, see note (3) to ibid, s 12. As to the power to acquire land, see s 55, below. (7) For definition of ‘the appropriate Minister’, see s 86(1)(b), below. (8) As to the making of byelaws under the 1847 Act see ibid, ss 42 and 43, above, p 114 above; and as to the necessity for confirmation, notice of application and publication, see ibid, ss 44– 47 and p 115, above. As to validity of byelaws, see notes to ibid, s 42, above and p 116, above. Byelaws may prescribe charges: see sub-s (4), above. (9) For provisions as to tolls in the special Act see the 1847 Act, ss 31–41 and p 69, above. (10) As to accounts under the 1847 Act, see ibid, s 50. (11) As to the power of a local authority to borrow, see s 53, above (12) See also s 81, below.

55.  Power to acquire land (1)  A local authority(1) may— (a) purchase land by agreement, or (b) if so authorised by the Minister or the appropriate Minister(2), purchase land compulsorily(3), or 305

Appendix 1  Statutes (c) by agreement take land on lease or at a rent, for the following purposes— (i) for wharves or other places; or (ii) for use for burial of carcases(4), in cases where there is not any ground suitable in that behalf in the possession or occupation of the owner of the animal, or any common or unenclosed land suitable and approved by the Minister or the appropriate Minister in that behalf; or (iii) for any other purpose of this Act. (2)  The powers conferred by this section may be exercised by a local authority in England and Wales with respect to land within or without their district [and the Acquisition of Land Act 1981 shall apply to a compulsory purchase under this section by such a local authority](5). (3)  [… ](6). (1) For definition of ‘local authority’, see s 50, above. (2) For definitions of ‘the Minister’ and ‘the appropriate Minister’, see s 86(1)(b), (c), below. (3) For procedure for compulsory purchase of land, see the Compulsory Purchase Act 1965 and the Acquisition of Land Act 1981. (4) For definition of ‘carcase’, see s 89(1), below. (5) The words in square brackets were inserted by the Acquisition of Land Act 1981, s  34(1), Sch 4, para 32. (6) Repealed in part by the Acquisition of Land Act 1987, s 34(3), Sch 6; the remainder applies to Scotland.

*   *   *   *   *   * 58. Regulations (1) A regulation(1) of a local authority(2) may be proved— (a) by the production of a newspaper purporting to contain the regulation as an advertisement, or (b) by the production of a copy of the regulation purporting to be certified by the clerk of the local authority as a true copy. (2)  A regulation so proved shall be taken to have been duly made, unless and until the contrary is proved. (3)  A regulation of a local authority authorised by this Act or by an order of the Minister(3) shall alone be deemed for the purposes of this Act a regulation of a local authority. (1) By s  2, above the Ministers may authorise a local authority to make regulations. As to procedure, see the Animals (Miscellaneous Provisions) Order of 1927 SR & O 1927 No 290, art 8 (as amended by SI 1976 No 919). (2) For definition of ‘local authority’, see s 50, above. (3) For definition of ‘the Minister’, see s 86(1)(a), below.

59. Default (1)  Where a local authority(1) fail to execute or enforce any of the provisions of this Act, or of an order of the Minister, the appropriate Minister(2) may by order(3) empower a person named in that order— (a) to execute and enforce those provisions; or (b) to procure their execution and enforcement. (2)  The expenses incurred under any such order or in respect of any such default by or on behalf of the appropriate Minister shall be the expenses of the local authority, and (a) the treasurer or other proper officer of the local authority shall pay the amount of such expenses to the appropriate Minister on demand; and 306

Animal Health Act 1981 (b) in default of payment a person appointed by the appropriate Minister to sue in that behalf may recover the amount of such expenses from the local authority. (3)  For the purposes of this section an order of the Minister shall be conclusive in respect of any default, amount of expenses, or other matters stated or appearing in it. (4)  The provisions of this section are without prejudice to the right or power of the appropriate Minister, or any other authority or any person, to take any other proceed­ ings for requiring a local authority to execute or enforce any of the provisions of this Act or of an order of the Minister. (1) For definition of ‘local authority’, see s 50, above. (2) For definition of ‘the Minister’ and ‘the appropriate Minister’, see s 86(l)(b), (c), below. (3) As to the making and publication etc of orders by the Minister, see s 91, below.

*   *   *   *   *   *

Part V Enforcement, Offences and Proceedings *   *   *   *   *   * Proceedings 77.  Money recoverable summarily Any money by this Act or an order of the Minister(1) made recoverable summarily may be so recovered as a civil debt, and in England and Wales this shall be in accordance with the Magistrates’ Courts Act 1980(2). (1) For definition of ‘order of the Minister’, see s 89(1), below. (2) Magistrates’ Courts Act 1980, s 58.

*   *   *   *   *   *

Part VI Supplemental Reports and Information 81.  Reports to Minister Every local authority(1) and their inspectors(2) and officers shall give to the appropriate Minister(3) such notices, reports, returns(4) and information as he requires. (1) (2) (3) (4)

For definition of ‘local authority’, see s 50, above. For definition of ‘inspector’, see s 89(1), below. For definition of ‘the appropriate Minister’, see s 86(1)(b), below. As to returns required of expenditure and receipts in respect of a wharf or other place by a local authority, see s 54(6), above.

*   *   *   *   *   * Interpretation, functions, and orders etc 86.  Ministers and their functions(1) (1)  In this Act— 307

Appendix 1  Statutes (a) ‘the Minister’ means, in relation to the whole of Great Britain, the Minister of Agriculture, Fisheries and Food, and ‘Ministry’ shall be construed accordingly, (b) ‘the appropriate Minister’ means, in relation to England, the Minister of Agriculture, Fisheries and Food, and in relation to Scotland or to Wales, the Secretary of State, (c) ‘the Ministers’ means, in relation to the whole of Great Britain, the Minister of Agriculture, Fisheries and Food, the Secretary of State for Scotland and the Secretary of State for Wales, acting jointly, but in the case of any function under the following provisions of this Act— (i) section 21, so far as it is applicable in relation to brucellosis, tuberculosis, dourine or infestation with maggot of the warble fly, (ii) any other provision so far as it is applicable in relation to brucellosis, brucellosis melitensis, tuberculosis or infestation of cattle with the maggot of the warble fly, that function, notwithstanding that it is expressed to be exercisable by the Minister or the Ministers, shall be exercisable only by the appropriate Minister. (2)  The powers and duties conferred and imposed by this Act on the Minister shall be executed and discharged by the Minister in manner provided by the Ministry of Agriculture and Fisheries Acts 1889 to 1919, and this Act. (1) Since June 2001 the functions of the Minister of Agriculture, Fisheries and Food have been exercised in England by the Secretary of State for Environment, Food and Rural Affairs as the successor to the Minister of Agriculture, Fisheries and Food. In Wales the functions are exercised by Welsh Ministers under the Government of Wales Act 2006, s 58 and in Scotland by Scottish Ministers, by virtue of the Scotland Act 1998, s 53.

87.  Meaning of ‘animals’ and ‘poultry’ (1)  In this Act, unless the context otherwise requires, ‘animals’ means— (a) cattle, sheep and goats, and (b) all other ruminating animals and swine, subject to subsections (2) and (3) below. (2)  The Ministers may by order for all or any of the purposes of this Act extend(1) the definition of ‘animals’ in subsection (1) above so that it shall for those or any of those purposes comprise— (a) any kind of mammal except man; and (b) any kind of four-footed beast which is not a mammal. (3)  The Ministers may by order for all or any of the purposes of this Act (except so far as it relates to disease) extend the definition of ‘animals’ in subsection (1) so that it shall for those or any of those purposes comprise— (a) fish, reptiles, crustaceans, or (b) other cold-blooded creatures of any species, not being creatures in respect of which an order can be made under subsection (2) above. (4)  In this Act, subject to subsection (5) below and unless the context otherwise requires, ‘poultry’ means birds of the following species— (a) domestic fowls, turkeys, geese, ducks, guinea-fowls and pigeons, and (b) pheasants and partridges, and subject to the provisions mentioned below, this Act has effect in relation to poultry as it has effect in relation to animals. The provisions of this Act referred to above are sections [32(4), 63(9) and 75(5)](2). (5)  The Ministers may by order for all or any of the purposes of this Act, in so far as it applies to poultry— 308

Animal Health Act 1981 (a) extend(3) the definition of ‘poultry’ in subsection (4) above so that it shall for those or any of those purposes comprise any other species of bird; or (b) restrict that definition so that it shall for those or any of those purposes exclude any of the species of bird mentioned in paragraph (b) of subsection (4). (1) Extended by the Spongiform Encephalopathy (Miscellaneous Amendments) Order 1994, SI 1994/2627, art 3 – this Order is now spent, as from 10 July 2003. (2) Substituted by the Animal Health and Welfare Act 1984, s 2(2). (3) Extended to birds of all species by the Spongiform Encephalopathy (Miscellaneous Amend­ ments) Order 1994, SI 1994/2627, art 3 – this Order is now spent, as from 10 July 2003.

*   *   *   *   *   * 89.  Other interpretation provisions (1)  In this Act, unless the context otherwise requires— *   *   *   *   *   * ‘carcase’ means the carcase of an animal(1) and includes part of a carcase, and the meat, bones, hide, skin, hooves, offal or other part of an animal, separately or otherwise, or any portion thereof; ‘cattle’ means bulls, cows, steers(2), heifers and calves; *   *   *   *   *   * ‘diseased’ means affected with disease; ‘district’, when used with reference to a local authority, means the area for which the local authority exercises powers under this Act(3); *   *   *   *   *   * ‘fodder’ means hay or other substance commonly used for food for animals; ‘horse’ includes ass and mule; ‘imported’ means brought to Great Britain from a country out of Great Britain; ‘inspector’ means a person appointed to be an inspector for the purposes of this Actby the Minister or by a local authority(4), and, when used in relation to an officerof the Ministry, includes a veterinary inspector; ‘justice’ means justice of the peace; ‘litter’ means straw or other substance commonly used for bedding or otherwise for or about animals; ‘local authority’ has the meaning given by section 50 above; ‘order of the Minister’ means an order under this Act of the Minister(5), the appropriate Minister, or the Ministers(6), as the case may be; *   *   *   *   *   * (2)  In the computation of time for the purposes of this Act, a period reckoned by days from the happening of an event or the doing of an act or thing shall be deemed to be exclusive of the day on which the event happened or the act or thing is done. (1) (2) (3) (4) (5) (6)

For definition of ‘animal’, see s 87, above. ‘Steers’ were called ‘oxen’ under the Diseases of Animals Act 1950. For the area for which the local authority exercises power, see s 51, above. Inspectors are appointed under s 52, above. See s 91, below. For definition of ‘the Minister’, ‘the appropriate Minister’ and ‘the Ministers’, see s 86(1)(a), (b) and (c), above.

*   *   *   *   *   * 309

Appendix 1  Statutes 91.  Orders etc (1)  The Minister, the appropriate Minister or the Ministers(1), as the case may be, shall publish in the London Gazette and the Edinburgh Gazette a notice of any order of the Minister stating— (a) that the order has been made; and (b) where copies of the order may be obtained. (2)  Every local authority(2) shall at their own expense, publish every order of the Minister, and every licence or other instrument sent to them by the Minister, the appropriate Minister, or the Ministers— (a) in such a manner as he or they shall direct(3); and (b) subject to and in the absence of any direction, by advertisement in a newspaper circulating in the district(4) of the local authority. (3) The validity or effect of an order of the Minister(5), or licence or other instrument issued by the Minister, the appropriate Minister or the Ministers shall not be affected by want of or defect or irregularity in its publication. (4)  Subsections (1) to (3) above do not apply to an order made under section 32 above. (5)  A power conferred by this Act to make an order of the Minister, other than by— (a) section 14(2), (b) section 59(1), shall be exercisable by statutory instrument. (6) An order of the Minister made under either of the provisions referred to in paragraphs (a) and (b) of subsection (5) above may be altered or revoked by a subsequent order made in the like manner and subject to the like conditions, but section 14(b) of the Interpretation Act 1978 shall not apply to an order made by the Ministers under section 34(7) above providing that section 34(6) shall cease to have effect. (1) For definition of ‘the Minister’, ‘the appropriate Minister’ and ‘the Ministers’, see s 86(l)(a), (b) and (c), above. (2) For definition of ‘local authority’ see s 50, above. (3) For procedure, see the Animals (Miscellaneous Provisions) Order of 1927, SR & O  1927 No 290. (4) For definition of ‘district’, see s 89(1), above. (5) For definition of ‘order of the Minister’, see s 89(1), above.

*   *   *   *   *   * 97.  Short title, extent, and commencement (1)  This Act may be cited as the Animal Health Act 1981. (2)  Sections 93 and 95(6) above apply to Northern Ireland, and Schedule  6 to this Act, so far as it repeals provisions of the Diseases of Animals Act 1950 which applied to Northern Ireland, but apart from those provisions this Act does not extend to Northern Ireland. (3) This Act shall come into force on the expiry of the period of one month beginning on the date of its passing. Diseases of Animals Act 1950: Corresponding Provisions in Animal Health Act 1981 Diseases of Animals Act 1950 Section 1(1)(a) l(1)(b), 2(h) 2 20(i)

Animal Health Act 1981 Section 1(a) 1(b) 2 25(a)

310

Animal Health Act 1981 Diseases of Animals Act 1950 20(vii) 20(viii) 20(x) 21 57 59 61(1)–(6) 62 63 64(1) 65 66 67 70 80 84(1) 84(2) 84(4) 84(4), (5) 85 91

Animal Health Act 1981 8(1)(e) 7(1)(a) 37(1) 26 86(2) 50 54 55 59 52 81 58 51 53 77 87(1)–(3) 87(4), (5) 86(1) 89(1), (2) 91 97

Statutory Instruments A considerable number have orders, which may affect the holding of markets and fairs, have been made partly under ss 1, 2, 7, 8, 25, 26, 37 and 87 of the Animal Health Act 1981 or partly have effect thereunder by virtue of the Interpretation Act 1978, s 17(2)(b). The reader is invited to access these by reference to Halsbury’s Laws of England, Animals, Vol 2 (2017).

311

Appendix 1  Statutes

[SENIOR COURTS ACT 1981](1) (1981, c 54) An Act to consolidate with amendments the Supreme Court of Judicature (Consolidation) Act 1925 and other enactments relating to the [Senior Courts](2) in England and Wales and the administration of justice therein; to repeal certain obsolete or unnecessary enactments so relating; to amend Part VIII of the Mental Health Act 1959, the Courts-Martial (Appeals) Act 1968, the Arbitration Act 1979 and the law relating to county courts; and for connected purposes. [28th July 1981] (1) The Supreme Court Act 1981 may be cited as the Senior Courts Act 1981 by virtue of the Constitutional Reform Act 2005, s 59(5), Sch 11, para 1(1). (2) Words substituted by the Constitutional Reform Act 2005, s 59(5), Sch 11, para 26(1), (2).

Part II Jurisdiction The High Court Other particular fields of jurisdiction 30.  Injunctions to restrain persons from acting in offices in which they are not entitled to act. (1)  Where a person not entitled to do so acts in an office to which this section applies, the High Court may— (a) grant an injunction restraining him from so acting; and (b) if the case so requires, declare the office to be vacant. (2)  This section applies to any substantive office of a public nature and permanent character which is held under the Crown or which has been created by any statutory provision or royal charter. 31.  Application for judicial review. (1) An application to the High Court for one or more of the following forms of relief, namely— [(a) a mandatory, prohibiting or quashing order;](1) (b) a declaration or injunction under subsection (2); or (c) an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies, shall be made in accordance with rules of court by a procedure to be known as an application for judicial review. (2)  A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief, has been made and the High Court considers that, having regard to— (a) the nature of the matters in respect of which relief may be granted by [F2mandatory, prohibiting or quashing orders](1); (b) the nature of the persons and bodies against whom relief may be granted by such orders; and (c) all the circumstances of the case, it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be. [(2A)  The High Court— (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award under subsection (4) on such an application, 312

Senior Courts Act 1981 if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. (2B)  The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest. (2C)  If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.](2) (3)  No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates. [(3C)  When considering whether to grant leave to make an application for judicial review, the High Court— (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and (b) must consider that question if the defendant asks it to do so. (3D)  If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave. (3E)  The court may disregard the requirement in subsection (3D) if it considers that it is appropriate to do so for reasons of exceptional public interest. (3F)  If the court grants leave in reliance on subsection (3E), the court must certify that the condition in subsection (3E) is satisfied.](2) [(4) On an application for judicial review the High Court may award to the applicant damages, restitution or the recovery of a sum due if— (a) the application includes a claim for such an award arising from any matter to which the application relates; and (b) the court is satisfied that such an award would have been made if the claim had been made in an action begun by the applicant at the time of making the application.](1) [(5)  If, on an application for judicial review, the High Court quashes the decision to which the application relates, it may in addition— (a) remit the matter to the court, tribunal or authority which made the decision, with a direction to reconsider the matter and reach a decision in accordance with the findings of the High Court, or (b) substitute its own decision for the decision in question. (5A)  But the power conferred by subsection (5)(b) is exercisable only if— (a) the decision in question was made by a court or tribunal, (b) the decision is quashed on the ground that there has been an error of law, and (c) without the error, there would have been only one decision which the court or tribunal could have reached. (5B) Unless the High Court otherwise directs, a decision substituted by it under subsection (5)(b) has effect as if it were a decision of the relevant court or tribunal.](3) (6)  Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant— (a) leave for the making of the application; or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration. 313

Appendix 1  Statutes (7)  Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made. [(8)  In this section ‘the conduct complained of’, in relation to an application for judicial review, means the conduct (or alleged conduct) of the defendant that the applicant claims justifies the High Court in granting relief.](2) (1) Paragraph, words and subsection substituted by the Civil Procedure (Modification of Supreme Court Act 1981) Order 2004, SI 2004/1033, arts 2, 4(a)–(c). (2) Subsections inserted by the Criminal Justice and Courts Act 2015, s 84(1)–(3). (3) Subsections substituted by the Tribunals, Courts and Enforcement Act 2007, s 141.

*   *   *   *   *   * Powers *   *   *   *   *   * 37.  Powers of High Court with respect to injunctions and receivers. (1)  The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so. (2) Any such order may be made either unconditionally or on such terms and conditions as the court thinks just. (3)  The power of the High Court under subsection (1) to grant an interlocutory injunction restraining a party to any proceedings from removing from the jurisdiction of the High Court, or otherwise dealing with, assets located within that jurisdiction shall be exercisable in cases where that party is, as well as in cases where he is not, domiciled, resident or present within that jurisdiction. (4) The power of the High Court to appoint a receiver by way of equitable execution shall operate in relation to all legal estates and interests in land; and that power— (a) may be exercised in relation to an estate or interest in land whether or not a charge has been imposed on that land under section 1 of the Charging Orders Act 1979 for the purpose of enforcing the judgment, order or award in question; and (b) shall be in addition to, and not in derogation of, any power of any court to appoint a receiver in proceedings for enforcing such a charge. (5)  Where an order under the said section 1 imposing a charge for the purpose of enforcing a judgment, order or award has been, or has effect as if, registered under section 6 of the Land Charges Act 1972, subsection (4) of the said section 6 (effect of non-registration of writs and orders registrable under that section) shall not apply to an order appointing a receiver made either— (a) in proceedings for enforcing the charge; or (b) by way of equitable execution of the judgment, order or award or, as the case may be, of so much of it as requires payment of moneys secured by the charge. [(6)  This section applies in relation to the family court as it applies in relation to the High Court.](1) (1) Subsection inserted by the Crime and Courts Act 2013, s 17(6), Sch 10, para 58.

314

Local Government (Miscellaneous Provisions) Act 1982

LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1982 (1982, c 30) An Act to make amendments for England and Wales of provisions of that part of the law relating to local authorities or highways which is commonly amended by local Acts, … [13th July 1982]

Part III Street trading 3.  Power of district council to adopt Schedule 4 A district council may resolve that Schedule 4 to this Act shall apply to their district and, if a council so resolve, that Schedule shall come into force in their district on such day as may be specified in the resolution. *   *   *   *   *   *

Part XII Miscellaneous 37.  Temporary markets (1)  The council of a district or a London borough may resolve that the following provisions of this section shall apply to their district or borough; and if a council so resolve and within 14 days of the passing of the resolution give notice of the resolution by advertising in a local newspaper circulating in their area, those provisions shall come into force in their district or borough on the day specified in the resolution. (2)  Subject to subsection (3) below, any person intending to hold a temporary market in a district or London borough, where the provisions of this section have come into force, and any occupier of land in such a district or borough who intends to permit the land to be used as the site of a temporary market or for purposes of that market, shall give the council of the district or the borough not less than one month before the date on which it is proposed to hold the market notice of his intention to hold it or to permit the land to be so used, as the case may be. (3) No notice is required under subsection (2) above if the proceeds of the temporary market are to be applied solely or principally for charitable, social, sporting or political purposes. (4)  Any notice given under subsection (2) above shall state— (a) the full name and address of the person intending to hold the market; (b) the day or days on which it is proposed that the market shall be held and its proposed opening and closing times; (c) the site on which it is proposed that it shall be held; (d) the full name and address of the occupier of that site, if he is not the person intending to hold the market. (5) A  person who without giving the notice required by subsection (2) above holds a temporary market or permits land occupied by him to be used as the site of a temporary market shall be guilty of an offence and liable on summary conviction to a fine not exceeding [level 4 on the standard scale](1). (6)  In this section ‘temporary market’ means a concourse of buyers and sellers of articles held otherwise than in a building or on a highway, and comprising not less than five stalls, stands, vehicles (whether movable or not) or pitches from which articles are sold, but does not include— 315

Appendix 1  Statutes (a) a market or fair the right to hold which was acquired by virtue of a grant (including a presumed grant) or acquired or established by virtue of an enactment or order; or (b) a sale by auction of farm livestock or deadstock. (7)  A person holds a temporary market for the purposes of this section if— (a) he is entitled to payment for any space or pitch hired or let on the site of the market to persons wishing to trade in the market; or (b) he is entitled, as a person promoting the market, or as the agent, licensee or assignee of a person promoting the market, to payment for goods sold or services rendered to persons attending the market. (8)  This section does not apply to a market held on any land in accordance with planning permission granted on an application made under [Part III of the Town and Country Planning Act 1990](2). (1) By virtue of the Criminal Justice Act 1982, s 46 a reference to the level on the standard scale is substituted for the amount of the fine. (2) Substituted by the Planning (Consequential Provisions) Act 1990, s 4, Sch 2, para 56(2).

Section 3

SCHEDULE 4 Street trading

Interpretation 1.––(1)  In this Schedule— ‘consent street’ means a street in which street trading is prohibited without the consent of the district council; ‘licence street’ means a street in which street trading is prohibited without a licence granted by the district council; ‘principal terms’, in relation to a street trading licence, has the meaning assigned to it by paragraph 4(3) below; ‘prohibited street’ means a street in which street trading is prohibited; ‘street’ includes— (a) any road, footway, beach or other area to which the public have access without payment; and (b) a service area as defined in section 329 of the Highways Act 1980, and also includes any part of a street; ‘street trading’ means, subject to sub-paragraph (2) below, the selling or exposing or offering for sale of any article (including a living thing) in a street; and ‘subsidiary terms’, in relation to a street trading licence, has the meaning assigned to it by paragraph 4(4) below. (2)  The following are not street trading for the purposes of this Schedule— (a) trading by a person acting as a pedlar under the authority of a pedlar’s certificate granted under the Pedlars Act 1871; (b) anything done in a market or fair the right to hold which was acquired by virtue of a grant (including a presumed grant) or acquired or established by virtue of an enactment or order; (c) trading in a trunk road picnic area provided by the Secretary of State und section 112 of the Highways Act 1980; (d) trading as a news vendor; (e) trading which— (i) is carried on at premises used as a petrol filling station; or (ii) is carried on at premises used as a shop or in a street adjoining premises used and as part of the business of the shop; 316

Local Government (Miscellaneous Provisions) Act 1982 (f) selling things, or offering or exposing them for sale, as a roundsman; (g) the use for trading under Part VIIA of the Highways Act 1980 of an object or structure placed on, in or over a highway; (h) the operation of facilities for recreation or refreshment under Part VIIA of the Highways Act 1980; (i) the doing of anything authorised by regulations made under section 5 of the Police, Factories, etc (Miscellaneous Provisions) Act 1916. [(j) conducting a public charitable collection that— (i) is conducted in accordance with section 48 or 49 of the Charities Act 2006, or (ii) is an exempt collection by virtue of section 50 of that Act1)]. (3)  The reference to trading as a news vendor in sub-paragraph (2)(d) above is reference to trading where— (a) the only articles sold or exposed or offered for sale are newspapers, periodicals; and (b) they are sold or exposed or offered for sale without a stall or receptacle for (them or with a stall or receptacle for them which does not— (i) exceed one metre in length or width or two metres in height; (ii) occupy a ground area exceeding 0.25 square metres; or (iii) stand on the carriageway of a street. (1) Prospectively substituted by the Charities Act 1992, s 78(1), Sch 6 para 9, as from a day to be appointed – further substituted by the Charities Act 2006, s 75(1), Sch 8, para 66.

Designation of streets 2.—(1) A  district council may by resolution designate any street in their district as— (a) a prohibited street; (b) a licence street; or (c) a consent street. (2)  If a district council pass such a resolution as is mentioned in sub-paragraph (1) above, the designation of the street shall take effect on the day specified in that behalf i the resolution (which must not be before the expiration of the period of one month beginning with the day on which the resolution is passed). (3)  A council shall not pass such a resolution unless— (a) they have published notice of their intention to pass such a resolution in a local; newspaper circulating in their area; (b) they have served a copy of the notice— (i) on the chief officer of police for the area in which the street to be designated by the resolution is situated; and (ii) on any highway authority responsible for that street; and (c) where sub-paragraph (4) below applies, they have obtained the necessary consent. (4)  This sub-paragraph applies— (a) where the resolution relates to a street which is owned or maintainable by a relevant corporation; and (b) where the resolution designated as a licence street any street maintainable by a highway authority; and in sub-paragraph (3) above ‘necessary consent’ means— (i) in the case mentioned in paragraph (a) above, the consent of the relevant corporation; and (ii) in the case mentioned in paragraph (b) above, the consent of the highway authority. 317

Appendix 1  Statutes (5)  The following are relevant corporations for the purposes of this paragraph— (a) the British Railways Board; (b) the [new towns residuary body](1); [(ba)  a Mayoral development corporation;](2) (c) a development corporation for a new town; [and](3) (d) an urban development corporation established under the Local Government, Planning and Land Act 1980; and (e) [ … ](4). [(5A)  In sub-paragraph (5)(b) above ‘new towns residuary body’ means — (a) in relation to England, the Homes and Communities Agency so far as exercising functions in relation to anything transferred (or to be transferred) to it as mentioned in section 52(1)(a) to (d) of the Housing and Regeneration Act 2008 [or the Greater London Authority so far as exercising its new towns and urban development functions](5); and (b) in relation to Wales, the Welsh Ministers so far as exercising functions in relation to anything transferred (or to be transferred) to them as mentioned in section 36(1)(a)(i) to (iii) of the New Towns Act 1981.](6) (6)  The notice referred to in sub-paragraph (3) above— (a) shall contain a draft of the resolution; and (b) shall state that representations relating to it may be made in writing to the council within such period, not less than 28 days after publication of the notice, as may be specified in the notice. (7) As soon as practicable after the expiry of the period specified under subparagraph (6) above, the council shall consider any representations relating to the proposed resolution which they have received before the expiry of that period. (8)  After the council have considered those representations, they may, if they think fit, pass such a resolution relating to the street as is mentioned in sub-paragraph (1) above. (9)  The council shall publish notice that they have passed such a resolution in two consecutive weeks in a local newspaper circulating in their area. (10)  The first publication shall not be later than 28 days before the day specified in the resolution for the coming into force of the designation. (11)  Where a street is designated as a licence street, the council may resolve— (a) in the resolution which so designates the street; or (b) subject to sub-paragraph (12) below, by a separate resolution at any time, that a street trading licence is not to be granted to any person who proposes to trade in the street for a number of days in every week less than a number specified in the resolution. (12) Sub-paragraphs (3)(a) and (6) to (10) above shall apply in relation to a resolution under sub-paragraph (1)(b) above as they apply in relation to a resolution under sub-paragraph (1) above). (13)  Any resolution passed under this paragraph may be varied or rescinded by a subsequent resolution so passed. (1) (2) (3) (4) (5) (6)

Substituted by the Housing and Regeneration Act 2008, s 56, Sch 8, para 34(1), (2). Inserted by the Localism Act 2011, s 222, Sch 22, para 8 at a date to be appointed. Inserted by the Government of Wales Act 1998, s 129(2), Sch 15, para 5. Repealed by the Government of Wales Act 1998, s 152, Sch 18, Pt IV. Inserted by the Localism Act 2011, s 195(1), Sch 19, para 9. Inserted by the Housing and Regeneration Act 2008, s 56, Sch 8, para 34(1), (3).

Street trading licences 3.—(1)  An application for a street trading licence or the renewal of such a licence shall be made in writing to the district council. 318

Local Government (Miscellaneous Provisions) Act 1982 (2)  The applicant shall state— (a) his full name and address; (b) the street in which, days on which and times between which he desires to trade; (c) the description of articles in which he desires to trade and the description of any stall or container which he desires to use in connection with his trade in those articles; and (d) such other particulars as the council may reasonably require. (3)  If the council so require, the applicant shall submit two photographs of himself with his application. (4)  A street trading licence shall not be granted— (a) to a person under the age of 17 years; or (b) for any trading in a highway in relation to which a control order under section 7 of the Local Government (Miscellaneous Provisions) Act 1976 (road-side sales) is in force, other than trading to which the control order does not apply. (5)  Subject to sub-paragraph (4) above, it shall be the duty of the council to grant an application for a street trading licence or the renewal of such a licence unless they consider that the application ought to be refused on one or more of the grounds specified in sub-paragraph (6) below. (6)  Subject to sub-paragraph (8) below, the council may refuse an application on any of the following grounds— (a) 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; (b) that there are already enough traders trading in the street from shops or otherwise in the goods in which the applicant desires to trade; (c) that the applicant desires to trade on fewer days than the minimum number specified in the resolution under paragraph 2(11) above; (d) that the applicant is unsuitable to hold the licence by reason of having been convicted of an offence or for any other reason; (e) that the applicant has at any time been granted a street trading licence by the council and has persistently refused or neglected to pay fees due to them for it or charges due to them under paragraph 9(6) below for services rendered by them to him in his capacity as licence-holder; (f) that the applicant has at any time been granted a street trading consent by the council and has persistently refused or neglected to pay fees due to them for it; (g) that the applicant has without reasonable excuse failed to avail himself to a reasonable extent of a previous street trading licence. (7)  If the council consider that grounds for refusal exist under sub-paragraph (6) (a), (b) or (g) above, they may grant the applicant a licence which permits him (a) to trade on fewer days or during a shorter period in each day than specified in the application; or (b) to trade only in one or more of the descriptions of goods specified in the application. (8) If (a) a person is licensed or otherwise authorised to trade in a street under the provisions of any local Act; and (b) the street becomes a licence street; and (c) he was trading from a fixed position in the street immediately before it became a licence street; and (d) he applied for a street trading licence to trade in the street, his application shall not be refused on any of the grounds mentioned in sub-paragraph (6) (a) to (c) above. 319

Appendix 1  Statutes 4.—(1)  A street trading licence shall specify— (a) the street in which, days on which and times between which the licenceholder is permitted to trade; and (b) the description of articles in which he is permitted to trade. (2)  If the district council determine that a licence-holder is to confine his trading to a particular place in the street, his street trading licence shall specify that place. (3)  Matters that fall to be specified in a street trading licence by virtue of sub­ paragraph (1) or (2) above are referred to in this Schedule as the ‘principal terms’ of the licence. (4)  When granting or renewing a street trading licence, the council may attach such further conditions (in this Schedule referred to as the ‘subsidiary terms’ of the licence) as appear to them to be reasonable. (5)  Without prejudice to the generality of sub-paragraph (4) above, the subsidiary terms of a licence may include conditions— (a) specifying the size and type of any stall or container which the licenceholder may use for trading, (b) requiring that any stall or container so used shall carry the name of the licence-holder or the number of his licence or both; and (c) prohibiting the leaving of any refuse by the licence-holder or restricting the amount of refuse which he may leave or the place in which he may leave it. (6) A  street trading licence shall, unless previously revoked or surrendered, remain valid for a period of 12 months from the date on which it is granted or, if a shorter period is specified in the licence, for that period. (7)  If a district council resolve that the whole or part of a licence street shall be designated a prohibited street, then, on the designation taking effect, any street trading licence issued for trading in that street shall cease to be valid so far as it relates to the prohibited street. 5.—(1) A  district council may at any time revoke a street trading licence if they consider— (a) that, owing to circumstances which have arisen since the grant or renewal of the licence, there is not enough space in the street for the licence-holder to engage in the trading permitted by the licence without causing undue interference or inconvenience to persons using the street; (b) that the licence holder is unsuitable to hold the licence by reason of having been convicted of an offence or for any other reason; (c) that, since the grant or renewal of the licence, the licence-holder has persistently refused or neglected to pay fees due to the council for it or charges due to them under paragraph 9(6) below for services rendered by them to him in his capacity as licence-holder; or (d) that, since the grant or renewal of the licence, the licence-holder has without reasonable excuse failed to avail himself of the licence to a reasonable extent. (2)  If the council consider that they have ground for revoking a licence by virtue of sub-paragraph  (1)(a) to (d) above, they may, instead of revoking it, vary its principal terms— (a) by reducing the number of days or the period in any one day during which the licence-holder is permitted to trade; or (b) by restricting the descriptions of goods in which he is permitted to trade. (3)  A licence-holder may at any time surrender his licence to the council and it shall then cease to be valid. 6.—(1)  When a district council receive an application for the grant or renewal of a street trading licence, they shall within a reasonable time— 320

Local Government (Miscellaneous Provisions) Act 1982 (a) grant a licence in the terms applied for; or (b) serve notice on the applicant under sub-paragraph (2) below. (2)  If the council propose— (a) to refuse an application for the grant or renewal of a licence; or (b) to grant a licence on principal terms different from those specified in the application; or (c) to grant a licence confining the applicant’s trading to a particular place in a street; or (d) to vary the principal terms of a licence; or (e) to revoke a licence; they shall first serve a notice on the applicant or, as the case may be, the licenceholder— (i) specifying the ground or grounds on which their decision would be based; and (ii) stating that within 7 days of receiving the notice he may in writing require them to give him an opportunity to make representations to them concern­ing it. (3)  Where a notice has been served under sub-paragraph (2) above, the council shall not determine the matter until either— (a) the person on whom it was served has made representations to them concerning their decision; or (b) the period during which he could have required them to give him an opportu­nity to make representations has elapsed without his requiring them to give him such an opportunity; or (c) the conditions specified in sub-paragraph (4) below are satisfied. (4)  The conditions mentioned in sub-paragraph (3)(c) above are— (a) that the person on whom the notice under sub-paragraph  (2) above was served has required the council to give him an opportunity to make representations to them concerning it, as provided by sub-paragraph (2)(ii) above; (b) that the council have allowed him a reasonable period for making his representations; and (c) that he has failed to make them within that period. (5)  A person aggrieved— (a) by the refusal of a council to grant or renew a licence, where— (i) they specified in their notice under subparagraph (2) above one of the grounds mentioned in paragraph 3(6)(d) to (g) above as the only ground on which their decision would be based; or (ii) they specified more than one ground in that notice but all the specified grounds were grounds mentioned in those paragraphs; or (b) by a decision of a council to grant him a licence with principal terms different from those of a licence which he previously held, where they specified in their notice under sub-paragraph  (2) above the ground mentioned in paragraph 3(6)(g) above as they only ground on which their decision would be based; or (c) by a decision of a council— (i) to vary the principal terms of a licence; or (ii) to revoke a licence, in a case where they specified in their notice under sub-paragraph (2) above one of the grounds mentioned in paragraph 5(1)(b) to (d) above as the only ground on which their decision would be based or they specified more than one ground in that notice but all the specified grounds were grounds mentioned in these paragraphs, 321

Appendix 1  Statutes may, at any time before the expiration of the period of 21 days beginning with the date union which he is notified of the refusal or decision, appeal to the magistrates’ court acting for the petty sessions area in which the street is situated. (6)  An appeal against the decisions of a magistrates’ court under this paragraph may be brought to the Crown Court. (7)  On an appeal to the magistrates’ court or the Crown Court under this paragraph the court may make such order as it thinks fit. (8)  Subject to sub-paragraphs (9) to (11) below, it shall be the duty of the council to give effect to an order of the magistrates’ court or the Crown Court. (9)  The council need not give effect to the order of the magistrates’ court until the time for bringing an appeal under sub-paragraph (6) above has expired and, if such an appeal is duly brought, until the determination or abandonment of the appeal. (10)  If a licence-holder applies for renewal of his licence before the date of its expiry, it shall remain valid— (a) until the grant by the council of a new licence with the same principal terms; or (b) if— (i) the council refuse renewal of the licence or decide to grant a licence with principal terms different from those of the existing licence, and (ii) he has a right of appeal under this paragraph, until the time for bringing an appeal has expired or, where an appeal is duly brought, until the determi­nation or abandonment of the appeal; or (c) if he has no right of appeal under this paragraph, until the council either grant him a new licence with principal terms different from those of the existing licence or notify him of their decision to refuse his application. (11) Where— (a) a council decide— (i) to vary the principal terms of a licence; or (ii) to revoke a licence; and (b) a right of appeal is available to the licence-holder under this paragraph, the variation or revocation shall not take effect until the time for bringing an appeal has expired or, where an appeal is duly brought, until the determination or abandonment of the appeal. Street trading consents 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 condition of a street trading consent. 322

Local Government (Miscellaneous Provisions) Act 1982 (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 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 must 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 time 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. General 8.—The holder of a street trading licence or a street trading consent may employ any other person to assist in his trading without a further licence or consent being required. 9.—(1)  A district council may charge such fees as they consider reasonable for the grant or renewal of a street trading licence or a street trading consent. (2)  A council may determine different fees for different types of licence or consent and, in particular, but without prejudice to the generality of this sub-paragraph, may determine fees differing according— (a) to the duration of the licence or consent; (b) to the street in which it authorises trading; and (c) to the descriptions of articles in which the holder is authorised to trade. (3)  A council may require that applications for the grant or renewal of licences or consents shall be accompanied by so much of the fee as the council may require, by way of a deposit to be repaid by the council to the applicant if the application is refused. (4)  A council may determine that fees may be paid by instalments. (5)  Where a consent is surrendered or revoked, the council shall remit or refund, as they consider appropriate, the whole or a part of any fee paid for the grant or renewal of the consent. (6)  A council may recover from a licence-holder such reasonable charges as they may determine for the collection of refuse, the cleansing of streets and other services rendered by them to him in his capacity as licence-holder. (7)  Where a licence— (a) is surrendered or revoked; or (b) ceases to be valid by virtue of paragraph 4(7) above, the council may remit or refund, as they consider appropriate, the whole or a part— (i) of any fee paid for the grant or renewal of the licence; or (ii) of any charges recoverable under sub-paragraph (6) above. (8)  The council may determine— (a) that charges under sub-paragraph  (6) above shall be included in a fee payable under sub-paragraph (1) above; or (b) that they shall be separately recoverable. (9)  Before determining charges to be made under sub-paragraph  (6) above or varying the amount of such charges the council— 323

Appendix 1  Statutes (a) shall give notice of the proposed charges to licence-holders; and (b) shall publish notice of the proposed charges in a local newspaper circulating in the area. (10) A  notice under sub-paragraph  (9) above shall specify a reasonable period within which representations concerning the proposed charges may be made to the council. (11)  It shall be the duty of a council to consider any such representations which are made to them within the period specified in the notice. Offences 10.—(1)  A person who— (a) engages in street trading in a prohibited street; or (b) engages in street trading in a licence street or a consent street without being authorised to do so under this Schedule; or (c) contravenes any of the principal terms of a street trading licence; or (d) being authorised by a street trading consent to trade in a consent street, trades in that street— (i) from a stationary van, cart, barrow or other vehicle; or (ii) from a portable stall, without first having been granted permission to do so under paragraph 7(8) above; or (e) contravenes a condition imposed under paragraph  7(9) above, shall be guilty of an offence. (2) It shall be a defence for a person charged with an offence under subparagraph (1) above to prove that he took all reasonable precautions and exercised all due diligence to avoid commission of the offence. (3)  Any person who, in connection with an application for a street trading licence or for a street trading consent, makes a false statement which he knows to be false in any material respect, or which he does not believe to be true, shall be guilty of an offence. (4)  A person guilty of an offence under this paragraph shall be liable on summary conviction to a fine not exceeding [level 3 on the standard scale](1). (1) Substituted by the Criminal Justice Act 1982, s 46.

Savings 11.—Nothing in this Schedule shall affect— (a) section 13 of the Markets and Fairs Clauses Act 1847 (prohibition of sales elsewhere than in market or in shops etc) as applied by any other Act; (b) section [56 of the Food Act 1984](1) (prohibition of certain sales during market hours). (1) Substituted by the Food Act 1984, s 134, Sch 10, para 34.

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Food Act 1984

FOOD ACT 1984

(Eliz II, 1984, c 30) An Act to consolidate the provisions of the Food and Drugs Acts 1955 to 1982, the Sugar Act 1956, the Food and Drugs (Milk) Act 1970, section 7(3) and (4) of the European Communities Act 1972, section 198 of the Local Government Act 1972 and Part IX of the Local Government (Miscellaneous Provisions) Act 1982, and connected provisions. [26th June 1984] *   *   *   *   *   *

Part III Markets 50.  Establishment or acquisition (1)  [A local authority](1) may(2)— (a) establish a market(3) within [their area](1); (b) acquire by agreement (but not otherwise), either by purchase or on lease, the whole or any part of an existing market undertaking(4) within [their area](1), and any rights enjoyed by any person(5) within [their area](1) in respect of a market and of tolls, and, in either case, may provide(6)— (i) a market place(7) with convenient approaches to it; (ii) a market house and other buildings convenient for the holding of a market. (2)  A market shall not be established in pursuance of this section so as to interfere with any rights, powers or privileges(8) enjoyed(9) within [the authority’s area](1) in respect of a market by any person, without that person’s consent. [(3)  For the purposes of subsection (2), a local authority shall not be regarded as enjoying any rights, powers or privileges within another local authority’s area by reason only of the fact that they maintain within their own area a market which has been established under paragraph (a) of subsection (1) or under the corresponding provision of any earlier enactment.](1)(10) Sub-s (1) replaces in substantially the same terms s 49(1) of the Food and Drugs Act 1955, as partly repealed by the Local Government Act 1972, s 199(3); sub-ss (2) and (3) replace in substantially the same terms the repealed s 49(3) of the 1955 Act. (1) Words in brackets substituted by the Food Safety Act 1990, s 52, Sch 2, paras 1, 2. (2) A local authority has no power to covenant or agree that it will not exercise the powers, or any of the powers, entrusted to it by this section, and such a covenant or agreement would be void: Spurling v Bantoft [1891] 2 QB 384, and cf Ayr Harbour Trustees v Oswald (1883) 8 App Cas 623. (3) The powers conferred by this section are in terms limited to ‘markets’, and no power is conferred on a local authority by this section to establish or acquire a ‘fair’. As to what constitutes a ‘fair’ see Introduction pp 1, 2, above; as to rights in relation to ‘fairs’, see the Markets and Fairs Clauses Act 1847, above, the Fairs Act 1871, above and the Fairs Act 1873, above. A market may not be established without the consent of persons with existing market rights in the district: see sub-s (2), above, and it may be possible to purchase those rights under sub-s (l)(b), above. The market will be a statutory market but it will have, it seems, all the incidents of a franchise market except insofar as they are expressly or impliedly taken away by this or any other Act: see p 23, above, and see note (4), below, note (3) to s 51, below, and note (1) to s 53, below. (4) An existing market undertaking may be either a franchise market or a statutory market: see pp 15 et seq, above. It should be remembered that the market franchise is separate and distinct

325

Appendix 1  Statutes

(5) (6) (7)

(8)

(9)

from the franchise to levy tolls: see pp 59, 60, 63, 104, 105, above. The power to acquire is by agreement and not otherwise and the power to purchase land compulsorily given by s 110 does not extend the power: see below. Where a local authority acquires a franchise market and exercises only the powers under the franchise, the market will remain a franchise market. Where, however, it wishes to go beyond those powers, eg by altering the market days or by increasing the tolls, it may do so but in that event the franchise rights would to that extent become merged in the statutory rights, and the market will become a statutory market and will continue to enjoy the other common law or franchise rights only so far as they are not expressly or impliedly taken away by this Act or by any other Act: see Ellis v Bridgnorth Corpn (1861) 4 LT 112; Manchester Corpn v Lyons (1882) 22 Ch D 287: Birmingham Corpn v Foster (1894) 70 LT 371; New Windsor Corpn v Taylor [1899] AC 41; Stevens v Chown [1901] 1 Ch 894; Leicester Corpn v Maby (1972) 70 LGR 209; Leicester City Council v Oxford and Bristol Stores Ltd (21 December 1978, unreported); Halton Borough Council v Cawley [1985] 1 WLR  15; Manchester City Council v Walsh (1986) 84  LGR  1. See also pp 25, 98–100, above. Where also a local authority acquires an existing statutory market, it seems that it may continue to conduct the market under the statutes establishing it. If, however, it wishes to go beyond the powers under those statutes and exercise rights under this Act, then the powers under those statutes so far as they are inconsistent with this Act will cease, and so also any common law rights hitherto subject to those statutes will become subject also to this Act. As to how far common law rights apply to a statutory market, see pp 25, 98–100, above and note (8), below. Where a market site is taken on lease by a local authority, the establishment of a market will not affect the freehold reversion: see R v Basildon District Council, ex p Brown (1981) 79 LGR 655 at 666–667 per Templeman LJ. The exercise of the byelaw making powers conferred by s 60, below on local authorities who maintain franchise or statutory markets would not have the effect of converting the franchise market into a statutory market, or adversely affect an existing statutory market. See also notes to ss 51, 53, below. As to the power of the owner to sell, see s 51, below. ‘Person’ includes a body corporate: Interpretation Act 1978, s 5. As to the power to acquire land compulsorily for a market place, etc, see s 110, below. The local authority is not restricted to the provision of only one market place: Richards v Scarborough Public Market Co (1853) 23 LJ Ch 110. Where a market place is not confined by the charter governing the market to a particular site (ie is not ‘limited by metes and bounds’) the owner of the franchise may hold the market anywhere within the district to which the franchise relates, and may remove the site from time to time: see pp 40 et seq, above. The owner is however under an obligation to provide adequate accommodation for all persons wishing to buy and sell in the market, and if he does not do so he cannot complain if sales are held outside the market-place: see pp 37 and 93, above. In the case of a market established under sub-s (1)(a), above, there is, it appears, no restriction to a particular site, but the above consequences of failure to supply sufficient accommodation would seem to apply: see pp 25, 98–100, above. That is, a right, power or privilege acquired adversely to the general public and peculiar to the individual: Fearon v Mitchell (1872)  LR  7  QB  690; Woolwich Corpn v Gibson (1905) 69  JP  361; and in the nature of a franchise: Spurting v Bantoft [1891] 2  QB  384, but not excluding rights, etc, under a wholly statutory market, it seems, except so far as excepted by sub-s  (3), above. See also Delyn Borough Council v Solitaire (Liverpool) Ltd (1995) 93 LGR 614, and p 129, above. With regard to the word ‘enjoyed’, it is not clear whether rights, powers and privileges in respect of the market can be said to be enjoyed, as that word is here used, unless there is some actual exercise from time to time of the rights, etc. Assuming however, that the rights, etc are exercised, it is not clear, again, what test needs to be applied to establish whether or not the rights, etc are ‘enjoyed within’ a particular area. There seem to be three possible views: (i) that the rights, etc are enjoyed only in the actual market place or area in which the market is held; (ii) that they are enjoyed in every part of the manor or other area within which the market might lawfully be held; (iii) that the rights etc are enjoyed over the whole area within which the owner of the rights, etc can at common law prevent the levying of a rival market.

326

Food Act 1984 If either of the first or second of these views is correct, a local authority would have power to establish a new market without the consent of the owner of a franchise or statutory market (but see below), although the establishment of such a new market, if it were established without statutory authority, would be an actionable disturbance of such neighbouring market — for instance, cases in which an old market is held outside but within 6⅔ miles (see pp 77–80, above) of the market established in the area of the local authority. On the other hand, if (as seems likely) the third of these views is correct, a local authority has power to establish a market in its area only with the consent of the owner of the old market rights etc if the authority wishes to establish and hold it within 6⅔ miles of the area of the franchise; but if it can establish the market within its area and beyond that distance, it can do so without the consent of the owner of the old market rights, etc. A local authority which has established a market under this Act, or under Acts preceding and replaced by this Act, is not protected: see sub-s (3), above. Any franchise markets purchased under these Acts would, however, be protected even if they later became statutory markets controlled by this Act since they would not have been established under this Act. See also Halton Borough Council v Cawley [1985] 1 WLR 15. (10) The provisions in this sub-s relate only to markets established under this Act or the corresponding provisions in preceding Acts; and markets acquired under the above powers as existing markets are not excluded from the privilege.

51.  Power to sell to local authority (1)  The owner of a market undertaking, or of any rights in respect of a market and of tolls, whether established under, or enjoyed by virtue of, statutory powers or not(1), may sell or lease to a local authority(2) the whole or any part of his market undertaking or rights, but subject to all attached liabilities(3). (2)  A sale by a [ … ](4) company under this section must be authorised— (a) if the company is a company within the meaning of the Companies Act [1985](5), [by special resolution](6). (b) if the company is not such a company, by a resolution passed by threefourths in number and value of the members present, either personally or by proxy, at a meeting specially convened for the purpose with notice of the business to be transacted. This section replaces in substantially the same terms s 50 of the Food and Drugs Act 1955. (1) The power therefore applies to owners of a franchise market or of a franchise of tolls or of a statutory market. The object of this section is, it seems, to give a power of sale or lease to owners who are under a disability and otherwise have no such power. As there is no power to acquire the undertaking compulsorily, the provisions of this section would not appear to relieve the owner, where he has a power of sale or lease subject to formalities or procedure, from compliance with such, even if the owner is a company. In the case of a company, the provisions of sub-s (2) should also be observed. For transfer and devolution of market rights generally, see pp 26 et seq, above. (2) As to the corresponding power of a local authority to acquire by purchase, or on lease, see s 50(1)(b), above. For ‘local authority’, see s 61, below. (3) Where a local authority purchases a statutory or franchise market, it seems that it may, if it thinks fit, regulate the market relying entirely on the statute establishing the market or the franchise rights. A  local authority may, however, whenever it thinks fit, elect to apply the provisions of this Act provided that, by so doing, any charges created upon the market or tolls, and outstanding at the date of the purchase, are left unimpaired. See also note (4) to s 50, above as to the general effect of applying the provisions of this Act. (4) Word omitted repealed by the Food Safety Act 1990, ss 52, 59(4), Sch 2, para 3, Sch 5. (5) Figure substituted by the Companies Consolidation (Consequential Provisions) Act 1985, s 30, Sch 2. (6) Words substituted by the Companies Act 2006 (Commencement No. 3, Consequential Amendments, Transitional Provisions and Savings) Order 2007, SI  2007/2194, art  10(1), Sch 4, para 37.

327

Appendix 1  Statutes 52.  Market days and hours A market authority(1) may appoint the days on which, and the hours during which, markets are to be held(2). This section replaces in substantially the same terms s 51 of the Food and Drugs Act 1955, as partly repealed by the Local Government Act 1972, ss 199(4), 272(1) and Sch 30. (1) For ‘market authority’, see s 61, below. Under the common law, a franchise market cannot be held on any day other than a day authorised by the franchise charter: see p 53, above; and if a local authority which has acquried a franchise market under s 50, above alters the market days under the powers in this section, the franchise rights would to that extent become merged in the statutory rights and the market will thereby become a statutory market subject to this Act and will continue to enjoy the other common law or franchise rights only so far as they are not expressly or impliedly taken away by this or any other Act: see note (4) to s 50, above. Where also a local authority has acquired an existing statutory market and alters the market days under this section, the market days will be controlled thereafter by this section only: see note (4) to s 50, above. (2) By the Local Government (Miscellaneous) Provisions Act 1976, s 36(1), any provision of a local Act which confers power on a local authority to make byelaws appointing days on which or hours during which markets or fairs are held, includes a power to appoint such days or hours by resolution.

53. Charges (1)  A market authority(1) may demand in respect of the market(2), such charges(3) [ … ](4) as they may from time to time determine(5). [(2)  A market authority who provide — (a) a weighing machine(6) for weighing cattle, sheep or swine; or (b) a cold air store or refrigerator for the storage and preservation of meat and other articles of food, may demand in respect of the weighing of such animals, or as the case may be, the use of the store or refrigerator such charges as they may from time to time determine(5).](7) (3)  The authority— (a) shall keep exhibited in conspicuous places in the market place, and in any market house, tables stating in large and legibly printed characters the several charges payable under this Part; and (b) shall keep so much of the tables as relates to charges payable(8) [ … ](4) in respect of the weighing of vehicles, or, as the case may be, in respect of the weighing of animals, conspicuously exhibited at every weighing machine provided by them in connection with the market for the purpose. (4)  A person who demands or accepts a charge greater than that for the time being authorised shall be liable to a fine not exceeding level 2 on the standard scale(9). (5)  Nothing in this section applies in relation to rents charged by a market authority in respect of the letting of accommodation within their market for any period longer than one week(10). Sub-ss (1) and (2) replace in substantially the same terms s 52(1) and (2) of the Food and Drugs Act 1955, as partly repealed by the Local Government Act 1972, ss 199(4), 272(1) and Sch 30. Sub-ss (3)–(5) replace in substantially the same terms s 52(3)–(5) of the 1955 Act as amended, in the case of sub-s (4), by the Criminal Justice Act 1982, ss 37(1), (2), 39(2), 46(1) and Sch 3. (1) For ‘market authority’, see s  61, below. If a local authority acquires an existing market in which there is a right to take tolls, and increases the tolls, it seems that thereafter the tolls will be controlled by this section. (2) At common law, apart from contract, toll is payable by the buyer and not the seller: see p 63, above. But by s 54, below, charges (which includes stallage or tolls: see s 61, below) must be paid from time to time on demand and in the case of animals are payable as soon as they are brought into the market. Under this section, it appears that toll may be made payable by the seller.

328

Food Act 1984

(3) (4) (5)

(6) (7) (8)

(9) (10)

As to the right to demand preferential tolls, see note (4), below; and as to the penalty for demanding excessive charges, see subsection (4), above; and as to the recovery thereof see s 55, below. ‘Charges’ includes stallage or tolls: s 61, below. As to the meaning of stallage and tolls, and the distinction between them, see pp 59 et seq, above. Further tolls in respect of animals not removed within one hour of the close of the market may be levied: see s 54(3), below. Words omitted were repealed by the Food Safety Act 1990, s 52, Sch 2, paras 1, 4(1), (3), Sch 5. Although the discretion to increase charges is wide, care must nevertheless be taken to ensure that such discretion is not exercised unreasonably: see Roberts v Hopwood [1925] AC 578 at 613; A-G v Colchester Corpn [1952] Ch 586; Ricketts v Havering London Borough Council (1981) 79 LGR 146; and pp 61–63, 67–73, above. There is no rule of law against preferential market tolls or stallage and the market owner may remit the whole or any part of the toll or stallage in favour of whomever he pleases: see A-G  v Colchester Corpn [1952] Ch  586 at 597, 598 and 601; and pp 67–69, above. Under the Local Government (Miscellaneous Provisions) Act 1976, s 36(2), a local authority which maintains a market under any local Act may, notwithstanding anything in that Act, make such charges in connection with the market as it may determine from time to time. There is a duty to provide weighing machines for weighing cattle, sheep or swine: see s 57(2), below. Subsection substituted by the Food Safety Act 1990, s 52, Sch 2, paras 1, 4(2). The actual sums for the time being payable must be stated in the tables and not merely the maximum sums which the undertakers have power to charge: Gregson v Potter (1879) 4 Ex D 142. As to articles, animals, etc not appearing in express terms in the tables, but which may be  constructively therein, cf note (7) to s  13 of the Markets and Fairs Clauses Act 1847, above. The fine is recoverable on summary conviction: see s 93(1), (2)(a) and (3)(f), below. As to offences by corporations, see s 94, below. Where the right to occupy a space in a market and the stallages for such right are not specifically regulated, stallages are the subject of a free bargain made between the trader and the owner of the soil, and the owner may make whatever charge he pleases: see pp 61, 62, above. As to when bargains are not free, see pp 67, 68, above.

54.  Time for payment of charges (1)  Charges(1) payable in respect of the market shall be paid from time to time on demand(2) to an authorised market officer(3). [(2)  Charges payable in respect of the weighing of cattle, sheep or swine(4) shall be paid in advance to an authorised market officer by the person bringing the animals to be weighed.](5) (3)  Charges(6) payable in respect of animals brought to the market for sale shall be payable, and may be demanded(6) by an authorised market officer(3)— (a) as soon as the animals in respect of which they are payable are brought into the market place(6), and (b) before they are put into any pen, or tied up in the market place, but further charges shall be payable and may be demanded in respect of any of the animals which are not removed within one hour after the close of the market. This section replaces in substantially the same terms s 53(1)–(3) of the Food and Drugs Act 1955. (1) ‘Charges’ includes stallage or tolls: see s 61, below. As to the meaning of stallage and tolls, and the distinction between them, see p 59 et seq, above. (2) For the penalty for demanding or accepting excessive charges, see s 53(4), above. (3) Authorised market officer’ means an officer of a market authority specially authorised by it to collect charges in the market: see s 61, below. (4) As to such charges, see s 53(2), above, and notes (5) and (6) thereto: see also note (6), below. (5) Subsection (2) substituted by the Food Safety Act 1990, s 52, Sch 2, paras 1, 5.

329

Appendix 1  Statutes (6) As to the charges payable, see s 53(2), above, and notes 4 and 5 thereto. Since charges are payable on demand under sub-s (3), above, as soon as the animals are brought into the market, the common law rule that tolls are payable by the buyer and not the seller (see p 63, above) is inapplicable.

55.  Recovery of charges If a person(1) liable to pay any charge(2) authorised under this Part does not pay it when lawfully demanded(3), the market authority(4) may, by any authorised market officer(5), levy it by distress— (a) of all or any of the animals, poultry or other articles in respect of which the charge is payable(6), or (b) of any other animals, poultry or articles in the market belonging to, or in the charge of, the person liable, and any such charge may also be recovered either summarily as a civil debt(7) or in any court of competent jurisdiction. This section replaces, in substantially the same terms, s 54 of the Food and Drugs Act 1955. (1) ‘Person’ includes a body corporate: see the Interpretation Act 1978, s 5, Sch 1. (2) See s 53, above, and notes thereto. (3) For the time when the demand may be made, see s 54, above. (4) For ‘market authority’, see s 61, below (5) For ‘authorised market officer’, see s 61, below. (6) The animals, poultry or other articles will be those appearing in the table of charges under s 53, above, or constructively appearing therein; cf the cases cited in note (7) to s 13 of the Markets and Fairs Clauses Act 1847, above. (7) For recovery summarily as a civil debt, see s 58(1) of the Magistrates’ Courts Act 1980. The complaint must be laid within six months from the date on which the matter of the complaint arose: see ibid, s 127(1).

56.  Prohibited sales in market hours (1)  A  person(1) (other than a pedlar holding a certificate under the Pedlars Act 1871(2)) who on a market day(3) and during market hours(3) sells or exposes for sale(4) any articles— (a) which are specified in a byelaw(5) made by the market authority(6), and (b) which are commonly sold in the market, and such sale or exposure for sale— (i) is in any place(7) within the authority’s [area](8), and (ii) is within such distance from the market as the authority may by byelaw declare(9), is liable to a fine(10) not exceeding level 2 on the standard scale. This subsection does not apply to a sale or exposure for sale(11) in a person’s own dwelling place(12) or shop(13), or in, or at the door of, any premises to a person resident in those premises. (2)  The market authority shall keep exhibited in conspicuous positions in the vicinity of the market notices stating the effect of any byelaw made under this section. Sub-s (1) replaces, in substantially the same terms, s 55(1) of the Food and Drugs Act 1955, as amended by the Criminal Law Act 1977, s 31(6), Sch 6, and the Criminal Justice Act 1982, ss 37(1), (2), 46(1). (1) ‘Person’ includes a body corporate: see the Interpretation Act 1978, s 5, Sch 1. (2) Section 4 Pedlars Act 1871, above. ‘Pedlar’ is defined in s 3, ibid. See also note (3) to s 13 of the Markets and Fairs Clauses Act 1847, above. A person who does not wholly, or predominantly, obtain his livelihood as a pedlar may nevertheless be regarded as carrying on the trade of a pedlar for the purpose of qualifying for a certificate under the Pedlars Act 1871: Murphy v Duke [1985] QB 905. For the distinction between acting as a street trader and a pedlar see Watson v Malloy [1988] 3 All ER 459; R v Westminster City Council, exp Elmasoglu [1996] COD 357; Shepway District Council v Vincent [1994]  COD  451; Stevenage Borough Council v Wright (1996) 95 LGR 404 and Chichester District Council v Wood CO/2738/96 14 March 1997.

330

Food Act 1984 (3) See s 52, above. (4) Cf the cases in note (4) to s 13 of the Markets and Fairs Clauses Act 1847, above; and see footnotes 214 and 215 on p 132, above. (5) For power to make byelaws, see s 60, below. For procedure, see note (3), ibid. Articles’ has its ordinary meaning and not the special meaning given in s 132(1), below. (6) For ‘market authority’ see s 61, below. (7) In Hooper v Kenshole (1877) 2 QBD 127, it was held that a skittle alley used for the sale of goods was a ‘place’ within the corresponding provisions of a local Act. (8) Word substituted by the Food Safety Act 1990, s 52, Sch 2, paras 1, 6. (9) See note 5, above. If no byelaws have been made under this section a local authority cannot, it seems, prosecute under this section: see Halton Borough Council v Cawley [1985] 1 WLR 15 and Manchester City Council v Walsh (1985) 84 LGR 1, and p 98, above. (10) That is, on summary conviction: see s 93(1), (2)(a), (3)(g), below. As to offences by corpora­ tions, see s 94, below. The offence cannot be condoned by payment of toll, nor toll claimed in lieu of penalty: Carter v Parkhouse (1870) 22 LT 788; Quilligan v Limerick Market Trustees (1883) 14 LR Ir 265. (11) See note (4), above. (12) As to what is a ‘dwelling place’, cf the cases cited in note (6) to s 13 of the Markets and Fairs Clauses Act 1847, above. (13) Under s 13 of the Markets and Fairs Clauses Act 1847, above, it has been held that a shop must be some structure of a more or less permanent nature with a place for storing and not a mere place of sale: see note (6) to that section, above. See also Manchester City Council v Walsh (1985) 84 LGR 1, and pp 82–85, above.

57.  Weighing machines and scales (1)  [ … ](1) (2)  A market authority(2) in whose market cattle, sheep or swine are sold shall, unless there is in force an order of the Minister declaring that the circumstances are such as to render compliance with this subsection unnecessary— (a) provide to that Minister’s satisfaction one or more weighing machines(3) adapted for weighing such animals; and (b) appoint officers to attend to the weighing of such animals. A weighing machine provided under this subsection shall for the purposes of section 1 of the Markets and Fairs (Weighing of Cattle) Act 1926(4), be deemed to have been provided for the purpose of complying with the provisions of the principal Act referred to in that Act of 1926. This section replaces, in substantially the same terms, s 61(1) and (2) of the Food and Drugs Act 1955, as partly repealed by the Weights and Measures Act 1963, s 63(1), Sch 9, Pt 1. (1) Subsection repealed by the Food Safety Act 1990, s 52, Sch 2, paras 1, 7, Sch 5. (2) For ‘market authority’, see s 61, below. (3) The seller cannot be required to weigh animals except in the case of bulls, cows, oxen and heifers fit for immediate slaughter to be sold by auction: see note (3), below. (4) Section 1 of the Markets and Fairs (Weighing of Cattle) Act 1926, above requires an auctioneer, unless exempted by the Minister, to have weighed, and to disclose the weight to intending purchasers of bulls, cows, oxen, heifers fit for immediate slaughter at an auction in a market in which a weighing machine is provided for the purposes of complying with the principal Act, that is, the Markets and Fairs (Weighing of Cattle) Act 1887, above. Further­more, an auctioneer may not, unless exempted by the Minister, sell cattle at any mart where cattle are habitually or periodically sold and tolls are actually taken therein unless facilities for weighing cattle are provided similar to those under the Markets and Fairs (Weighing of Cattle) Acts 1887 and 1891: see s 4 of the Act of 1891, above; and pp 127, 128, above.

[57A.  Provision of cold stores (1)  A market authority may provide a cold air store or refrigerator for the storage and preservation of meat and other articles of food. 331

Appendix 1  Statutes (2)  Any proposal by a market authority to provide under this section a cold air store or refrigerator within the area of another local authority requires the consent of that other authority, which shall not be unreasonably withheld. (3)  Any question whether or not such a consent is unreasonably withheld shall be referred to and determined by the Ministers. (4)  Subsections (1) to (5) of section 250 of the Local Government Act 1972 (which relate to local inquiries) shall apply for the purposes of this section as if any reference in those subsections to that Act included a reference to this section.](1) (1) Section 57A inserted by the Food Safety Act 1990, s 52, Sch 2, paras 1, 8.

58.  [ … ](1) (1) Section repealed by the Food Safety Act 1990, s 52, Sch 2, paras 1, 9, Sch 5.

59.  Information for market officer The person in charge of any vehicle in which, and any other person by whom, animals(1) poultry or other articles are brought for sale in the market shall give to any authorised market officer(2) such information— (a) as to their number and kind, or (b) in the case of articles on which charges are made by reference to weight, as to their weight, as that officer may require. This section replaces, in substantially the same terms, s 58 of the Food and Drugs Act 1955. (1) Animal’ does not include bird or fish, see s 132(1), below. (2) For ‘authorised market officer’, see s 61, below.

60.  Market byelaws A local authority(1) who maintain a market, whether or not they are a market authority within the meaning of this Act(2), may make byelaws(3)— (a) for regulating the use of the market place, and the buildings, stalls, pens and standings in that market place; (b) for preventing nuisances or obstructions in the market place, or in the immedi­ate approaches to it; (c) for regulating porters and carriers resorting to the market, and fixing the charges to be made for carrying articles from the market within the district. [(d) after consulting [the fire and rescue authority](4) [ … ](5), for preventing the spread of fires in the market.](6) This section replaces, in substantially the same terms, s 61 of the Food and Drugs Act 1955. (1) For ‘local authority’ see s 61, below. (2) See s  61, below. In other words, a local authority which has, apart from this Act or the preceding Acts it replaced, acquired a franchise or statutory market, or established a market under a local Act or any other Act, may make byelaws under this provision. (3) The procedure for confirmation of byelaws is set out in the Local Government Act 1972, s 236. For power to make byelaws under this and other Acts, see pp 107 et seq, above. (4) Words inserted by the Fire and Rescue Services Act 2004, s 53(1), Sch 1, para 56(1), (2). (5) Words omitted repealed by the Regulatory Reform (Fire Safety) Order 2005, SI 2005/1541, art 53(1), (2), Sch 2, para 32(1), (2), Sch 4. (6) Paragraph inserted by the Food Safety Act 1990, s 52, Sch 2, paras 1, 10.

61.  Interpretation of Part III and exclusion of City of London In this Part, unless the context otherwise requires— ‘authorised market officer’ means an officer of a market authority specially author­ised by them to collect charges in their market, 332

Food Act 1984 ‘charges’ includes stallage or tolls(1), [[‘fire and rescue authority’ in relation to a market, means (a) where the Regulatory Reform (Fire Safety) Order 2005 applies to the market, the enforcing authority within the meaning given by article 25 of that Order; or (b) in any other case, the fire and rescue authority under the Fire and Rescue Services Act 2004 for the area in which the market is situated;](2) ‘food’ has the same meaning as in the Food Safety Act 1990, ‘local authority’ means a district council, a London borough council(3) or a parish [council but in relation to Wales, means a county council, county borough council](4) or community council, ‘market authority’ means a local authority who maintain a market which has been established or acquired under section 50(1) or under the corresponding provisions of any earlier enactment.](5) 6 [ … ]( ) This section contains provisions formerly in ss 49(2), 52(1), 53(4), 135(7) and 137(3) of the Food and Drugs Act 1955 as affected, in the case of s 49(2), by the London Government Order 1966, SI 1966 No 1305, art 2(11); and as substituted in the case of s 137(3) by the London Government Act 1963, s 54(4), Sch 13, Pt II, para 4. (1) For the meaning of stallage and tolls, and the distinction between them, see pp 59 et seq, above. (2) Definition ‘fire and rescue authority’ (definition ‘fire authority’ as originally enacted) substituted by by the Regulatory Reform (Fire Safety) Order 2005, SI 2005/1541, art 53(1), Sch 2, para 32(1), (3). (3) For definition of London borough council, see the London Government Act 1963, s 1, Sch 1, and the Local Government Act 1972, s 8, Sch 2. (4) Words inserted by the Local Government (Wales) Act 1994, s 22(3), Sch 9, para 14. (5) Definition substituted by the Food Safety Act 1990, s 52, Sch 2, para 11. (6) Words omitted repealed by the Food Safety Act 1990, ss 52, 59(4), Sch 2, para 11, Sch 5.

Part IV Sale of Foods by Hawkers [Repealed by the Food Safety Act 1990, s 59(4), Sch 5.]

Part VI Administration, Enforcement and Legal Proceedings [Sections 70 to 92 repealed by the Food Safety Act 1990, s 59(4), Sch 5.] Legal proceedings 93.  Summary offences (1)  Any offence to which this section applies is triable summarily. (2)  The offences to which this section applies are— (a) an offence under any provision of this Act specified in subsection (3); (b) [ … ](1) (c) [ … ](1) (d) [ … ](1) (3)  The provisions of this Act mentioned in paragraph (a) of subsection (2) are— (a) [ … ](1) (b) [ … ](1) 333

Appendix 1  Statutes (c) [ … ](1) (d) [ … ](1) (e) [ … ](1) (f) section 53(4); (g) section 56(1); (h) [ … ](1) (j) [ … ](1) (k) [ … ](1) (l) [ … ](1) (4)  [Repealed by SI 1991 No 762, art 51(4), Sch 4.] Sub-s (1)–(3) replace s 106A of the Food and Drugs Act 1955 as inserted by the Food and Drugs (Amendment) Act 1982, s 2. (1) Paragraphs repealed by the Food Safety Act 1990, s 59(4), Sch 5.

94.  [ … ](1) (1) Section repealed (subsection (1) repealed except as regards offences under Part III of the Act) by the Food Safety Act 1990, s 59(4), Sch 5.]

95. Prosecutions (1)  No prosecution for an offence under this Act or regulations made under this Act which is triable either summarily(1) or on indictment shall be begun(2) after the expiry of— (a) three years(3) from the commission of the offence, or (b) one year(3) from its discovery by the prosecutor, whichever is the earlier. (2)  [ … ](4) (3)  [ … ](4) (4)  [ … ](4) (5)  [ … ](4) (6)  [ … ](4) (7)  [ … ](4) (8)  [ … ](4) Sub-s (1) replaces s 108(1) of the Food and Drugs Act 1955 as substituted by s 3(1) of the Food and Drugs (Amendment) Act 1982. (1) See s 93, above. (2) That is, when the information is laid: see Beardsley v Giddings [1904] 1  KB  847; Brooks v Bagshaw [1904] 2  KB  798; R  v Manchester Stipendiary Magistrate, ex p Hill [1982] 3 WLR 331. (3) In computing the relevant time limit, the day on which the offence was committed or discovered, as the case may be, is not to be counted: see for example, Radcliffe v Bartholomew [1892] 1 QB 161. (4) Subsections repealed by the Food Safety Act 1990, s 59(4), Sch 5.

*   *   *   *   *   *

Part VII General and Supplemental Acquisition of land, and order to permit works 110.  Compulsory purchase of land A local authority(1) may be authorised by the responsible Minister to purchase land compulsorily for the purposes of this Act, except for the purposes of paragraph (b) 334

Food Act 1984 of section 50(1)(2), and in relation to the compulsory purchase of land under this section— (a) The Acquisition of Land Act 1981 applies; and (b) ‘land’ includes any interest in land and any easement or right in, to or over land. In this section ‘the responsible Minister’, in relation to the purposes of section 70, means the Minister(3), and in relation to the other purposes of this Act means the Secretary of State. This section replaces in substantially the same terms s  130 of the Food and Drugs Act 1955 as partly repealed, in the case of sub-s (1), by the Slaughterhouses Act 1974, s 47, Schs 5, 6 and as amended and partly repealed in the case of sub-s (3) by the Acquisition of Land Act 1981, s 34(1), Sch 4, Sch 6, Pt I. (1) For ‘local authority’ see s 132(1), below. (2) The power under s 50(1)(b), above, is a power to purchase by agreement (but not otherwise) a market undertaking and any rights enjoyed by any person in respect of a market and of tolls: see ibid and note (5) thereto. (3) For ‘the Minister’, see s 132(1), below.

*   *   *   *   *   * 121. Byelaws (1)  The confirming authority in respect of byelaws(1) made under this Act [by a local authority in England](2) is the Secretary of State. Sub-s (1) replaces s 125(1) of the Food and Drugs Act 1955 as partly repealed by the Slaughter­ houses Act 1974, s 47, Sch 6. (1) Confirmation of byelaws is required under s  236 of the Local Government Act 1972. For power to make market byelaws under this Act, see s 60, above, and notes thereto. (2) Words inserted by the Local Government Byelaws (Wales) Act 2012, s 22(2), Sch 2, para 12.

*   *   *   *   *   * Interpretation and operation 131.  [ … ](1) (1) Section repealed by the Food Safety Act 1990, s 59(4), Sch 5.

132.  Interpretation: further provision (1)  In this Act, unless the context otherwise requires, [… ](1)— ‘animal’ does not include bird or fish; [… ](1) ‘the Minister’ means the Minister of Agriculture, Fisheries and Food and the Secretary of State, acting jointly, except in paragraph (a) of section 5(1), section 37 so far as it relates to the Minister’s power to appoint veterinary inspectors, sections 68(5), 83, 101(4), 114 and paragraph (b) of section 115(1) where it means the Minister of Agriculture, Fisheries and Food; [… ](1) (2)  All powers and duties conferred or imposed by this Act shall be deemed to be in addition to, and not in derogation of, any other powers and duties conferred or imposed by Act of Parliament, law or custom, and, subject to any repeal effected by, or other express provision of, this Act, all such other powers and duties may be exercised and shall be performed in the same manner as if this Act had not been passed. (1) Words and definitions repealed by the Food Safety Act 1990, s 59(4), Sch 5.

335

Appendix 1  Statutes *   *   *   *   *   * 134.  [ … ](1) (1) Section repealed by the Food Safety Act 1990, s 59(4), Sch 5.

*   *   *   *   *   * 136.  Citation, extent and commencement (1)  This Act may be cited as the Food Act 1984. (2)  The following provisions of this Act apply to Scotland— (a) section 68 and 69, and paragraph 6 of Schedule 9, (b) [ … ](1) (c) [ … ](1) but apart from those provisions this Act does not apply to Scotland. (3)  [ … ](2) (4)  This Act comes into force at the end of the period of three months beginning with the day on which it is passed. (1) Paragraphs repealed by the Food Safety Act 1990, s 59(4), Sch 5. (2) Subsection repealed by the Food Safety (Northern Ireland) Order 1991, SI 1991/762, s 51(4), Sch 4.

336

City of London (Various Powers) Act 1987

CITY OF LONDON (VARIOUS POWERS) ACT 1987 (1987, c 15) An Act to confer powers on the Corporation of London for adjustment of the site of Billingsgate Market and to make further provision with respect to the market; to make new provision for the control of street trading and related activity in Middlesex Street; to confer powers for the making of drainage byelaws and charges on the submission of plans; to amend provisions relating to city walkways, Bank Underground Station, the register of commoners of Epping Forest and other enactments; and for other purposes. [15th May 1987] *   *   *   *   *   *

Part III Street trading 6.  Interpretation of Part III In this Part, unless the subject or context otherwise requires– ‘article or thing’ includes any living thing; [‘authorised officer’, in relation to any function of the Corporation under sections 16A to 16G of this Act, means— (a) any officer or employee of the Corporation; (b) any person by whom, in pursuance of arrangements made with the Corporation, any enforcement functions under this Part fall to be discharged; or (c) any employee of any such person, who is authorised in writing by the Corporation to act in relation to that function;](2) [‘ice cream trading’ means the selling, exposing or offering for sale of items consisting wholly or mainly of ice cream, frozen confectionery or other similar commodities;](2) ‘licensed street trader’ means a person [(including a temporary licence holder)](2) licensed to engage in street trading by a [street trading](2) licence granted under this Part; ‘receptacle’ includes a vehicle[, trailer](2) or stall and any basket, bag, box, vessel, stand, easel, board, tray or other structure or thing which is used (whether or not constructed or adapted for such use) as a container for, or for the display of, any article or thing; ‘street trading’ means the selling or exposing or offering for sale of any article or thing in a street; ‘street trading licence’ means a licence to engage in street trading granted under this Part[, and includes a temporary licence](2); [‘temporary licence’ means a licence granted under section 11A;](2) [‘temporary licence holder’ means the holder of a temporary licence and includes any person who, by virtue of an agreement of the sort described in section 11A(5) is entitled to exercise any rights conferred by a temporary licence.](2) (1) Definition inserted by the City of London (Various Powers) Act 2013, s 7(1). (2) Definitions and words inserted by the City of London (Various Powers) Act 2013, s 3(1), (2).

7.  Street trading in Middlesex Street market As from the commencement of this Act a person who holds a street trading licence may, subject to the provisions of this Part, in that part of Middlesex Street in the 337

Appendix 1  Statutes city which lies between the junctions of that street with Widegate Street and Sandys Row engage in street trading at any time between the hours of 9 a.m. and 2 p.m. on Sundays other than Christmas Day when that day falls on a Sunday. 8.  Street trading licences in Middlesex Street (1)  An application for a street trading licence or the renewal of such a licence shall be made in writing to the Corporation and in any such application the applicant shall state– (a) his full name, address and date of birth; (b) the nature of the articles or things which he intends to sell or expose or offer for sale under the authority of the licence if granted or renewed; (c) the nature and type of any receptacle or equipment which he intends to use in connection with any sale or exposure or offer for sale; (d) the place or places, if any, at which (i) the articles or things; and (ii) the receptacle or equipment; will be stored by him at all times while they are not exposed or offered for sale or being used in connection with street trading; and (e) such other particulars as the Corporation may reasonably require. (2)  An application for the renewal of a street trading licence shall be made not later than two months or earlier than three months before the date on which that licence, unless revoked or surrendered, will cease to be valid: Provided that nothing in this section shall prevent the Corporation from renewing a street trading licence notwithstanding that application has been made for such renewal at a later date than aforesaid if they consider it reasonable in the circumstances so to do. (3)  As soon as reasonably practicable after the receipt of an application under this section, the Corporation shall (save as provided by subsections (4) and (5) below) grant a street trading licence to the applicant or renew his street trading licence. (4)  A street trading licence shall not be granted to a person under the age of 17 years. (5)  The Corporation may refuse to grant or renew a street trading licence or may at any time revoke or vary a street trading licence granted by them if– (a) the applicant or licensee is unsuitable to hold such licence by reason of having been convicted of an offence which is in the opinion of the Corporation material to his conduct as a street trader or for any other sufficient reason; or (b) the space available in Middlesex Street to which the application relates or which is prescribed by the licence is, at the date of such application, or becomes at any time after the grant of such licence, insufficient to permit of the applicant or licensee engaging therein in any street trading, or in the particular street trading proposed to be or actually carried on by him, without causing undue interference with, or inconvenience to, traffic in that street; or (c) there are in the opinion of the Corporation already enough traders trading in Middlesex Street from shops or otherwise in the articles or things in which the applicant desires to trade; or (d) the place or places identified by the applicant pursuant to subsection (1)(d) above are in the opinion of the Corporation unsuitable or inadequate; or (e) the licensee has persistently failed, when not carrying on street trading, to remove any receptacle or equipment to the place or places identified pursuant to subsection (1)(d) above; or (f) the applicant or licensee has persistently refused or neglected to pay any charges due from him to the Corporation under this Part; or 338

City of London (Various Powers) Act 1987 (g) the licensee personally has for a period of not less than four weeks not exercised, or not fully exercised, his rights under the licence: Provided that– (i) the Corporation shall not refuse to grant or renew, and shall not revoke, a street trading licence on the ground only that the applicant or licensee does not reside in the city; (ii) the Corporation shall not refuse to renew, and shall not revoke or vary, a street trading licence unless they shall have given to the applicant or licensee not less than seven days’ previous notice in writing that objection has been or will be taken to such renewal or that such a revocation or variation is proposed, and (if so required by him in writing within three days after the receipt of such notice) they shall have afforded him an opportunity of being heard against such refusal, revocation or variation. (6) If the Corporation consider that grounds for refusing, failing to renew or revoking a street trading licence exist under subsection (5)(c) above they may, instead of doing so, grant, renew or vary the terms of the licence so as to permit the licensee to trade only in one or more of the descriptions of articles or things specified in the application or (as the case may be) the existing licence. (7)  If the Corporation refuse to grant or renew a street trading licence or revoke or vary a street trading licence they shall, if required by the applicant or licensee, deliver to him within seven days after the receipt of such requirement, particulars in writing of the ground or grounds for such refusal, revocation or variation. (8) A  licensee may at any time surrender his licence to the Corporation and it shall then cease to be valid. (9) A street trading licence shall, unless revoked or surrendered, be valid for a period expiring on the 31st December next following the date of the grant or renewal of the licence. 9.  Prescriptions attached to street trading licences (1)  A street trading licence shall prescribe– (a) the position or place in Middlesex Street in the city at which the licensee may sell or expose or offer for sale articles or things under the authority of the licence; (b) the class or classes of articles or things which the licensee may so sell or expose or offer for sale; (c) the nature and type of any receptacle or equipment which may be used by the licensee in connection with any sale or exposure or offer for sale and the number of such receptacles which may be so used; (d) the form and content of a plaque to be displayed on any receptacle used by the licensee to provide means of identifying the licensee; (e) whether the licensee may employ any other person to assist him in the conduct of his business authorised by the licence. (2)  On any occasion of the renewal of a street trading licence the Corporation may vary the prescriptions made under this section. 10.  Fees for street trading licences (1)  Any person making application for the grant or renewal of a street trading licence shall, when making the application, pay to the Corporation in respect thereof a fee of £5. (2)  Where the Corporation refuse to grant or renew a street trading licence, they shall repay to the person who made the application therefor the amount of the fee paid by him on making such application. 339

Appendix 1  Statutes [(3) In this section ‘street trading licence’ does not include a temporary licence.](1) (1) Subsection inserted by the City of London (Various Powers) Act 2013, s 3(1), (3).

11. Appeals (1) Any person aggrieved by the refusal of the Corporation to grant or renew a street trading licence, or by the revocation or variation by the Corporation of a street trading licence, or by any prescription made by the Corporation under section 9 (Prescriptions attached to street trading licences) of this Act may appeal to the magistrates’ court, and on any such appeal the court may confirm, reverse or vary the decision of the Corporation and may award costs: Provided that any such appeal shall be brought within 14 days from the date on which the refusal, revocation, variation or prescription which is the subject of the appeal is notified to such person as aforesaid by the Corporation. (2)  When any decision of the Corporation under this Part is notified to any person and that person has a right to appeal to the magistrates’ court against that decision by virtue of this section, the Corporation shall at the same time notify that person in writing– (a) that if he is aggrieved by the decision he may appeal to the magistrates’ court; and (b) of the effect of the provisions relating to any such appeal contained in the proviso to subsection (1) above. [11A.  Temporary Licences (1)  A temporary licence is a licence granted under this section which permits the temporary licence holder to carry on street trading— (a) in the licence area specified in the licence; (b) for the period (not exceeding 21 days) specified in the licence; and (c) in accordance with – (i) the terms and conditions of the licence; (ii) subject to such terms and conditions of the licence; (iii) the provisions of any agreement of the sort described in subsection (5), approved by the Corporation and specified in the temporary licence. (2)  The corporation may on receipt of an application for a temporary licence grant the applicant a temporary licence subject to such conditions (including conditions as to charges and the recovery of expenses) as the Corporation may determine. (3)  An application for a temporary licence shall – (a) be made in writing to the Corporation in the form and manner prescribed by the Corporation; (b) be accompanied by the application fee chargeable under subsection (6); and (c) provide such details as the Corporation shall from time to time determine including, but not restricted to, the information described in subsection (4). (4)  The information referred to in subsection (3) is— (a) such information about the applicant as the Corporation may require; (b) particulars of the articles or things in which the applicant desires to trade; (c) a description of the area the applicant wishes to be specified in the temporary licence as the licence, to be shown by reference to a plan; (d) particulars of the period (not exceeding 21 days) for which the applicant desires the temporary licence to have effect; (e) particulars of the days on which and the times between which the applicant desires to trade; and (f) full particulars of any proposed agreement of the sort described in subsection (5). 340

City of London (Various Powers) Act 1987 (5)  Subsection (4)(f) refers to any proposed agreement between an applicant and any person that provides for such person to become a temporary licence holder by virtue of the temporary licence to which the application relates. (6)  The Corporation may charge such fees for applications and grant of temporary licences as it may determine and as may be sufficient in aggregate to cover the reasonable administrative or other costs it incurs in connection with applications under this section. (7)  In this section ‘licence area’ means the area, not being an area in the part of Middlesex Street described in section 7 (street trading in Middlesex Street market), which is specified in a temporary licence as the area within which street trading is permitted’.](1) (1) Section inserted by the City of London (Various Powers) Act 2013, s 3(1), (4).

[11B.  Trading outside business premises (1) An occupier of business premises shall be treated as not engaging in street trading if— (a) the occupier is engaged in ice cream trading from a receptacle; (b) the receptacle is located within 15 metres of the business premises; (c) the Corporation has approved the design, location and purpose of the receptacle; and (d) the business premises are occupied for the purpose of conducting a food business. (2)  Section 115E(2), (3) and (4) of the Highways Act 1980 shall apply to any approval under subsection (1)(c) as if— (a) approval under this section were permission under section 115E(1); and (b) the receptacle were an object or structure. (3)  In this section— ‘business premises’ means premises forming the whole or any part of a nondomestic hereditament; ‘food business’ means any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to any stage of production, processing and distribution of food; ‘non-domestic hereditament’ means a hereditament shown in the local nondomestic rating list maintained by the Corporation under section 41(1) of the Local Government Finance Act 1988; ‘non-domestic rate’ means the rate payable under section 43 of that Act; and ‘occupier’, in relation to business premises, means the person liable to pay the non-domestic rate in respect of those business premises.](1) (1) Section inserted by the City of London (Various Powers) Act 2013, s 9.

12.  Charges to licensed street traders [(1)](1)  The Corporation may make and recover from licensed street traders charges– (a) for the removal of refuse or other services rendered by them to such licensees; and (b) in respect of the expenses incurred by them in the administration of this Part and in the cleansing of that part of Middlesex Street in the city in which street trading takes place: [ … ](2). [(2)  Before determining charges made under subsection (1) the Corporation shall give notice in writing of the proposed charges to all licensed street traders and to any body which appears to the Corporation to represent them. 341

Appendix 1  Statutes (3) A  notice given under subsection (2) shall be accompanied by a statement showing how the proposed charges have been computed and shall specify a reasonable period, being not less than 28 days from the date of the notice, within which written representations concerning the proposed charges may be made to the Corporation. (4)  A body representative of licensed street traders which has received a notice given under subsection (2) may request the Corporation to supply such further information or explanation with regard to the proposed charges as the body may reasonably require in order to ascertain whether the proposed charges are reasonable and have been computed in accordance with the provisions of subsection (1). (5) Where the Corporation receives a request made under subsection (4), the period for receipt of representations shall be suspended from the day of receipt until the day on which the request is complied with. (6)  The Corporation shall consider all representations which it receives within the time allowed for the receipt of written representations in accordance with this section. (7) When the Corporation has determined charges under this section the Corporation shall give notice in writing to all licensed street traders of the charges so determined and of the date on which those charges are to be brought into effect. (8)  In this section ‘licensed street trader’ does not include a temporary licence holder.](1) (1) Words and subsections inserted by the City of London (Various Powers) Act 2013, s 8(1), (2), (4). (2) Words omitted were repealed by the City of London (Various Powers) Act 2013, s 8(1), (3).

13.  Power to provide containers for refuse The Corporation may sell or let on hire to licensed street traders containers for the deposit of refuse arising in the course of street trading. 14.  Byelaws as to street trading The Corporation may make byelaws relating to the carrying on of street trading by licensed street traders for regulating the following matters, that is to say– (a) the storage and the sanitary supervision (while at the place of intended sale or exposure or offering for sale) of articles or things intended to be sold or exposed or offered for sale; (b) the deposit and removal of refuse and the containers to be used for the deposit of such refuse pending its removal; (c) the allocation, maximum dimensions and arrangement of receptacles; (d) any other conditions under which articles or things may be sold or exposed or offered for sale; (e) the manner in which street trading is carried on; (f) [ … ](1); and (g) the wearing of street traders’ badges and the production, when required to do so, of street trading licences. (1) Paragraph repealed by the City of London (Various Powers) Act 2013, s 8(1), (5).

15.  Prohibition of unauthorised street trading As from the commencement of this Act, notwithstanding the provisions of section 24 (Street trading) of the City of London (Various Powers) Act 1911 or anything done thereunder, it shall be unlawful for any person to engage in street trading in the city except as provided in this Part or in Part III of the City of London (Various Powers) Act 1965. 342

City of London (Various Powers) Act 1987 16.  Offences, penalties, etc (1) Any person who contravenes the provisions of section 15 (Prohibition of unauthorised street trading) of this Act or who, being authorised to engage in street trading by a street trading licence, engages in street trading contrary to any prescription of the licence [or any provision of a temporary licence](1), shall be guilty of an offence. (2)  Any person who in support of, or in opposition to– (a) an application for the grant or renewal of a street trading licence; or (b) a refusal of the Corporation to grant or renew a street trading licence; makes a statement which he knows to be false in a material particular, shall be guilty of an offence. [(2A) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of the offence and liable to the same maximum penalty as the body corporate.](1) (3)  Every person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding [level 3](2) on the standard scale. (1) Words and subsection inserted by the City of London (Various Powers) Act 2013, s 5. (2) Words substituted by the City of London (Various Powers) Act 2013, s 6.

[16A. Seizure (1) Subject to subsection (2) and section 16E (seizure of perishable articles or things), if an authorised officer or a constable has reasonable grounds for believing that a person has committed an offence under section 16 (offence of unlawful street trading) the authorised officer or constable may seize— (a) any article or thing being offered for sale, displayed or exposed for sale; or (b) any other article or thing of a similar nature to that being offered for sale which is in the possession or under the control of any person who is displaying an article or thing; or (c) any receptacle or equipment being used by that person.](1) (1) Section inserted by the City of London (Various Powers) Act 2013, s 7(2).

[16B.  Return of seized articles or things (1) The provisions of this section shall have effect where any article or thing is seized under section 16A (seizure). (2)  In this section, references to proceedings are to proceedings in respect of the alleged offence in relation to which the article or thing is seized. (3)  Subject to subsections (8) and (9), following the conclusion of the proceedings the article or thing shall be returned to the person from whom it was seized unless— (a) the court orders it to be forfeited under section 16C (forfeiture of seized articles or things by court); or (b) any award of costs to the Corporation by the Court, which may include removal, return and storage costs, have not been paid within 28 days of the making of the order. (4)  Where after 28 days any costs awarded by the court to the Corporation have not been paid to the Corporation in full— (a) the article or thing may be disposed of; (b) any sum obtained by the Corporation in excess of the costs awarded by the court shall be returned to the person to whom the article or thing belongs; and 343

Appendix 1  Statutes (c) when any article or thing is disposed of by the Corporation under this subsection the Corporation shall have a duty to secure the best possible price which can reasonably be obtained for that article or thing. (5)  Subject to subsection (6), where a receptacle seized under section 16A is a motor vehicle used for ice cream trading, the Corporation or the Commissioner of Police (as the case may be) shall, within 3 days of the receipt of an application in writing by the owner or registered keeper of the vehicle, permit the person to remove it. (6)  Subsection (5) shall not apply where— (a) the owner or registered keeper of the vehicle has been convicted of an offence under this Act; and (b) the offence was committed no more than 3 years before the seizure. (7)  Subject to subsection (9) and, in the case of a motor vehicle, to section 16F (motor vehicles), the article or thing shall be returned to the person from whom it was seized— (a) if no proceedings have been instituted before the expiry of 28 days beginning with the date of seizure, at the expiration of that period; or (b) if proceedings instituted within that period are discontinued, on such discontinuance taking place, unless it has not proved possible, after diligent enquiry, to identify that person or ascertain the person’s address. (8)  Subsection (9) applies where the article or thing is not returned because— (a) it has not proved possible to identify the person from whom it was seized or ascertain the person’s address; or (b) the person from whom it was seized and the owner (if different) have disclaimed or refused to accept it. (9)  Where this subsection applies, the Corporation may make a complaint to the magistrates’ court for a disposal order under section 16G (disposal orders) whether or not proceedings for an offence under this section have been commenced.](1) (1) Section inserted by the City of London (Various Powers) Act 2013, s 7(2).

[16C.  Forfeiture of seized articles or things by court (1)  Subject to subsection (2), the court by or before which a person is convicted of an offence under section 16 may order anything produced to the court, and shown to the satisfaction of the court to relate to the offence, to be forfeited and dealt with in such manner as the court may order. (2)  The court shall not order anything to be forfeited under subsection (1) where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to that person to show cause why the order should not be made. (3)  In considering whether to make an order under subsection (1), a court shall have regard— (a) to the value of the property; and (b) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making). (4)  The court may order forfeiture notwithstanding that the value of the article or thing exceeds the maximum penalty referred to in section 16.](1) (1) Section inserted by the City of London (Various Powers) Act 2013, s 7(2).

[16D.  Seizure: compensation (1)  This section shall have effect where— (a) an article or thing is seized under section 16A (seizure); and 344

City of London (Various Powers) Act 1987 (b) either— (i) the circumstances in subsection (2) apply; or (ii) not less than 6 months have passed since the date of the seizure and no proceedings have been instituted for an offence under section 16 in respect of the act or circumstances which occasioned the seizure. (2)  The circumstances mentioned in subsection (1)(b)(i) are that proceedings for an offence under section 16 have been brought and either— (a) the person charged has been acquitted (whether or not on appeal) and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought; or (b) the proceedings (including any appeal) have been withdrawn, or have failed for want of prosecution, by the Corporation. (3)  When this section has effect, a person who has, or at the time of seizure had, a legal interest in the article or thing seized may recover compensation from the Corporation or (where it is seized by a constable) the Commissioner of Police by civil action in the county court in respect of any loss suffered by that person as a result of the seizure. (4)  The court may only make an order for compensation under subsection (3) if satisfied that seizure was not lawful under section 16A. (5)  Any compensation payable under subsection (3) shall not be included in the computation for calculating charges under section 12 (charges to licensed street traders).](1) (1) Section inserted by the City of London (Various Powers) Act 2013, s 7(2).

[16E.  Seizure of perishable articles or things (1)  No article or thing which is of a perishable nature (in this section referred to as a ‘perishable article or thing’) shall be seized under the provisions of section 16A (seizure) unless the Corporation gives a notice in writing under subsection (2) to the person from whom the article or thing is seized. (2)  Where a perishable article or thing is seized under section 16A, the person from whom it is seized shall be given a notice in writing— (a) stating the effect of subsection (5) and section 16C (forfeiture of seized articles or things by court); (b) giving the address from which the article or thing may be collected; and (c) stating that if that person is not the owner of the article or thing, then that person should give the owner the information referred to in paragraphs (a) and (b). (3)  The Corporation shall store any perishable article or thing seized under section 16A at an appropriate temperature. (4)  If the person from whom a perishable article or thing was seized or the owner of the article or thing goes to collect the article or thing then it shall be returned to that person unless it has been disposed of under subsection (5). (5) If the person from whom a perishable article or thing was seized fails to collect it within 48 hours of the seizure, the Corporation may dispose of it. (6)  When any perishable article or thing is disposed of by the Corporation under subsection (5), the Corporation shall have a duty to secure the best possible price which can reasonably be obtained for it. (7)  Section 16B(1) to (4) (return of seized articles or things) and section 16C(1) and (2) shall apply to a perishable article or thing seized under section 16A only in cases where the article or thing concerned has not been disposed of by the Corporation at the conclusion of the proceedings in respect of the alleged offence in relation to which the article or thing was seized. 345

Appendix 1  Statutes (8)  Section 16B(7) to (9) shall apply to a perishable article or thing seized under section 16A only in cases where the article or thing concerned has not been disposed of by the Corporation at the expiration of the period of 28 days beginning with the date of seizure; and otherwise subsections (10) to (12) shall apply. (9)  Section 16D (seizure: compensation) shall, with the exception of subsection (4), apply in respect of a perishable article or thing in cases where the article or thing concerned has not been disposed of by the Corporation; and otherwise subsections (10) to (12) shall apply. (10)  Subsection (12) shall have effect where the Corporation has disposed of a perishable article or thing under subsection (5) and the following condition applies. (11)  The condition referred to in subsection (10) is that no proceedings inrespect of the alleged offence in relation to which the article or thing was seized are instituted before the expiration of a period of 28 days beginning with the date of seizure of the article or thing, or any such proceedings instituted within that period are discontinued. (12)  When this subsection has effect a person who has, or at the time of seizure had, a legal interest in the article or thing seized may recover compensation from the Corporation or (where it is seized by a constable) the Commissioner of Police by civil action in the county court in respect of any loss suffered by that person as a result of the seizure. (13) Any compensation payable under subsection (12) shall not be included in the computation for calculating charges under section 12 (charges to licensed street traders).](1) (1) Section inserted by the City of London (Various Powers) Act 2013, s 7(2).

[16F.  Motor vehicles (1) Subsection (4) applies where a motor vehicle has been seized under section 16A(1) (seizure) and the following conditions are met. (2) The first condition is that, in ascertaining the identity of the person from whom a vehicle was seized, the Corporation has, before the expiry of the period of 14 days from the date of the seizure, made a request to the Secretary of State for the supply of relevant particulars. (3)  The second condition is that those particulars have not been supplied to the Corporation before the date after which the Corporation would, but for this section, have to return the vehicle in accordance with section 16B(7). (4)  When this subsection applies and— (a) no proceedings are instituted in respect of the alleged offence in respect of which the vehicle was seized before the expiry of the period of 14 days beginning with the date on which the relevant particulars are supplied; or (b) any such proceedings instituted within that period are discontinued, the Corporation shall return the vehicle to its owner at the expiry of that period or on the discontinuance of the proceedings, as the case may be. (5)  If the Corporation seeks to return a vehicle in accordance with subsection (4), but the person to whom the Corporation seeks to return the vehicle cannot be found or disclaims or refuses to accept the vehicle, the Corporation may make a complaint to the magistrates’ court for a disposal order in respect of the vehicle under section 16G (disposal orders). (6)  In this section, ‘relevant particulars’ are particulars relating to the identity of the owner of the vehicle contained in the register of mechanically propelled vehicles maintained by the Secretary of State under the Vehicle Excise and Registration Act 1994. (7)  The owner of a vehicle for the purposes of this section shall be taken to be the person by whom the vehicle is kept. 346

City of London (Various Powers) Act 1987 (8)  In determining who was the owner of a motor vehicle at any time, it shall be presumed that the owner is the person in whose name the vehicle is at that time registered under the said Act of 1994.](1) (1) Section inserted by the City of London (Various Powers) Act 2013, s 7(2).

[16G.  Disposal orders (1)  This section applies to a complaint made by the Corporation for a disposal order under— (a) section 16B(9) (return of seized articles or things); or (b) section 16F(5) (motor vehicles), and items in this section that are the subject of the complaint are referred to as ‘seized articles or things’. (2)  On a complaint to which this section applies, the magistrates’ court, if satisfied that the Corporation has made reasonable efforts— (a) to identify the person from whom the seized article or thing was seized or its owner, as the case may be; or (b) to return the seized article or thing, may make an order under this section. (3)  An order under this section is an order authorising the Corporation— (a) to dispose of the seized article or thing in question; and (b) after payment out of any proceeds arising from the disposal of the expenses incurred in the seizure, storage and disposal, to apply the balance, if any, towards the costs of the Corporation as mentioned in section 12 (charges to licensed street traders). (4)  The court shall not make a disposal order under this section where a person claiming to be the owner of or otherwise interested in the seized article or thing applies to be heard by the court, unless an opportunity has been given to that person to show cause why the order should not be made. (5)  Subsection (6) applies where— (a) a person appears before the court under subsection (4) to show cause why the order should not be made; (b) the court makes a disposal order under this section authorising the Corporation to dispose of the article or thing; (c) the seized item in question is not of sufficient value to defray the expenses of seizing and storing it; and (d) the court is satisfied that the person mentioned in paragraph (a) was the owner of the seized item in question or was the person from whom it was seized, as the case may be. (6)  Where this subsection applies, the court may order the person mentioned in subsection (5)(a) to pay the expenses, or the balance of the expenses, reasonably incurred by the Corporation in seizing and storing the seized item in question. (7)  In considering whether to make a disposal order under this section, a court shall have regard— (a) to the value of the seized article or thing; (b) to the likely financial and other effects on any relevant person of the making of the order (taken together with any other order that the court contemplates making); and (c) to any other circumstances considered to be relevant. (8)  The court may make a disposal order under this section even though the value of the seized article or thing exceeds the maximum penalty for the offence in respect of which the seized article or thing had originally been seized had the said offence been prosecuted to conviction. 347

Appendix 1  Statutes (9)  In this section, ‘owner’, in respect of a vehicle, has the same meaning as in section 16F; and ‘relevant person’ means the owner of the article or thing and (if different) the person from whom the article or thing was seized.](1) (1) Section inserted by the City of London (Various Powers) Act 2013, s 7(2).

[16H.  Provision of information by the Corporation The Corporation shall publish on its website information about— (a) the provisions of this Part; and (b) its policies as to enforcement of those provisions.](1) (1) Section inserted by the City of London (Various Powers) Act 2013, s 7(2).

[16I. Training (1)  The Corporation shall not authorise an officer to exercise powers under— (a) section 16A, or (b) section 15(1) of the London Local Authorities Act 2004 (fixed penalty offences) in respect of an offence under section 16(1) of this Act, unless it is satisfied that the officer has received adequate training in acting for those purposes. (2)  The Corporation shall make the training referred to in subsection (1) available also to constables who carry out any enforcement functions under this Part.](1) (1) Section inserted by the City of London (Various Powers) Act 2013, s 7(2).

17.  Suspension of proceedings pending appeal On any appeal under section 11 (Appeals) of this Act against the decision of the Corporation– (a) to refuse to renew a street trading licence; or (b) to revoke or vary a street trading licence; or (c) on the renewal of a street trading licence, to vary any prescription made under section 9 (prescriptions attached to street trading licences) of this Act; then, until the time for appealing has expired or, if an appeal is lodged, until it is disposed of or withdrawn or fails for want of prosecution, the licence shall be deemed to have been renewed, or not to have been revoked or varied, or to have been renewed without any variation of the prescriptions attached to it, as the case may be. 18.  Evidence of street trading in proceedings In any proceedings for an offence under section 16 (Offences, penalties, etc) of this Act, where it is shown that any article or thing was displayed in or on any receptacle in a stationary position in any street, that article or thing shall be presumed to have been exposed or offered for sale (at such time and in such position at which it was so displayed) by the person in charge, or appearing to be in charge, thereof unless it is shown to the satisfaction of the court that the article or thing was brought into that street for some purpose other than for the purpose of selling it or exposing or offering it for sale in a street. 19.  Saving for newsvendors and itinerant traders (1)  Nothing in this Part applies to a person who sells or exposes or offers for sale newspapers or periodicals in a street unless he uses for that purpose a receptacle which occupies a stationary position in a street and, in a case where he sells or exposes or offers for sale only daily, weekly or Sunday newspapers, such receptacle– 348

City of London (Various Powers) Act 1987 (a) exceeds 3 feet in height; or (b) occupies a position extending over a portion of the footway of the street measuring more than 2 feet 6 inches in any direction or exceeding 3 square feet in area; or (c) occupies a position extending over a portion of the carriageway of the street. (2)  Nothing in this Part applies to a trader who is for the time being carrying on business with persons residing or employed in premises in, or abutting on, a street in respect of any street trading conducted by him in the course of that business unless he permits any receptacle used by him to occupy a stationary position in the street for an unreasonable time. 20.  Saving for general enactments Nothing in this Part exempts any person from, or shall alter or affect the operation of, the provisions of any enactment relating to the obstruction of traffic in highways. 21.  Saving for sales in legal markets or fairs In the case of any market or fair held in pursuance of any statute, royal licence, royal charter or letters patent, or as of right from time immemorial, nothing in this Part shall affect the sale or exposure or offer for sale of goods in any such market or fair by any person who has paid a toll to, or is acting under the written authority of a person holding or entitled to hold such market or fair or entitled to receive tolls in respect of sales made or stalls or stands occupied in such market or fair. 22.  Amendment of City of London (Various Powers) Act 1911 As from the commencement of this Act subsection (11) of section 24 (Street trading) of the City of London (Various Powers) Act 1911 shall have effect as if after ‘1965’ there were inserted the words ‘or section 15 (Prohibition of unauthorised street trading) of the City of London (Various Powers) Act 1987’. 23.  Amendment of City of London (Various Powers) Act 1965 As from the commencement of this Act the City of London (Various Powers) Act 1965 shall have effect subject to the following amendments:— In subsection (1) of section 13 (Prohibition of unauthorised street trading), at the end of the subsection there shall be inserted the words ‘or section 7 (Street trading in Middlesex Street market) of the City of London (Various Powers) Act 1987’; In subsection (1) of section 17 (Fees on licences), for the words ‘ten shillings’ there shall be substituted the words ‘five pounds’. 24.  Saving for existing licensees and their nominees Nothing in this Part shall prejudice or affect the rights of any person who holds a street trading licence granted under Part III of the City of London (Various Powers) Act 1965 or the nominee, specified in accordance with subsection (2) of section 16 (Street trading licences) of that Act or section 10 (Street trading in Middlesex Street) of the City of London (Various Powers) Act 1970, of any such person. 25.  Repeal of provisions as to registered street traders, etc (1)  The provisions of Part III of the City of London (Various Powers) Act 1965 specified in Part I of the Schedule to this Act (provisions concerning registered street traders which are now spent) are hereby repealed. (2)  The provisions of the said Part III specified in Part II of the Schedule to this Act and the related enactments there specified (which include sections 23 and 24 of this Act) are hereby repealed as from such date as the Corporation may appoint. 349

Appendix 1  Statutes (3)  The Corporation shall not appoint a day under subsection (2) above earlier than the date of the death of the last person entitled to the grant of a licence pursuant to the said Part III (as having effect by virtue of section 10 of the City of London (Various Powers) Act 1970), and as soon as may be after appointing a day under that subsection the Corporation shall publish notice thereof in the London Gazette and in a newspaper circulating in the city. 26.  Photographing, etc (1)  The Corporation may designate, in accordance with subsection (6) below, any of the following places, or any part of such places, places, in the city as to which this section applies– (a) a public off-street car park, garden or other park or open space under the management and control of the Corporation; (b) a street, parade or way to which the public commonly have access, whether or not as of right; and (c) any road or any unenclosed land adjacent to, and within 15 metres of any road; being in any case within, or within 45 metres of any part of that part of Middlesex Street which lies within the city. (2)  Any person who in a place designated under subsection (1) above, without the written consent of the Corporation, or in breach of any condition subject to which the Corporation’s consent is given, photographs, or purports to photograph, any person by way of trade or business shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale. (3)  (a)  In proceedings for an offence under subsection (2) above it shall be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence. (b) If in any case the defence provided by paragraph (a) above involves the allegation that the commission of the offence was due to the act or default of another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless, within a period of 7 clear days before the hearing, he has served on the prosecutor a notice in writing giving such information as was then in his possession identifying, or assisting in the identification of that other person. (4) The conditions of consent referred to in subsection (2) above include conditions as to the times or period for which the consent is valid and the payment for the consent of such reasonable fee as the Corporation may by resolution prescribe to cover their expenses in dealing with applications for such consents. (5)  Subject to any conditions as to the period for which the consent is valid, any such consent may be revoked by notice to the person to whom the consent was given under this subsection. (6)  (a)  A person aggrieved by– (i) the withholding by the Corporation of consent referred to in subsection (2) above; (ii) the refusal by the Corporation to renew such consent; (iii) the conditions subject to which the Corporation give such consent; or (iv) the revocation of such consent under subsection (4) above; may appeal to a magistrates’ court and section 11 (Appeals) and section 17 (Suspension of proceedings pending appeal) of this Act shall apply in respect of any such appeal as those sections apply in respect of appeals in respect of street trading licences. (b) In its application to appeals under this section the said section 17 shall have effect as if the reference to a refusal to renew included the withholding 350

City of London (Various Powers) Act 1987 by the Corporation of a consent under subsection (2) above and as if the reference to the variation of any prescription included the imposition of any condition subject to which the Corporation give such consent, whether on its grant or renewal. (7) (a) Before designating any place as a place to which this section applies the Corporation shall give notice of their proposal by advertisement in a newspaper circulating in the city, and by posting it in the places to which it relates, stating that objections to the proposal may be made to the proper officer of the Corporation within a time, not less than 28 days after the giving of the notice, specified in the notice. (b) After taking into consideration any objections made in accordance with paragraph (a) above and after consulting the Commissioner of Police, the Corporation may by resolution designate as places to which this section applies all or any, or any part, of the places specified in the notice given under that paragraph. (8)  A resolution under subsection (7)(b) above shall come into force on such day as shall be specified by a notice given in the same manner as a notice given under subsection (7)(a) above, being a day not less than 28 days after the day on which the notice is given under this subsection. (9)  This section shall not prohibit– (a) the doing of anything on land by the owner or occupier of the land, or by any person with the consent of the owner or occupier, or the doing of anything on land forming part of a highway by the owner or occupier of land fronting that part; (b) the taking of a photograph for the purpose of making it available for publication in a newspaper or periodical if the photographer is employed as such by or on behalf of the owner or publisher of a newspaper or periodical, or carries on or is employed in a business which consists in, or includes, selling or supplying photographs for such publication. (10) Byelaws made under subsection (g) of section 14 (Byelaws as to street trading) of this Act may include provision requiring the production of any consent given under this section.

351

Appendix 1  Statutes

LONDON LOCAL AUTHORITIES ACT 1990 (1990, c 7) An Act to confer further powers upon local authorities in London; and for other purposes. [22nd February 1990]

Part III Street trading 21.  Interpretation of Part III (1)  In this Part of this Act— ‘grant’, unless the context otherwise requires, includes renew and renewal, and cognate words shall be construed accordingly; ‘ice cream trading’ means the selling, exposing or offering for sale of goods consisting wholly or mainly of ice cream, frozen confectionery or other similar commodities from a vehicle; [‘itinerant ice cream trading’ means ice cream trading from a vehicle which goes from place to place remaining in any one location in the course of trading for periods of 15 minutes or less and not returning to that location or any other location in the same street on the same day;](1) ‘licence street’ means a street designated under section 24 (designation of licence streets) of this Act; ‘receptacle’ includes a vehicle or stall and any basket, bag, box, vessel, stand, easel, board, tray or thing which is used (whether or not constructed or adapted for such use) as a container for or for the display of any article or thing or equipment used in the provision of any service; ‘street’ includes— (a) any road or footway; (b) any other area, not being within permanently enclosed premises, within 7 metres of any road or footway to which the public [obtain access without payment— (i) whether or not they need the consent of the owner or occupier; and (ii) if they do, whether or not they have obtained it;](1) (c) any part of such road, footway or area; (d) any part of any housing development provided or maintained by a local authority under Part II of the Housing Act 1985 (c. 68); [‘street trading’ means subject to [[subsections (1ZA), (1A)](2) and (2)](1) below— (a) the selling or the exposure or offer for sale of any article (including a living thing); and (b) the purchasing of or offering to purchase any ticket; and (c) the supplying of or offering to supply any service, in a street for gain or reward [(whether or not the gain or reward accrues to the person actually carrying out the trading)](3);](4) ‘street trading licence’ means a licence granted under this Part of this Act and valid for the period specified therein being not less than six months and not more than three years; ‘temporary licence’ means a licence granted under this Part of this Act valid for a single day or for such period as may be specified in the licence not exceeding six months. [(1ZA)  In this Part of this Act ‘street trading’ shall also include the selling or exposure or offer for sale of any motor vehicle in the course of a business if the vehicle is— 352

London Local Authorities Act 1990 (a) exposed or offered for sale on the internet; and (b) kept on a street during the period when it is so exposed or offered for sale.](2) [(1A)  In determining whether activity amounts to street trading for the purposes of this Act, the fact that— (a) a transaction was completed elsewhere than in a street in the case where the initial offer or display of the articles in question or the offer of services, as the case may be, took place in a street; (b) either party to the transaction was not in a street at the time it was completed; (c) the articles actually sold or services actually supplied, as the case may be, were different from those offered, shall be disregarded.](3) (2)  The following are not street trading for the purposes of this Part of this Act:— (a) trading by a person acting as a pedlar under the authority of a Pedlar’s Certificate granted under the Pedlars Act 1871 (c. 96)[, if the trading is carried out only by means of visits from house to house](5); (b) anything done in a market or fair the right to hold which was acquired by virtue of a grant (including a presumed grant) or acquired or established by virtue of any enactment or order; (c) trading in a trunk road picnic area provided by the Secretary of State under section 112 of the Highways Act 1980 (c. 66); (d) trading as a news-vendor provided that the only articles sold or exposed or offered for sale are [current](5) newspapers or periodicals and they are sold or exposed or offered for sale without a receptacle for them or, if with a receptacle for them such receptacle does not— (i) exceed 1 metre in length or width or 2 metres in height; or (ii) occupy a ground area exceeding 0.25 square metre; or (iii) stand on the carriageway of a street; or (iv) cause undue interference or inconvenience to persons using the street; and (e) selling articles or things to occupiers of premises adjoining any street, or offering or exposing them for sale from a vehicle which is used only for the regular delivery of milk or other perishable goods to those persons; (f) [ … ](6) (g) [ … ](6) (h) the doing of anything authorised by regulations made under section 5 of the Police, Factories, &c. (Miscellaneous Provisions) Act 1916 (c. 31) [or by permit or order made under Part III of the Charities Act 1992 (c. 41)](5); (i) trading in a highway in relation to which a control order under section 7 of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57) is in force, other than trading to which the control order does not apply; and [(j) the selling or the exposure or offer for sale [of articles](7) or the provision of services on private land adjacent to a shop provided that the selling or the exposure or offer for sale of the articles or the provision of the services— (i) forms part of the business of the owner of the shop or a person assessed for uniform business rate in respect of the shop; and (ii) takes place during the period during which the shop is open to the public for business.](4) (1) Definition and words substituted by the London Local Authorities Act 2007, s  38(1)–(3), (4)(a). (2) Words substituted and subsection inserted by the London Local Authorities Act 2012, s 9(1), (2). (3) Words and subsection inserted by the London Local Authorities Act 2007, s 38(1), (4)(b), (5).

353

Appendix 1  Statutes (4) Definition and paragraph substituted by the London Local Authorities Act 2004, s  20(1), Sch 4, paras 1, 2(d). (5) Words inserted by the London Local Authorities Act 2004, s 20(1), Sch 4, para 2(a)–(c). (6) Paragraphs omitted were repealed by the London Local Authorities Act 2007, s 38(1), (6). (7) Words inserted by the London Local Authorities Act 1994, s 6(1).

22.  Application of Part III This Part of this Act applies to the borough of a participating council as from the appointed day. 23.  Licensing of street traders (1)  Subject to the provisions of this Part of this Act it shall be unlawful for any person to engage in street trading (whether or not in or from a stationary position) in any licence street within a borough unless that person is authorised to do so by a street trading licence or a temporary licence. (2)  For the purposes of this Part of this Act a person shall be deemed to engage in street trading whether or not he regularly carries on the business of street trading. 24.  Designation of licence streets (1)  If a borough council consider that street trading should be licensed in their area they may from time to time pass any of the following resolutions:— (a) a resolution (in this Part of this Act referred to as a ‘designating resolution’) designating any street within the borough as a ‘licence street’; (b) a resolution specifying in relation to any such street or any part of a street any class or classes of articles, things or services which they will, or other than which they will not, prescribe in any street trading licence granted by them in respect of that street; and may from time to time by subsequent resolution rescind or vary any such resolution: [Provided that a borough council shall— (a) before passing a designating resolution, consult with the Commissioner of Police of the Metropolis on their proposal; and (b) before rescinding or varying a designating resolution, consult with the licence holders trading in the street in question, or a body or bodies representative of them, on their proposal.](1) (2)  At the appointed day for the purposes of this Part of this Act in a borough, the streets prescribed by any licences granted by the council of the borough in pursuance of powers contained in any of the enactments referred to in column (2) of Schedule 2 to this Act and then in force shall be deemed to have been designated as licence streets under a designating resolution. (3)  If a borough council pass a designating resolution the designation of the street shall take effect on the day specified in the resolution (which must not be before the expiration of the period of one month beginning with the day on which the resolution is passed). (4)  A borough council shall not pass a resolution or rescind or vary a resolution under this section unless— (a) they have published notice of their intention to do so in a local newspaper circulating in their area; (b) they have served a copy of the notice on the highway authority for that street (unless they are that highway authority); and (c) where subsection (5) below applies, they have obtained the necessary consent. (5)  This subsection applies— 354

London Local Authorities Act 1990 (a) where the resolution relates to a street which is owned or maintainable by a relevant corporation; and (b) where the resolution designates as a licence street any street maintained by a highway authority; and in subsection (4) above ‘necessary consent’ means— (i) in the case mentioned in paragraph (a) above, the consent of the relevant corporation; and (ii) in the case mentioned in paragraph (b) above, the consent of the highway authority. (6)  The following are relevant corporations for the purposes of this section:— (a) British Railways Board; (b) London Regional Transport; [ … ](2) (c) [ … ](2) [(d) Network Rail Infrastructure Limited; and (e) [Transport for London](3).](4) (7)  The notice referred to in subsection (4) above shall— (a) contain a draft of the resolution to which it relates; and (b) state that representations relating to it may be made in writing to the borough council within such period, not less than 28 days after the publication of the notice, as may be specified in the notice. (8)  As soon as practicable after the expiry of the period specified under subsection (7) above, the borough council shall consider any representations relating to the proposed resolution which they have received before the expiry of that period. (9) After the borough council have considered those representations, they may if they think fit, pass such a resolution relating to the street as is mentioned in subsection (1) above. (10)  The borough council shall publish notice of the passing of such a resolution in a local newspaper circulating in their area on two consecutive weeks. (11)  The first publication shall not be later than 28 days before the day specified in the resolution for the coming into force of the designation. (1) Proviso substituted by the London Local Authorities Act 1994, s 6(2). (2) Word and paragraph omitted were repealed by the London Local Authorities Act 2004, s 20(1), Sch 4, para 3(a), (b). (3) Words substituted by the Transport for London (Consequential Provisions) Order 2003, SI 2003/1615, art 2, Sch 1, para 34(1), (3). (3) Paragraphs inserted by the London Local Authorities Act 2004, s 20(1), Sch 4, para 3(c).

25.  Application for street trading licences (1)  An application for a street trading licence or renewal of such a licence shall be made in writing to the borough council, and in the case of an application for the renewal of a licence shall be made not later than two months or earlier than three months before the date on which that licence unless revoked or surrendered will cease to be valid: Provided that nothing in this section shall prevent a borough council from [renewing a street trading licence](1), notwithstanding that application has been made for such renewal at a later date than aforesaid if they consider it reasonable in the circumstances so to do. (2)  In the application, the applicant shall state— (a) in the case of an application by an individual, his full name and address and date of birth; (b) in the case of an application for a licence to carry on ice cream trading— (i) by a company incorporated under the Companies Acts, the name of the company and its registered office; 355

Appendix 1  Statutes (ii) by a partnership, the names of its members and the address of its principal office; (c) the licence street in which, the days on which and the times between which he desires to trade; (d) the description of articles, things or services in which he desires to trade; and (e) such other particulars, relevant to street trading, as the borough council may reasonably require; and may in the case of an individual specify the name and address of a relative of his who is associated with, or dependent upon, the business of street trading in respect of which the application is made and to whom he desires the licence to be granted in any of the events specified in subsection (1)(a) of section 26 (succession) of this Act. [(2A)  In the case of an application for a street trading licence which, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 21 (interpretation of Part III) of this Act, the applicant shall provide evidence in writing— (a) that he has consent to trade on the land from the owner of the land in question; or (b) that he is the owner of the land in question.](2) [(3)  In the case of an application by an individual the applicant shall, with his application, hand to an authorised officer three identical clear full face photographs of himself— (a) without sunglasses; and (b) unless on religious grounds the applicant permanently wears headgear, without headgear, taken within the preceding 12 months, each photograph being signed by the applicant on the reverse. But the borough council may, at their discretion, accept a lesser number of photographs. (3A)  If a standard condition prescribed under regulations made under subsection (3) of section 27 (conditions of street trading licences) of this Act requires third party insurance cover the applicant shall produce to an authorised officer proof of such third party insurance cover before a licence is granted. (3B) A  borough council may make regulations prescribing the procedure for determining applications. (3C)  Before making or amending such regulations the borough council shall— (a) consult any body which appears to the borough council to represent licence holders; and (b) give consideration to any representations received within 28 days of the date on which the borough council’s proposals were notified to the body concerned.](3) (4)  A street trading licence— (a) shall not be granted— (i) to a person under the age of 17 years; or (ii) except where the application is made by a company incorporated under the Companies Acts, or by a partnership, for a licence to carry on ice cream trading to a person, on a corresponding day, days or time, who holds a street trading licence in any other licence street granted under this Part of this Act but nothing in this paragraph shall prevent the renewal of such a licence; or (iii) except where the application is made by a company incorporated under the Companies Acts, or by a partnership, for a licence to carry on ice cream trading to a body corporate or to an unincorporated association; or 356

London Local Authorities Act 1990 (iv) in respect of an application for [a street trading licence which, if granted, would authorise trading](1) in a street which is not a licence street; or (v) where the street to which the application relates is a street in respect of which the borough council have by resolution passed under subsection (1)(b) of section 24 (designation of licence streets) of this Act specified a class of articles or things, or services which they will not prescribe in any street trading licence and the grant of the licence would be contrary to any of the terms of that resolution; (b) shall not be granted unless the borough council are satisfied that there is 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 or vehicular traffic using the street; [(c) shall not be granted in the case of an application for a street trading licence which, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 21 (interpretation of Part III) of this Act, unless the applicant has provided sufficient such evidence as is mentioned in subsection (2A) above to satisfy the council.](2) (5)  Subject to subsection (4) above, the borough council shall grant an application for a street trading licence unless they consider that the application ought to be refused on one or more of the grounds specified in subsection (6) below. (6)  Subject to subsection (8) below the council may refuse an application on any of the following grounds:— (a) that there are enough traders trading in the street or in any street adjoining the street in respect of which the application is made in the goods in which the applicant desires to trade; (b) that the applicant is on account of misconduct or for any other sufficient reason unsuitable to hold the licence; (c) that the applicant is an individual who has without reasonable excuse failed personally to avail himself fully of a previous street trading licence; (d) that the applicant has at any time been granted a street trading licence by the borough council which was revoked or could have been revoked on the grounds that he had refused or neglected to pay fees or other charges due to them in respect of the licence; (e) that the applicant has failed to provide or to identify suitable or adequate premises for the storage of any receptacles or perishable goods in which he proposes to trade when street trading is not taking place; (f) that— (i) the application is for the grant (but not the renewal) of a street trading licence; and (ii) the only available position is in that part of the street which is contiguous with the frontage of a shop; and (iii) the articles, things or services mentioned in the application are sold or provided at the shop; (g) that— (i) the application is for the grant (but not the renewal) of a street trading licence; and (ii) the only available position in the street is within the curtilage of a shop; and (iii) the applicant is not the owner or occupier of the premises comprising the shop. (7)  If the borough council consider that grounds for refusal exist under subsection (6)(a) or (c) above they may grant the applicant a licence which permits him— 357

Appendix 1  Statutes (a) to trade on fewer days or during a shorter period in each day than is specified in the application; or (b) to trade only in one or more of the descriptions of goods specified in the application. (8)  Subject to subsection (4) above if— (a) a person is at the appointed day licensed to trade in a street under the provisions of any local enactment; and (b) the street becomes a licence street under this Part of this Act; and (c) he was trading from a fixed position in the street immediately before it became a licence street; and (d) within two months from the appointed day he applies for a street trading licence to trade in the street; his application shall not be refused. (9) Subject to subsections (4), (6) and (8) above a borough council when considering applications for licences to trade in licence streets under this Part of this Act shall give preference to applications from persons who immediately before the appointed day were under the provisions of any local enactment authorised to trade in a street in the borough which is not a licence street. (10) A borough council when considering applications for licences to carry on ice cream trading in a licence street shall treat all applicants, whether companies, partnerships or individuals, on an equal footing and in particular— (a) shall not treat individuals less favourably than companies or partnerships; and (b) as between applicants who are companies or partnerships, shall not treat any particular company or partnership more favourably than others. (11)  A licence holder may at any time surrender his licence to the borough council and it shall then cease to be valid. (1) Words substituted by the London Local Authorities Act 2007, s 39(1), (2), (4). (2) Subsection and paragraph inserted by the London Local Authorities Act 2007, s 39(1), (3), (5). (3) Subsections substituted by the London Local Authorities Act 2004, s 20(1), Sch 4, para 4.

26. Succession (1)  (a) When the holder of a licence who is an individual has specified the name and address of a relative to whom he desires the licence to be granted— (i) dies; or (ii) retires having reached the normal age for retirement; or (iii) notifies the borough council that owing to ill-health he is unable to continue to engage in the street trading permitted by the licence, and submits evidence to satisfy the borough council as to his ill-health; the borough council shall not (except as provided in paragraph (b) of this subsection) grant a licence in respect of the position or place in a street at which the former licensee was entitled to engage in street trading under the authority of his licence until the expiration of 28 days from the date of the death of the licensee or his retirement or receiving the notification, as the case may be; (b) If during the said period of 28 days the person specified by the holder of the licence, when making application for the licence, as the relative to whom he desired the licence to be granted in any of the events mentioned in paragraph (a) above makes application for the grant of a licence in respect of the position or place available in the street the borough council shall, save as provided by paragraphs (b) to (e) of subsection (6) of section 25 (application for street trading licences) of this Act grant a licence to that person. (2)  For the purposes of this section a person shall be treated as being related to another if the latter is the wife, husband, father, mother, grandfather, grandmother, 358

London Local Authorities Act 1990 stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister of the former and shall be deemed to be so related notwithstanding that he is so related only through an illegitimacy or in consequence of an adoption. 27.  Conditions of street trading licences (1) A  licence granted under section 25 (application for street trading licences) of this Act, shall— (a) unless it is revoked or surrendered, be valid for a period of three years from the date on which it is granted, or for such shorter period as the borough council may determine; (b) specify the conditions; and (c) in the case of an individual incorporate one of the photographs of the licence holder submitted under subsection (3) of the said section 25; and on any occasion of the renewal of a licence, or at 1 January in any year during the currency thereof, (whether on application by the licence holder or otherwise) or at any time on application by the licence holder, the borough council may vary the conditions. (2)  Where a licence is granted to a company incorporated under the Companies Acts or to a partnership to carry on ice cream trading, any individual carrying on ice cream trading in accordance with that licence shall at all times while he is so trading carry with him a recent photograph of him authenticated by the company or on behalf of the partnership, as the case may be, which holds the licence. (3)  The borough council may make regulations prescribing standard conditions which they may attach to the licence on the occasion of its grant or renewal. (4)  Before making regulations under subsection (3) above, the borough council shall— (a) publish notice of their intention to do so in a local newspaper circulating in their area, and such notice shall— (i) contain a draft of the resolution to which it relates; and (ii) state that representations relating to it may be made in writing to the borough council within such period, not less than 28 days after the publication of the notice, as may be specified in the notice; and (b) consult the licence holders or a body or bodies representative of them. (5)  As soon as practicable after the expiry of the period specified under subsection (4) above, the borough council shall consider any representations relating to the proposed regulations which they have received before the expiry of that period. (6)  After the borough council have considered those representations they may if they think fit make regulations as mentioned in subsection (3) above [and shall notify the licence holders or a body or bodies representative of them of the making of such regulations.](1) (7) Without prejudice to the generality of subsection (3) above the standard conditions shall include such conditions as may be reasonable— (a) identifying the street or streets in which and the position or place in any such street at which the licence holder may sell or expose or offer for sale articles or things, or offer or provide services under the authority of the licence; (b) identifying the class or classes of articles, things or services which the licence holder may so sell or expose or offer for sale or provide; (c) identifying the day or days on which and the time during which the licence holder may sell or expose or offer for sale articles, things or services as aforesaid; (d) identifying the nature and type of any receptacle which may be used by the licence holder or in connection with any sale or exposure or offer for sale or 359

Appendix 1  Statutes provision of services and the number of any such receptacles which may be so used; (e) requiring that any receptacle so used shall carry the name of the licence holder and the number of his licence; (f) regulating the storage of receptacles or perishable goods; (g) regulating the deposit and removal of refuse and the containers to be used for the deposit of such refuse and their location pending its removal; (h) requiring that the licence holder shall commence trading or exercising his rights under the licence by a certain time on any day or forfeit his right to trade or exercise his rights under the licence on that day from the fixed position to which his licence refers. (8) Without prejudice to the standard conditions, the borough council may in addition attach to a licence such further conditions as appear to them to be reasonable in any individual case. (9)  When granting a licence a borough council shall give to the licence holder a copy of the licence which, in the case of an individual, shall bear his photograph. (1) Words inserted by the London Local Authorities Act 1994, s 6(3).

28.  Revocation or variation of licences under Part III (1)  Subject to the provisions of this Part of this Act a borough council may at any time revoke a street trading licence if they are satisfied that— (a) owing to circumstances which have arisen since the grant or renewal of the licence, there is not enough space in the street in which the licence holder trades for him to engage in the trading permitted by the licence without causing undue interference or inconvenience to persons or vehicular traffic using the street; or (b) the licence holder is trading in a class of articles, things or services which the borough council have resolved under subsection (1) (b) of section 24 (designation of licence streets) of this Act not to prescribe in licences granted for the licence street in which the licence holder trades; or (c) the licence holder is an individual who has without reasonable excuse personally failed fully to avail himself of his licence; or (d) the licence holder is on account of misconduct or for any other sufficient reason unsuitable to hold the licence; or (e) that since the grant or renewal of the licence, the licence holder has for a period of four weeks or more failed to pay fees or charges due to the borough council in connection with the street trading licence or has failed to pay any charges due from him for accommodation provided in pursuance of subsection (2) of section 33 (receptacles and containers) of this Act; or (f) that since the grant or renewal of the licence, the licence holder has failed to make provision for the suitable and adequate storage of the receptacles used by him for trading or for any perishable goods in which he trades when trading is not taking place; or (g) that since the grant or renewal of the licence, the licence holder has persistently failed to remove to a place of storage the receptacles used by him for trading; or (h) that the licence holder has persistently failed to comply with any condition of his licence. (2)  If a borough council consider that a licence could be revoked on any of the grounds mentioned in paragraphs (a) to (c) of subsection (1) above they may instead of revoking it, vary its conditions by attaching further conditions— (a) reducing the number of days in any week or the period in any one day during which the licence holder is permitted to trade; or 360

London Local Authorities Act 1990 (b) specifying a different licence street or position or place in any such street at which the licence holder may sell or expose or offer for sale articles or things or offer or provide services; or (c) restricting the description of articles, things or services in which the licence holder is permitted to trade. 29.  Further provisions relating to grant, renewal or revocation of street trading licences (1)  A borough council shall not— (a) refuse to grant or renew a licence on any of the grounds mentioned in subsection (6) of section 25 (application for street trading licences) of this Act; or (b) revoke or vary a licence under section 28 (revocation or variation of licences under Part III) of this Act; or (c) vary a licence under subsection (1) of section 27 (conditions of street trading licences) of this Act; unless they shall have given to the applicant or licence holder not less than 21 days’ previous notice in writing that objection has been or will be taken to such grant or renewal or that such revocation or variation is proposed, specifying the ground or grounds on which their decision would be based and giving him an opportunity to appear before the committee, sub-committee or officer determining the matter. (2)  A borough council shall not proceed to determine any of the matters referred to in subsection (1) above until after the expiry of the period specified in the notice given under that subsection; and in determining any of the matters referred to, they shall consider any representations made by an applicant or licence holder in respect of that matter. (3)  A borough council shall not refuse to grant or renew and shall not revoke a licence on the ground only that the applicant or licensee, being an individual, does not reside in the borough. (4)  If the borough council refuse to grant or renew a licence or decide to revoke or vary a licence— (a) they shall notify the applicant or licence holder in writing of their decision and of the ground or grounds for such refusal, revocation or variation; and (b) they shall notify the applicant or licence holder of his rights of appeal (if any) specified in [section 30 (Part III appeals) of this Act](1). (1) Words substituted by the London Local Authorities Act 2007, s 40(1).

[29A.  Lapsing of licence in certain cases In the case of a street trading licence which authorises street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 21 (interpretation of Part III) of this Act, the licence shall lapse if— (a) the consent is discontinued by the person who gave it, or a successor in title of that person, and the council is provided with written notice of the discontinuation of the consent by the person who discontinues it; or (b) the holder of the licence no longer is the owner of the land in question, as the case may be.](1) (1) Section inserted by the London Local Authorities Act 2007, s 40(2).

30.  Part III appeals[: refusal to grant a licence etc.](1) (1)  Any person aggrieved— 361

Appendix 1  Statutes [(aa)  by the refusal of a borough council to renew a licence because they are not satisfied as mentioned in subsection (4)(b) of section 25 (application for street trading licences) of this Act;](2) (a) by the refusal of a borough council to grant or renew a licence on any of the grounds mentioned in subsection (6)(a) to (e) of section 25 (application for street trading licences); or (b) by a decision of a borough council under subsection (7) of the said section 25 to grant him a licence either on terms mentioned in that subsection different from those on the licence which he previously held or different from those for which he applied; or (c) by any further condition attached by a borough council under subsection (8) of section 27 (conditions of street trading licences) of this Act in addition to the standard conditions; or (d) by a decision of the borough council either— (i) to vary the conditions of a licence under subsection (2) of section 28 (revocation or variation of licences under Part III) of this Act; or (ii) to revoke a licence under subsection (1) of the said section 28; [ … ](3); or (e) by a resolution of a borough council under section 37 (ice cream trading) of this Act; may appeal to a magistrates’ court acting for the area in which the licence street is situated. (2)  An appeal under subsection (1) above may be brought— (a) in the case of an appeal under paragraph [(aa),](2) (a), (b), (c) or (d) of that subsection, at any time before the expiration of the period of 21 days beginning with the date upon which notification in writing is given of the refusal or decision; (b) in the case of an appeal under paragraph (e) of that subsection, at any time before the expiration of the period of 21 days beginning with the date of the second publication of the notice required by subsection (10) of section 24 (designation of licence streets) as applied by the said section 37. (3)  A person desiring to appeal against such refusal or decision as is mentioned in subsection (1) above shall give a written notice to the magistrates’ court and to the borough council specifying the refusal or decision against which he wishes to appeal and the grounds upon which such appeal is made. (4)  An appeal by either party against the decision of the magistrates’ court under this section may be brought to the Crown Court. (5) On an appeal to the magistrates’ court or to the Crown Court under this section, the court may make such order as it thinks fit. (6)  Subject to subsections (7) to (9) below, it shall be the duty of the borough council to give effect to the order of the magistrates’ court or the Crown Court. (7) A borough council need not give effect to the order of the magistrates’ court until the time for bringing an appeal under subsection (4) above has expired and, if such an appeal is duly brought, until the determination or abandonment of the appeal. (8)  Where a licence holder applies for renewal of his licence, his existing licence shall remain valid— (a) until the grant by the borough council of a new licence with the same conditions; or (b) if the borough council refuse renewal of the licence or decide to grant a licence with conditions different from those of the existing licence and he has a right of appeal under this section, until the time for bringing an appeal has expired or where an appeal is duly brought, until the determination or abandonment of the appeal; or 362

London Local Authorities Act 1990 (c) if he has no right of appeal under this section until the borough council either grant him a new licence with conditions different from those of the existing licence or notify him of their decision to refuse his application. (9) Where— (a) a borough council decide— (i) to vary the conditions of a licence under subsection (2) of the said section 28; or (ii) to revoke a licence under subsection (1) of the said section 28; and (b) a right of appeal is available to the licence holder under this section; the variation or revocation shall not take effect until the time for bringing an appeal has expired or where an appeal is duly brought, until the determination or abandonment of the appeal. (10)  For the avoidance of doubt, it is hereby declared that an application under section 31 of the Supreme Court Act 1981 (c. 54) (application for judicial review) or under the Rules of the Supreme Court 1965 in respect of any matter which is or could be the subject of an appeal to the magistrates’ court or to the Crown Court under this section shall not be treated as an appeal for the purposes of subsection (8) or (9) above. (11)  [ … ](4) [(12)  [ … ](4)](2) (1) Words inserted by the Deregulation Act 2015, s 91(1), (3)(b). (2) Paragraph, words and subsection inserted by the London Local Authorities Act 1994, s 6(4), (6), (7). (3) Words omitted were repealed by the London Local Authorities Act 1994, s 6(5). (4) Repealed by the Deregulation Act 2015, s 91(1), (3)(a).

[30A.  Other Part III appeals (1)  Any person aggrieved— (a) by a resolution rescinding or varying a designating resolution; (b) by a resolution under subsection (1)(b) of section 24 (Designation of licence streets) of this Act; (c) by a standard condition prescribed by regulations under subsection (3) of section 27 (Conditions of street trading licences) of this Act; or (d) by the amount of a fee or charge under section 32 (Fees and charges) of this Act; may appeal to a magistrates’ court acting for the area of the borough council which passed the resolution, prescribed the condition or determined the amount of the fee or charge (as the case may be). (2)  An appeal under subsection (1) may be brought— (a) in the case of an appeal under paragraph (a) or (b) of that subsection, at any time before the expiration of the period of three months beginning with the date on which notice of the passing of the resolution is published for the second time in accordance with subsection (10) of section 24 (Designation of licence streets) of this Act; (b) in the case of an appeal under paragraph (c) of that subsection, at any time before the expiration of the period of three months beginning with the date upon which the licence holders or a body or bodies representative of them were notified of the making of the regulations; (c) in the case of an appeal under paragraph (d) of that subsection— (i) if it relates to the amount of a fee payable under subsection (1) of section 32 (Fees and charges) of this Act, at any time before the expiration of the period of three months beginning with the date on which the fee payable is notified to the licence holders or a body or bodies representative of them; 363

Appendix 1  Statutes (ii) if it relates to the amount of a charge under subsection (2) of section 32 (Fees and charges) of this Act, at any time before the expiration of the period of three months beginning with the date on which notice of the determination of the charge has been given to the licence holders or a body or bodies representative of them. (3)  A person desiring to appeal under subsection (1) shall give written notice to the magistrates’ court and to the borough council specifying the matter about which the person is aggrieved and the grounds upon which the appeal is made. (4)  On an appeal to a magistrates’ court under this section, the court may make such order as it thinks fit.](1) (1) Inserted by the Deregulation Act 2015, s 91(1), (2).

31.  Temporary licences (1) A borough council may if they think fit on the receipt from any person of an application for that purpose and accompanied by the appropriate fee grant to that person a temporary licence. [(1A)  A council may grant a temporary licence in any street, whether or not it is a licensed street. (1B)  In the case of an application for a temporary licence which, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 21 (interpretation of Part III) of this Act, the applicant shall provide evidence in writing— (a) that he has the consent to trade on the land from the owner of the land in question; or (b) that he is the owner of the land in question. (1C)  An application for a temporary licence shall not be granted, if the licence would authorise street trading on land which falls within the said paragraph (b), unless the applicant has provided sufficient evidence, as is mentioned in subsection (2A) of section 25 (application for street trading licence) of this Act, to satisfy the council. (1D)  In the case of a temporary licence which authorises street trading on land which falls within the said paragraph (b), the licence shall lapse if— (a) the permission to trade on the land is discontinued, and the council is provided with written notice of the discontinuance of the permission by the person who gave the permission or by a successor in title to that person; or (b) the holder of the licence is no longer the owner of the land in question or no longer has sufficient interest in the land to trade on the land without the permission of another person. (1E)  The council may revoke or suspend the operation of a temporary licence held in respect of land which falls within the said paragraph (b) if circumstances have arisen since the grant of the licence or are about to arise which necessitate such revocation or suspension on the grounds of safety. (1F)  Where a temporary licence is revoked or suspended under subsection (1E) above, the council shall return to the licensee such proportion of any fee paid for the granting of the licence as is appropriate, taking into account the period for which the licence was granted and the period remaining on the licence when it was revoked or the period for which the licence was suspended, as the case may be.](1) (2)  A temporary licence shall be valid only for the day or period specified in the licence and— (a) shall be in the like form as a street trading licence with such modifications therein as the circumstances require; and (b) shall prescribe such conditions as the borough council deem appropriate. 364

London Local Authorities Act 1990 (3)  Where the holder of a street trading licence is not for the time being exercising his rights under the licence, a temporary licence authorising street trading in the position or place prescribed by the street trading licence may be granted to any other person but shall be subject to the condition that it shall cease to be valid if during the currency thereof the holder of the licence desires to resume the exercise of his rights and gives the appropriate notice, and for the purposes of this subsection ‘the appropriate notice’ means— (a) in the case of a holder of a licence who has not exercised his rights under the licence for a period of at least 14 days, 7 days’ notice; (b) in any other case, 24 hours’ notice. (4)  In this section ‘appropriate fee’ means such fee as the borough council may have determined under section 32 (fees and charges) of this Act. (1) Subsections inserted by the London Local Authorities Act 2007, s 41.

32.  Fees and charges (1) A  borough council may charge such fees for the grant or renewal of a street trading licence under this Part of this Act, the grant of a temporary licence or for the variation at the request of the licence holder of the conditions of a street trading licence as they may determine and as may be sufficient in the aggregate to cover in whole or in part the reasonable administrative or other costs in connection with their functions under this Part of this Act, not otherwise recovered. (2)  A borough council may recover from licence holders such charges as may be sufficient in the aggregate taking one year with another to cover the reasonable costs, not otherwise recovered, of— (a) the collection, removal and disposal of refuse or other services rendered by them to such holders; and (b) the cleansing of streets in which street trading takes place in so far as that cleansing is attributable to such trading; and (c) any reasonable administrative or other costs incurred in connection with the administration of this Part of this Act; and (d) the cost of enforcing the provisions of this Part of this Act. [(2A)  In calculating the levels of fees and charges under subsections (1) and (2) above, the council shall disregard costs incurred by them in relation to street trading of the type described in subsection (1ZA) of section 21 (interpretation of Part III) of this Act.](1) (3)  A borough council may determine— (a) that charges under subsection (2) above shall be included in a fee payable under subsection (1) above; or (b) that they shall be separately recoverable. (4)  A borough council may— (a) require that every application for a licence under this Part of this Act be accompanied by the whole or part of the fee determined under subsection (1) above; and (b) determine that the fee may be paid by instalments. (5)  Where a borough council refuse to [ … ](2) renew a licence they shall repay to the person who made the application therefor the amount of any [such](3) fee paid by him [ … ](2). (6) A borough council may determine the fees to be charged on the grant of a temporary licence under section 31 (temporary licences) of this Act, and in doing so they shall have regard to the matters specified in subsection (2) above and such fees shall be included in the computation for the purposes of determining the fees and charges under subsections (1) and (2) above. 365

Appendix 1  Statutes (7)  Before determining charges to be made under subsection (2) above [(whether originally or by way of variation of charges previously determined)](4) a borough council— (a) shall give notice of the proposed charges to licence holders or to a body or bodies representative of them; and (b) shall publish notice of the proposed charges in a newspaper circulating in the area in which the licence street or streets in respect of which the charges will be applied is situated. [(7A)  A notice under subsection (7)(a) above shall be accompanied by a statement showing how the proposed charges have been computed; and any body representative of licence holders may request the borough council to supply such further information or explanation with regard to the proposed charges as the body may reasonably require in order to ascertain whether the proposed charges are reasonable and have been computed in accordance with the provisions of this section.](3) (8) A  notice under subsection (7)(a) above shall specify a reasonable period being not less than 28 days from the date of publication of the newspaper referred to in subsection (7)(b) above within which written representations concerning the proposed charges may be made to the borough council. (9)  It shall be the duty of a borough council to— [(a)](3)  consider any such representations which are made to them within the period specified in the notice; [and (b) comply with any request made under subsection (7A) above; and where any such request is made the period so specified, if still current, shall be treated as extended by the number of days in the period beginning with the day on which the request is made and ending with that on which it is complied with.](3) [(10)  When a borough council have determined fees under subsection (1) above or charges under subsection (2) above (whether originally or by way of variation of fees or charges previously determined) they shall give notice of the fees or charges so determined and of the date on which those fees or charges are to be brought into effect, in the manner prescribed in subsection (7) above.](4) (11) Where a licence is revoked under subsection (1)(a) or (b) of section 28 (revocation or variation of licences under Part III) of this Act, the borough council shall refund the appropriate part of any fee paid for the grant or renewal of the licence. (12)  Where a licence is revoked otherwise than under subsection (1)(a) or (b) of section 28 (revocation or variation of licences under Part III) or is surrendered, the borough council may remit or refund, as they consider appropriate, the whole or a part— (a) of any fee paid for the grant or renewal of the licence; or (b) of any charges recoverable under subsection (2) above. (1) Inserted by the London Local Authorities Act 2012, s 9(1), (3). (2) Words omitted were repealed by the London Local Authorities Act 1994, s 6(8)(a)(i). (3) Subsection, words and paragraph inserted by the London Local Authorities Act 1994, s 6(8)(a) (ii), (c), (d). (4) Words and subsection substituted by the London Local Authorities Act 1994, s 6(8)(b), (e).

33.  Receptacles and containers (1)  A borough council may sell or let on hire or otherwise provide to any person holding a street trading licence or a temporary licence under this Part of this Act receptacles for use by him in street trading. (2)  A borough council may provide and maintain accommodation for the storage of receptacles and containers for the deposit of refuse arising in the course of street trading and for that purpose may— 366

London Local Authorities Act 1990 (a) adapt any premises or erect any buildings on any land belonging to them but not already appropriated for such purpose; and (b) make such charges as they think fit for the use of such accommodation. 34. Offences Any person who— (1) [without reasonable excuse](1) contravenes any of the conditions of a street trading licence or a temporary licence; or (2) in connection with an application for a street trading licence or a temporary licence makes a statement which he knows to be false in a material particular; or (3) resists or intentionally obstructs any authorised officer of a borough council in the execution of his duties under this Part of this Act; or (4) fails on demand without reasonable excuse in the case of an individual licence holder to produce his licence [ … ](2) bearing his photograph, and, in the case of an individual carrying on ice cream trading under a licence granted to a company incorporated under the Companies Acts or to a partnership, to produce the photograph required by subsection (2) of section 27 (conditions of street trading licences) of this Act to an authorised officer of the borough council or to a constable; shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. (1) Words inserted by the London Local Authorities Act 1994, s 6(9). (2) Words omitted were repealed by the London Local Authorities Act 2007, s 42.

35.  Power to remove receptacles (1) Where any receptacle used by a licence holder is not removed to a place of storage on the cessation of trading on any day it shall be lawful for the borough council to cause it to be removed to a place of storage and to recover from the licence holder the costs incurred by them in removing and storing the receptacle. (2)  Such charges as the borough council may fix as the cost of removing and storing a receptacle in pursuance of subsection (1) above, shall be payable by the licence holder before the return of the receptacle to him. (3)  The provisions of subsection (1) above are without prejudice to the power of the borough council to prosecute the licence holder for any breach of the conditions of his licence arising from the failure to remove the receptacle. 36.  Employment of assistants Subject to the provisions of this section a person holding a street trading licence [or a temporary licence](1) may employ any other person to assist him in the conduct of street trading authorised by the licence but if any person employed by a licence holder during the temporary absence of the licence holder fails to comply with the conditions of the [licence](2) held by his employer such failure shall be deemed to be a failure by the licence holder. (1) Words inserted by the London Local Authorities Act 2007, s 43(1), (2). (2) Words substituted by the London Local Authorities Act 2007, s 43(1), (3).

37.  Ice cream trading (1)  Nothing in this Part of this Act shall apply to itinerant ice cream trading in any street unless— (a) that street is a licence street; or (b) the street has been designated as a prohibited street under the following provisions of this section. 367

Appendix 1  Statutes (2)  If at any time it is necessary to prohibit itinerant ice cream trading in any street in the area of a borough council which is not a licence street in the interests of preventing obstruction to traffic, or undue interference or inconvenience to persons using that street, the borough council may by resolution designate the street as a prohibited street [and in the case of any London borough except the City of Westminster and the Royal Borough of Kensington and Chelsea may so designate it for such days or for such parts of days as are specified in the resolution,](1) and may from time to time by subsequent resolution rescind or vary any such resolution. (3)  Before passing a resolution under this section, a borough council shall consult the Commissioner of Police of the Metropolis and such bodies as appear to them to be representative of persons carrying on ice cream trading in the area of the borough council. (4)  Subsections (3) to (11) of section 24 (designation of licence streets) of this Act shall apply to a resolution under this section as they apply to a resolution under that section. (1) Words inserted by the London Local Authorities Act 1994, s 6(10).

38.  Unlicensed street trading [(1)  A person who— (a) is not the holder of a street trading licence or a temporary licence and who engages in street trading in a borough [whether or not from a stationary position](1); or (b) is the holder of [a street trading licence or](1) a temporary licence and who[, without the borough council’s specific permission in writing,](1) engages in street trading in a borough on a day or in a place not specified in [that licence](2); shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.](3) (2) In any proceedings for an offence under this section or for an offence of aiding, abetting, counselling or procuring the commission of an offence under this section where it is shown that— (a) any article or thing was displayed (whether or not in or on any receptacle) in any street; or (b) any receptacle or equipment used in the provision of any service was available in any street in such circumstances that a service was being offered; [the article, thing, receptacle or equipment concerned shall be presumed](2) to have been exposed or offered for sale and the receptacle or equipment shall be [deemed to have been used for the purposes for which a street trading licence was required unless it can be proved](2) to the satisfaction of the court that the article or thing or receptacle or equipment was brought into that street for some purpose other than [street trading](2). (3)  Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of the offence and liable to the same maximum penalty as the body corporate. [(4)  [Subject to section 38A (seizure of perishable items) of this Act](4) if an authorised officer or a constable has reasonable grounds for suspecting that a person has committed an offence under this section he may seize— (a) any article or thing being offered for sale, displayed or exposed for sale; or 368

London Local Authorities Act 1990 (b) any other article or thing of a similar nature to that being offered or exposed for sale which is in the possession of or under the control of any person who is displaying an article or thing; or (c) any receptacle or equipment being used by that person, which may be required to be used in evidence in any proceedings in respect of that offence [or may be the subject of forfeiture under subsection (5) below](5) [ … ](6) (4A)  An authorised officer or constable may also seize, for examination purposes, any article or thing which he has reasonable cause to suspect may be an article or thing which is prohibited by a specifying resolution made under subsection (1)(b) of section 24 (designation of licence streets) of this Act. Unless the article or thing is required for evidential purposes it shall be returned as soon as possible to the person from whom it was seized. (4B)  An authorised officer shall produce his authority if required to do so by the person having control or possession of anything seized in pursuance of the powers in subsections (4) and (4A) above.](2) [[(4C)](2) (a) [Subject to section 38B (motor vehicles) of this Act](4) the following provisions of this subsection shall have effect where any article or thing (including any receptacle [or equipment](1)) is seized under subsection (4) above [or is seized and retained because it is required for evidential purposes under subsection (4A) above](1) and references in those provisions to proceedings are to proceedings in respect of the alleged offence in relation to which the article or thing is seized. (b) Subject to paragraph (e) below, [following the conclusion](2) of the proceedings the article or thing shall be returned to the person from whom it was seized [unless— (i) the court orders it to be forfeited under subsection (5) below; or (ii) any award of costs to the council by the court, which may include removal, return and storage costs, have not been paid within 28 days of the making of the order. (ba) Where after 28 days any costs awarded by the court to the council have not been paid to the council in full— (i) the article or thing may be disposed of in any way the council thinks fit; and (ii) any sum obtained by the council in excess of the costs awarded by the court shall be returned to the person to whom the article or thing belongs. (bb) When any article or thing is disposed of by the council under this subsection the council shall have a duty to secure the best possible price which can reasonably be obtained for that article or thing.](2) (c) Subject to paragraph (d) below, where a receptacle seized under subsection (4) above is a motor vehicle used for ice cream trading, the borough council or the Commissioner of Police of the Metropolis (as the case may be) shall, within three days of the receipt of an application in writing by the owner or registered keeper of the vehicle, permit him to remove it. (d) Paragraph (c) above shall not apply where— (i) the owner or registered keeper of the vehicle has been convicted of an offence under this Part of this Act [or under the City of Westminster Act 1999](1); or (ii) the owner or registered keeper of the vehicle is being prosecuted for a previous alleged offence under this Part of this Act [or the said Act of 1999](1); or (iii) the vehicle has been used in the commission of such an offence or previous alleged offence; 369

Appendix 1  Statutes if the offence or previous alleged offence was committed or is alleged to have been committed no more than three years before the seizure and (in the case of an alleged offence) the proceedings are continuing. (e) If no proceedings are instituted before the expiration of a period of 28 days beginning with the date of seizure, or any proceedings instituted within that period are discontinued, at the expiration of that period or, as the case may be, on the discontinuance of the proceedings, the article or thing shall be returned to the person from whom it was seized unless it has not proved possible, after diligent enquiry, to [identify that person or](7) ascertain his address. [(f) Paragraph (g) below applies where the article, thing, receptacle or equipment is not returned because— (i) it has not proved possible to identify the person from whom it was seized or ascertain his address; or (ii) the person from whom it was seized and the owner (if different) have disclaimed or refused to accept it. (g) Where this paragraph applies, the council may make a complaint to the magistrates’ court for a disposal order under section 38C (disposal orders) of this Act (whether or not proceedings for an offence under this section have been commenced).](7)](5) (5) Subject to subsection (6) below the court by or before which a person is convicted of an offence under this section or for an offence of aiding, abetting, counselling or procuring the commission of an offence under this section may order anything produced to the court, and shown to the satisfaction of the court to relate to the offence, to be forfeited and dealt with in such manner as the court may order. (6)  The court shall not order anything to be forfeited under subsection (5) above where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made [and in considering whether to make such an order a court shall have regard— (i) to the value of the property; and (ii) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making).](5) [(6A)  For the avoidance of doubt the court may order forfeiture notwithstanding that the value of the article, thing, receptacle or equipment exceeds the maximum penalties referred to in this section.](1) (7)  An authorised officer shall produce his authority if required to do so by the person having care or control of [anything](3) seized in pursuance of the powers in subsection (4) above. [(8)  (a) This subsection shall have effect where— (i) an article, thing or receptacle is seized under subsection (4) [or (4A)](1) above; and (ii) (A) not less than six months have passed since the date of the seizure and no information has been laid against any person for an offence under this section in respect of the acts or circumstances which occasioned the seizure; or (B) proceedings for such an offence have been brought and either the person charged has been acquitted (whether or not on appeal) and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought, or the proceedings (including any appeal) have 370

London Local Authorities Act 1990 been withdrawn by, or have failed for want of prosecution by, the person by whom the original proceedings were brought [; or](8) [(C) (in the case of a relevant item (within the meaning of section 15 (seizure: notices) of the London Local Authorities Act 2012) seized under section 14 of that Act) the council has failed to comply with subsection (6) of the said section 15.](8)](5) (b) When this subsection has effect a person who has or at the time of seizure had a legal interest in the article, thing or receptacle seized may recover compensation from the borough council or (where it is seized by a constable) the Commissioner of Police of the Metropolis by civil action in the County Court in respect of any loss suffered by him as a result of the seizure [and any such compensation shall not be included in the computation for calculating charges under section 22 (fees and charges) of this Act](1). (c) The court may not make an order for compensation under paragraph (b) above unless it is satisfied that seizure was not lawful under subsection (4) [or (4A)](C) above. (1) Words and subsection inserted by the London Local Authorities Act 2004, s  20(1), Sch  4, para 5(a), (b)(i), (ii), (f)(i), (ii), (v)–(vii), (g)–(j). (2) Words, subsections and paragraphs substituted by the London Local Authorities Act 2004, s 20(1), Sch 4, para 5(b)(iii), (c), (d), (e), (f)(iii), (iv). (3) Subsection and words substituted by the London Local Authorities Act 1994, s 6(11)(a), (e). (4) Words inserted by the London Local Authorities Act 2007, s 44(1), (2)(a), (3)(a). (5) Words, subsections and paragraphs inserted by the London Local Authorities Act 1994, s 6(11)(b), (c), (d), (f). (6) Provision omitted was repealed by the London Local Authorities Act 2007, s 44(1), (2)(b). (7) Words and paragraphs substituted by the London Local Authorities Act 2007, s 44(1), (3)(b), (c). (8) Word and paragraph inserted by the London Local Authorities Act 2012, s 16(6).

[38A.  Seizure of perishable items (1)  No item which is of a perishable nature (in this section referred to as a ‘perishable item’) shall be seized under the provisions of subsection (4) of section 38 (unlicensed street trading) of this Act unless the authorised officer or constable gives a certificate under subsection (2) below to the person from whom the item is seized. (2)  Where a perishable item is seized under the said section 38, the person from whom it is seized must be given a certificate— (a) stating the effect of subsection (4) below and subsection (6) of the said section 38; (b) giving the address from which the item may be collected; (c) informing the recipient that if he is not the owner of the item, then he should give the owner the information referred to in paragraphs (a) and (b) above. (3)  The council or the police shall store any perishable item seized under the said section 38 at an appropriate temperature. (4)  If the person from whom a perishable item was so seized fails to collect it within 48 hours of the seizure the council or the police may dispose of it. (5)  When any perishable item is disposed of by the council under subsection (4) above, the council shall have a duty to secure the best possible price which can reasonably be obtained for it. (6)  Paragraphs (a) to (d) of subsection (4C), and subsections (5) and (6) of the said section 38 shall apply to perishable items seized under that section only in cases where the item concerned has not been disposed of by the council at the conclusion of the proceedings in respect of the alleged offence in relation to which the item was seized. 371

Appendix 1  Statutes (7)  Paragraphs (e) and (f) of subsection (4C) of the said section 38 shall apply to perishable items seized under that section only in cases where the item concerned has not been disposed of by the council at the expiration of the period mentioned in the said paragraph (e); otherwise subsections (10) to (13) below shall apply. (8) Subsection (8) of the said section 38 shall apply with the omission of paragraph (c) in respect of perishable items seized under that section only in cases where the item concerned has not been disposed of by the council by the time the circumstances mentioned in paragraph (a)(ii)(A) or (B) arise; otherwise subsections (10) to (12) below shall apply. (9)  Subsection (12) below shall have effect where the council have disposed of a perishable item under subsection (4) above and any of the following conditions apply. (10)  The first condition is that no proceedings in respect of the alleged offence in relation to which the item was seized are instituted before the expiration of a period of 28 days beginning with the date of seizure of the item, or any such proceedings instituted within that period are discontinued. (11)  The second condition is that— (a) not less than six months have passed since the date of the seizure and no information has been laid against any person for an offence under the said section 38 in respect of the acts or circumstances which occasioned the seizure; or (b) proceedings for such an offence have been brought and either the person charged has been acquitted (whether or not on appeal) and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought, or the proceedings (including any appeal) have been withdrawn by, or have failed for want of prosecution by, the person by whom the original proceedings were brought. (12)  When this subsection has effect a person who has or at the time of seizure had a legal interest in the item seized may recover compensation from the borough council or (where it is seized by a constable) the Commissioner of Police of the Metropolis by civil action in the County Court in respect of any loss suffered by him as a result of the seizure and any such compensation shall not be included in the computation for calculating charges under section 32 (fees and charges) of this Act.](1) (1) Section inserted by the London Local Authorities Act 2007, s 45.

[38B.  Motor vehicles (1)  Subsection (4) below applies where the following conditions are met. (2)  The first condition is that where, in ascertaining the identity of the person from whom the vehicle was seized under subsection (4) or (4A) of section 38 (unlicensed street trading) of this Act, a borough council has, before the expiry of 14 days from the date of the seizure, made a request to the Secretary of State for the supply of relevant particulars. (3)  The second condition is that those particulars have not been supplied to the council before the date after which that council would, but for this section, have to return the vehicle in accordance with subsection (4C)(e) of that section. (4)  Where this subsection applies, the council must return the vehicle to its owner if— (a) no proceedings are instituted in respect of the alleged offence in respect of which the vehicle was seized before the expiry of the period of 14 days beginning with the date on which the relevant particulars are supplied; or (b) any such proceedings instituted within that period are discontinued, 372

London Local Authorities Act 1990 at the expiry of that period or on the discontinuance of the proceedings, as the case may be. (5)  If the council seeks to return a vehicle in accordance with the said subsection (4C)(e) or subsection (4), but the person to whom the council seeks to return the vehicle cannot be found or disclaims or refuses to accept the vehicle, the council may make a complaint for a disposal order in respect of the vehicle under section 38C (disposal orders) of this Act. (6)  In this section, ‘relevant particulars’ are particulars relating to the identity of the owner of the vehicle contained in the register of mechanically propelled vehicles maintained by the Secretary of State under the Vehicle Excise and Registration Act 1994 (c. 22). (7)  The owner of a vehicle for the purposes of this section shall be taken to be the person by whom the vehicle is kept. (8)  In determining who was the owner of a motor vehicle at any time, it shall be presumed that the owner is the person in whose name the vehicle is at that time registered under the Vehicle Excise and Registration Act 1994.](1) (1) Section inserted by the London Local Authorities Act 2007, s 46.

[38C.  Disposal orders (1)  This section applies in respect of a complaint made by a borough council for a disposal order in respect of— (a) an article or thing under subsection (4C)(f)(ii) of section 38 (unlicensed street trading) of this Act; or (b) a motor vehicle under subsection (5) of section 38B (motor vehicles) of this Act, and such articles, things and motor vehicles are together referred to as ‘seized items’ in this section. (2)  In respect of a complaint to which this section applies, a magistrates’ court may, if it is satisfied that the council has made reasonable efforts to identify the person from whom the seized item was seized or its owner, as the case may be, or has made reasonable efforts to return the seized item, it may make an order authorising the complainant council— (a) to dispose of the seized item in question; and (b) after payment out of any proceeds arising from the disposal of the expenses incurred in the seizure, storage and disposal, to apply the balance, if any, towards the costs of the council as mentioned in paragraphs (a) to (d) of subsection (2) of section 32 (fees and charges) of this Act. (3)  The court shall not make a disposal order under subsection (2) above where a person claiming to be the owner of or otherwise interested in the seized item in question applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made. (4)  Subsection (5) below applies where— (a) a person appears before the court under subsection (3) above to show why the order should not be made; and (b) the court makes an order under subsection (2) above authorising the council to dispose of the item; and (c) the seized item in question is not of sufficient value to defray the expenses of seizing and storing it; and (d) the court is satisfied that the person mentioned in paragraph (a) above was the owner of the seized item in question or was the person from whom it was seized, as the case may be. 373

Appendix 1  Statutes (5)  Where this section applies, the court may order that the person mentioned in subsection (4)(a) above pay the expenses, or the balance of the expenses, reasonably incurred by the council in seizing and storing the seized item in question. (6)  In considering whether to make an order under subsection (2) above a court shall have regard— (a) to the value of the seized item; (b) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making); and (c) any other circumstances considered to be relevant. (7)  The court may make a disposal order under this section notwithstanding that the value of the seized item would exceed the maximum penalty for the offence in respect of which the seized item had originally been seized had the said offence been prosecuted to conviction. (8)  For the purposes of this section, ‘owner’ in respect of a vehicle, has the same meaning as it has for the purposes of the said section 38B.](1) (1) Section inserted by the London Local Authorities Act 2007, s 47.

39. Savings (1)  Nothing in this Part of this Act shall affect— (a) section 13 of the Markets and Fairs Clauses Act 1847 (c. 14) (prohibition of sales elsewhere than in a market or in shops etc.) as applied by any other Acts; (b) section 56 of the Food Act 1984 (c. 30) (prohibition of certain sales during market hours); [(c) the sale or exposure or offer for sale by Transport for London or any of its subsidiaries (within the meaning of the Greater London Authority Act 1999) of refreshments at any shelter or other accommodation provided by either of them under section 65 (refreshment shelters etc.) of the London Passenger Transport Act 1938.](a) (2)  Nothing in this Part of this Act shall afford a defence to a charge in respect of any offence at common law or under an enactment other than this Part of this Act. (1) Paragraph substituted by the Transport for London (Consequential Provisions) Order 2003, SI 2003/1615, art 2, Sch 1, para 34(1), (4).

40.  Local enactments relating to street trading repealed (1) Subject to subsection (2) below, the enactments specified in column (2) of Schedule 2 to this Act, so far as they relate to any part of Greater London, shall cease to have effect in a borough as from the appointed day for that borough to the extent specified in column (3) of that Schedule. (2) Notwithstanding the repeal of the enactments specified in column (2) of Schedule 2 to this Act, any licence granted by a borough council under any of those enactments which authorises street trading in the borough and which was in force immediately before the appointed day shall continue in force until three months after the appointed day or until the determination of any application made by the holder of the licence under section 25 (application for street trading licences) of this Act, whichever is the later. 41.  Saving for sales in legal markets or fairs In the case of any market or fair held in pursuance of any statute, royal licence, royal charter or letters patent, or as of right from time immemorial, nothing in this Part of this Act shall affect the sale or exposure or offer for sale of goods in any such market 374

London Local Authorities Act 1990 or fair by any person who has paid a toll to, or is acting under the written authority of, a person holding or entitled to hold such market or fair or entitled to receive tolls in respect of sales made or stalls or stands occupied in such market or fair.

Section 2

SCHEDULE 1 PARTICIPATING COUNCILS

Barking and Dagenham Borough Council Barnet Borough Council Bexley Borough Council Brent Borough Council Bromley Borough Council [Camden Borough Council](1) Croydon Borough Council Ealing Borough Council Enfield Borough Council Greenwich Borough Council Hackney Borough Council Hammersmith and Fulham Borough Council Haringey Borough Council Harrow Borough Council Havering Borough Council Hillingdon Borough Council Hounslow Borough Council Islington Borough Council Kensington and Chelsea Royal Borough Council Kingston upon Thames Royal Borough Council Lambeth Borough Council Lewisham Borough Council Merton Borough Council Newham Borough Council Redbridge Borough Council Richmond upon Thames Borough Council Southwark Borough Council Sutton Borough Council Tower Hamlets Borough Council Waltham Forest Borough Council Wandsworth Borough Council Westminster City Council 1

Entry inserted by the London Local Authorities Act 1994, s 9.

375

Appendix 1  Statutes

SCHEDULE 2 LOCAL ENACTMENTS REPEALED IN GREATER LONDON IN RELATION TO STREET TRADING Chapter

Enactment

(1)

(2)

Extent of repeal (3)

21 & 22 Geo. 5. c. lx. 21 & 22 Geo. 5. c. xcv.

West Ham Corporation Act 1931. Dagenham Urban District Council Act 1931. 23 & 24 Geo. 5. c. lxvii. Wimbledon Corporation Act 1933. 23 & 24 Geo. 5. c. lxviii. Barking Corporation Act 1933. 26 Geo. 5 & 1 Edw. 8. Merton and Morden Urban District c. cxv. Council Act 1936. 1 Edw. 8 & 1 Geo. 6. c. Coulsdon and Purley Urban District xcviii. Council Act 1937. 7 & 8 Geo. 6. c. xxi. Middlesex County Council Act 1944. 10 & 11 Geo. 6. c. xlvi. London County Council (General Powers) Act 1947. 4 & 5 Eliz. 2. c. lxxxiv. Walthamstow Corporation Act 1956. 4 & 5 Eliz. 2. c. xc. Middlesex County Council Act 1956. 5 & 6 Eliz. 2. c. xxxv. London County Council (General Powers) Act 1957. 6 & 7 Eliz. 2. c. xxi. London County Council (General Powers) Act 1958. 8 & 9 Eliz. 2. c. xl. Croydon Corporation Act 1960. 10 & 11 Eliz. 2. c. xlv. London County Council (General Powers) Act 1962. 1974 c. xxiv. Greater London Council (General Powers) Act 1974. 1978 c. xiii. Greater London Council (General Powers) Act 1978. 1978 c. xvi. Greater London Council (General Powers) (No. 2) Act 1978. 1981 c. xvii. Greater London Council (General Powers) Act 1981. 1982 c. i. Greater London Council (General Powers) Act 1982.

376

Part IV. Part VI. Part VIII. Part IX. Part VI. Part VI. Part IX. Part IV. Part V. Part V. Part VII. Section 37. Part XII. Sections 33 and 34. Sections 17 to 19. Section 10 and Schedules 1 and 2. Section 10 and Part II of Schedule 1. Section 17 and Schedule 1. Section 6 and Schedule 1.

Sunday Trading Act 1994

SUNDAY TRADING ACT 1994 (ElizII, 1994, c 20) An Act to reform the law of England and Wales relating to Sunday trading; to make provision as to the rights of shop workers under the law of England and Wales in relation to Sunday working; and for connected purposes [5th July 1994] 1.  Reform of law relating to Sunday trading (1)  Schedules 1 and 2 to this Act shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint (in this section referred to as ‘the appointed day’). (2)  Sections 47 to 66 of, and Schedules 5, 6 and 7 to, the Shops Act 1950 shall cease to have effect on the appointed day. 2.  Loading and unloading at large shops on Sunday morning (1)  A local authority may by resolution designate their area as a loading control area for the purposes of this section with effect from a date specified in the resolution, which must be a date at least one month after the date on which the resolution is passed. (2) A  local authority may by resolution revoke any designation made by them under subsection (1) above. (3) It shall be the duty of a local authority, before making or revoking any designation under subsection (1) above, to consult persons appearing to the local authority to be likely to be affected by the proposed designation or revocation (whether as the occupiers of shops or as local residents) or persons appearing to the local authority to represent such persons. (4)  Where a local authority make or revoke a designation under this section, they shall publish notice of the designation or revocation in such manner as they consider appropriate. (5)  Schedule 3 to this Act (which imposes restrictions on loading and unloading on Sunday before 9 am at large shops in loading control areas) shall have effect. 3.  Construction of certain leases and agreements (1) Where any lease or agreement (however worded) entered into before the commence­ment of this section has the effect of requiring the occupier of a shop to keep the shop open for the serving of retail customers— (a) during normal business hours, or (b) during hours to be determined otherwise than by or with the consent of the occupier, that lease or agreement shall not be regarded as requiring, or as enabling any person to require, the occupier to open the shop on Sunday for the serving of retail customers. (2)  Subsection (1) above shall not affect any lease or agreement— (a) to the extent that it relates specifically to Sunday and would (apart from this section) have the effect of requiring Sunday trading of a kind which before the commencement of this section would have been lawful by virtue of any provision of Part IV of the Shops Act 1950, or (b) to the extent that it is varied by agreement after the commencement of this section. (3) In this section ‘retail customer’ and ‘shop’ have the same meaning as in Schedule 1 to this Act. 4.  Rights of shop workers as respects Sunday working Schedule 4 to this Act shall have effect. 377

Appendix 1  Statutes 5.  [ … ](1) (1) Section repealed by the Deregulation and Contracting Out Act 1994, s 8, Sch 17.

6.  Consequential repeal or amendment of local Acts (1)  The Secretary of State may by order made by statutory instrument— (a) repeal any provision of a local Act passed before or in the same Session as this Act if it appears to him that the provision is inconsistent with or has become unnecessary in consequence of any provision of this Act, and (b) amend any provision of such a local Act if it appears to him that the provision requires amendment in consequence of any provision of this Act or any repeal made by virtue of paragraph (a) above. (2) It shall be the duty of the Secretary of State, before he makes an order under subsection (1) above repealing or amending any provision of a local Act, to consult each local authority which he considers would be affected by the repeal or amendment of that provision. (3)  A statutory instrument containing an order under subsection (1) above shall be subject to annulment in pursuance of a resolution of either House of Parliament. 7. Expenses There shall be paid out of money provided by Parliament any increase attributable to this Act in the sums payable out of such money under any other Act. 8.  Meaning of local authority’ (1)  In this Act ‘local authority’ means any unitary authority or any district council so far as they are not a unitary authority. (2)  In subsection (1) above ‘unitary authority’ means— (a) the council of any county so far as they are the council for an area for which there are no district councils, (b) the council of any district comprised in an area for which there is no county council, (c) a county borough council, (d) a London borough council, (e) the Common Council of the City of London, or (f) the Council of the Isles of Scilly. (3)  Until 1st April 1996, the definition of ‘unitary authority’ in subsection (2) above shall have effect with the omission of paragraph (c). 9.  Short title, repeals, commencement and extent (1)  This Act may be cited as the Sunday Trading Act 1994. (2)  The enactments mentioned in Schedule 5 to this Act are hereby repealed to the extent specified in the third column of that Schedule. (3)  The following provisions of this Act sections 2 to 5, subsection (2) of this section, and Schedules 3, 4 and 5, shall not come into force until the appointed day (as defined in section 1 above). (4) This Act extends to England and Wales only.

378

Sunday Trading Act 1994 Section 1(1)

SCHEDULE 1

RESTRICTIONS ON SUNDAY OPENING OF LARGE SHOPS Interpretation 1.—In this Schedule— [‘alcohol’ has the same meaning as in the Licensing Act 2003,](1) ‘large shop’ means a shop which has a relevant floor area exceeding 280 square metres, ‘medicinal product’ and ‘registered pharmacy’ have the same meaning as in the Medicines Act 1968, ‘relevant floor area’, in relation to a shop, means the internal floor area of so much of the shop as consists of or is comprised in a building, but excluding any part of the shop which, throughout the week ending with the Sunday in question, is used neither for the serving of customers in connection with the sale of goods nor for the display of goods, ‘retail customer’ means a person who purchases goods retail, ‘retail sale’ means any sale other than a sale for use or resale in the course of a trade or business, and references to retail purchase shall be construed accordingly, ‘sale of goods’ does not include— (a) the sale of meals, refreshments or [alcohol](1) for consumption on the premises on which they are sold, or (b) the sale of meals or refreshments prepared to order for immediate consumption off those premises, ‘shop’ means any premises where there is carried on a trade or business consisting wholly or mainly of the sale of goods, and ‘stand’, in relation to an exhibition, means any platform, structure, space or other area provided for exhibition purposes. [‘veterinary medicinal product’ has the same meaning as in regulation 2 of the Veterinary Medicines Regulations 2006.]](2) (1) Definition and word substituted by the Licensing Act 2003, s 198(1), Sch 6, para 110(1), (2). (2) Definition inserted by the Veterinary Medicines Regulations 2006, SI 2006/2407, reg 44(3), Sch 9, para 9(a).

[Restrictions on Sunday opening hours of large shops](1) 2.—(1)  Subject to sub-paragraphs (2) and (3) below, a large shop shall not be open on Sunday for the serving of retail customers. (2)  Sub-paragraph (1) above does not apply in relation to— (a) any of the shops mentioned in paragraph 3(1) below, or (b) any shop in respect of which a notice under paragraph 8(1) of Schedule 2 to this Act (shops occupied by persons observing the Jewish Sabbath) has effect. [(3)  Sub-paragraph (1) above does not apply in relation to the opening of a large shop during any continuous period of six hours on a Sunday beginning no earlier than 10am and ending no later than 6pm, but this sub-paragraph has effect subject to sub-paragraph (4) below.](1) (4)  The exemption conferred by sub-paragraph (3) above does not apply where the Sunday is Easter Day [ … ](2). [(5)  Nothing in this paragraph applies where the Sunday is Christmas Day (the opening of large shops on Christmas Day being prohibited by section 1 of the Christmas Day (Trading) Act 2004.](3) 379

Appendix 1  Statutes (1) Heading and paragraph substituted by the Regulatory Reform (Sunday Trading) Order 2004, SI 2004/470, art 2(1), (2)(a), (b). (2) Words omitted repealed by the Christmas Day (Trading) Act 2004, s 4(1), (2)(a). (3) Paragraph inserted by the Christmas Day (Trading) Act 2004, s 4(1), (2)(b).

Exemptions 3.—(1)  The shops referred to in paragraph 2(2)(a) above are— (a) any shop which is at a farm and where the trade or business carried on consists wholly or mainly of the sale of produce from that farm, (b) any shop where the trade or business carried on consists wholly or mainly of the sale of [alcohol](1), (c) any shop where the trade or business carried on consists wholly or mainly of the sale of any one or more of the following— (i) motor supplies and accessories, and (ii) cycle supplies and accessories, (d) any shop which— (i) is a registered pharmacy, and (ii) is not open for the retail sale of any goods other than medicinal products[, veterinary medicinal products](2) and medical and surgical appliances, (e) any shop at a designated airport which is situated in a part of the airport to which sub-paragraph (3) below applies, (f) any shop in a railway station, (g) any shop at a service area within the meaning of the Highways Act 1980, (h) any petrol filling station, (j) any shop which is not open for the retail sale of any goods other than food, stores or other necessaries required by any person for a vessel or aircraft on its arrival at, or immediately before its departure from, a port, harbour or airport, and (k) any stand used for the retail sale of goods during the course of an exhibition. (2)  In determining whether a shop falls within sub-paragraph  (1)(a), (b) or (c) above, regard shall be had to the nature of the trade or business carried on there on weekdays as well as to the nature of the trade or business carried on there on Sunday. (3)  This sub-paragraph applies to every part of a designated airport, except any part which is not ordinarily used by persons travelling by air to or from the airport. (4)  In this paragraph ‘designated airport’ means an airport designated for the purposes of this paragraph by an order made by the Secretary of State, as being an airport at which there appears to him to be a substantial amount of international passenger traffic. (5)  The power to make an order under sub-paragraph (4) above shall be exercisable by statutory instrument. (6)  Any order made under section 1(2) of the Shops (Airports) Act 1962 and in force at the commencement of this Schedule shall, so far as it relates to England and Wales, have effect as if made also under sub-paragraph (4) above, and may be amended or revoked as it has effect for the purposes of this paragraph by an order under sub-paragraph (4) above. 4.—[ … ](3) 5.—[ … ](3) (1) Words substituted by the Licensing Act 2003, s 198(1), Sch 6, para 110(1), (3). (2) Words inserted by the Veterinary Medicines Regulations 2006, SI  2006/2407, reg  44(3), Sch 9, para 9(b). (3) Paragraphs repealed by the Regulatory Reform (Sunday Trading) Order 2004, SI 2004/470, art 2(1), (2)(c).

380

Sunday Trading Act 1994 Duty to display notice 6.—At any time when— (a) a large shop is open on Sunday for the serving of retail customers, and (b) the prohibition in sub-paragraph (1) of paragraph 2 above is excluded only by sub-paragraph (3) of that paragraph, a notice specifying [the Sunday opening hours](1) shall be displayed in a conspicuous position inside and outside the shop. (1) Substituted by the Regulatory Reform (Sunday Trading) Order 2004, SI 2004/470, art 2(1), (2)(d).

Offences 7.—(1)  If paragraph 2(1) above is contravened in relation to a shop, the occupier of the shop shall be liable on summary conviction to [a fine](1). (2)  If paragraph 6 above is contravened in relation to a shop, the occupier of the shop shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale. [8.—Where a person is charged with having contravened paragraph 2(1) above, in relation to a large shop which was permitted to be open for the serving of retail customers on the Sunday in question, by reason of his having served a retail customer after the end of the period during which the shop is permitted to be open by virtue of paragraph 2(3) above, it shall be a defence to prove that the customer was in the shop before the end of that period and left not later than half an hour after the end of that period.](2) 9.—[ … ](3) (1) Words substituted by the Regulatory Reform (Sunday Trading) Order 2004, SI  2015/664, art 4(1), Sch 4, para 26. (2) Substituted by the Regulatory Reform (Sunday Trading) Order 2004, SI 2004/470, art 2(1), (2)(e). (3) Repealed by the Regulatory Reform (Sunday Trading) Order 2004, SI 2004/470, art 2(1), (2)(f).

Section 1(1)

SCHEDULE 2 SUPPLEMENTARY PROVISIONS Part I  General Enforcement Provisions Duty to enforce Act

1.—It shall be the duty of every local authority to enforce within their area the provisions of Schedules 1 and 3 to this Act and Part II of this Schedule. Inspectors 2.—For the purposes of their duties under paragraph 1 above it shall be the duty of every local authority to appoint inspectors. Powers of entry 3.—[ … ]( ) 1

(1) Paragraph repealed by virtue of the Consumer Rights Act 2015, s 77(2), Sch 6, para 58(1), (2).

381

Appendix 1  Statutes Obstruction of inspectors 4.—[ … ](1) (1) Paragraph repealed by virtue of the Consumer Rights Act 2015, s 77(2), Sch 6, para 58(1), (3).

[Investigatory powers 4A.—For the investigatory powers available to a local authority and the inspectors appointed by it under paragraph 2 for the purposes of the duty in paragraph 1, see Schedule 5 to the Consumer Rights Act 2015.](1) (1) Paragraph inserted by virtue of the Consumer Rights Act 2015, s 77(2), Sch 6, para 58(1), (4).

Offences due to fault of other person 5.—Where the commission by any person of an offence under this Act is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings are taken against the first-mentioned person. Offences by bodies corporate 6.—(1)  Where an offence under this Act committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly. (2) Where the affairs of a body corporate are managed by its members, subparagraph (1) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate. Defence of due diligence 7.—(1)  In any proceedings for an offence under this Act it shall, subject to sub­ paragraph (2) below, be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or by a person under his control. (2)  If in any case the defence provided by sub-paragraph (1) above involves the allegation that the commission of the offence was due to the act or default of another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless, at least seven clear days before the hearing, he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.

Part II Shops Occupied by Persons Observing the Jewish Sabbath Shops occupied by persons of the Jewish religion 8.—(1) A  person of the Jewish religion who is the occupier of a large shop may give to the local authority for the area in which the shop is situated a notice signed by him stating— (a) that he is a person of the Jewish religion, and 382

Sunday Trading Act 1994 (b) that he intends to keep the shop closed for the serving of customers on the Jewish Sabbath. (2) For the purposes of this paragraph, a shop occupied by a partnership or company shall be taken to be occupied by a person of the Jewish religion if, and only if, the majority of the partners or of the directors, as the case may be, are persons of that religion. (3)  A notice under sub-paragraph (1) above shall be accompanied by a certificate signed by an authorised person that the person giving the notice is a person of the Jewish religion. (4)  Where the occupier of the shop is a partnership or company— (a) any notice under sub-paragraph (1) above shall be given by the majority of the partners or directors and, if not given by all of them, shall specify the names of the other partners or directors, and (b) a certificate under sub-paragraph (3) above is required in relation to each of the persons by whom such a notice is given. (5)  Every local authority shall keep a register containing particulars of the name (if any) and address of every shop in respect of which a notice under sub-paragraph (1) above has effect. (6)  Any register kept under this paragraph— (a) shall be open to inspection by members of the public at all reasonable times, and (b) may be kept by means of a computer. (7)  If there is any change— (a) in the occupation of a shop in respect of which a notice under subparagraph (1) above has effect, or (b) in any partnership or among the directors of any company by which such a shop is occupied, the notice shall be taken to be cancelled at the end of the period of 14 days beginning with the day on which the change occurred, unless during that period, or within such further time as may be allowed by the local authority, a fresh notice is given under sub-paragraph (1) above in respect of the shop. (8) Where a fresh notice is given under sub-paragraph  (1) above by reason of a change of the kind mentioned in sub-paragraph  (7) above, the local authority may dispense with the certificate required by sub-paragraph (3) above in the case of any person in respect of whom such a certificate has been provided in connection with a former notice in respect of that shop or any other shop in the area of the local authority. (9) A  notice given under sub-paragraph  (1) above in respect of any shop shall be cancelled on application in that behalf being made to the local authority by the occupier of the shop. (10) A  person who, in a notice or certificate given for the purposes of this paragraph, makes a statement which is false in a material respect and which he knows to be false or does not believe to be true shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale. (11)  Where a person is convicted of an offence under sub-paragraph (10) above, the local authority may cancel any notice under sub-paragraph (1) above to which the offence relates. (12)  In this paragraph ‘authorised person’, in relation to a notice under sub-paragraph (1) above, means— (a) the Minister of the synagogue of which the person giving the notice is a member, (b) the secretary of that synagogue, or (c) any other person nominated for the purposes of this paragraph by the President of the London Committee of Deputies of the British Jews 383

Appendix 1  Statutes (otherwise known as the Board of Deputies of British Jews), ‘large shop’ and ‘shop’ have the same meaning as in Schedule 1 to this Act, and ‘secretary of a synagogue’ has the same meaning as in Part IV of the Marriage Act 1949. Members of other religious bodies observing the Jewish Sabbath 9.—Paragraph  8 above shall apply to persons who are members of any religious body regularly observing the Jewish Sabbath as it applies to persons of the Jewish religion, and accordingly— (a) references to persons of the Jewish religion shall be construed as including any person who is a member of such a body, and (b) in the application of that paragraph to such persons ‘authorised person’ means a Minister of the religious body concerned. Transitional provisions 10.—(1)  Any shop which is registered under section 53 of the Shops Act 1950 at the commencement of this Schedule and is at that time a large shop within the meaning of Schedule 1 to this Act shall be taken to be a shop in respect of which a notice has been given under sub-paragraph (1) of paragraph 8 above by the person who was then registered as the occupier of the shop; and the provisions of that paragraph in relation to the cancellation of such a notice shall have effect accordingly. (2)  In paragraph 8(8) above, the reference to a certificate provided in connection with a former notice includes a reference to a statutory declaration provided under subsec­tion (2) of section 53 of the Shops Act 1950 in connection with the registration of a shop under that section before the commencement of this Schedule.

Section 2

SCHEDULE 3 LOADING AND UNLOADING AT LARGE SHOPS ON SUNDAY MORNING Shops to which Schedule applies

1.—This Schedule applies to any shop— (a) which is a large shop, within the meaning of Schedule 1 to this Act, [that is permitted to be open on a Sunday by virtue of paragraph  2(3) of that Schedule and which the occupier opens on Sunday for the serving of retail customers](1), and (b) which is situated in an area designated as a loading control area under section 2 of this Act. (1) Words substituted by the Regulatory Reform (Sunday Trading) Order 2004, SI  2004/470, art 2(1), (3).

Consent required for early Sunday loading and unloading 2.—The occupier of a shop to which this Schedule applies shall not load or unload, or permit any other person to load or unload, goods from a vehicle at the shop before 9 am on Sunday in connection with the trade or business carried on in the shop, unless the loading or unloading is carried on— (a) with the consent of the local authority for the area in which the shop is situated granted under this Schedule, and (b) in accordance with any conditions subject to which that consent is granted. 384

Sunday Trading Act 1994 3.—(1)  A consent under this Schedule may be granted subject to such conditions as the local authority consider appropriate. (2)  The local authority may at any time vary the conditions subject to which a consent is granted, and shall give notice of the variation to the person to whom the consent was granted. Application for consent 4.—An application for a consent under this Schedule shall be made in writing and shall contain such information as the local authority may reasonably require. 5.—An applicant for a consent under this Schedule shall pay such reasonable fee in respect of his application as the local authority may determine. 6.—(1)  Where an application is duly made to the local authority for a consent under this Schedule, the authority shall grant the consent unless they are satisfied that the loading or unloading of goods from vehicles before 9 am on Sunday at the shop to which the application relates, in connection with the trade or business carried on at the shop, has caused, or would be likely to cause, undue annoyance to local residents. (2) The authority shall determine the application and notify the applicant in writing of their decision within the period of 21 days beginning with the day on which the application is received by the authority. (3)  In a case where a consent is granted, the notification under sub-paragraph (2) above shall specify the conditions, if any, subject to which the consent is granted. Revocation of consent 7.—Where— (a) the occupier of a shop in respect of which a consent under this Schedule is in force is convicted of an offence under paragraph 9 below by reason of his failure to comply with the conditions subject to which the consent was granted, or (b) the local authority are satisfied that the loading or unloading authorised by virtue of a consent under this Schedule has caused undue annoyance to local residents, the local authority may revoke the consent. Publication of consent 8.—Where a local authority grant a consent under this Schedule, the authority may cause a notice giving details of that consent to be published in a local newspaper circulating in their area. Offence 9.—A  person who contravenes paragraph  2 above shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. [Christmas Day 10.—Paragraph  2 does not apply where the Sunday is Christmas Day (loading and unloading at large shops on Christmas Day being regulated by section 2 of the Christmas Day (Trading) Act 2004.](1) (1) Paragraph inserted by the Christmas Day (Trading) Act 2004, s 4(1), (3).

385

Appendix 1  Statutes

SCHEDULE 4

Section 4

Rights of shop workers as respects Sunday working [ … ](1) (1) Schedule repealed by the Employment Rights Act 1996, Sch 3, Pt I and superseded by Pt IV of that Act (ss 36–43).]

Section 9(2)

SCHEDULE 5 Repeals

Chapter

Short title

Extent of repeal

1933 c 12 The Children and Young Persons Act 1933.

Section 20(3).

1950 c 28 The Shops Act 1950.

Sections 47 to 66. In section 71(7)(b), the words ‘or Part IV. Schedules 5, 6 and 7.

1962 c 35 The Shops (Airports) Act 1962.

In section 1(1) the words from ‘and of to ‘Sunday trading)’.

1963 c 33 The London Government Act 1963.

Section 51(3).

1963 c 37 The Children and Young Persons Act 1963.

Section 35(3).

1965 c 35 The Shops (Early Closing Days) Act 1965.

In section 4(2), the words from ‘and, notwithstanding’ to the end.

1986 c 31 The Airports Act 1986.

Section 70. In Schedule 5, paragraph 15.

1989 c 38 The Employment Act 1989.

In Schedule 3, in Part III, paragraph 2(c).

386

London Local Authorities Act 1994

LONDON LOCAL AUTHORITIES ACT 1994 (Eliz II, 1994, c xii) An Act to confer further powers upon local authorities in London; and for other purposes [21st July 1994] 1.  Short title and commencement This Act may be cited as the London Local Authorities Act 1994 and except section 5 (Night cafe licensing) of this Act shall come into operation at the end of the period of two months beginning with the date on which it is passed. 2. Interpretation In this Act, except as otherwise expressly provided or unless the context otherwise requires— ‘the Act of 1990’ means the London Local Authorities Act 1990; [ … ](1) ‘borough council’ means London borough council but does not include the Common Council of the City of London; and ‘borough’ shall be construed accordingly. (1) Definition ‘authorised officer’ (omitted) repealed by the London Local Authorities Act 2004, s 28, Sch 5.

3.  Appointed day (1)  In this Act ‘the appointed day’ means such day as may be fixed in relation to a borough by resolution of the borough council, subject to and in accordance with the provisions of this section. (2)  Different days may be fixed under this section for the purpose of the application of different provisions of this Act to a borough. (3) The borough council shall cause to be published in a local newspaper circulating in the borough notice— (a) of the passing of any such resolution and of the day fixed thereby; and (b) of the general effect of the provisions of this Act coming into operation as from that day; and the day so fixed shall not be earlier than the expiration of three months from the publication of the said notice. (4)  Either a photostatic or other reproduction certified by the officer appointed for that purpose by the borough council to be a true reproduction of a page or part of a page of any such newspaper bearing the date of its publication and containing any such notice shall be evidence of the publication of the notice, and of the date of publication. *   *   *   *   *   * 6.  Street trading (1)  Section 21(2)(j) (Interpretation of Part III) of the Act of 1990 is hereby amended by the insertion after ‘offer for sale’, of the words ‘of articles’. (2)  Section 24(1) (Designation of licence streets) of the Act of 1990 is hereby amended by the substitution for the proviso of— ‘Provided that a borough council shall— (a) before passing a designating resolution, consult with the Commissioner of Police of the Metropolis on their proposal; and 387

Appendix 1  Statutes (b) before rescinding or varying a designating resolution, consult with the licence holders trading in the street in question, or a body or bodies representative of them, on their proposal.’. (3)  Section 27(6) (Conditions of street trading licences) of the Act of 1990 is hereby amended by the addition, at the end of the subsection, of ‘and shall notify the licence holders or a body or bodies representative of them of the making of such regulations.’. (4)  In section 30(1) (Part III appeals) of the Act of 1990, the following paragraph shall be inserted after the words ‘Any person aggrieved’— ‘(aa)  by the refusal of a borough council to renew a licence because they are not satisfied as mentioned in subsection (4)(b) of section 25 (Application for street trading licences) of this Act;’. (5)  In section 30(1)(d) (Part III appeals) of the Act of 1990, the words, ‘where that decision is based on any of the grounds mentioned in subsection (1)(d) to (h) of the said section 28’ shall cease to have effect. (6)  Section 30(2)(a) (Part III appeals) of the Act of 1990 is hereby amended by the addition after ‘paragraph’ of ‘(aa),’. (7)  Section 30 (Part III appeals) of the Act of 1990 is hereby amended by the addition, after subsection (11) of the following subsection— [(12)  An appeal under subsection (11) above may be brought— (a) in the case of an appeal under paragraph (a) or (b) of that subsection, at any time before the expiration of the period of three months beginning with the date on which notice of the passing of the resolution is published for the second time in accordance with subsection (10) of section 24 (Designation of licence streets) of this Act; (b) in the case of an appeal under paragraph (c) of that subsection, at any time before the expiration of the period of three months beginning with the date upon which the licence holders or a body or bodies representative of them were notified of the making of the regulations; (c) in the case of an appeal under paragraph (d) of that subsection— (i) if it relates to the amount of a fee payable under subsection (1) of section 32 (Fees and charges) of this Act, at any time before the expiration of the period of three months beginning with the date on which the fee payable is notified to the licence holders or a body or bodies representative of them; (ii) if it relates to the amount of a charge under subsection (2) of section 32 (Fees and charges) of this Act, at any time before the expiration of the period of three months beginning with the date on which notice of the determination of the charge has been given to the licence holders or a body or bodies representative of them.’. (8)  Section 32 (Fees and charges) of the Act of 1990 is hereby amended— (a) (i) by the deletion in subsection (5), of ‘grant or’ and ‘as aforesaid’; and (ii) by the addition in that subsection after ‘any’ of the word ‘such’; (b) by the substitution, in subsection (7) for ‘or varying the amount of such charges’ of the words ‘(whether originally or by way of variation of charges previously determined)’; (c) by the addition after subsection (7) of the following subsection— [(7A)  A notice under subsection (7)(a) above shall be accompanied by a statement showing how the proposed charges have been computed; and any body representative of licence holders may request the borough council to supply such further information or explanation with regard to the proposed charges as the body may reasonably require in order to ascertain whether 388

London Local Authorities Act 1994 the proposed charges are reasonable and have been computed in accordance with the provisions of this section.’; (d) by the addition in subsection (9)— (i) after the first ‘to’ of ‘(a)’; and (ii) at the end, of the words ‘and (b) comply with any request made under subsection (7A) above; and where any such request is made the period so specified, if still current, shall be treated as extended by the number of days in the period beginning with the day on which the request is made and ending with that on which it is complied with.’; (e) by the substitution for subsection (10) of— [(10)  When a borough council have determined fees under subsection (1) above or charges under subsection (2) above (whether originally or by way of variation of fees or charges previously determined) they shall give notice of the fees or charges so determined and of the date on which those fees or charges are to be brought into effect, in the manner prescribed in subsection (7) above.’. (9)  Section 34 (Offences) of the Act of 1990 is hereby amended by the addition, at the beginning of paragraph (1) of the words ‘without reasonable excuse’. (10)  Section 37 (Ice cream trading) of the Act of 1990 is hereby amended by the addition, in subsection (2) after ‘prohibited street’ of the words ‘and in the case of any London borough except the City of Westminster and the Royal Borough of Kensington and Chelsea may so designate it for such days or for such parts of days as are specified in the resolution,’. (11)  Section 38 (Unlicensed street trading) of the Act of 1990 is hereby amended— (a) by the substitution for subsection (1) of— [(1)  A person who— (a) is not the holder of a street trading licence or a temporary licence and who engages in street trading in a borough; or (b) is the holder of a temporary licence and who engages in street trading in a borough on a day or in a place not specified in that temporary licence; shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.’; (b) by the addition, in subsection (4) after ‘of that offence’ of the words ‘or may be the subject of forfeiture under subsection (5) below’; (c) by the addition, after subsection (4) of the following subsection— [(4A) (a) The following provisions of this subsection shall have effect where any article or thing (including any receptacle) is seized under subsection (4) above and references in those provisions to proceedings are to proceed­ings in respect of the alleged offence in relation to which the article or thing is seized. (b) Subject to paragraph (e) below, at the conclusion of the proceedings the article or thing shall be returned to the person from whom it was seized unless the court orders it to be forfeited under subsection (5) below. (c) Subject to paragraph (d) below, where a receptacle seized under subsec­tion (4) above is a motor vehicle used for ice cream trading, the borough council or the Commissioner of Police of the Metropolis (as the case may be) shall, within three days of the receipt of an application in writing by the owner or registered keeper of the vehicle, permit him to remove it. (d) Paragraph (c) above shall not apply where— 389

Appendix 1  Statutes (i) the owner or registered keeper of the vehicle has been convicted of an offence under this Part of this Act; or (ii) the owner or registered keeper of the vehicle is being prosecuted for a previous alleged offence under this Part of this Act; or (iii) the vehicle has been used in the commission of such an offence or previous alleged offence; if the offence or previous alleged offence was committed or is alleged to have been committed no more than three years before the seizure and (in the case of an alleged offence) the proceedings are continuing. (e) If no proceedings are instituted before the expiration of a period of 28 days beginning with the date of seizure, or any proceedings instituted within that period are discontinued, at the expiration of that period or, as the case may be, on the discontinuance of the proceedings, the article or thing shall be returned to the person from whom it was seized unless it has not proved possible, after diligent enquiry, to identify that person and ascertain his address. (f) Where the article or thing is not returned because it has not proved possible to identify the person from whom it was seized and ascertain his address the borough council (whether the article or thing was seized by a constable or by an authorised officer) may apply to a magistrates’ court for an order as to the manner in which it should be dealt with.’; (d) by the addition, in subsection (6) at the end, of— ‘and in considering whether to make such an order a court shall have regard— (i) to the value of the property; and (ii) to the likely financial and other effects on the offender of the making of theorder (taken together with any other order that the court contemplates making).’; (e) by the substitution, in subsection (7) for ‘the article or thing’ of the word ‘anything’; (f) by the addition, after subsection (7) of the following subsection— [(8)  (a)  This subsection shall have effect where— (i) an article, thing or receptacle is seized under subsection (4) above; and (ii) (a) not less than six months have passed since the date of the seizure and no information has been laid against any person for an offence under this section in respect of the acts or circum­stances which occasioned the seizure; or (b) proceedings for such an offence have been brought and either the person charged has been acquitted (whether or not on appeal) and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought, or the proceedings (including any appeal) have been withdrawn by, or have failed for want of prosecution by, the person by whom the original proceedings were brought. (b) When this subsection has effect a person who has or at the time of seizure had a legal interest in the article, thing or receptacle seized may recover compensation from the borough council or (where it is seized by a constable) the Commissioner of Police of the Metropolis by civil action in the County Court in respect of any loss suffered by him as a result of the seizure. 390

London Local Authorities Act 1994 (c) The court may not make an order for compensation under paragraph (b) above unless it is satisfied that seizure was not lawful under subsection (4) above.’. (12)  Part III of the Act of 1990, as amended by this Act, is set out in the Schedule to this Act. *   *   *   *   *   * Section 6

SCHEDULE

LONDON LOCAL AUTHORITIES ACT 1990 PART III AS HAVING EFFECT IN ACCORDANCE WITH SECTION 6 (STREET TRADING) OF THIS ACT Part III Street trading 21.  Interpretation of Part III (1)  In this Part of this Act— ‘grant’, unless the context otherwise requires, includes renew and renewal, and cognate words shall be construed accordingly; ‘ice cream trading’ means the selling, exposing or offering for sale of goods consisting wholly or mainly of ice cream, frozen confectionary or other similar commodities from a vehicle; ‘itinerant ice cream trading’ means ice cream trading from a vehicle which goes from place to place remaining in any one location in the course of trading for short periods only; ‘licence street’ means a street designated under section 24 (designation of licence streets) of this Act; ‘receptacle’ includes a vehicle or stall and any basket, bag, box, vessel, stand, easel, board, tray or thing which is used (whether or not constructed or adapted for such use) as a container for or for the display of any article or thing or equipment used in the provision of any service; ‘street’ includes— (a) any road or footway; (b) any other area, not being within permanently enclosed premises, within 7 metres of any road or footway, to which the public have access without payment; (c) any part of such road, footway or area; (d) any part of any housing development provided or maintained by a local authority under Part II of the Housing Act 1985; ‘street trading’ means subject to subsection (2) below the selling or exposing or the offering for sale of any article (including a living thing) or the supplying or offering to supply any service in a street for gain or reward; ‘street trading licence’ means a licence granted under this Part of this Act and valid for the period specified therein being not less than six months and not more than three years; ‘temporary licence’ means a licence granted under this Part of this Act valid for a single day or for such period as may be specified in the licence not exceeding six months. (2) The following are not street trading for the purposes of this Part of this Act:— 391

Appendix 1  Statutes (a) trading by a person acting as a pedlar under the authority of a Pedlar’s Certificate granted under the Pedlars Act 1871; (b) anything done in a market or fair the right to hold which was acquired by virtue of a grant (including a presumed grant) or acquired or established by virtue of any enactment or order; (c) trading in a trunk road picnic area provided by the Secretary of State under section 112 of the Highways Act 1980; (d) trading as a news-vendor provided that the only articles sold or exposed or offered for sale are newspapers or periodicals and they are sold or exposed or offered for sale without a receptacle for them or, if with a receptacle for them such receptacle does not— (i) exceed 1 metre in length or width or 2 metres in height; or (ii) occupy a ground area exceeding 0.25 square metre; or (iii) stand on the carriageway of a street; or (iv) cause undue interference or inconvenience to persons using the street; (e) selling articles or things to occupiers of premises adjoining any street, or offering or exposing them for sale from a vehicle which is used only for the regular delivery of milk or other perishable goods to those persons; (f) the use for trading under Part VIIA of the Highways Act 1980 of any object or structure placed on, in or over a highway; (g) the operation of facilities for recreation or refreshment under Part VIIA of the Highways Act 1980; (h) the doing of anything authorised by regulations made under section 5 of the Police, Factories, &c. (Miscellaneous Provisions) Act 1916; (i) trading in a highway in relation 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; and (j) the sale, exposure or offer for sale of articles or offer or provision of services on any land comprised in a street (not being part of a highway) within the meaning of subsection (1) above by the owner or occupier of the land or by a bona fide employee of the owner or occupier of the land. 22.  Application of Part III This Part of this Act applies to the borough of a participating council as from the appointed day. 23.  Licensing of street traders (1)  Subject to the provisions of this Part of this Act it shall be unlawful for any person to engage in street trading (whether or not in or from a stationary position) in any licence street within a borough unless that person is authorised to do so by a street trading licence or a temporary licence. (2)  For the purposes of this Part of this Act a person shall be deemed to engage in street trading whether or not he regularly carries on the business of street trading. 24.  Designation of licence streets (1)  If a borough council consider that street trading should be licensed in their area they may from time to time pass any of the following resolutions:— (a) a resolution (in this Part of this Act referred to as a ‘designating resolution’) designating any street within the borough as a ‘licence street’; (b) a resolution specifying in relation to any such street or any part of a street any class or classes of articles, things or services which they will, or other 392

London Local Authorities Act 1994 than which they will not, prescribe in any street trading licence granted by them in respect of that street; and may from time to time by subsequent resolution rescind or vary any such resolution: Provided that a borough council shall— (a) before passing a designating resolution, consult with the Commissioner of Police of the Metropolis on their proposal; and (b) before rescinding or varying a designating resolution, consult with the licence holders trading in the street in question, or a body or bodies representative of them, on their proposal. (2)  At the appointed day for the purposes of this Part of this Act in a borough, the streets prescribed by any licences granted by the council of the borough in pursuance of powers contained in any of the enactments referred to in column (2) of Schedule 2 to this Act and then in force shall be deemed to have been designated as licence streets under a designating resolution. (3)  If a borough council pass a designating resolution the designation of the street shall take effect on the day specified in the resolution (which must not be before the expiration of the period of one month beginning with the day on which the resolution is passed). (4)  A borough council shall not pass a resolution or rescind or vary a resolution under this section unless— (a) they have published notice of their intention to do so in a local newspaper circulating in their area; (b) they have served a copy of the notice on the highway authority for that street (unless they are that highway authority); and (c) where subsection (5) below applies, they have obtained the necessary consent. (5)  This subsection applies— (a) where the resolution relates to a street which is owned or maintainable by a relevant corporation; and (b) where the resolution designates as a licence street any street maintained by a highway authority;and in subsection (4) above ‘necessary consent’ means— (i) in the case mentioned in paragraph (a) above, the consent of the relevant corporation; and (ii) in the case mentioned in paragraph (b) above, the consent of the highway authority. (6)  The following are relevant corporations for the purposes of this section:— (a) British Railways Board; (b) London Regional Transport; and (c) an urban development corporation established under the Local Government, Planning and Land Act 1980. (7)  The notice referred to in subsection (4) above shall— (a) contain a draft of the resolution to which it relates; and (b) state that representations relating to it may be made in writing to the borough council within such period, not less than 28 days after the publication of the notice, as may be specified in the notice. (8)  As soon as practicable after the expiry of the period specified under subsection (7) above, the borough council shall consider any representations relating to the proposed resolution which they have received before the expiry of that period. (9) After the borough council have considered those representations, they may if they think fit, pass such a resolution relating to the street as is mentioned in subsection (1) above. 393

Appendix 1  Statutes (10)  The borough council shall publish notice of the passing of such a resolution in a local newspaper circulating in their area on two consecutive weeks. (11)  The first publication shall not be later than 28 days before the day specified in the resolution for the coming into force of the designation. 25.  Application for street trading licences (1)  An application for a street trading licence or renewal of such a licence shall be made in writing to the borough council, and in the case of an application for the renewal of a licence shall be made not later than two months or earlier than three months before the date on which that licence unless revoked or surrendered will cease to be valid: Provided that nothing in this section shall prevent a borough council from renewing a licence, other than a temporary licence notwithstanding that application has been made for such renewal at a later date than aforesaid if they consider it reasonable in the circumstances so to do. (2)  In the application, the applicant shall state— (a) in the case of an application by an individual, his full name and address and date of birth; (b) in the case of an application for a licence to carry on ice cream trading— (i) by a company incorporated under the Companies Acts, the name of the company and its registered office; (ii) by a partnership, the names of its members and the address of its principal office; (c) the licence street in which, the days on which and the times between which he desires to trade; (d) the description of articles, things or services in which he desires to trade; and (e) such other particulars, relevant to street trading, as the borough council may reasonably require; and may in the case of an individual specify the name and address of a relative of his who is associated with, or dependent upon, the business of street trading in respect of which the application is made and to whom he desires the licence to be granted in any of the events specified in subsection (1) (a) of section 26 (Succession) of this Act. (3)  No later than the date on which he submits his application, the applicant shall hand to an authorised officer two identical full-face photographs of himself, taken within the preceding 12 months, signed by the applicant on the reverse except where the application is made by a company incorporated under the Companies Acts, or by a partnership, for a licence to carry on ice cream trading. (4)  A street trading licence— (a) shall not be granted— (i) to a person under the age of 17 years; or (ii) except where the application is made by a company incorporated under the Companies Acts, or by a partnership, for a licence to carry on ice cream trading to a person, on a corresponding day, days or time, who holds a street trading licence in any other licence street granted under this Part of this Act but nothing in this paragraph shall prevent the renewal of such a licence; or (iii) except where the application is made by a company incorporated under the Companies Acts, or by a partnership, for a licence to carry on ice cream trading to a body corporate or to an unincorporated association; or (iv) in respect of an application for a licence which is not a temporary licence to trade in a street which is not a licence street; or 394

London Local Authorities Act 1994 (v) where the street to which the application relates is a street in respect of which the borough council have by resolution passed under subsection (1) (b) of section 24 (Designation of licence streets) of this Act specified a class of articles or things, or services which they will not prescribe in any street trading licence and the grant of the licence would be contrary to any of the terms of that resolution; (b) shall not be granted unless the borough council are satisfied that there is 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 or vehicular traffic using the street. (5)  Subject to subsection (4) above, the borough council shall grant an application for a street trading licence unless they consider that the application ought to be refused on one or more of the grounds specified in subsection (6) below. (6)  Subject to subsection (8) below the council may refuse an application on any of the following grounds:— (a) that there are enough traders trading in the street or in any street adjoining the street in respect of which the application is made in the goods in which the applicant desires to trade; (b) that the applicant is on account of misconduct or for any other sufficient reason unsuitable to hold the licence; (c) that the applicant is an individual who has without reasonable excuse failed personally to avail himself fully of a previous street trading licence; (d) that the applicant has at any time been granted a street trading licence by the borough council which was revoked or could have been revoked on the grounds that he had refused or neglected to pay fees or other charges due to them in respect of the licence; (e) that the applicant has failed to provide or to identify suitable or adequate premises for the storage of any receptacles or perishable goods in which he proposes to trade when street trading is not taking place; (f) that— (i) the application is for the grant (but not the renewal) of a street trading licence; and (ii) the only available position is in that part of the street which is contiguous with the frontage of a shop; and (iii) the articles, things or services mentioned in the application are sold or provided at the shop; (g) that— (i) the application is for the grant (but not the renewal) of a street trading licence; and (ii) the only available position in the street is within the curtilage of a shop; and (iii) the applicant is not the owner or occupier of the premises comprising the shop. (7)  If the borough council consider that grounds for refusal exist under subsection (6) (a) or (c) above they may grant the applicant a licence which permits him— (a) to trade on fewer days or during a shorter period in each day than is specified in the application; or (b) to trade only in one or more of the descriptions of goods specified in the application. (8)  Subject to subsection (4) above if— (a) a person is at the appointed day licensed to trade in a street under the provisions of any local enactment; and (b) the street becomes a licence street under this Part of this Act; and 395

Appendix 1  Statutes (c) he was trading from a fixed position in the street immediately before it became a licence street; and (d) within two months from the appointed day he applies for a street trading licence to trade in the street; his application shall not be refused. (9) Subject to subsections (4), (6) and (8) above a borough council when considering applications for licences to trade in licence streets under this Part of this Act shall give preference to applications from persons who immediately before the appointed day were under the provisions of any local enactment authorised to trade in a street in the borough which is not a licence street. (10) A borough council when considering applications for licences to carry on ice cream trading in a licence street shall treat all applicants, whether companies, partnerships or individuals, on an equal footing and in particular— (a) shall not treat individuals less favourably than companies or partnerships; and (b) as between applicants who are companies or partnerships, shall not treat any particular company or partnership more favourably than others. (11)  A licence holder may at any time surrender his licence to the borough council and it shall then cease to be valid. 26. Succession (1)  (a) When the holder of a licence who is an individual has specified the name and address of a relative to whom he desires the licence to be granted— (i) dies; or (ii) retires having reached the normal age for retirement; or (iii) notifies the borough council that owing to ill-health he is unable to continue to engage in the street trading permitted by the licence, and submits evidence to satisfy the borough council as to his ill-health; the borough council shall not (except as provided in paragraph (b) of this subsection) grant a licence in respect of the position or place in a street at which the former licensee was entitled to engage in street trading under the authority of his licence until the expiration of 28 days from the date of the death of the licensee or his retirement or receiving the notification, as the case may be; (b) If during the said period of 28 days the person specified by the holder of the licence, when making application for the licence, as the relative to whom he desired the licence to be granted in any of the events mentioned in paragraph (a) above makes application for the grant of a licence in respect of the position or place available in the street the borough council shall, save as provided by paragraphs (b) to (e) of subsection (6) of section 25 (Application for street trading licences) of this Act grant a licence to that person. (2)  For the purposes of this section a person shall be treated as being related to another if the latter is the wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister of the former and shall be deemed to be so related notwithstanding that he is so related only through an illegitimacy or in consequence of an adoption. 27.  Conditions of street trading licences (1)  A licence granted under section 25 (Application for street trading licences) of this Act, shall— 396

London Local Authorities Act 1994 (a) unless it is revoked or surrendered, be valid for a period of three years from the date on which it is granted, or for such shorter period as the borough council may determine; (b) specify the conditions; and (c) in the case of an individual incorporate one of the photographs of the licence holder submitted under subsection (3) of the said section 25; and on any occasion of the renewal of a licence, or at 1st January in any year during the currency thereof, (whether on application by the licence holder or otherwise) or at any time on application by the licence holder, the borough council may vary the conditions. (2)  Where a licence is granted to a company incorporated under the Companies Acts or to a partnership to carry on ice cream trading, any individual carrying on ice cream trading in accordance with that licence shall at all times while he is so trading carry with him a recent photograph of him authenticated by the company or on behalf of the partnership, as the case may be, which holds the licence. (3)  The borough council may make regulations prescribing standard conditions which they may attach to the licence on the occasion of its grant or renewal. (4)  Before making regulations under subsection (3) above, the borough council shall— (a) publish notice of their intention to do so in a local newspaper circulating in their area, and such notice shall— (i) contain a draft of the resolution to which it relates; and (ii) state that representations relating to it may be made in writing to the borough council within such period, not less than 28 days after the publication of the notice, as may be specified in the notice; and (b) consult the licence holders or a body or bodies representative of them. (5)  As soon as practicable after the expiry of the period specified under subsection (4) above, the borough council shall consider any representations relating to the proposed regulations which they have received before the expiry of that period. (6)  After the borough council have considered those representations they may if they think fit make regulations as mentioned in subsection (3) above and shall notify the licence holders or a body or bodies representative of them of the making of such regulations. (7) Without prejudice to the generality of subsection (3) above the standard conditions shall include such conditions as may be reasonable— (a) identifying the street or streets in which and the position or place in any such street at which the licence holder may sell or expose or offer for sale articles or things, or offer or provide services under the authority of the licence; (b) identifying the class or classes of articles, things or services which the licence holder may so sell or expose or offer for sale or provide; (c) identifying the day or days on which and the time during which the licence holder may sell or expose or offer for sale articles, things or services as aforesaid; (d) identifying the nature and type of any receptacle which may be used by the licence holder or in connection with any sale or exposure or offer for sale or provision of services and the number of any such receptacles which may be so used; (e) requiring that any receptacle so used shall carry the name of the licence holder and the number of his licence; (f) regulating the storage of receptacles or perishable goods; (g) regulating the deposit and removal of refuse and the containers to be used for the deposit of such refuse and their location pending its removal; 397

Appendix 1  Statutes (h) requiring that the licence holder shall commence trading or exercising his rights under the licence by a certain time on any day or forfeit his right to trade or exercise his rights under the licence on that day from the fixed position to which his licence refers. (8) Without prejudice to the standard conditions, the borough council may in addition attach to a licence such further conditions as appear to them to be reasonable in any individual case. (9)  When granting a licence a borough council shall give to the licence holder a copy of the licence which, in the case of an individual, shall bear his photograph. 28.  Revocation or variation of licences under Part III (1)  Subject to the provisions of this Part of this Act a borough council may at any time revoke a street trading licence if they are satisfied that— (a) owing to circumstances which have arisen since the grant or renewal of the licence, there is not enough space in the street in which the licence holder trades for him to engage in the trading permitted by the licence without causing undue interference or inconvenience to persons or vehicular traffic using the street; or (b) the licence holder is trading in a class of articles, things or services which the borough council have resolved under subsection (1) (b) of section 24 (Designation of licence streets) of this Act not to prescribe in licences granted for the licence street in which the licence holder trades; or (c) the licence holder is an individual who has without reasonable excuse personally failed fully to avail himself of his licence; or (d) the licence holder is on account of misconduct or for any other sufficient reason unsuitable to hold the licence; or (e) that since the grant or renewal of the licence, the licence holder has for a period of four weeks or more failed to pay fees or charges due to the borough council in connection with the street trading licence or has failed to pay any charges due from him for accommodation provided in pursuance of subsection (2) of section 33 (Receptacles and containers) of this Act; or (f) that since the grant or renewal of the licence, the licence holder has failed to make provision for the suitable and adequate storage of the receptacles used by him for trading or for any perishable goods in which he trades when trading is not taking place; or (g) that since the grant or renewal of the licence, the licence holder has persistently failed to remove to a place of storage the receptacles used by him for trading; or (h) that the licence holder has persistently failed to comply with any condition of his licence. (2)  If a borough council consider that a licence could be revoked on any of the grounds mentioned in paragraphs (a) to (c) of subsection (1) above they may instead of revoking it, vary its conditions by attaching further conditions— (a) reducing the number of days in any week or the period in any one day during which the licence holder is permitted to trade; or (b) specifying a different licence street or position or place in any such street at which the licence holder may sell or expose or offer for sale articles or things or offer or provide services; or (c) restricting the description of articles, things or services in which the licence holder is permitted to trade. 29.  Further provisions relating to grant, renewal or revocation of street trading licences (1)  A borough council shall not— 398

London Local Authorities Act 1994 (a) refuse to grant or renew a licence on any of the grounds mentioned in subsection (6) of section 25 (Application for street trading licences) of this Act; or (b) revoke or vary a licence under section 28 (Revocation or variation of licences under Part III) of this Act; or (c) vary a licence under subsection (1) of section 27 (Conditions of street trading licences) of this Act; unless they shall have given to the applicant or licence holder not less than 21 days’ previous notice in writing that objection has been or will be taken to such grant or renewal or that such revocation or variation is proposed, specifying the ground or grounds on which their decision would be based and giving him an opportunity to appear before the committee, sub-committee or officer determining the matter. (2)  A borough council shall not proceed to determine any of the matters referred to in subsection (1) above until after the expiry of the period specified in the notice given under that subsection; and in determining any of the matters referred to, they shall consider any representations made by an applicant or licence holder in respect of that matter. (3)  A borough council shall not refuse to grant or renew and shall not revoke a licence on the ground only that the applicant or licensee, being an individual, does not reside in the borough. (4)  If the borough council refuse to grant or renew a licence or decide to revoke or vary a licence— (a) they shall notify the applicant or licence holder in writing of their decision and of the ground or grounds for such refusal, revocation or variation; and (b) they shall notify the applicant or licence holder of his rights of appeal (if any) specified in the next following section. 30.  Part III appeals (1)  Any person aggrieved— (aa) by the refusal of a borough council to renew a licence because they are not satisfied as mentioned in subsection (4) (b) of section 25 (Application for street trading licences) of this Act; (a) by the refusal of a borough council to grant or renew a licence on any of the grounds mentioned in subsection (6) (a) to (e) of section 25 (Application for street trading licences); or (b) by a decision of a borough council under subsection (7) of the said section 25 to grant him a licence either on terms mentioned in that subsection different from those on the licence which he previously held or different from those for which he applied; or (c) by any further condition attached by a borough council under subsection (8) of section 27 (Conditions of street trading licences) of this Act in addition to the standard conditions; or (d) by a decision of the borough council either— (i) to vary the conditions of a licence under subsection (2) of section 28 (Revocation or variation of licences under Part III) of this Act; or (ii) to revoke a licence under subsection (1) of the said section 28; or (e) by a resolution of a borough council under section 37 (Ice cream trading) of this Act; may appeal to a magistrates’ court acting for the area in which the licence street is situated. (2)  An appeal under subsection (1) above may be brought— (a) in the case of an appeal under paragraph (aa), (a), (b), (c) or (d) of that subsection, at any time before the expiration of the period of 21 days 399

Appendix 1  Statutes beginning with the date upon which notification in writing is given of the refusal or decision; (b) in the case of an appeal under paragraph (e) of that subsection, at any time before the expiration of the period of 21 days beginning with the date of the second publication of the notice required by subsection (10) of section 24 (Designation of licence streets) as applied by the said section 37. (3)  A person desiring to appeal against such refusal or decision as is mentioned in subsection (1) above shall give a written notice to the magistrates’ court and to the borough council specifying the refusal or decision against which he wishes to appeal and the grounds upon which such appeal is made. (4)  An appeal by either party against the decision of the magistrates’ court under this section may be brought to the Crown Court. (5) On an appeal to the magistrates’ court or to the Crown Court under this section, the court may make such order as it thinks fit. (6)  Subject to subsections (7) to (9) below, it shall be the duty of the borough council to give effect to the order of the magistrates’ court or the Crown Court. (7)  A borough council need not give effect to the order of the magistrates’ court until the time for bringing an appeal under subsection (4) above has expired and, if such an appeal is duly brought, until the determination or abandonment of the appeal. (8)  Where a licence holder applies for renewal of his licence, his existing licence shall remain valid— (a) until the grant by the borough council of a new licence with the same conditions; or (b) if the borough council refuse renewal of the licence or decide to grant a licence with conditions different from those of the existing licence and he has a right of appeal under this section, until the time for bringing an appeal has expired or where an appeal is duly brought, until the determination or abandonment of the appeal; or (c) if he has no right of appeal under this section until the borough council either grant him a new licence with conditions different from those of the existing licence or notify him of their decision to refuse his application. (9) Where— (a) a borough council decide— (i) to vary the conditions of a licence under subsection (2) of the said section 28; or (ii) to revoke a licence under subsection (1) of the said section 28; and (b) a right of appeal is available to the licence holder under this section; the variation or revocation shall not take effect until the time for bringing an appeal has expired or where an appeal is duly brought, until the determination or abandonment of the appeal. (10)  For the avoidance of doubt, it is hereby declared that an application under section 31 of the Supreme Court Act 1981 (application for judicial review) or under the Rules of the Supreme Court 1965 in respect of any matter which is or could be the subject of an appeal to the magistrates’ court or to the Crown Court under this section shall not be treated as an appeal for the purposes of subsection (8) or (9) above. (11)  Any person aggrieved— (a) by a resolution rescinding or varying a designating resolution; (b) by a resolution under subsection (1) (b) of section 24 (Designation of licence streets) of this Act; (c) by a standard condition prescribed by regulations under subsection (3) of section 27 (Conditions of street trading licences) of this Act; or 400

London Local Authorities Act 1994 (d) by the amount of a fee or charge under section 32 (Fees and charges) of this Act; may appeal to the Secretary of State whose decision shall be final. (12)  An appeal under subsection (11) above may be brought— (a) in the case of an appeal under paragraph (a) or (b) of that subsection, at any time before the expiration of the period of three months beginning with the date on which notice of the passing of the resolution is published for the second time in accordance with subsection (10) of section 24 (Designation of licence streets) of this Act; (b) in the case of an appeal under paragraph (c) of that subsection, at any time before the expiration of the period of three months beginning with the date upon which the licence holders or a body or bodies representative of them were notified of the making of the regulations; (c) in the case of an appeal under paragraph (d) of that subsection— (i) if it relates to the amount of a fee payable under subsection (1) of section 32 (Fees and charges) of this Act, at any time before the expiration of the period of three months beginning with the date on which the fee payable is notified to the licence holders or a body or bodies representative of them; (ii) if it relates to the amount of a charge under subsection (2) of section 32 (Fees and charges) of this Act, at any time before the expiration of the period of three months beginning with the date on which notice of the determination of the charge has been given to the licence holders or a body or bodies representative of them. 31.  Temporary licences (1) A borough council may if they think fit on the receipt from any person of an application for that purpose and accompanied by the appropriate fee grant to that person a temporary licence. (2)  A temporary licence shall be valid only for the day or period specified in the licence and— (a) shall be in the like form as a street trading licence with such modifications therein as the circumstances require; and (b) shall prescribe such conditions as the borough council deem appropriate. (3)  Where the holder of a street trading licence is not for the time being exercising his rights under the licence, a temporary licence authorising street trading in the position or place prescribed by the street trading licence may be granted to any other person but shall be subject to the condition that it shall cease to be valid if during the currency thereof the holder of the licence desires to resume the exercise of his rights and gives the appropriate notice, and for the purposes of this subsection ‘the appropriate notice’ means— (a) in the case of a holder of a licence who has not exercised his rights under the licence for a period of at least 14 days, 7 days’ notice; (b) in any other case, 24 hours’ notice. (4)  In this section ‘appropriate fee’ means such fee as the borough council may have determined under section 32 (Fees and charges) of this Act. 32.  Fees and charges (1) A  borough council may charge such fees for the grant or renewal of a street trading licence under this Part of this Act, the grant of a temporary licence or for the variation at the request of the licence holder of the conditions of a street trading licence as they may determine and as may be sufficient in the aggregate to cover in 401

Appendix 1  Statutes whole or in part the reasonable administrative or other costs in connection with their functions under this Part of this Act, not otherwise recovered. (2)  A borough council may recover from licence holders such charges as may be sufficient in the aggregate taking one year with another to cover the reasonable costs, not otherwise recovered, of— (a) the collection, removal and disposal of refuse or other services rendered by them to such holders; and (b) the cleansing of streets in which street trading takes place in so far as that cleansing is attributable to such trading; and (c) any reasonable administrative or other costs incurred in connection with the administration of this Part of this Act; and (d) the cost of enforcing the provisions of this Part of this Act. (3)  A borough council may determine— (a) that charges under subsection (2) above shall be included in a fee payable under subsection (1) above; or (b) that they shall be separately recoverable. (4)  A borough council may— (a) require that every application for a licence under this Part of this Act be accompanied by the whole or part of the fee determined under subsection (1) above; and (b) determine that the fee may be paid by instalments. (5)  Where a borough council refuse to ***   renew a licence they shall repay to the person who made the application therefor the amount of any such fee paid by him ***. (6) A borough council may determine the fees to be charged on the grant of a temporary licence under section 31 (Temporary licences) of this Act, and in doing so they shall have regard to the matters specified in subsection (2) above and such fees shall be included in the computation for the purposes of determining the fees and charges under subsections (1) and (2) above. (7)  Before determining charges to be made under subsection (2) above (whether originally or by way of variation of charges previously determined) a borough council— (a) shall give notice of the proposed charges to licence holders or to a body or bodies representative of them; and (b) shall publish notice of the proposed charges in a newspaper circulating in the area in which the licence street or streets in respect of which the charges will be applied is situated. (7A)  A notice under subsection (7) (a) above shall be accompanied by a statement showing how the proposed charges have been computed; and any body representative of licence holders may request the borough council to supply such further information or explanation with regard to the proposed charges as the body may reasonably require in order to ascertain whether the proposed charges are reasonable and have been computed in accordance with the provisions of this section. (8) A  notice under subsection (7) (a) above shall specify a reasonable period being not less than 28 days from the date of publication of the newspaper referred to in subsection (7) (b) above within which written representations concerning the proposed charges may be made to the borough council. (9)  It shall be the duty of a borough council to— (a) consider any such representations which are made to them within the period specified in the notice; and (b) comply with any request made under subsection (7A) above; and where any such request is made the period so specified, if still current, shall be treated as extended by the number of days in the period beginning with the day on which the request is made and ending with that on which it is complied with. 402

London Local Authorities Act 1994 (10)  When a borough council have determined fees under subsection (1) above or charges under subsection (2) above (whether originally or by way of variation of fees or charges previously determined) they shall give notice of the fees or charges so determined and of the date on which those fees or charges are to be brought into effect, in the manner prescribed in subsection (7) above. (11) Where a licence is revoked under subsection (1) (a) or (b) of section 28 (Revocation or variation of licences under Part III) of this Act, the borough council shall refund the appropriate part of any fee paid for the grant or renewal of the licence. (12)  Where a licence is revoked otherwise than under subsection (1) (a) or (b) of section 28 (Revocation or variation of licences under Part III) or is surrendered, the borough council may remit or refund, as they consider appropriate, the whole or a part— (a) of any fee paid for the grant or renewal of the licence; or (b) of any charges recoverable under subsection (2) above. 33.  Receptacles and containers (1)  A borough council may sell or let on hire or otherwise provide to any person holding a street trading licence or a temporary licence under this Part of this Act receptacles for use by him in street trading. (2)  A borough council may provide and maintain accommodation for the storage of receptacles and containers for the deposit of refuse arising in the course of street trading and for that purpose may— (a) adapt any premises or erect any buildings on any land belonging to them but not already appropriated for such purpose; and (b) make such charges as they think fit for the use of such accommodation. 34. Offences Any person who— (1) without reasonable excuse contravenes any of the conditions of a street trading licence or a temporary licence; or (2) in connection with an application for a street trading licence or a temporary licence makes a statement which he knows to be false in a material particular; or (3) resists or intentionally obstructs any authorised officer of a borough council in the execution of his duties under this Part of this Act; or (4) fails on demand without reasonable excuse in the case of an individual licence holder to produce his licence duly signed by him and bearing his photograph, and, in the case of an individual carrying on ice cream trading under a licence granted to a company incorporated under the Companies Acts or to a partnership, to produce the photograph required by subsection (2) of section 27 (Conditions of street trading licences) of this Act to an authorised officer of the borough council or to a constable; shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. 35.  Power to remove receptacles (1) Where any receptacle used by a licence holder is not removed to a place of storage on the cessation of trading on any day it shall be lawful for the borough council to cause it to be removed to a place of storage and to recover from the licence holder the costs incurred by them in removing and storing the receptacle. (2)  Such charges as the borough council may fix as the cost of removing and storing a receptacle in pursuance of subsection (1) above, shall be payable by the licence holder before the return of the receptacle to him. 403

Appendix 1  Statutes (3)  The provisions of subsection (1) above are without prejudice to the power of the borough council to prosecute the licence holder for any breach of the conditions of his licence arising from the failure to remove the receptacle. 36.  Employment of assistants Subject to the provisions of this section a person holding a street trading licence may employ any other person to assist him in the conduct of street trading authorised by the licence but if any person employed by a licence holder during the temporary absence of the licence holder fails to comply with the conditions of the street trading licence held by his employer such failure shall be deemed to be a failure by the licence holder. 37.  Ice cream trading (1)  Nothing in this Part of this Act shall apply to itinerant ice cream trading in any street unless— (a) that street is a licence street; or (b) the street has been designated as a prohibited street under the following provisions of this section. (2)  If at any time it is necessary to prohibit itinerant ice cream trading in any street in the area of a borough council which is not a licence street in the interests of preventing obstruction to traffic, or undue interference or inconvenience to persons using that street, the borough council may by resolution designate the street as a prohibited street and in the case of any London borough except the City of Westminster and the Royal Borough of Kensington and Chelsea may so designate it for such days or for such parts of days as are specified in the resolution, and may from time to time by subsequent resolution rescind or vary any such resolution. (3)  Before passing a resolution under this section, a borough council shall consult the Commissioner of Police of the Metropolis and such bodies as appear to them to be representative of persons carrying on ice cream trading in the area of the borough council. (4)  Subsections (3) to (11) of section 24 (Designation of licence streets) of this Act shall apply to a resolution under this section as they apply to a resolution under that section. 38.  Unlicensed street trading (1)  A person who— (a) is not the holder of a street trading licence or a temporary licence and who engages in street trading in a borough; or (b) is the holder of a temporary licence and who engages in street trading in a borough on a day or in a place not specified in that temporary licence; shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. (2) In any proceedings for an offence under this section or for an offence of aiding, abetting, counselling or procuring the commission of an offence under this section where it is shown that— (a) any article or thing was displayed (whether or not in or on any receptacle) in any street; or (b) any receptacle or equipment used in the provision of any service was available in any street in such circumstances that a service was being offered; the article or thing shall be presumed to have been exposed or offered for sale and the receptacle or equipment shall be presumed to have been available for the provision of a service at such time and in such position as it was displayed or available by the 404

London Local Authorities Act 1994 person having care or control or appearing to have care and control thereof unless in either case, it is shown to the satisfaction of the court that the article or thing or receptacle or equipment was brought into that street for some purpose other than for the purpose of selling it or exposing or offering it for sale or using it in the course of the provision of the service in a street. (3)  Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of the offence and liable to the same maximum penalty as the body corporate. (4)  If an authorised officer or a constable has reasonable grounds for suspecting that a person has committed an offence under this section he may seize any article or thing being offered or exposed for sale or receptacle being used by that person which may be required to be used in evidence in any proceedings in respect of that offence, or may be the subject of forfeiture under subsection (5) below, provided that no article or thing which is of a perishable nature shall be seized under the provisions of this subsection. (a) The following provisions of this subsection shall have effect where any article or thing (including any receptacle) is seized under subsection (4) above and references in those provisions to proceedings are to proceedings in respect of the alleged offence in relation to which the article or thing is seized. (b) Subject to paragraph (e) below, at the conclusion of the proceedings the article or thing shall be returned to the person from whom it was seized unless the court orders it to be forfeited under subsection (5) below. (c) Subject to paragraph (d) below, where a receptacle seized under subsection (4) above is a motor vehicle used for ice cream trading, the borough council or the Commissioner of Police of the Metropolis (as the case may be) shall, within three days of the receipt of an application in writing by the owner or registered keeper of the vehicle, permit him to remove it. (d) Paragraph (c) above shall not apply where— (i) the owner or registered keeper of the vehicle has been convicted of an offence under this Part of this Act; or (ii) the owner or registered keeper of the vehicle is being prosecuted for a previous alleged offence under this Part of this Act; or (iii) the vehicle has been used in the commission of such an offence or previous alleged offence; if the offence or previous alleged offence was committed or is alleged to have been committed no more than three years before the seizure and (in the case of an alleged offence) the proceedings are continuing. (e) If no proceedings are instituted before the expiration of a period of 28 days beginning with the date of seizure, or any proceedings instituted within that period are discontinued, at the expiration of that period or, as the case may be, on the discontinuance of the proceedings, the article or thing shall be returned to the person from whom it was seized unless it has not proved possible, after diligent enquiry, to identify that person and ascertain his address. (f) Where the article or thing is not returned because it has not proved possible to identify the person from whom it was seized and ascertain his address the borough council (whether the article or thing was seized by a constable or by an authorised officer) may apply to a magistrates’ court for an order as to the manner in which it should be dealt with. 405

Appendix 1  Statutes (5) Subject to subsection (6) below the court by or before which a person is convicted of an offence under this section or for an offence of aiding, abetting, counselling or procuring the commission of an offence under this section may order anything produced to the court, and shown to the satisfaction of the court to relate to the offence, to be forfeited and dealt with in such manner as the court may order. (6)  The court shall not order anything to be forfeited under subsection (5) above where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made and in considering whether to make such an order a court shall have regard— (i) to the value of the property; and (ii) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making). (7)  An authorised officer shall produce his authority if required to do so by the person having care or control of anything seized in pursuance of the powers in subsection (4) above. (8)  (a)  This subsection shall have effect where— (i) an article, thing or receptacle is seized under subsection (4) above; and (ii) (A) not less than six months have passed since the date of the seizure and no information has been laid against any person for an offence under this section in respect of the acts or circumstances which occasioned the seizure; or (B) proceedings for such an offence have been brought and either the person charged has been acquitted (whether or not on appeal) and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought, or the proceedings (including any appeal) have been withdrawn by, or have failed for want of prosecution by, the person by whom the original proceedings were brought. (b) When this subsection has effect a person who has or at the time of seizure had a legal interest in the article, thing or receptacle seized may recover compensation from the borough council or (where it is seized by a constable) the Commissioner of Police of the Metropolis by civil action in the County Court in respect of any loss suffered by him as a result of the seizure. (c) The court may not make an order for compensation under paragraph (b) above unless it is satisfied that seizure was not lawful under subsection (4) above. 39. Savings (1)  Nothing in this Part of this Act shall affect— (a) section 13 of the Markets and Fairs Clauses Act 1847 (prohibition of sales elsewhere than in a market or in shops etc.) as applied by any other Acts; (b) section 56 of the Food Act 1984 (prohibition of certain sales during market hours); (c) the sale or exposure or offer for sale by London Regional Transport or (as the case may be) a designated company (within the meaning of the Transport (London) Act 1969) of refreshments at any shelter or other accommodation provided by either of them under section 65 (Refreshment shelters etc.) of the London Passenger Transport Act 1938. (2)  Nothing in this Part of this Act shall afford a defence to a charge in respect of any offence at common law or under an enactment other than this Part of this Act. 406

London Local Authorities Act 1994 40.  Local enactments relating to street trading repealed (1) Subject to subsection (2) below, the enactments specified in column (2) of Schedule 2 to this Act, so far as they relate to any part of Greater London, shall cease to have effect in a borough as from the appointed day for that borough to the extent specified in column (3) of that Schedule. (2) Notwithstanding the repeal of the enactments specified in column (2) of Schedule 2 to this Act, any licence granted by a borough council under any of those enactments which authorises street trading in the borough and which was in force immediately before the appointed day shall continue in force until three months after the appointed day or until the determination of any application made by the holder of the licence under section 25 (Application for street trading licences) of this Act, whichever is the later. 41.  Saving for sales in legal markets or fairs In the case of any market or fair held in pursuance of any statute, royal licence, royal charter or letters patent, or as of right from time immemorial, nothing in this Part of this Act shall affect the sale or exposure or offer for sale of goods in any such market or fair by any person who has paid a toll to, or is acting under the written authority of, a person holding or entitled to hold such market or fair or entitled to receive tolls in respect of sales made or stalls or stands occupied in such market or fair.

407

Appendix 1  Statutes

EMPLOYMENT RIGHTS ACT 1996 (Eliz II, 1996, c 18) An Act to consolidate enactments relating to employment rights [22nd May 1996] *   *   *   *   *   *

Part IV Sunday Working for Shop and Betting Workers Protected shop workers and betting workers 36.  Protected shop workers and betting workers (1)  Subject to subsection (5), a shop worker or betting worker is to be regarded as ‘protected’ for the purposes of any provision of this Act if (and only if) subsection (2) or (3) applies to him. (2)  This subsection applies to a shop worker or betting worker if— (a) on the day before the relevant commencement date he was employed as a shop worker or a betting worker but not to work only on Sunday, (b) he has been continuously employed during the period beginning with that day and ending with the day which, in relation to the provision concerned, is the appropriate date, and (c) throughout that period, or throughout every part of it during which his relations with his employer were governed by a contract of employment, he was a shop worker or a betting worker. (3)  This subsection applies to any shop worker or betting worker whose contract of employment is such that under it he— (a) is not, and may not be, required to work on Sunday, and (b) could not be so required even if the provisions of this Part were disregarded. (4) Where on the day before the relevant commencement date an employee’s relations with his employer had ceased to be governed by a contract of employment, he shall be regarded as satisfying subsection (2)(a) if— (a) that day fell in a week which counts as a period of employment with that employer under section 212(2) or (3) or under regulations under section 219, and (b) on the last day before the relevant commencement date on which his relations with his employer were governed by a contract of employment, the employee was employed as a shop worker or a betting worker but not to work only on Sunday. (5)  A shop worker is not a protected shop worker, and a betting worker is not a protected betting worker, if— (a) he has given his employer an opting-in notice on or after the relevant com­ mencement date, and (b) after giving the notice, he has expressly agreed with his employer to do shop work, or betting work, on Sunday or on a particular Sunday. (6)  In this Act ‘opting-in notice’, in relation to a shop worker or a betting worker, means written notice, signed and dated by the shop worker or betting worker, in which the shop worker or betting worker expressly states that he wishes to work on Sunday or that he does not object to Sunday working. (7)  [Subject to subsection (8),](1) in this Act ‘the relevant commencement date’ means— (a) in relation to a shop worker, 26th August 1994, and (b) in relation to a betting worker, 3rd January 1995. 408

Employment Rights Act 1996 [(8)  In any provision of this Act which applies to Scotland by virtue of section 1(5) of the Sunday Working (Scotland) Act 2003 (extension to Scotland of provisions which refer to shop workers and betting workers), ‘the relevant commencement date’ means, in relation to Scotland, the date on which that section came into force.](1) (1) Words and subsection inserted by the Sunday Working (Scotland) Act 2003, s 1(1), (2).

37.  Contractual requirements relating to Sunday work (1)  Any contract of employment under which a shop worker or betting worker who satisfies section 36(2)(a) was employed on the day before the relevant commencement date is unenforceable to the extent that it— (a) requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday on or after that date, or (b) requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday on or after that date. (2) Subject to subsection (3), any agreement entered into after the relevant commencement date between a protected shop worker, or a protected betting worker, and his employer is unenforceable to the extent that it— (a) requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday, or (b) requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday. (3)  Where, after giving an opting-in notice, a protected shop worker or a protected betting worker expressly agrees with his employer to do shop work or betting work on Sunday or on a particular Sunday (and so ceases to be protected), his contract of employment shall be taken to be varied to the extent necessary to give effect to the terms of the agreement. (4)  [ … ](1) (5)  For the purposes of section 36(2)(b), the appropriate date— (a) in relation to subsections (2) and (3) of this section, is the day on which the agreement is entered into, [ … ](1) (b) [ … ](1) (1) Subsection, word and paragraph repealed by the Employment Relations Act 1999, ss 9, 44, Sch 4, Pt III, paras 5, 6, Sch 9, Table 2.

38.  Contracts with guaranteed hours (1)  This section applies where— (a) under the contract of employment under which a shop worker or betting worker who satisfies section 36(2)(a) was employed on the day before the relevant commencement date, the employer is, or may be, required to provide him with shop work, or betting work, for a specified number of hours each week, (b) under the contract the shop worker or betting worker was, or might have been, required to work on Sunday before that date, and (c) the shop worker has done shop work, or the betting worker betting work, on Sunday in that employment (whether or not before that day) but has, on or after that date, ceased to do so. (2)  So long as the shop worker remains a protected shop worker, or the betting worker remains a protected betting worker, the contract shall not be regarded as requiring the employer to provide him with shop work, or betting work, on weekdays in excess of the hours normally worked by the shop worker or betting worker on weekdays before he ceased to do shop work, or betting work, on Sunday. 409

Appendix 1  Statutes (3)  For the purposes of section 36(2)(b), the appropriate date in relation to this section is any time in relation to which the contract is to be enforced. 39.  Reduction of pay etc (1)  This section applies where— (a) under the contract of employment under which a shop worker or betting worker who satisfies section 36(2)(a) was employed on the day before the relevant commencement date, the shop worker or betting worker was, or might have been, required to work on Sunday before the relevant commencement date, (b) the shop worker has done shop work, or the betting worker has done betting work, on Sunday in that employment (whether or not before that date) but has, on or after that date, ceased to do so, and (c) it is not apparent from the contract what part of the remuneration payable, or of any other benefit accruing, to the shop worker or betting worker was intended to be attributable to shop work, or betting work, on Sunday. (2)  So long as the shop worker remains a protected shop worker, or the betting worker remains a protected betting worker, the contract shall be regarded as enabling the employer to reduce the amount of remuneration paid, or the extent of the other benefit provided, to the shop worker or betting worker in respect of any period by the relevant proportion. (3)  In subsection (2) ‘the relevant proportion’ means the proportion which the hours of shop work, or betting work, which (apart from this Part) the shop worker, or betting worker, could have been required to do on Sunday in the period (‘the contractual Sunday hours’) bears to the aggregate of those hours and the hours of work actually done by the shop worker, or betting worker, in the period. (4)  Where, under the contract of employment, the hours of work actually done on weekdays in any period would be taken into account determining the contractual Sunday hours, they shall be taken into account in determining the contractual Sunday hours for the purposes of subsection (3). (5)  For the purposes of section 36(2)(b), the appropriate date in relation to this section is the end of the period in respect of which the remuneration is paid or the benefit accrues. Opting-out of Sunday work 40.  Notice of objection to Sunday working (1)  A shop worker or betting worker to whom this section applies may at any time give his employer written notice, signed and dated by the shop worker or betting worker, to the effect that he objects to Sunday working. (2)  In this Act ‘opting-out notice’ means a notice given under subsection (1) by a shop worker or betting worker to whom this section applies. (3) This section applies to any shop worker or betting worker who under his contract of employment— (a) is or may be required to work on Sunday (whether or not as a result of previously giving an opting-in notice), but (b) is not employed to work only on Sunday. 41.  Opted-out shop workers and betting workers (1)  Subject to subsection (2), a shop worker or betting worker is regarded as ‘optedout’ for the purposes of any provision of this Act if (and only if)— (a) he has given his employer an opting-out notice, 410

Employment Rights Act 1996 (b) he has been continuously employed during the period beginning with the day on which the notice was given and ending with the day which, in relation to the provision concerned, is the appropriate date, and (c) throughout that period, or throughout every part of it during which his relations with his employer were governed by a contract of employment, he was a shop worker or a betting worker. (2)  A shop worker is not an opted-out shop worker, and a betting worker is not an opted out betting worker, if— (a) after giving the opting-out notice concerned, he has given his employer an opting-in notice, and (b) after giving the opting-in notice, he has expressly agreed with his employer to do shop work, or betting work, on Sunday or on a particular Sunday. [(3)  In this Act ‘notice period’, in relation to an opted-out shop worker or an opted-out betting worker, means— (a) in the case of an opted-out shop worker who does shop work in or about a large shop, the period of one month beginning with the day on which the opting-out notice concerned was given; (b) in any other case, the period of three months beginning with that day. This subsection is subject to sections 41D(2) and 42(2).](1) (1) Subsection substituted by the Enterprise Act 2016, s 33, Sch 5, paras 1, 2.

[41A.  Notice of objection by shop workers to working additional hours on Sunday (1) A  shop worker may at any time give to his or her employer a written notice, signed and dated by the shop worker, to the effect that he or she objects to doing shop work for additional hours on Sunday. (2)  In this Part— ‘additional hours’ means any number of hours of shop work that a shop worker is (or could be) required to work under a contract of employment on Sunday that are (or would be) in excess of the shop worker’s normal Sunday working hours; ‘objection notice’ means a notice given under subsection (1). (3)  The ‘normal Sunday working hours’ of a shop worker are to be calculated in accordance with regulations. (4)  Regulations under this section may provide— (a) for the calculation to be determined (for example) by reference to the average number of hours that the shop worker has worked on Sundays during a period specified or described in the regulations; (b) for a calculation of the kind mentioned in paragraph (a) to be varied in special cases; (c) for the right to give an objection notice not to be exercisable in special cases (and subsection (1) is subject to provision made by virtue of this paragraph). (5)  Provision under subsection (4)(b) or (c) may, in particular, include provision— (a) about how the calculation of normal Sunday working hours is to be made in the case of a shop worker who has not been employed for a sufficient period of time to enable a calculation to be made as otherwise provided for in the regulations; (b) for the right to give an objection notice not to be exercisable by such a shop worker until he or she has completed a period of employment specified or described in the regulations. (6)  But regulations under this section may not include provision preventing a shop worker who has been continuously employed under a contract of employment for a period of one year or more from giving to the employer an objection notice. 411

Appendix 1  Statutes (7) Regulations under this section may make different provision for different purposes. ](1) (1) Section inserted by the Enterprise Act 2016, s 33, Sch 5, paras 1, 3.

[41B.  Explanatory statement: persons who become shop workers (1) This section applies where a person becomes a shop worker who, under a contract of employment, is or may be required to do shop work on Sundays. (2)  The employer must give to the shop worker a written statement informing the shop worker of the following rights— (a) the right to object to working on Sundays by giving the employer an optingout notice (if section 40 applies to the shop worker); (b) the right to object to doing shop work for additional hours on Sundays by giving the employer an objection notice. (3) The statement must be given before the end of the period of two months beginning with the day on which the person becomes a shop worker as mentioned in subsection (1). (4)  An employer does not fail to comply with subsections (2) and (3) in a case where, before the end of the period referred to in subsection (3), the shop worker has given to the employer an opting-out notice (and that notice has not been withdrawn). (5) A  statement under this section must comply with such requirements as to form and content as regulations may provide. (6) Regulations under this section may make different provision for different purposes.](1) (1) Section inserted by the Enterprise Act 2016, s 33, Sch 5, paras 1, 3.

[41C.  Explanatory statement: shop workers at commencement date (1)  This section applies where— (a) under a contract of employment a shop worker is or may be required to do shop work on Sundays, and (b) the shop worker was employed under that contract on the day before the commencement date. (2)  The shop worker’s employer must give to the shop worker a written statement informing the shop worker of the rights mentioned in section 41B(2). (3) The statement must be given before the end of the period of two months beginning with the commencement date. (4)  An employer does not fail to comply with subsections (2) and (3) in a case where, before the end of the period referred to in subsection (3), the shop worker has given to the employer an opting-out notice (and that notice has not been withdrawn). (5) A  statement under this section must comply with such requirements as to form and content as regulations may provide. (6) Regulations under this section may make different provision for different purposes. (7)  In this section ‘commencement date’ means the date appointed by regulations under section 44 of the Enterprise Act 2016 for the coming into force of section 33 of, and Schedule 5 to, that Act.](1) (1) Section inserted by the Enterprise Act 2016, s 33, Sch 5, paras 1, 3.

[41D.  Failure to give explanatory statement under section 41B or 41C (1) This section applies if an employer fails to give to a shop worker a written statement in accordance with— (a) section 41B(2) and (3), or (b) section 41C(2) and (3). 412

Employment Rights Act 1996 (2) If the shop worker gives to the employer an opting-out notice, the notice period under section 41(3) that applies in relation to the shop worker is varied as follows— (a) if the notice period under that provision would have been one month, it becomes 7 days instead; (b) if the notice period under that provision would have been three months, it becomes one month instead. (3)  If the shop worker gives to the employer an objection notice, the relevant period under section 43ZA(2) that applies in relation to the shop worker is varied as follows— (a) if the relevant period under that provision would have been one month, it becomes 7 days instead; (b) if the relevant period under that provision would have been three months, it becomes one month instead.](1) (1) Section inserted by the Enterprise Act 2016, s 33, Sch 5, paras 1, 3.

42.  Explanatory statement[: betting workers](1) (1)  Where a person becomes a [ … ](2) betting worker to whom section 40 applies, his employer shall, before the end of the period of two months beginning with the day on which that person becomes such a worker, give him a written statement in the prescribed form. (2) If— (a) an employer fails to comply with subsection (1) in relation to any [ … ](2) betting worker, and (b) the [ … ](2) betting worker, on giving the employer an opting-out notice, becomes [ … ](2) or an opted-out betting worker, section 41(3) has effect in relation to the [ … ](2) betting worker with the substitution for ‘three months’ of ‘one month’. (3)  An employer shall not be regarded as failing to comply with subsection (1) in any case where, before the end of the period referred to that subsection, the [ … ](2) betting worker has given him an opting-out notice. (4)  [ … ](2) (5)  Subject to subsection (6), the prescribed form in the case of betting worker is as follows— ‘STATUTORY RIGHTS IN RELATION TO SUNDAY BETTING WORK You have become employed under a contract of employment under which you are or can be required to do Sunday betting work, that is to say, work— at a track on a Sunday on which your employer is taking bets at the track, or in a licensed betting office on a Sunday on which it is open for business. However, if you wish, you can give a notice, as described in the next paragraph, to your employer and you will then have the right not to do Sunday betting work once three months have passed from the date on which you gave the notice. Your notice must— be in writing; be signed and dated by you; say that you object to doing Sunday betting work. For three months after you give the notice, your employer can still require you to do all the Sunday betting work your contract provides for. After the three month period has ended, you have the right to complain to an [employment 413

Appendix 1  Statutes tribunal](3) if, because of your refusal to do Sunday betting work, your employer— dismisses you, or does something else detrimental to you, for example, failing to promote you. Once you have the rights described, you can surrender them only by giving your employer a further notice, signed and dated by you, saying that you wish to do Sunday betting work or that you do not object to doing Sunday betting work and then agreeing with your employer to do such work on Sundays or on a particular Sunday.’ (6)  The Secretary of State may by order amend the prescribed [form](4) set out in [subsection (5)](4). (1) (2) (3) (4)

Words inserted by the Enterprise Act 2016, s 33, Sch 5, paras 1, 4(1), (2). Words omitted were repealed by the Enterprise Act 2016, s 33, Sch 5, paras 1, 4(1), (3)–(6). Words substituted by the Employment Rights (Dispute Resolution) Act 1998, s 1(2)(a). Words substituted by the Enterprise Act 2016, s 33, Sch 5, paras 1, 4(1), (7).

43.  Contractual requirements relating to Sunday work[: opting-out notices](1) (1)  Where a shop worker or betting worker gives his employer an opting-out notice, the contract of employment under which he was employed immediately before he gave that notice becomes unenforceable to the extent that it— (a) requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday after the end of the notice period, or (b) requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday after the end of that period. (2)  Subject to subsection (3), any agreement entered into between an opted-out shop worker, or an opted-out betting worker, and his employer is unenforceable to the extent that it— (a) requires the shop worker to do shop work, or the betting worker to do betting work, on Sunday after the end of the notice period, or (b) requires the employer to provide the shop worker with shop work, or the betting worker with betting work, on Sunday after the end of that period. (3) Where, after giving an opting-in notice, an opted-out shop worker or an opted-out betting worker expressly agrees with his employer to do shop work or betting work on Sunday or on a particular Sunday (and so ceases to be opted-out), his contract of employment shall be taken to be varied to the extent necessary to give effect to the terms of the agreement. (4)  [ … ](2) (5)  For the purposes of section 41(1)(b), the appropriate date— (a) in relation to subsections (2) and (3) of this section, is the day on which the agreement is entered into, [ … ](2) (b) [ … ](2) (1) Words inserted by the Enterprise Act 2016, s 33, Sch 5, paras 1, 5. (2) Repealed by the Employment Relations Act 1999, ss 9, 44, Sch 4, Pt III, paras 5, 6(a), Sch 9, Table 2.

[43ZA.  Contractual requirements relating to working additional hours on Sundays: objection notices (1) Where a shop worker gives to his or her employer an objection notice, any agreement entered into between the shop worker and the employer becomes unenforceable to the extent that— 414

Employment Rights Act 1996 (a) it requires the shop worker to do shop work for additional hours on Sunday after the end of the relevant period, or (b) it requires the employer to provide the shop worker with shop work for additional hours on Sunday after the end of that period. (2)  The ‘relevant period’ is— (a) in the case of a shop worker who is or may be required to do shop work in or about a large shop, the period of one month beginning with the day on which the objection notice is given; (b) in any other case, the period of three months beginning with that day. This subsection is subject to section 41D(3). (3)  A shop worker who has given an objection notice may revoke the notice by giving a further written notice to the employer. (4) Where— (a) a shop worker gives to the employer a notice under subsection (3), and (b) after giving the notice the shop worker expressly agrees with the employer to do shop work for additional hours on Sunday (whether on Sundays generally or on a particular Sunday), the contract of employment between the shop worker and the employer is to be taken to be varied to the extent necessary to give effect to the terms of the agreement. (5)  The reference in subsection (1) to any agreement— (a) includes the contract of employment under which the shop worker is employed immediately before giving the objection notice; (b) includes an agreement of a kind mentioned in subsection (4), or a contract of employment as taken to be varied under that subsection, only if an objection notice is given in relation to the working of additional hours under that agreement or contract as varied.](1) (1) Section inserted by the Enterprise Act 2016, s 33, Sch 5, paras 1, 6.

[43ZB. Interpretation (1)  In this Part— ‘additional hours’ has the meaning given in section 41A(2); ‘large shop’ means a shop which has a relevant floor area exceeding 280 square metres; ‘objection notice’ has the meaning given in section 41A(2); ‘regulations’ means regulations made by the Secretary of State. (2)  In the definition of ‘large shop’ in subsection (1)— (a) ’shop’ means any premises where there is carried on a trade or business consisting wholly or mainly of the sale of goods; (b) ’relevant floor area’ means the internal floor area of so much of the large shop in question as consists of or is comprised in a building. (3)  For the purposes of subsection (2), any part of the shop which is not used for the serving of customers in connection with the sale or display of goods is to be disregarded. (4) The references in subsections (2) and (3) to the sale of goods does not include— (a) the sale of meals, refreshments or alcohol (within the meaning of the Licensing Act 2003 or, in relation to Scotland, the Licensing (Scotland) Act 2005 (asp 16)) for consumption on the premises on which they are sold, or (b) the sale of meals or refreshments prepared to order for immediate consumption off those premises.](1) (1) Section inserted by the Enterprise Act 2016, s 33, Sch 5, paras 1, 6.

415

Appendix 1  Statutes

HUMAN RIGHTS ACT 1998 (1998, c 42) An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights; to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes. [9th November 1998] Public authorities 6.  Acts of public authorities. (1)  It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2)  Subsection (1) does not apply to an act if— (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3)  In this section ‘public authority’ includes— (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (4)  [ … ](1) (5)  In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private. (6)  ‘An act’ includes a failure to act but does not include a failure to— (a) introduce in, or lay before, Parliament a proposal for legislation; or (b) make any primary legislation or remedial order. (1) Subsection omitted repealed by the Constitutional Reform Act 2005, ss  40(4), 146, Sch  9, Pt 1, para 66(1), (4), Sch 18, Pt 5.

416

London Local Authorities Act 2007

LONDON LOCAL AUTHORITIES ACT 2007 (2007, c 2) An Act to confer further powers upon local authorities in London; and for related purposes. [19th July 2007]

Part 3 Licensing Chapter 2 Street trading Introductory 36.  Interpretation of Chapter 2 In this Chapter— ‘the Act of 1990’ means the London Local Authorities Act 1990 (c. vii); ‘the Act of 1999’ means the City of Westminster Act 1999 (c. i). Street trading on certain bridges 37.  Bridges in the City of Westminster and London Borough of Lambeth (1)  The city council and the borough council may enter into agreements to secure that— (a) Part III (street trading) of the Act of 1990; or (b) the Act of 1999, shall apply as respects the whole or part of any relevant bridge. (2)  If an agreement is made under subsection (1) above, the Act of 1999 or Part III of the Act of 1990, as the case may be, shall apply to the part of the relevant bridge in question as though it was within the area of the city or, as the case may be, the borough. (3)  Without prejudice to the generality of subsection (2) above, proceedings in relation to an alleged offence of unlicensed street trading on a relevant bridge shall be commenced in the magistrates’ court for the relevant petty sessions area. (4) Either council may rescind any agreement under subsection (1) above by giving three months’ written notice to the other. (5)  Where, immediately before the date on which an agreement under this section comes into effect or is rescinded (the ‘relevant date’)— (a) a street trading licence is held under Part III of the Act of 1990 or the Act of 1999, as the case may be, in respect of an area which is the subject of the agreement; (b) any proceedings in respect of an offence under Part III of the Act of 1990 or under the Act of 1999, as the case may be, had been commenced; and (c) by that agreement— (i) the Act of 1999 applies to the area instead of Part III of the Act of 1990; or (ii) Part III of the Act of 1990 applies to the area instead of the Act of 1999, subsection (6) or (7) below shall apply, as appropriate. (6) In the circumstances mentioned in subsection (5)(a) above, the licence in question shall continue in force subject to the same conditions as though it had been issued under whichever of Part III of the Act of 1990 or the Act of 1999 applies after the relevant date. 417

Appendix 1  Statutes (7)  In the circumstances mentioned in subsection (5)(b) above, the proceedings in question shall continue until their conclusion under whichever of Part III of the Act of 1990 or the Act of 1999 applied before the relevant date, notwithstanding that Part III of the Act of 1990 or the Act of 1999 no longer applies to the part of the bridge in question. (8)  In this section— ‘the borough’ means the borough of Lambeth and ‘borough council’ shall be construed accordingly; ‘the city’ means the City of Westminster and ‘city council’ shall be construed accordingly; ‘relevant bridge’ means— (a) Westminster Bridge, the Hungerford Footbridges, Lambeth Bridge and Vauxhall Bridge; and (b) any other bridge carrying a street across the river Thames constructed after the date on which this Act was passed, if part of the bridge is in the city and part in the borough; and (c) the approaches to any such bridge; ‘relevant petty sessions area’ means— (a) a petty sessions area, the whole or part of which is in the city, if the effect of an agreement under this section is to apply the Act of 1999 to the bridge; (b) a petty sessions area, the whole or part of which is in the borough, if the effect of an agreement under this section is to apply Part III of the Act of 1990 to the bridge; ‘street’ means any street to which Part III of the Act of 1990 or the Act of 1999 applies, as the case may be. London Local Authorities Act 1990 38.  Interpretation of Part III of Act of 1990 (1)  Section 21 (interpretation of Part III) of the Act of 1990 is amended as follows. (2)  For the definition of ‘itinerant ice cream trading’ there is substituted— ‘“itinerant ice cream trading” means ice cream trading from a vehicle which goes from place to place remaining in any one location in the course of trading for periods of 15 minutes or less and not returning to that location or any other location in the same street on the same day;’. (3)  In paragraph (b) of the definition of ‘street’, for ‘have access without payment’, there is substituted ‘obtain access without payment— (i) whether or not they need the consent of the owner or occupier; and (ii) if they do, whether or not they have obtained it;’. (4)  In the definition of ‘street trading’— (a) for ‘subsection (2)’ substitute ‘subsections (1A) and (2)’; (b) after ‘gain or reward’, the words ‘(whether or not the gain or reward accrues to the person actually carrying out the trading)’ are inserted. (5)  After subsection (1), the following subsection is inserted— [(1A) In determining whether activity amounts to street trading for the purposes of this Act, the fact that— (a) a transaction was completed elsewhere than in a street in the case where the initial offer or display of the articles in question or the offer of services, as the case may be, took place in a street; (b) either party to the transaction was not in a street at the time it was completed; 418

London Local Authorities Act 2007 (c) the articles actually sold or services actually supplied, as the case may be, were different from those offered, shall be disregarded.’. (6)  Paragraphs (f) and (g) of subsection (2) are omitted. 39.  Applications for street trading licences under Act of 1990 (1)  Section 25 (application for street trading licences) of the Act of 1990 is amended as follows. (2)  In subsection (1), for ‘renewing a licence, other than a temporary licence’ substitute ‘renewing a street trading licence’. (3)  After subsection (2), the following subsection is inserted— [(2A)  In the case of an application for a street trading licence which, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 21 (interpretation of Part III) of this Act, the applicant shall provide evidence in writing— (a) that he has consent to trade on the land from the owner of the land in question; or (b) that he is the owner of the land in question.’. (4)  In paragraph (a)(iv) of subsection (4), for ‘a licence which is not a temporary licence to trade’ substitute ‘a street trading licence which, if granted, would authorise trading’. (5)  After paragraph (b) in subsection (4), the following paragraph is inserted— ‘(c) shall not be granted in the case of an application for a street trading licence which, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 21 (interpretation of Part III) of this Act, unless the applicant has provided sufficient such evidence as is mentioned in subsection (2A) above to satisfy the council.’. 40.  Lapsing of street trading licence under Act of 1990 (1)  In subsection (4)(b) of section 29 (further provisions relating to grant, renewal or revocation of street trading licences) of the Act of 1990, for ‘the next following subsection’ there is substituted ‘section 30 (Part III appeals) of this Act’. (2)  After the said section 29, the following section is inserted— ‘29A.  Lapsing of licence in certain cases In the case of a street trading licence which authorises street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 21 (interpretation of Part III) of this Act, the licence shall lapse if— (a) the consent is discontinued by the person who gave it, or a successor in title of that person, and the council is provided with written notice of the discontinuation of the consent by the person who discontinues it; or (b) the holder of the licence no longer is the owner of the land in question, as the case may be.’. 41.  Temporary licences (1)  Section 31 (temporary licences) of the Act of 1990 is amended as follows. (2)  After subsection (1), the following subsections are inserted— [(1A)  A council may grant a temporary licence in any street, whether or not it is a licensed street. (1B)  In the case of an application for a temporary licence which, if granted, would authorise street trading on land which falls within paragraph (b) in the 419

Appendix 1  Statutes definition of ‘street’ in subsection (1) of section 21 (interpretation of Part III) of this Act, the applicant shall provide evidence in writing— (a) that he has the consent to trade on the land from the owner of the land in question; or (b) that he is the owner of the land in question. (1C) An application for a temporary licence shall not be granted, if the licence would authorise street trading on land which falls within the said paragraph (b), unless the applicant has provided sufficient evidence, as is mentioned in subsection (2A) of section 25 (application for street trading licence) of this Act, to satisfy the council. (1D)  In the case of a temporary licence which authorises street trading on land which falls within the said paragraph (b), the licence shall lapse if— (a) the permission to trade on the land is discontinued, and the council is provided with written notice of the discontinuance of the permission by the person who gave the permission or by a successor in title to that person; or (b) the holder of the licence is no longer the owner of the land in question or no longer has sufficient interest in the land to trade on the land without the permission of another person. (1E) The council may revoke or suspend the operation of a temporary licence held in respect of land which falls within the said paragraph (b) if circumstances have arisen since the grant of the licence or are about to arise which necessitate such revocation or suspension on the grounds of safety. (1F)  Where a temporary licence is revoked or suspended under subsection (1E) above, the council shall return to the licensee such proportion of any fee paid for the granting of the licence as is appropriate, taking into account the period for which the licence was granted and the period remaining on the licence when it was revoked or the period for which the licence was suspended, as the case may be.’. 42.  Offences under Act of 1990 In subsection (4) of section 34 (offences) of the Act of 1990, the words ‘duly signed by him and’ are omitted. 43.  Employment of assistants under Act of 1990 (1)  Section 36 (employment of assistants) of the Act of 1990 is amended as follows. (2)  After ‘street trading licence’ (where those words first appear), the words ‘or a temporary licence’ are inserted. (3)  For ‘street trading licence’ where those words appear for the second time, substitute ‘licence’. 44.  Unlicensed street trading under Act of 1990 (1)  Section 38 (unlicensed street trading) of the Act of 1990 is amended as follows. (2)  In subsection (4)— (a) at the beginning, the words ‘Subject to section 38A (seizure of perishable items) of this Act’, are inserted; (b) the proviso is omitted. (3)  In subsection (4C)— (a) in paragraph (a), at the beginning, the words ‘Subject to section 38B (motor vehicles) of this Act,’ are inserted; (b) in paragraph (e), for ‘identify that person and’ substitute ‘identify that person or’; (c) for paragraph (f) substitute— 420

London Local Authorities Act 2007 ‘(f) paragraph (g) below applies where the article, thing, receptacle or equipment is not returned because— (i) it has not proved possible to identify the person from whom it was seized or ascertain his address; or (ii) the person from whom it was seized and the owner (if different) have disclaimed or refused to accept it. (g) where this paragraph applies, the council may make a complaint to the magistrates’ court for a disposal order under section 38C (disposal orders) of this Act (whether or not proceedings for an offence under this section have been commenced).’. 45.  Seizure of perishable items After section 38 (unlicensed street trading) of the Act of 1990, the following section is inserted— ‘38A.  Seizure of perishable items (1)  No item which is of a perishable nature (in this section referred to as a ‘perishable item’) shall be seized under the provisions of subsection (4) of section 38 (unlicensed street trading) of this Act unless the authorised officer or constable gives a certificate under subsection (2) below to the person from whom the item is seized. (2)  Where a perishable item is seized under the said section 38, the person from whom it is seized must be given a certificate— (a) stating the effect of subsection (4) below and subsection (6) of the said section 38; (b) giving the address from which the item may be collected; (c) informing the recipient that if he is not the owner of the item, then he should give the owner the information referred to in paragraphs (a) and (b) above. (3)  The council or the police shall store any perishable item seized under the said section 38 at an appropriate temperature. (4)  If the person from whom a perishable item was so seized fails to collect it within 48 hours of the seizure the council or the police may dispose of it. (5)  When any perishable item is disposed of by the council under subsection (4) above, the council shall have a duty to secure the best possible price which can reasonably be obtained for it. (6)  Paragraphs (a) to (d) of subsection (4C), and subsections (5) and (6) of the said section 38 shall apply to perishable items seized under that section only in cases where the item concerned has not been disposed of by the council at the conclusion of the proceedings in respect of the alleged offence in relation to which the item was seized. (7)  Paragraphs (e) and (f) of subsection (4C) of the said section 38 shall apply to perishable items seized under that section only in cases where the item concerned has not been disposed of by the council at the expiration of the period mentioned in the said paragraph (e); otherwise subsections (9) to (12) below shall apply. (8)  Subsection (8) of the said section 38 shall apply with the omission of paragraph (c) in respect of perishable items seized under that section only in cases where the item concerned has not been disposed of by the council by the time the circumstances mentioned in paragraph (a)(ii)(A) or (B) arise; otherwise subsections (9) to (12) below shall apply. (9)  Subsection (12) below shall have effect where the council have disposed of a perishable item under subsection (4) above and any of the following conditions apply. 421

Appendix 1  Statutes (10) The first condition is that no proceedings in respect of the alleged offence in relation to which the item was seized are instituted before the expiration of a period of 28 days beginning with the date of seizure of the item, or any such proceedings instituted within that period are discontinued. (11)  The second condition is that— (a) not less than six months have passed since the date of the seizure and no information has been laid against any person for an offence under the said section 38 in respect of the acts or circumstances which occasioned the seizure; or (b) proceedings for such an offence have been brought and either the person charged has been acquitted (whether or not on appeal) and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought, or the proceedings (including any appeal) have been withdrawn by, or have failed for want of prosecution by, the person by whom the original proceedings were brought. (12)  When this subsection has effect a person who has, or at the time of seizure had, a legal interest in the item seized may recover compensation from the borough council or (where it is seized by a constable) the Commissioner of Police of the Metropolis by civil action in the County Court in respect of any loss suffered by him as a result of the seizure and any such compensation shall not be included in the computation for calculating charges under section 32 (fees and charges) of this Act.’. 46.  Motor vehicles After section 38A (seizure of perishable items) of the Act of 1990 (inserted by section 45 (seizure of perishable items of this Act) the following section is inserted— ‘38B.  Motor vehicles (1)  Subsection (4) below applies where the following conditions are met. (2)  The first condition is that where, in ascertaining the identity of the person from whom a vehicle was seized under subsection (4) or (4A) of section 38 (unlicensed street trading) of this Act, a borough council has, before the expiry of 14 days from the date of the seizure, made a request to the Secretary of State for the supply of relevant particulars. (3)  The second condition is that those particulars have not been supplied to the council before the date after which that council would, but for this section, have to return the vehicle in accordance with subsection (4C)(e) of that section. (4)  Where this subsection applies, the council must return the vehicle to its owner if— (a) no proceedings are instituted in respect of the alleged offence in respect of which the vehicle was seized before the expiry of the period of 14 days beginning with the date on which the relevant particulars are supplied; or (b) any such proceedings instituted within that period are discontinued, at the expiry of that period or on the discontinuance of the proceedings, as the case may be. (5) If the council seeks to return a vehicle in accordance with the said subsection (4C)(e) or subsection (4), but the person to whom the council seeks to return the vehicle cannot be found or disclaims or refuses to accept the vehicle, the council may make a complaint for a disposal order in respect of the vehicle under section 38C (disposal orders) of this Act. 422

London Local Authorities Act 2007 (6) In this section, ‘relevant particulars’ are particulars relating to the identity of the owner of the vehicle contained in the register of mechanically propelled vehicles maintained by the Secretary of State under the Vehicle Excise and Registration Act 1994 (c. 22). (7)  The owner of a vehicle for the purposes of this section shall be taken to be the person by whom the vehicle is kept. (8)  In determining who was the owner of a motor vehicle at any time, it shall be presumed that the owner is the person in whose name the vehicle is at that time registered under the Vehicle Excise and Registration Act 1994.’. 47.  Disposal orders After section 38B (motor vehicles) of the Act of 1990 (inserted by section 46 (motor vehicles) of this Act) the following section is inserted— ‘38C.  Disposal orders (1)  This section applies in respect of a complaint made by a borough council for a disposal order in respect of— (a) an article or thing under subsection (4C)(f)(ii) of section 38 (unlicensed street trading) of this Act; or (b) a motor vehicle under subsection (5) of section 38B (motor vehicles) of this Act, and such articles, things and motor vehicles are together referred to as ‘seized items’ in this section. (2)  In respect of a complaint to which this section applies, a magistrates’ court may, if it is satisfied that the council has made reasonable efforts to identify the person from whom the seized item was seized or its owner, as the case may be, or has made reasonable efforts to return the seized item, it may make an order authorising the complainant council— (a) to dispose of the seized item in question; and (b) after payment out of any proceeds arising from the disposal of the expenses incurred in the seizure, storage and disposal, to apply the balance, if any, towards the costs of the council as mentioned in paragraphs (a) to (d) of subsection (2) of section 32 (fees and charges) of this Act. (3)  The court shall not make a disposal order under subsection (2) above where a person claiming to be the owner of or otherwise interested in the seized item in question applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made. (4)  Subsection (5) below applies where— (a) a person appears before the court under subsection (3) above to show why the order should not be made; and (b) the court makes an order under subsection (2) above authorising the council to dispose of the item; and (c) the seized item in question is not of sufficient value to defray the expenses of seizing and storing it; and (d) the court is satisfied that the person mentioned in paragraph (a) above was the owner of the seized item in question or was the person from whom it was seized, as the case may be. (5) Where this section applies, the court may order that the person mentioned in subsection (4)(a) above pay the expenses, or the balance of the expenses, reasonably incurred by the council in seizing and storing the seized item in question. 423

Appendix 1  Statutes (6)  In considering whether to make an order under subsection (2) above a court shall have regard— (a) to the value of the seized item; (b) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making); and (c) any other circumstances considered to be relevant. (7)  The court may make a disposal order under this section notwithstanding that the value of the seized item would exceed the maximum penalty for the offence in respect of which the seized item had originally been seized had the said offence been prosecuted to conviction. (8)  For the purposes of this section, ‘owner’ in respect of a vehicle, has the same meaning as it has for the purposes of the said section 38B.’. 48.  Transitional provisions (1) Where— (a) a person uses for trading under Part VIIA of the Highways Act 1980 (c. 66), any object or structure placed on, in or over a highway in a borough immediately before the date on which subsection (6) of section 38 (interpretation of Part III of Act of 1990) of this Act comes into force in the borough; or (b) operates facilities in the borough for recreation or refreshment under the said Part VIIA immediately before that date on which this section comes into force in the borough; and (c) application for— (i) the grant of a street trading licence to authorise that activity; or (ii) the variation of an existing street trading licence to authorise that activity, is made in respect of those premises within four weeks of that date, subsection (2) below applies to that activity. (2) Any activity to which this subsection applies may lawfully continue to be carried on until the determination or withdrawal of the application mentioned in subsection (1) above and if an appeal is lodged until the determination or abandonment of the appeal. 49.  Keeling Schedule Part III of the Act of 1990, as amended by the London Local Authorities Act 1994 (c. xii), the London Local Authorities Act 2004 (c. i) and this Act, is set out in Schedule 3 to this Act. City of Westminster Act 1999 50.  Interpretation of Act of 1999 (1)  Section 2 (interpretation) of the Act of 1999 is renumbered as subsection (1) and amended as follows. (2)  In paragraph (b) of the definition of ‘street’, for ‘have access without payment’ there is substituted ‘obtain access without payment— (i) whether or not they need the consent of the owner or occupier; and (ii) if they do, whether or not they have obtained it;’. (3)  In the definition of ‘street trading’— (a) before ‘section 3’ the words ‘subsection (2) below and’ are inserted; (b) after ‘gain or reward’, the words ‘(whether or not the gain or reward accrues to the person actually carrying out the trading)’ are inserted. 424

London Local Authorities Act 2007 (4) After subsection (1) as renumbered by subsection (1) above, the following subsection is inserted— [(2) In determining whether activity amounts to street trading for the purposes of this Act, the fact— (a) that a transaction was completed elsewhere than in a street in the case where the initial offer or display of the articles in question or the offer of services, as the case may be, took place in a street; (b) that either party to the transaction was not in a street at the time it was completed; (c) that the articles actually sold or services actually supplied, as the case may be, were different from those offered, shall be disregarded.’. 51.  Applications for street trading licences under Act of 1999 (1)  Section 11 (applications) of the Act of 1999 is amended as follows. (2)  After subsection (2), the following subsection is inserted— [(2A)  In the case of an application for a street trading licence which, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 2 (interpretation) of this Act, the applicant shall provide evidence in writing— (a) that he has consent to trade on the land from the owner of the land in question; or (b) that he is the owner of the land in question.’. 52.  Mandatory grounds of refusal of application under Act of 1999 (1)  Section 12 (mandatory grounds of refusal) of the Act of 1999 is amended as follows. (2)  After paragraph (f) in subsection (1), the following paragraph is inserted— ‘(g) where the application, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 2 (interpretation) of this Act, unless the applicant has provided sufficient such evidence as is mentioned in subsection (2A) above to satisfy the council.’. 53.  Lapsing of street trading licence under Act of 1999 After section 17 (further provisions relating to grant, renewal or revocation of street trading licences) of the Act of 1999, the following section is inserted— ‘17A.  Lapsing of licence in certain cases In the case of a street trading licence which authorises street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 2 (interpretation) of this Act, the licence shall lapse if— (a) the consent is discontinued by the person who gave it, or a successor in title of that person, and the council is provided with written notice of the discontinuation of the consent by the person who discontinues it; or (b) the holder of the licence no longer is the owner of the land in question, as the case may be.’. 54.  Temporary licences (1)  Section 21 (temporary licences) of the Act of 1999 is amended as follows. (2)  After subsection (2), the following subsections are inserted— 425

Appendix 1  Statutes [(2A)  In the case of an application for a temporary licence which, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 2 (interpretation) of this Act, the applicant shall provide evidence in writing— (a) that he has the consent to trade on the land from the owner of the land in question; or (b) that he is the owner of the land in question. (2B) An application for a temporary licence shall not be granted, if the licence would authorise street trading on land which falls within the said paragraph (b), unless the applicant has provided sufficient evidence, as is mentioned in subsection (3) of section 11 (applications) of this Act, to satisfy the council. (2C)  In the case of a temporary licence which authorises street trading on land which falls within the said paragraph (b), the licence shall lapse if— (a) the consent to trade on the land is discontinued, and the council is provided with written notice of the discontinuance of the permission by the person who gave the consent or by a successor in title to that person; or (b) the holder of the licence is no longer the owner of the land in question. (2D) The council may revoke or suspend the operation of a temporary licence held in respect of land which falls within the said paragraph (b) if circumstances have arisen since the grant of the licence or are about to arise which necessitate such revocation or suspension on the grounds of safety. (2E)  Where a temporary licence is revoked or suspended under subsection (2D) above, the council shall return to the licensee such proportion of any fee paid for the granting of the licence as is appropriate, taking into account the period for which the licence was granted and the period remaining on the licence when it was revoked or the period for which the licence was suspended, as the case may be.’. 55.  Employment of assistants under Act of 1999 (1)  Section 26 (employment of assistants) of the Act of 1999 is amended as follows. (2)  After ‘street trading licence’ (where those words first appear), the words ‘or a temporary licence’ are inserted. (3)  For ‘street trading licence’ where those words appear for the second time, substitute ‘licence’. 56.  Unlicensed street trading under Act of 1999 (1)  Section 27 (unlicensed street trading) of the Act of 1999 is amended as follows. (2)  In subsection (5)— (a) at the beginning, the words ‘Subject to section 27A (seizure of perishable items) of this Act,’ are inserted; (b) the proviso is omitted. (3)  In subsection (8)— (a) in paragraph (f), for ‘identify that person and’ the words ‘identify that person or’ are substituted; (b) paragraph (g) is substituted by the following paragraphs— ‘(g) paragraph (h) below applies where the article, thing, receptacle or equipment is not returned because— (i) it has not proved possible to identify the person from whom it was seized or ascertain his address; or (ii) the person from whom it was seized and the owner (if different) have disclaimed or refused to accept it. 426

London Local Authorities Act 2007 (h) where this paragraph applies, the council may make a complaint to the magistrates’ court for a disposal order under section 27C (disposal orders) of this Act (whether or not proceedings for an offence under this section have been commenced).’. 57.  Seizure of perishable items After section 27 (unlicensed street trading) of the Act of 1999, the following section is inserted— ‘27A.  Seizure of perishable items (1)  No article or thing which is of a perishable nature (in this section referred to as a ‘perishable item’) shall be seized under the provisions of subsection (5) of section 27 (unlicensed street trading) of this Act unless the council gives a certificate under subsection (2) below to the person from whom the article or thing is seized. (2) Where a perishable item is seized under the said subsection (5), the person from whom it is seized must be given a certificate— (a) stating the effect of subsection (5) below and subsection (10) of the said section 27; (b) giving the address from which the article or thing may be collected; (c) informing the recipient that if he is not the owner of the article or thing, then he should give the owner the information referred to in paragraphs (a) and (b) above. (3)  If the person from whom a perishable item was so seized fails to collect it within 48 hours of the seizure the council may dispose of it. (4)  When any perishable item is disposed of by the council under subsection (3) above, the council shall have a duty to secure the best possible price which can reasonably be obtained for it. (5)  Paragraphs (a) to (d) of subsection (8), and subsections (9) and (10) of the said section 27 shall apply to a perishable item seized under that section only in cases where the article or thing concerned has not been disposed of by the council at the conclusion of the proceedings in respect of the alleged offence in relation to which the article or thing was seized. (6)  Paragraphs (f) and (g) of subsection (8) of the said section 27 shall apply to a perishable item seized under that section only in cases where the article or thing concerned has not been disposed of by the council at the expiration of the period mentioned in the said paragraph (f); otherwise subsections (8) to (11) below shall apply. (7)  Subsection (11) of the said section 27 shall apply with the omission of paragraph (c) in respect of a perishable item seized under that section in cases where the article or thing concerned has not been disposed of by the council by the time the circumstances mentioned in paragraph (a)(ii)(A) or (B) arise otherwise subsections (8) to (11) below shall apply. (8)  Subsection (11) below shall have effect where the council have disposed of a perishable article or thing under subsection (4) above and any of the following conditions apply. (9)  The first condition is that no proceedings in respect of the alleged offence in relation to which the article or thing was seized are instituted before the expiration of a period of 28 days beginning with the date of seizure of the article or thing, or any such proceedings instituted within that period are discontinued. (10)  The second condition is that— (a) not less than six months have passed since the date of the seizure and no information has been laid against any person for an offence under 427

Appendix 1  Statutes the said section 27 in respect of the acts or circumstances which occasioned the seizure; or (b) proceedings for such an offence have been brought and either the person charged has been acquitted (whether or not on appeal) and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought, or the proceedings (including any appeal) have been withdrawn by, or have failed for want of prosecution by, the person by whom the original proceedings were brought. (11)  When this subsection has effect a person who has or at the time of seizure had a legal interest in the item seized may recover compensation from the borough council or (where it is seized by a constable) the Commissioner of Police of the Metropolis by civil action in the County Court in respect of any loss suffered by him as a result of the seizure and any such compensation shall not be included in the computation for calculating charges under section 22 (fees and charges) of this Act.’. 58.  Motor vehicles After section 27A (seizure of perishable items) of the Act of 1999, inserted by section 57 (seizure of perishable items) of this Act, the following section is inserted— ‘27B.  Motor vehicles (1)  Subsection (4) below applies where the following conditions are met. (2) The first condition is that where, in ascertaining the identity of the person from whom a vehicle was seized under subsection (5) or (6) of section 27 (unlicensed street trading) of this Act, the council has, before the expiry of 14 days from the date of the seizure, made a request to the Secretary of State for the supply of relevant particulars. (3)  The second condition is that those particulars have not been supplied to the council before the date after which the council would, but for this section, have to return the vehicle in accordance with subsection (8)(f) of that section. (4)  Where this subsection applies, the council must return the vehicle to its owner if— (a) no proceedings are instituted in respect of the alleged offence in respect of which the vehicle was seized before the expiry of the period of 14 days beginning with the date on which the relevant particulars are supplied; or (b) any such proceedings instituted within that period are discontinued, at the expiry of that period or on the discontinuance of the proceedings, as the case may be. (5) If the council seeks to return a vehicle in accordance with the said subsection (5) or subsection (6), but the person to whom the council seeks to return the vehicle cannot be found or disclaims or refuses to accept the vehicle, the council may make a complaint for a disposal order in respect of the vehicle under section 27C (disposal orders) of this Act. (6) In this section, ‘relevant particulars’ are particulars relating to the identity of the owner of the vehicle contained in the register of mechanically propelled vehicles maintained by the Secretary of State under the Vehicle Excise and Registration Act 1994 (c. 22). (7)  The owner of a vehicle for the purposes of this section shall be taken to be the person by whom the vehicle is kept. (8)  In determining who was the owner of a motor vehicle at any time, it shall be presumed that the owner is the person in whose name the vehicle is at that time registered under the Vehicle Excise and Registration Act 1994.’. 428

London Local Authorities Act 2007 59.  Disposal orders (1)  After section 27B (motor vehicles) of the Act of 1999 (inserted by section 58 (motor vehicles) of this Act) the following section is inserted— ‘27C.  Disposal orders (1)  This section applies in respect of a complaint made by a borough council for a disposal order in respect of— (a) an article or thing under subsection (8)(h) of section 27 (unlicensed street trading) of this Act; or (b) a motor vehicle under subsection (5) of section 27B (motor vehicles) of this Act, and such articles, things and motor vehicles are together referred to as ‘seized items’ in this section. (2)  On a complaint to which this section applies, a magistrates’ court if satisfied that the council has made reasonable efforts to identify the person from whom the seized item was seized or its owner, as the case may be, or has made reasonable efforts to return the seized item, may make an order authorising the complainant council— (a) to dispose of the seized item in question; and (b) after payment out of any proceeds arising from the disposal of the expenses incurred in the seizure, storage and disposal, to apply the balance, if any, towards the costs of the council as mentioned in paragraphs (a) to (d) of subsection (2) of section 22 (fees and charges) of this Act. (3)  The court shall not make a disposal order under subsection (2) above where a person claiming to be the owner of or otherwise interested in the article, thing, receptacle or equipment applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made. (4)  Subsection (5) below applies where— (a) a person appears before the court under subsection (3) above to show why the order should not be made; and (b) the court makes an order under subsection (2) above authorising the council to dispose of the item; and (c) the seized item in question is not of sufficient value to defray the expenses of seizing and storing it; and (d) the court is satisfied that the person mentioned in paragraph (a) above was the owner of the seized item in question or was the person from whom it was seized, as the case may be. (5) Where this section applies, the court may order that the person mentioned in subsection (4)(a) above pay the expenses, or the balance of the expenses, reasonably incurred by the council in seizing and storing the seized item in question. (6)  In considering whether to make an order under subsection (2) above a court shall have regard— (a) to the value of the seized item; (b) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making); and (c) any other circumstances considered to be relevant. (7)  The court may make a disposal order under this section notwithstanding that the value of the seized item would exceed the maximum penalty for the offence in respect of which the seized item had originally been seized had the said offence been prosecuted to conviction. 429

Appendix 1  Statutes (8)  For the purposes of this section, ‘owner’ in respect of a vehicle, has the same meaning as it has for the purposes of the said section 27B.’.

Section 49

SCHEDULE 3

PART III OF THE LONDON LOCAL AUTHORITIES ACT 1990 (C. VII) AS HAVING EFFECT AS AMENDED BY THE LONDON LOCAL AUTHORITIES ACT 1994 (C. XII), THE LONDON LOCAL AUTHORITIES ACT 2004 (C. I) AND THIS ACT Part III Street Trading 21.  Interpretation of Part III (1)  In this Part of this Act— ‘grant’, unless the context otherwise requires, includes renew and renewal, and cognate words shall be construed accordingly; ‘ice cream trading’ means the selling, exposing or offering for sale of goods consisting wholly or mainly of ice cream, frozen confectionery or other similar commodities from a vehicle; ‘itinerant ice cream trading’ means ice cream trading from a vehicle which goes from place to place remaining in any one location in the course of trading for periods of 15 minutes or less and not returning to that location or any other location in the same street on the same day; ‘licence street’ means a street designated under section 24 (designation of licence streets) of this Act; ‘receptacle’ includes a vehicle or stall and any basket, bag, box, vessel, stand, easel, board, tray or thing which is used (whether or not constructed or adapted for such use) as a container for or for the display of any article or thing or equipment used in the provision of any service; ‘street’ includes— (a) any road or footway; (b) any other area, not being within permanently enclosed premises, within 7 metres of any road or footway to which the public obtain access without payment— (i) whether or not they need the consent of the owner or occupier; and (ii) if they do, whether or not they have obtained it; (c) any part of such road, footway or area; (d) any part of any housing development provided or maintained by a local authority under Part II of the Housing Act 1985 (c. 68); ‘street trading’ means subject to subsections (1A) and (2) below— (a) the selling or the exposure or offer for sale of any article (including a living thing); and (b) the purchasing of or offering to purchase any ticket; and (c) the supplying of or offering to supply any service, in a street for gain or reward (whether or not the gain or reward accrues to the person actually carrying out the trading); ‘street trading licence’ means a licence granted under this Part of this Act and valid for the period specified therein being not less than six months and not more than three years; 430

London Local Authorities Act 2007 ‘temporary licence’ means a licence granted under this Part of this Act valid for a single day or for such period as may be specified in the licence not exceeding six months. (1A)  In determining whether activity amounts to street trading for the purposes of this Act, the fact that— (a) a transaction was completed elsewhere than in a street in the case where the initial offer or display of the articles in question or the offer of services, as the case may be, took place in a street; (b) either party to the transaction was not in a street at the time it was completed; (c) the articles actually sold or services actually supplied, as the case may be, were different from those offered, shall be disregarded. (2)  The following are not street trading for the purposes of this Part of this Act:— (a) trading by a person acting as a pedlar under the authority of a Pedlar’s Certificate granted under the Pedlars Act 1871 (c. 96), if the trading is carried out only by means of visits from house to house; (b) anything done in a market or fair the right to hold which was acquired by virtue of a grant (including a presumed grant) or acquired or established by virtue of any enactment or order; (c) trading in a trunk road picnic area provided by the Secretary of State under section 112 of the Highways Act 1980 (c. 66); (d) trading as a news-vendor provided that the only articles sold or exposed or offered for sale are current newspapers or periodicals and they are sold or exposed or offered for sale without a receptacle for them or, if with a receptacle for them such receptacle does not— (i) exceed 1 metre in length or width or 2 metres in height; or (ii) occupy a ground area exceeding 0.25 square metre; or (iii) stand on the carriageway of a street; or (iv) cause undue interference or inconvenience to persons using the street; and (e) selling articles or things to occupiers of premises adjoining any street, or offering or exposing them for sale from a vehicle which is used only for the regular delivery of milk or other perishable goods to those persons; *** (h) the doing of anything authorised by regulations made under section 5 of the Police, Factories, &c. (Miscellaneous Provisions) Act 1916 (c. 31) or by permit or order made under Part III of the Charities Act 1992 (c. 41); (i) trading in a highway in relation to which a control order under section 7 of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57) is in force, other than trading to which the control order does not apply; and (j) the selling or the exposure or offer for sale of articles or the provision of services on private land adjacent to a shop provided that the selling or the exposure or offer for sale of the articles or the provision of the services— (i) forms part of the business of the owner of the shop or a person assessed for uniform business rate in respect of the shop; and (ii) takes place during the period during which the shop is open to the public for business. 22.  Application of Part III This Part of this Act applies to the borough of a participating council as from the appointed day. 431

Appendix 1  Statutes 23.  Licensing of street traders (1)  Subject to the provisions of this Part of this Act it shall be unlawful for any person to engage in street trading (whether or not in or from a stationary position) in any licence street within a borough unless that person is authorised to do so by a street trading licence or a temporary licence. (2)  For the purposes of this Part of this Act a person shall be deemed to engage in street trading whether or not he regularly carries on the business of street trading. 24.  Designation of licence streets (1)  If a borough council consider that street trading should be licensed in their area they may from time to time pass any of the following resolutions:— (a) a resolution (in this Part of this Act referred to as a ‘designating resolution’) designating any street within the borough as a ‘licence street’; (b) a resolution specifying in relation to any such street or any part of a street any class or classes of articles, things or services which they will, or other than which they will not, prescribe in any street trading licence granted by them in respect of that street; and may from time to time by subsequent resolution rescind or vary any such resolution: *** Provided that a borough council shall— (a) before passing a designating resolution, consult with the Commissioner of Police of the Metropolis on their proposal; and (b) before rescinding or varying a designating resolution, consult with the licence holders trading in the street in question, or a body or bodies representative of them, on their proposal. (2)  At the appointed day for the purposes of this Part of this Act in a borough, the streets prescribed by any licences granted by the council of the borough in pursuance of powers contained in any of the enactments referred to in column (2) of Schedule 2 to this Act and then in force shall be deemed to have been designated as licence streets under a designating resolution. (3)  If a borough council pass a designating resolution the designation of the street shall take effect on the day specified in the resolution (which must not be before the expiration of the period of one month beginning with the day on which the resolution is passed). (4)  A borough council shall not pass a resolution or rescind or vary a resolution under this section unless— (a) they have published notice of their intention to do so in a local newspaper circulating in their area; (b) they have served a copy of the notice on the highway authority for that street (unless they are that highway authority); and (c) where subsection (5) below applies, they have obtained the necessary consent. (5)  This subsection applies— (a) where the resolution relates to a street which is owned or maintainable by a relevant corporation; and (b) where the resolution designates as a licence street any street maintained by a highway authority; and in subsection (4) above ‘necessary consent’ means— (i) in the case mentioned in paragraph (a) above, the consent of the relevant corporation; and (ii) in the case mentioned in paragraph (b) above, the consent of the highway authority. 432

London Local Authorities Act 2007 (6)  The following are relevant corporations for the purposes of this section:— (a) British Railways Board; (b) London Regional Transport; *** (d) Network Rail Infrastructure Limited; and (e) Transport for London. (7)  The notice referred to in subsection (4) above shall— (a) contain a draft of the resolution to which it relates; and (b) state that representations relating to it may be made in writing to the borough council within such period, not less than 28 days after the publication of the notice, as may be specified in the notice. (8)  As soon as practicable after the expiry of the period specified under subsection (7) above, the borough council shall consider any representations relating to the proposed resolution which they have received before the expiry of that period. (9) After the borough council have considered those representations, they may if they think fit, pass such a resolution relating to the street as is mentioned in subsection (1) above. (10)  The borough council shall publish notice of the passing of such a resolution in a local newspaper circulating in their area on two consecutive weeks. (11)  The first publication shall not be later than 28 days before the day specified in the resolution for the coming into force of the designation. 25.  Application for street trading licences (1)  An application for a street trading licence or renewal of such a licence shall be made in writing to the borough council, and in the case of an application for the renewal of a licence shall be made not later than two months or earlier than three months before the date on which that licence unless revoked or surrendered will cease to be valid: Provided that nothing in this section shall prevent a borough council from renewing a street trading licence, notwithstanding that application has been made for such renewal at a later date than aforesaid if they consider it reasonable in the circumstances so to do. (2)  In the application, the applicant shall state— (a) in the case of an application by an individual, his full name and address and date of birth; (b) in the case of an application for a licence to carry on ice cream trading— (i) by a company incorporated under the Companies Acts, the name of the company and its registered office; (ii) by a partnership, the names of its members and the address of its principal office; (c) the licence street in which, the days on which and the times between which he desires to trade; (d) the description of articles, things or services in which he desires to trade; and (e) such other particulars, relevant to street trading, as the borough council may reasonably require; and may in the case of an individual specify the name and address of a relative of his who is associated with, or dependent upon, the business of street trading in respect of which the application is made and to whom he desires the licence to be granted in any of the events specified in subsection (1)(a) of section 26 (succession) of this Act. (2A)  In the case of an application for a street trading licence which, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 21 (interpretation of Part III) of this Act, the applicant shall provide evidence in writing— 433

Appendix 1  Statutes (a) that he has consent to trade on the land from the owner of the land in question; or (b) that he is the owner of the land in question. (3)  In the case of an application by an individual the applicant shall, with his application, hand to an authorised officer three identical clear full face photographs of himself— (a) without sunglasses; and (b) unless on religious grounds the applicant permanently wears headgear, without headgear, taken within the preceding 12 months, each photograph being signed by the applicant on the reverse. But the borough council may, at their discretion, accept a lesser number of photographs. (3A)  If a standard condition prescribed under regulations made under subsection (3) of section 27 (conditions of street trading licences) of this Act requires third party insurance cover the applicant shall produce to an authorised officer proof of such third party insurance cover before a licence is granted. (3B) A  borough council may make regulations prescribing the procedure for determining applications. (3C)  Before making or amending such regulations the borough council shall— (a) consult any body which appears to the borough council to represent licence holders; and (b) give consideration to any representations received within 28 days of the date on which the borough council’s proposals were notified to the body concerned. (4)  A street trading licence— (a) shall not be granted— (i) to a person under the age of 17 years; or (ii) except where the application is made by a company incorporated under the Companies Acts, or by a partnership, for a licence to carry on ice cream trading to a person, on a corresponding day, days or time, who holds a street trading licence in any other licence street granted under this Part of this Act but nothing in this paragraph shall prevent the renewal of such a licence; or (iii) except where the application is made by a company incorporated under the Companies Acts, or by a partnership, for a licence to carry on ice cream trading to a body corporate or to an unincorporated association; or (iv) in respect of an application for a street trading licence which, if granted, would authorise trading in a street which is not a licence street; or (v) where the street to which the application relates is a street in respect of which the borough council have by resolution passed under subsection (1)(b) of section 24 (designation of licence streets) of this Act specified a class of articles or things, or services which they will not prescribe in any street trading licence and the grant of the licence would be contrary to any of the terms of that resolution; (b) shall not be granted unless the borough council are satisfied that there is 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 or vehicular traffic using the street; (c) shall not be granted in the case of an application for a street trading licence which, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 21 (interpretation of Part III) of this Act, unless the applicant 434

London Local Authorities Act 2007 has provided sufficient such evidence as is mentioned in subsection (2A) above to satisfy the council. (5)  Subject to subsection (4) above, the borough council shall grant an application for a street trading licence unless they consider that the application ought to be refused on one or more of the grounds specified in subsection (6) below. (6)  Subject to subsection (8) below the council may refuse an application on any of the following grounds:— (a) that there are enough traders trading in the street or in any street adjoining the street in respect of which the application is made in the goods in which the applicant desires to trade; (b) that the applicant is on account of misconduct or for any other sufficient reason unsuitable to hold the licence; (c) that the applicant is an individual who has without reasonable excuse failed personally to avail himself fully of a previous street trading licence; (d) that the applicant has at any time been granted a street trading licence by the borough council which was revoked or could have been revoked on the grounds that he had refused or neglected to pay fees or other charges due to them in respect of the licence; (e) that the applicant has failed to provide or to identify suitable or adequate premises for the storage of any receptacles or perishable goods in which he proposes to trade when street trading is not taking place; (f) that— (i) the application is for the grant (but not the renewal) of a street trading licence; and (ii) the only available position is in that part of the street which is contiguous with the frontage of a shop; and (iii) the articles, things or services mentioned in the application are sold or provided at the shop; (g) that— (i) the application is for the grant (but not the renewal) of a street trading licence; and (ii) the only available position in the street is within the curtilage of a shop; and (iii) the applicant is not the owner or occupier of the premises comprising the shop. (7)  If the borough council consider that grounds for refusal exist under subsection (6)(a) or (c) above they may grant the applicant a licence which permits him— (a) to trade on fewer days or during a shorter period in each day than is specified in the application; or (b) to trade only in one or more of the descriptions of goods specified in the application. (8)  Subject to subsection (4) above if— (a) a person is at the appointed day licensed to trade in a street under the provisions of any local enactment; and (b) the street becomes a licence street under this Part of this Act; and (c) he was trading from a fixed position in the street immediately before it became a licence street; and (d) within two months from the appointed day he applies for a street trading licence to trade in the street; his application shall not be refused. (9) Subject to subsections (4), (6) and (8) above a borough council when considering applications for licences to trade in licence streets under this Part of this 435

Appendix 1  Statutes Act shall give preference to applications from persons who immediately before the appointed day were under the provisions of any local enactment authorised to trade in a street in the borough which is not a licence street. (10) A borough council when considering applications for licences to carry on ice cream trading in a licence street shall treat all applicants, whether companies, partnerships or individuals, on an equal footing and in particular— (a) shall not treat individuals less favourably than companies or partnerships; and (b) as between applicants who are companies or partnerships, shall not treat any particular company or partnership more favourably than others. (11)  A licence holder may at any time surrender his licence to the borough council and it shall then cease to be valid. 26. Succession (1)  (a) When the holder of a licence who is an individual has specified the name and address of a relative to whom he desires the licence to be granted— (i) dies; or (ii) retires having reached the normal age for retirement; or (iii) notifies the borough council that owing to ill-health he is unable to continue to engage in the street trading permitted by the licence, and submits evidence to satisfy the borough council as to his ill-health; the borough council shall not (except as provided in paragraph (b) of this subsection) grant a licence in respect of the position or place in a street at which the former licensee was entitled to engage in street trading under the authority of his licence until the expiration of 28 days from the date of the death of the licensee or his retirement or receiving the notification, as the case may be; (b) If during the said period of 28 days the person specified by the holder of the licence, when making application for the licence, as the relative to whom he desired the licence to be granted in any of the events mentioned in paragraph (a) above makes application for the grant of a licence in respect of the position or place available in the street the borough council shall, save as provided by paragraphs (b) to (e) of subsection (6) of section 25 (application for street trading licences) of this Act grant a licence to that person. (2)  For the purposes of this section a person shall be treated as being related to another if the latter is the wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister of the former and shall be deemed to be so related notwithstanding that he is so related only through an illegitimacy or in consequence of an adoption. 27.  Conditions of street trading licences (1) A  licence granted under section 25 (application for street trading licences) of this Act, shall— (a) unless it is revoked or surrendered, be valid for a period of three years from the date on which it is granted, or for such shorter period as the borough council may determine; (b) specify the conditions; and (c) in the case of an individual incorporate one of the photographs of the licence holder submitted under subsection (3) of the said section 25; and on any occasion of the renewal of a licence, or at 1 January in any year during the currency thereof, (whether on application by the licence holder or otherwise) or 436

London Local Authorities Act 2007 at any time on application by the licence holder, the borough council may vary the conditions. (2)  Where a licence is granted to a company incorporated under the Companies Acts or to a partnership to carry on ice cream trading, any individual carrying on ice cream trading in accordance with that licence shall at all times while he is so trading carry with him a recent photograph of him authenticated by the company or on behalf of the partnership, as the case may be, which holds the licence. (3)  The borough council may make regulations prescribing standard conditions which they may attach to the licence on the occasion of its grant or renewal. (4)  Before making regulations under subsection (3) above, the borough council shall— (a) publish notice of their intention to do so in a local newspaper circulating in their area, and such notice shall— (i) contain a draft of the resolution to which it relates; and (ii) state that representations relating to it may be made in writing to the borough council within such period, not less than 28 days after the publication of the notice, as may be specified in the notice; and (b) consult the licence holders or a body or bodies representative of them. (5)  As soon as practicable after the expiry of the period specified under subsection (4) above, the borough council shall consider any representations relating to the proposed regulations which they have received before the expiry of that period. (6)  After the borough council have considered those representations they may if they think fit make regulations as mentioned in subsection (3) above and shall notify the licence holders or a body or bodies representative of them of the making of such regulations. (7) Without prejudice to the generality of subsection (3) above the standard conditions shall include such conditions as may be reasonable— (a) identifying the street or streets in which and the position or place in any such street at which the licence holder may sell or expose or offer for sale articles or things, or offer or provide services under the authority of the licence; (b) identifying the class or classes of articles, things or services which the licence holder may so sell or expose or offer for sale or provide; (c) identifying the day or days on which and the time during which the licence holder may sell or expose or offer for sale articles, things or services as aforesaid; (d) identifying the nature and type of any receptacle which may be used by the licence holder or in connection with any sale or exposure or offer for sale or provision of services and the number of any such receptacles which may be so used; (e) requiring that any receptacle so used shall carry the name of the licence holder and the number of his licence; (f) regulating the storage of receptacles or perishable goods; (g) regulating the deposit and removal of refuse and the containers to be used for the deposit of such refuse and their location pending its removal; (h) requiring that the licence holder shall commence trading or exercising his rights under the licence by a certain time on any day or forfeit his right to trade or exercise his rights under the licence on that day from the fixed position to which his licence refers. (8) Without prejudice to the standard conditions, the borough council may in addition attach to a licence such further conditions as appear to them to be reasonable in any individual case. 437

Appendix 1  Statutes (9)  When granting a licence a borough council shall give to the licence holder a copy of the licence which, in the case of an individual, shall bear his photograph. 28.  Revocation or variation of licences under Part III (1)  Subject to the provisions of this Part of this Act a borough council may at any time revoke a street trading licence if they are satisfied that— (a) owing to circumstances which have arisen since the grant or renewal of the licence, there is not enough space in the street in which the licence holder trades for him to engage in the trading permitted by the licence without causing undue interference or inconvenience to persons or vehicular traffic using the street; or (b) the licence holder is trading in a class of articles, things or services which the borough council have resolved under subsection (1) (b) of section 24 (designation of licence streets) of this Act not to prescribe in licences granted for the licence street in which the licence holder trades; or (c) the licence holder is an individual who has without reasonable excuse personally failed fully to avail himself of his licence; or (d) the licence holder is on account of misconduct or for any other sufficient reason unsuitable to hold the licence; or (e) that since the grant or renewal of the licence, the licence holder has for a period of four weeks or more failed to pay fees or charges due to the borough council in connection with the street trading licence or has failed to pay any charges due from him for accommodation provided in pursuance of subsection (2) of section 33 (receptacles and containers) of this Act; or (f) that since the grant or renewal of the licence, the licence holder has failed to make provision for the suitable and adequate storage of the receptacles used by him for trading or for any perishable goods in which he trades when trading is not taking place; or (g) that since the grant or renewal of the licence, the licence holder has persistently failed to remove to a place of storage the receptacles used by him for trading; or (h) that the licence holder has persistently failed to comply with any condition of his licence. (2)  If a borough council consider that a licence could be revoked on any of the grounds mentioned in paragraphs (a) to (c) of subsection (1) above they may instead of revoking it, vary its conditions by attaching further conditions— (a) reducing the number of days in any week or the period in any one day during which the licence holder is permitted to trade; or (b) specifying a different licence street or position or place in any such street at which the licence holder may sell or expose or offer for sale articles or things or offer or provide services; or (c) restricting the description of articles, things or services in which the licence holder is permitted to trade. 29.  Further provisions relating to grant, renewal or revocation of street trading licences (1)  A borough council shall not— (a) refuse to grant or renew a licence on any of the grounds mentioned in subsection (6) of section 25 (application for street trading licences) of this Act; or (b) revoke or vary a licence under section 28 (revocation or variation of licences under Part III) of this Act; or 438

London Local Authorities Act 2007 (c) vary a licence under subsection (1) of section 27 (conditions of street trading licences) of this Act; unless they shall have given to the applicant or licence holder not less than 21 days’ previous notice in writing that objection has been or will be taken to such grant or renewal or that such revocation or variation is proposed, specifying the ground or grounds on which their decision would be based and giving him an opportunity to appear before the committee, sub-committee or officer determining the matter. (2)  A borough council shall not proceed to determine any of the matters referred to in subsection (1) above until after the expiry of the period specified in the notice given under that subsection; and in determining any of the matters referred to, they shall consider any representations made by an applicant or licence holder in respect of that matter. (3)  A borough council shall not refuse to grant or renew and shall not revoke a licence on the ground only that the applicant or licensee, being an individual, does not reside in the borough. (4)  If the borough council refuse to grant or renew a licence or decide to revoke or vary a licence— (a) they shall notify the applicant or licence holder in writing of their decision and of the ground or grounds for such refusal, revocation or variation; and (b) they shall notify the applicant or licence holder of his rights of appeal (if any) specified in section 30 (Part III appeals) of this Act. 29A.  Lapsing of licence in certain cases In the case of a street trading licence which authorises street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 21 (interpretation of Part III) of this Act, the licence shall lapse if— (a) the consent is discontinued by the person who gave it, or a successor in title of that person, and the council is provided with written notice of the discontinuation of the consent by the person who discontinues it; or (b) the holder of the licence no longer is the owner of the land in question, as the case may be. 30.  Part III appeals (1)  Any person aggrieved— (aa) by the refusal of a borough council to renew a licence because they are not satisfied as mentioned in subsection (4)(b) of section 25 (application for street trading licences) of this Act; (a) by the refusal of a borough council to grant or renew a licence on any of the grounds mentioned in subsection (6)(a) to (e) of section 25 (application for street trading licences); or (b) by a decision of a borough council under subsection (7) of the said section 25 to grant him a licence either on terms mentioned in that subsection different from those on the licence which he previously held or different from those for which he applied; or (c) by any further condition attached by a borough council under subsection (8) of section 27 (conditions of street trading licences) of this Act in addition to the standard conditions; or (d) by a decision of the borough council either— (i) to vary the conditions of a licence under subsection (2) of section 28 (revocation or variation of licences under Part III) of this Act; or (ii) to revoke a licence under subsection (1) of the said section 28; ***; or 439

Appendix 1  Statutes (e) by a resolution of a borough council under section 37 (ice cream trading) of this Act; may appeal to a magistrates’ court acting for the area in which the licence street is situated. (2)  An appeal under subsection (1) above may be brought— (a) in the case of an appeal under paragraph (aa), (a), (b), (c) or (d) of that subsection, at any time before the expiration of the period of 21 days beginning with the date upon which notification in writing is given of the refusal or decision; (b) in the case of an appeal under paragraph (e) of that subsection, at any time before the expiration of the period of 21 days beginning with the date of the second publication of the notice required by subsection (10) of section 24 (designation of licence streets) as applied by the said section 37. (3)  A person desiring to appeal against such refusal or decision as is mentioned in subsection (1) above shall give a written notice to the magistrates’ court and to the borough council specifying the refusal or decision against which he wishes to appeal and the grounds upon which such appeal is made. (4)  An appeal by either party against the decision of the magistrates’ court under this section may be brought to the Crown Court. (5) On an appeal to the magistrates’ court or to the Crown Court under this section, the court may make such order as it thinks fit. (6)  Subject to subsections (7) to (9) below, it shall be the duty of the borough council to give effect to the order of the magistrates’ court or the Crown Court. (7)  A borough council need not give effect to the order of the magistrates’ court until the time for bringing an appeal under subsection (4) above has expired and, if such an appeal is duly brought, until the determination or abandonment of the appeal. (8)  Where a licence holder applies for renewal of his licence, his existing licence shall remain valid— (a) until the grant by the borough council of a new licence with the same conditions; or (b) if the borough council refuse renewal of the licence or decide to grant a licence with conditions different from those of the existing licence and he has a right of appeal under this section, until the time for bringing an appeal has expired or where an appeal is duly brought, until the determination or abandonment of the appeal; or (c) if he has no right of appeal under this section until the borough council either grant him a new licence with conditions different from those of the existing licence or notify him of their decision to refuse his application. (9) Where— (a) a borough council decide— (i) to vary the conditions of a licence under subsection (2) of the said section 28; or (ii) to revoke a licence under subsection (1) of the said section 28; and (b) a right of appeal is available to the licence holder under this section; the variation or revocation shall not take effect until the time for bringing an appeal has expired or where an appeal is duly brought, until the determination or abandonment of the appeal. (10)  For the avoidance of doubt, it is hereby declared that an application under section 31 of the Supreme Court Act 1981 (c. 54 ) (application for judicial review) or under the Rules of the Supreme Court 1965 in respect of any matter which is or could be the subject of an appeal to the magistrates’ court or to the Crown Court 440

London Local Authorities Act 2007 under this section shall not be treated as an appeal for the purposes of subsection (8) or (9) above. (11)  Any person aggrieved— (a) by a resolution rescinding or varying a designating resolution; (b) by a resolution under subsection (1)(b) of section 24 (designation of licence streets) of this Act; (c) by a standard condition prescribed by regulations under subsection (3) of section 27 (conditions of street trading licences) of this Act; or (d) by the amount of a fee or charge under section 32 (fees and charges) of this Act; may appeal to the Secretary of State whose decision shall be final. (12)  An appeal under subsection (11) above may be brought— (a) in the case of an appeal under paragraph (a) or (b) of that subsection, at any time before the expiration of the period of three months beginning with the date on which notice of the passing of the resolution is published for the second time in accordance with subsection (10) of section 24 (designation of licence streets) of this Act; (b) in the case of an appeal under paragraph (c) of that subsection, at any time before the expiration of the period of three months beginning with the date upon which the licence holders or a body or bodies representative of them were notified of the making of the regulations; (c) in the case of an appeal under paragraph (d) of that subsection— (i) if it relates to the amount of a fee payable under subsection (1) of section 32 (fees and charges) of this Act, at any time before the expiration of the period of three months beginning with the date on which the fee payable is notified to the licence holders or a body or bodies representative of them; (ii) if it relates to the amount of a charge under subsection (2) of section 32 (fees and charges) of this Act, at any time before the expiration of the period of three months beginning with the date on which notice of the determination of the charge has been given to the licence holders or a body or bodies representative of them. 31.  Temporary licences (1) A borough council may if they think fit on the receipt from any person of an application for that purpose and accompanied by the appropriate fee grant to that person a temporary licence. (1A)  A council may grant a temporary licence in any street, whether or not it is a licensed street. (1B)  In the case of an application for a temporary licence which, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 21 (interpretation of Part III) of this Act, the applicant shall provide evidence in writing— (a) that he has the consent to trade on the land from the owner of the land in question; or (b) that he is the owner of the land in question. (1C)  An application for a temporary licence shall not be granted, if the licence would authorise street trading on land which falls within the said paragraph (b), unless the applicant has provided sufficient evidence, as is mentioned in subsection (2A) of section 25 (application for street trading licence) of this Act, to satisfy the council. (1D)  In the case of a temporary licence which authorises street trading on land which falls within the said paragraph (b), the licence shall lapse if— 441

Appendix 1  Statutes (a) the permission to trade on the land is discontinued, and the council is provided with written notice of the discontinuance of the permission by the person who gave the permission or by a successor in title to that person; or (b) the holder of the licence is no longer the owner of the land in question or no longer has sufficient interest in the land to trade on the land without the permission of another person. (1E)  The council may revoke or suspend the operation of a temporary licence held in respect of land which falls within the said paragraph (b) if circumstances have arisen since the grant of the licence or are about to arise which necessitate such revocation or suspension on the grounds of safety. (1F)  Where a temporary licence is revoked or suspended under subsection (1E) above, the council shall return to the licensee such proportion of any fee paid for the granting of the licence as is appropriate, taking into account the period for which the licence was granted and the period remaining on the licence when it was revoked or the period for which the licence was suspended, as the case may be. (2)  A temporary licence shall be valid only for the day or period specified in the licence and— (a) shall be in the like form as a street trading licence with such modifications therein as the circumstances require; and (b) shall prescribe such conditions as the borough council deem appropriate. (3)  Where the holder of a street trading licence is not for the time being exercising his rights under the licence, a temporary licence authorising street trading in the position or place prescribed by the street trading licence may be granted to any other person but shall be subject to the condition that it shall cease to be valid if during the currency thereof the holder of the licence desires to resume the exercise of his rights and gives the appropriate notice, and for the purposes of this subsection ‘the appropriate notice’ means— (a) in the case of a holder of a licence who has not exercised his rights under the licence for a period of at least 14 days, 7 days’ notice; (b) in any other case, 24 hours’ notice. (4)  In this section ‘appropriate fee’ means such fee as the borough council may have determined under section 32 (fees and charges) of this Act. 32.  Fees and charges (1) A  borough council may charge such fees for the grant or renewal of a street trading licence under this Part of this Act, the grant of a temporary licence or for the variation at the request of the licence holder of the conditions of a street trading licence as they may determine and as may be sufficient in the aggregate to cover in whole or in part the reasonable administrative or other costs in connection with their functions under this Part of this Act, not otherwise recovered. (2)  A borough council may recover from licence holders such charges as may be sufficient in the aggregate taking one year with another to cover the reasonable costs, not otherwise recovered, of— (a) the collection, removal and disposal of refuse or other services rendered by them to such holders; and (b) the cleansing of streets in which street trading takes place in so far as that cleansing is attributable to such trading; and (c) any reasonable administrative or other costs incurred in connection with the administration of this Part of this Act; and (d) the cost of enforcing the provisions of this Part of this Act. (3)  A borough council may determine— (a) that charges under subsection (2) above shall be included in a fee payable under subsection (1) above; or 442

London Local Authorities Act 2007 (b) that they shall be separately recoverable. (4)  A borough council may— (a) require that every application for a licence under this Part of this Act be accompanied by the whole or part of the fee determined under subsection (1) above; and (b) determine that the fee may be paid by instalments. (5)  Where a borough council refuse to ***   renew a licence they shall repay to the person who made the application therefor the amount of any such fee paid by him ***. (6) A borough council may determine the fees to be charged on the grant of a temporary licence under section 31 (temporary licences) of this Act, and in doing so they shall have regard to the matters specified in subsection (2) above and such fees shall be included in the computation for the purposes of determining the fees and charges under subsections (1) and (2) above. (7) Before determining charges to be made under subsection (2) above ***   (whether originally or by way of variation of charges previously determined) a borough council— (a) shall give notice of the proposed charges to licence holders or to a body or bodies representative of them; and (b) shall publish notice of the proposed charges in a newspaper circulating in the area in which the licence street or streets in respect of which the charges will be applied is situated. (7A)  A notice under subsection (7)(a) above shall be accompanied by a statement showing how the proposed charges have been computed; and any body representative of licence holders may request the borough council to supply such further information or explanation with regard to the proposed charges as the body may reasonably require in order to ascertain whether the proposed charges are reasonable and have been computed in accordance with the provisions of this section. (8) A  notice under subsection (7)(a) above shall specify a reasonable period being not less than 28 days from the date of publication of the newspaper referred to in subsection (7)(b) above within which written representations concerning the proposed charges may be made to the borough council. (9)  It shall be the duty of a borough council to— (a) consider any such representations which are made to them within the period specified in the notice; and (b) comply with any request made under subsection (7A) above; and where any such request is made the period so specified, if still current, shall be treated as extended by the number of days in the period beginning with the day on which the request is made and ending with that on which it is complied with. *** (10)  When a borough council have determined fees under subsection (1) above or charges under subsection (2) above (whether originally or by way of variation of fees or charges previously determined) they shall give notice of the fees or charges so determined and of the date on which those fees or charges are to be brought into effect, in the manner prescribed in subsection (7) above. (11) Where a licence is revoked under subsection (1)(a) or (b) of section 28 (revocation or variation of licences under Part III) of this Act, the borough council shall refund the appropriate part of any fee paid for the grant or renewal of the licence. (12)  Where a licence is revoked otherwise than under subsection (1)(a) or (b) of section 28 (revocation or variation of licences under Part III) or is surrendered, the borough council may remit or refund, as they consider appropriate, the whole or a part— 443

Appendix 1  Statutes (a) of any fee paid for the grant or renewal of the licence; or (b) of any charges recoverable under subsection (2) above. 33.  Receptacles and containers (1)  A borough council may sell or let on hire or otherwise provide to any person holding a street trading licence or a temporary licence under this Part of this Act receptacles for use by him in street trading. (2)  A borough council may provide and maintain accommodation for the storage of receptacles and containers for the deposit of refuse arising in the course of street trading and for that purpose may— (a) adapt any premises or erect any buildings on any land belonging to them but not already appropriated for such purpose; and (b) make such charges as they think fit for the use of such accommodation. 34. Offences Any person who— (1) without reasonable excuse contravenes any of the conditions of a street trading licence or a temporary licence; or (2) in connection with an application for a street trading licence or a temporary licence makes a statement which he knows to be false in a material particular; or (3) resists or intentionally obstructs any authorised officer of a borough council in the execution of his duties under this Part of this Act; or (4) fails on demand without reasonable excuse in the case of an individual licence holder to produce his licence ***    bearing his photograph, and, in the case of an individual carrying on ice cream trading under a licence granted to a company incorporated under the Companies Acts or to a partnership, to produce the photograph required by subsection (2) of section 27 (conditions of street trading licences) of this Act to an authorised officer of the borough council or to a constable; shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. 35.  Power to remove receptacles (1) Where any receptacle used by a licence holder is not removed to a place of storage on the cessation of trading on any day it shall be lawful for the borough council to cause it to be removed to a place of storage and to recover from the licence holder the costs incurred by them in removing and storing the receptacle. (2)  Such charges as the borough council may fix as the cost of removing and storing a receptacle in pursuance of subsection (1) above, shall be payable by the licence holder before the return of the receptacle to him. (3)  The provisions of subsection (1) above are without prejudice to the power of the borough council to prosecute the licence holder for any breach of the conditions of his licence arising from the failure to remove the receptacle. 36.  Employment of assistants Subject to the provisions of this section a person holding a street trading licence or a temporary licence may employ any other person to assist him in the conduct of street trading authorised by the licence but if any person employed by a licence holder during the temporary absence of the licence holder fails to comply with the conditions of the ***   licence held by his employer such failure shall be deemed to be a failure by the licence holder. 444

London Local Authorities Act 2007 37.  Ice cream trading (1)  Nothing in this Part of this Act shall apply to itinerant ice cream trading in any street unless— (a) that street is a licence street; or (b) the street has been designated as a prohibited street under the following provisions of this section. (2)  If at any time it is necessary to prohibit itinerant ice cream trading in any street in the area of a borough council which is not a licence street in the interests of preventing obstruction to traffic, or undue interference or inconvenience to persons using that street, the borough council may by resolution designate the street as a prohibited street and in the case of any London borough except the City of Westminster and the Royal Borough of Kensington and Chelsea may so designate it for such days or for such parts of days as are specified in the resolution, and may from time to time by subsequent resolution rescind or vary any such resolution. (3)  Before passing a resolution under this section, a borough council shall consult the Commissioner of Police of the Metropolis and such bodies as appear to them to be representative of persons carrying on ice cream trading in the area of the borough council. (4)  Subsections (3) to (11) of section 24 (designation of licence streets) of this Act shall apply to a resolution under this section as they apply to a resolution under that section. 38.  Unlicensed street trading (1)  A person who— (a) is not the holder of a street trading licence or a temporary licence and who engages in street trading in a borough whether or not from a stationary position; or (b) is the holder of a street trading licence or a temporary licence and who, without the borough council’s specific permission in writing, engages in street trading in a borough on a day or in a place not specified in that ***   licence; shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. *** (2) In any proceedings for an offence under this section or for an offence of aiding, abetting, counselling or procuring the commission of an offence under this section where it is shownthat— (a) any article or thing was displayed (whether or not in or on any receptacle) in any street; or (b) any receptacle or equipment used in the provision of any service was available in any street in such circumstances that a service was being offered; the article, thing, receptacle or equipment concerned shall be presumed to have been exposed or offered for sale and the receptacle or equipment shall be deemed to have been used for the purposes for which a street trading licence was required unless it can be proved to the satisfaction of the court that the article or thing or receptacle or equipment was brought into that street for some purpose other than street trading. (3)  Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of the offence and liable to the same maximum penalty as the body corporate. 445

Appendix 1  Statutes (4)  Subject to section 38A (seizure of perishable items) of this Act if an authorised officer or a constable has reasonable grounds for suspecting that a person has committed an offence under this section he may seize— (a) any article or thing being offered for sale, displayed or exposed for sale; or (b) any other article or thing of a similar nature to that being offered or exposed for sale which is in the possession of or under the control of any person who is displaying an article or thing; or (c) any receptacle or equipment being used by that person, which may be required to be used in evidence in any proceedings in respect of that offence, or may be the subject of forfeiture under subsection (5) below ***. (4A)  An authorised officer or constable may also seize, for examination purposes, any article or thing which he has reasonable cause to suspect may be an article or thing which is prohibited by a specifying resolution made under subsection (1)(b) of section 24 (designation of licence streets) of this Act. Unless the article or thing is required for evidential purposes it shall be returned as soon as possible to the person from whom it was seized. (4B)  An authorised officer shall produce his authority if required to do so by the person having control or possession of anything seized in pursuance of the powers in subsections (4) and (4A) above. (4C) (a) Subject to section 38B (motor vehicles) of this Act the following provisions of this subsection shall have effect where any article or thing (including any receptacle or equipment) is seized under subsection (4) above or is seized and retained because it is required for evidential purposes under subsection (4A) above and references in those provisions to proceedings are to proceedings in respect of the alleged offence in relation to which the article or thing is seized. (b) Subject to paragraph (e) below, following the conclusion of the proceedings the article or thing shall be returned to the person from whom it was seized unless— (i) the court orders it to be forfeited under subsection (5) below; or (ii) any award of costs to the council by the court, which may include removal, return and storage costs, have not been paid within 28 days of the making of the order. (ba)  Where after 28 days any costs awarded by the court to the council have not been paid to the council in full— (i) the article or thing may be disposed of in any way the council thinks fit; and (ii) any sum obtained by the council in excess of the costs awarded by the court shall be returned to the person to whom the article or thing belongs. (bb)  When any article or thing is disposed of by the council under this subsection the council shall have a duty to secure the best possible price which can reasonably be obtained for that article or thing. (c) Subject to paragraph (d) below, where a receptacle seized under subsection (4) above is a motor vehicle used for ice cream trading, the borough council or the Commissioner of Police of the Metropolis (as the case may be) shall, within three days of the receipt of an application in writing by the owner or registered keeper of the vehicle, permit him to remove it. (d) Paragraph (c) above shall not apply where— (i) the owner or registered keeper of the vehicle has been convicted of an offence under this Part of this Act or under the City of Westminster Act 1999 (c. i); or 446

London Local Authorities Act 2007 (ii) the owner or registered keeper of the vehicle is being prosecuted for a previous alleged offence under this Part of this Act or the said Act of 1999; or (iii) the vehicle has been used in the commission of such an offence or previous alleged offence; if the offence or previous alleged offence was committed or is alleged to have been committed no more than three years before the seizure and (in the case of an alleged offence) the proceedings are continuing. (e) If no proceedings are instituted before the expiration of a period of 28 days beginning with the date of seizure, or any proceedings instituted within that period are discontinued, at the expiration of that period or, as the case may be, on the discontinuance of the proceedings, the article or thing shall be returned to the person from whom it was seized unless it has not proved possible, after diligent enquiry, to identify that person or ascertain his address. (f) Paragraph (g) below applies where the article, thing, receptacle or equipment is not returned because— (i) it has not proved possible to identify the person from whom it was seized or ascertain his address; or (ii) the person from whom it was seized and the owner (if different) have disclaimed or refused to accept it. (g) Where this paragraph applies, the council may make a complaint to the magistrates’ court for a disposal order under section 38C (disposal orders) of this Act (whether or not proceedings for an offence under this section have been commenced). (5) Subject to subsection (6) below the court by or before which a person is convicted of an offence under this section or for an offence of aiding, abetting, counselling or procuring the commission of an offence under this section may order anything produced to the court, and shown to the satisfaction of the court to relate to the offence, to be forfeited and dealt with in such manner as the court may order. (6)  The court shall not order anything to be forfeited under subsection (5) above where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made and in considering whether to make such an order a court shall have regard— (i) to the value of the property; and (ii) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making). (6A)  For the avoidance of doubt the court may order forfeiture notwithstanding that the value of the article, thing, receptacle or equipment exceeds the maximum penalties referred to in this section. (7)  An authorised officer shall produce his authority if required to do so by the person having care or control of ***   anything seized in pursuance of the powers in subsection (4) above. (8)  (a)  This subsection shall have effect where— (i) an article, thing or receptacle is seized under subsection (4) or (4A) above; and (ii) (A) not less than six months have passed since the date of the seizure and no information has been laid against any person for an offence under this section in respect of the acts or circumstances which occasioned the seizure; or (B) proceedings for such an offence have been brought and either the person charged has been acquitted (whether or not on appeal) 447

Appendix 1  Statutes and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought, or the proceedings (including any appeal) have been withdrawn by, or have failed for want of prosecution by, the person by whom the original proceedings were brought. (b) When this subsection has effect a person who has or at the time of seizure had a legal interest in the article, thing or receptacle seized may recover compensation from the borough council or (where it is seized by a constable) the Commissioner of Police of the Metropolis by civil action in the County Court in respect of any loss suffered by him as a result of the seizure and any such compensation shall not be included in the computation for calculating charges under section 22 (fees and charges) of this Act. (c) The court may not make an order for compensation under paragraph (b) above unless it is satisfied that seizure was not lawful under subsection (4) or (4A) above. 38A.  Seizure of perishable items (1)  No item which is of a perishable nature (in this section referred to as a ‘perishable item’) shall be seized under the provisions of subsection (4) of section 38 (unlicensed street trading) of this Act unless the authorised officer or constable gives a certificate under subsection (2) below to the person from whom the item is seized. (2)  Where a perishable item is seized under the said section 38, the person from whom it is seized must be given a certificate— (a) stating the effect of subsection (4) below and subsection (6) of the said section 38; (b) giving the address from which the item may be collected; (c) informing the recipient that if he is not the owner of the item, then he should give the owner the information referred to in paragraphs (a) and (b) above. (3)  The council or the police shall store any perishable item seized under the said section 38 at an appropriate temperature. (4)  If the person from whom a perishable item was so seized fails to collect it within 48 hours of the seizure the council or the police may dispose of it. (5)  When any perishable item is disposed of by the council under subsection (4) above, the council shall have a duty to secure the best possible price which can reasonably be obtained for it. (6)  Paragraphs (a) to (d) of subsection (4C), and subsections (5) and (6) of the said section 38 shall apply to perishable items seized under that section only in cases where the item concerned has not been disposed of by the council at the conclusion of the proceedings in respect of the alleged offence in relation to which the item was seized. (7)  Paragraphs (e) and (f) of subsection (4C) of the said section 38 shall apply to perishable items seized under that section only in cases where the item concerned has not been disposed of by the council at the expiration of the period mentioned in the said paragraph (e); otherwise subsections (10) to (13) below shall apply. (8) Subsection (8) of the said section 38 shall apply with the omission of paragraph (c) in respect of perishable items seized under that section only in cases where the item concerned has not been disposed of by the council by the time the circumstances mentioned in paragraph (a)(ii)(A) or (B) arise; otherwise subsections (10) to (12) below shall apply. (9)  Subsection (12) below shall have effect where the council have disposed of a perishable item under subsection (4) above and any of the following conditions apply. 448

London Local Authorities Act 2007 (10)  The first condition is that no proceedings in respect of the alleged offence in relation to which the item was seized are instituted before the expiration of a period of 28 days beginning with the date of seizure of the item, or any such proceedings instituted within that period are discontinued. (11)  The second condition is that— (a) not less than six months have passed since the date of the seizure and no information has been laid against any person for an offence under the said section 38 in respect of the acts or circumstances which occasioned the seizure; or (b) proceedings for such an offence have been brought and either the person charged has been acquitted (whether or not on appeal) and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought, or the proceedings (including any appeal) have been withdrawn by, or have failed for want of prosecution by, the person by whom the original proceedings were brought. (12)  When this subsection has effect a person who has or at the time of seizure had a legal interest in the item seized may recover compensation from the borough council or (where it is seized by a constable) the Commissioner of Police of the Metropolis by civil action in the County Court in respect of any loss suffered by him as a result of the seizure and any such compensation shall not be included in the computation for calculating charges under section 32 (fees and charges) of this Act. 38B.  Motor vehicles (1)  Subsection (4) below applies where the following conditions are met. (2)  The first condition is that where, in ascertaining the identity of the person from whom the vehicle was seized under subsection (4) or (4A) of section 38 (unlicensed street trading) of this Act, a borough council has, before the expiry of 14 days from the date of the seizure, made a request to the Secretary of State for the supply of relevant particulars. (3)  The second condition is that those particulars have not been supplied to the council before the date after which that council would, but for this section, have to return the vehicle in accordance with subsection (4C)(e) of that section. (4)  Where this subsection applies, the council must return the vehicle to its owner if— (a) no proceedings are instituted in respect of the alleged offence in respect of which the vehicle was seized before the expiry of the period of 14 days beginning with the date on which the relevant particulars are supplied; or (b) any such proceedings instituted within that period are discontinued, at the expiry of that period or on the discontinuance of the proceedings, as the case may be. (5)  If the council seeks to return a vehicle in accordance with the said subsection (4C)(e) or subsection (4), but the person to whom the council seeks to return the vehicle cannot be found or disclaims or refuses to accept the vehicle, the council may make a complaint for a disposal order in respect of the vehicle under section 38C (disposal orders) of this Act. (6)  In this section, ‘relevant particulars’ are particulars relating to the identity of the owner of the vehicle contained in the register of mechanically propelled vehicles maintained by the Secretary of State under the Vehicle Excise and Registration Act 1994 (c. 22). (7)  The owner of a vehicle for the purposes of this section shall be taken to be the person by whom the vehicle is kept. 449

Appendix 1  Statutes (8)  In determining who was the owner of a motor vehicle at any time, it shall be presumed that the owner is the person in whose name the vehicle is at that time registered under the Vehicle Excise and Registration Act 1994. 38C.  Disposal orders (1)  This section applies in respect of a complaint made by a borough council for a disposal order in respect of— (a) an article or thing under subsection (4C)(f)(ii) of section 38 (unlicensed street trading) of this Act; or (b) a motor vehicle under subsection (5) of section 38B (motor vehicles) of this Act, and such articles, things and motor vehicles are together referred to as ‘seized items’ in this section. (2)  In respect of a complaint to which this section applies, a magistrates’ court may, if it is satisfied that the council has made reasonable efforts to identify the person from whom the seized item was seized or its owner, as the case may be, or has made reasonable efforts to return the seized item, it may make an order authorising the complainant council— (a) to dispose of the seized item in question; and (b) after payment out of any proceeds arising from the disposal of the expenses incurred in the seizure, storage and disposal, to apply the balance, if any, towards the costs of the council as mentioned in paragraphs (a) to (d) of subsection (2) of section 32 (fees and charges) of this Act. (3)  The court shall not make a disposal order under subsection (2) above where a person claiming to be the owner of or otherwise interested in the seized item in question applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made. (4)  Subsection (5) below applies where— (a) a person appears before the court under subsection (3) above to show why the order should not be made; and (b) the court makes an order under subsection (2) above authorising the council to dispose of the item; and (c) the seized item in question is not of sufficient value to defray the expenses of seizing and storing it; and (d) the court is satisfied that the person mentioned in paragraph (a) above was the owner of the seized item in question or was the person from whom it was seized, as the case may be. (5)  Where this section applies, the court may order that the person mentioned in subsection (4)(a) above pay the expenses, or the balance of the expenses, reasonably incurred by the council in seizing and storing the seized item in question. (6)  In considering whether to make an order under subsection (2) above a court shall have regard— (a) to the value of the seized item; (b) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making); and (c) any other circumstances considered to be relevant. (7)  The court may make a disposal order under this section notwithstanding that the value of the seized item would exceed the maximum penalty for the offence in respect of which the seized item had originally been seized had the said offence been prosecuted to conviction. (8)  For the purposes of this section, ‘owner’ in respect of a vehicle, has the same meaning as it has for the purposes of the said section 38B. 450

London Local Authorities Act 2007 39. Savings (1)  Nothing in this Part of this Act shall affect— (a) section 13 of the Markets and Fairs Clauses Act 1847 (c. 14) (prohibition of sales elsewhere than in a market or in shops etc.) as applied by any other Acts; (b) section 56 of the Food Act 1984 (c. 30) (prohibition of certain sales during market hours); (c) the sale or exposure or offer for sale by London Regional Transport or (as the case may be) a designated company (within the meaning of the Transport (London) Act 1969 (c. 35)) of refreshments at any shelter or other accommodation provided by either of them under section 65 (refreshment shelters etc.) of the London Passenger Transport Act 1938 (c. xcii). (2)  Nothing in this Part of this Act shall afford a defence to a charge in respect of any offence at common law or under an enactment other than this Part of this Act. 40.  Local enactments relating to street trading repealed (1) Subject to subsection (2) below, the enactments specified in column (2) of Schedule 2 to this Act, so far as they relate to any part of Greater London, shall cease to have effect in a borough as from the appointed day for that borough to the extent specified in column (3) of that Schedule. (2) Notwithstanding the repeal of the enactments specified in column (2) of Schedule 2 to this Act, any licence granted by a borough council under any of those enactments which authorises street trading in the borough and which was in force immediately before the appointed day shall continue in force until three months after the appointed day or until the determination of any application made by the holder of the licence under section 25 (application for street trading licences) of this Act, whichever is the later. 41.  Saving for sales in legal markets or fairs In the case of any market or fair held in pursuance of any statute, royal licence, royal charter or letters patent, or as of right from time immemorial, nothing in this Part of this Act shall affect the sale or exposure or offer for sale of goods in any such market or fair by any person who has paid a toll to, or is acting under the written authority of, a person holding or entitled to hold such market or fair or entitled to receive tolls in respect of sales made or stalls or stands occupied in such market or fair.

451

Appendix 1  Statutes

LONDON LOCAL AUTHORITIES ACT 2012 (2012, c 2) An Act to confer further powers upon local authorities in London; and for related purposes. [27th March 2012]

Part 4 Licensing Miscellaneous 8.  Amendment of City of Westminster Act 1996 (1)  The City of Westminster Act 1996 (which makes provision about the closure of unlawful sex establishments) is amended as follows. (2)  In section 3(2)(a) for ‘section 4(5)(a)’ substitute ‘section 4(6)(a)’. (3)  In section 8(1)(c) and (d) for ‘sending it in a prepaid registered letter, or by the recorded delivery service’ substitute respectively ‘post’ and ‘by post’. (4) In section 8(2)(b)(i) for ‘in a prepaid registered letter, or by the recorded delivery service and is not returned to the authority sending it’ substitute ‘by post’. 9.  Street trading: vehicles and the internet (1)  The London Local Authorities Act 1990 is amended as follows. (2)  In section 21 (interpretation of Part III)— (a) in subsection (1), in the definition of ‘street trading’, for ‘subsections (1A)’ substitute ‘subsections (1ZA), (1A)’; (b) after subsection (1) insert the following subsection— [(1ZA)  In this Part of this Act ‘street trading’ shall also include the selling or exposure or offer for sale of any motor vehicle in the course of a business if the vehicle is— (a) exposed or offered for sale on the internet; and (b) kept on a street during the period when it is so exposed or offered for sale.’ (3)  In section 32 (fees and charges), after subsection (2) insert— [(2A)  In calculating the levels of fees and charges under subsections (1) and (2) above, the council shall disregard costs incurred by them in relation to street trading of the type described in subsection (1ZA) of section 21 (interpretation of Part III) of this Act.’. City of Westminster Act 1999 10.  Street trading in the City of Westminster (1)  The City of Westminster Act 1999 is amended as follows. (2)  In section 2 (interpretation), in the definition of ‘street trading’, for ‘subsection (2)’ substitute ‘subsections (1A) and (2)’. (3)  After section 2(1) insert the following subsection— [(1A)  In this Act “street trading” shall also include the selling or exposure or offer for sale of any motor vehicle in the course of business if the vehicle is— (a) exposed or offered for sale on the internet; and (b) kept on a street during the period when it is so exposed or offered for sale.’. (4)  In subsection (9) of section 9 (street trading licences), after ‘street trading’ insert ‘(other than street trading of the type described in subsection (1A) of section 2 (interpretation) of this Act)’. 452

London Local Authorities Act 2012 (5)  In section 22 (fees and charges), after subsection (2) insert— [(2A)  In calculating the levels of fees and charges under subsections (1) and (2) above, the council shall disregard costs incurred by them in relation to street trading of the type described in subsection (1A) of section 2 (interpretation) of this Act.’. (6)  Renumber subsections (5) and (6) of section 27 (unlicensed street trading) as subsections (1) and (2) of a new section, headed ‘27A Seizure’. (7)  After subsection (2) in the new section 27A insert— [(3) An authorised officer or constable may also seize any receptacle or equipment (other than a motor vehicle) which— (a) is in a street; and (b) he has reasonable cause to believe is intended to be used in connection with an offence under section 27 of this Act involving the sale, offer for sale, display, or exposing for sale of refreshments.’. (8) Renumber subsection (7) of section 27 as subsection (4) of new section 27A. (9)  After new section 27A insert the following new section— ‘27B.  Seizure: notices (1)  In this section ‘relevant item’ means— (a) any receptacle used in the sale, offer for sale, display, or exposing for sale of refreshments which has been seized under subsection (1) or (2) of section 27A (seizure) of this Act; (b) any receptacle or equipment seized under subsection (3) of that section. (2)  An authorised officer or a constable— (a) may give a notice under this section to the person from whom a relevant item was seized under subsection (1) or (2) of section 27A (seizure) of this Act (but no such notice may be given under this paragraph in respect of a motor vehicle); (b) shall give a notice under this section to the person from whom a relevant item was seized under subsection (3) of that section, and any such notice must be given as soon as reasonably practicable after the item was seized. (3) A  notice under this section shall be in such form as the council may prescribe, and shall— (a) explain that unless the recipient of the notice completes it in accordance with subsection (4) below and then returns it to the council in accordance with subsection (5) below, the council may dispose of the relevant item in question in accordance with section 27D (disposal of seized objects by council) of this Act; and (b) set out— (i) the address to which the completed notice should be returned; (ii) the date by which it must be returned (which must be no earlier than the date on which expires the period of 14 days beginning with the date on which the notice was given under subsection (2) above). (4)  A notice under this section is completed by writing, in the appropriate place on the notice— (a) the name and full postal address of the recipient of the notice under subsection (2) above; and (b) (in the case of a notice given in accordance with subsection (2)(a) above) confirmation that that person— 453

Appendix 1  Statutes (i) intends to contest any criminal proceedings brought in respect of the alleged offence in respect of which the item in question was seized; or (ii) if not, that he requires the council to make a complaint for a disposal order under section 27I (disposal orders) of this Act in respect of the relevant item in question; and (c) (in the case of a notice given in accordance with subsection (2)(b) above) confirmation that that person requires the council to make a complaint for a disposal order under the said section 27I in respect of the relevant item in question; and (d) the signature of that person; and (e) the date on which it was signed. (5)  A notice under this section, once completed, is returned by delivering it or sending it by post to the address set out on the notice as mentioned in subsection (3)(b)(i) above on or before the date as mentioned in that subsection. (6)  If a notice given in accordance with subsection (2) above is completed and returned in accordance with subsections (4) and (5) above the council must, no later than the date on which expires the period of 28 days beginning with the date on which the notice was received by them— (a) make a complaint to the magistrates’ court for a disposal order under section 27I (disposal orders) of this Act in respect of the relevant item in question; or (b) return the relevant item in question to the person whose name and address are written on the returned notice, unless, before the expiry of that period, an information has been laid and not withdrawn in respect of any alleged offence in respect of which the item was seized.’. (10)  For subsection (8)(a) of section 27 substitute the following as subsection (1) of a new section, headed ‘27C Return of seized items’— [(1) The provisions of this section shall have effect where any item is seized under subsection (1) of section 27A (seizure) of this Act (except where a notice is given under section 27B(2)(a) (seizure: notices) in respect of the item) or is seized and retained because it is required for evidential purposes under subsection (2) of the said section 27A and references in those provisions to proceedings are to proceedings in respect of the alleged offence in relation to which the item is seized.’. (11)  Renumber paragraphs (b) to (h) of section 27(8) as subsections (2) to (8) of the new section 27C. (12)  After new section 27C insert the following new section— ‘27D.  Disposal of seized objects by council (1)  The council may, in such manner as they think fit, dispose of— (a) any relevant item (within the meaning of section 27B (seizure: notices) of this Act) seized under subsection (1) or (2) of section 27A (seizure) of this Act if in respect of the alleged offence in question— (i) a fixed penalty is paid in accordance with section 16 of the London Local Authorities Act 2004 (c. i) before the expiry of the period mentioned in subsection (2) of that section; and (ii) the fixed penalty notice contained or was accompanied by written notice that the recipient could require the council on or before the time when the fixed penalty was paid to make a complaint for a disposal order under section 27I (disposal orders) of this Act in respect of the relevant item in question; and 454

London Local Authorities Act 2012 (iii) no such requirement was made of the council on or before that time; or (b) any such relevant item seized under subsection (1), (2) or (3) of the said section 27A if a notice was given under section 27B (seizure: notices) as soon as reasonably practicable after the article or thing was seized and the notice was not completed and returned to the council in accordance with subsections (4) and (5) of that section. (2) The council may recover their costs of disposing of a relevant item under subsection (1) above from the person from whom the object was seized. (3)  Where a requirement of the sort mentioned under subsection (1)(a)(ii) was made on or before the time when the fixed penalty was paid, the council must make a complaint for a disposal order under section 27I (disposal orders) of this Act in respect of the relevant item in question.’. (13)  Renumber subsections (9), (10)(a) and (10)(b) of section 27 as subsections (1), (2) and (3) of a new section, headed ‘27E Forfeiture of seized items by court’. (14) Renumber subsections (11)(a), (b) and (c) and (12) of section 27 as subsections (1) to (4) of a new section, headed ‘27F Compensation’ and— (a) renumber subsections (11)(a)(i) and (ii) as subsections (1)(a) and (b); and (b) renumber subsections (11)(a)(ii)(A) and (B) as subsections (1)(b)(i) and (ii). (15) After paragraph (b)(ii) of new section 27F(1) as numbered by subsection (14) insert— ‘(iii)  (in the case of a relevant item (within the meaning of section 27B (seizure: notices) of this Act) seized under subsection (3) of section 27A (seizure) of this Act) the council has failed to comply with subsection (6) of section 27B (seizure: notices) of this Act.’. (16)  Renumber section 27A (seizure of perishable items) as section 27G. (17)  Renumber section 27B (motor vehicles) as section 27H. (18)  Renumber section 27C (disposal orders) as section 27I. 11.  Minor and consequential amendments Schedule  1 (which makes minor and consequential amendments to the City of Westminster Act 1999) has effect. 12.  Keeling Schedule The City of Westminster Act 1999 as amended by the London Local Authorities Act 2004, the Act of 2007 and this Act is set out in Schedule 2. Street trading in the London Borough of Camden 13.  Interpretation of Camden provisions In sections 14 to 16— ‘the Act of 1990’ means the London Local Authorities Act 1990; ‘the Borough’ means the London Borough of Camden; ‘the Council’ means Camden London Borough Council; ‘street’ has the same meaning as in Part III of the Act of 1990. 14.  Seizure of certain objects (1)  An authorised officer of the Council or a constable may in the Borough seize any receptacle or equipment (other than a motor vehicle) which— (a) is in a street; and (b) he has reasonable cause to believe is intended to be used in connection with an offence under section 38 (unlicensed street trading) of the Act 455

Appendix 1  Statutes of 1990 involving the sale, offer for sale, display, or exposing for sale of refreshments. (2) An authorised officer shall produce his authority if requested to do so by the person having control or possession of any receptacle or equipment seized under subsection (1). 15.  Seizure: notices (1)  In this section ‘relevant item’ means— (a) any receptacle used or intended to be used in the Borough in the sale, offer for sale, display, or exposing for sale of refreshments which has been seized under subsection (4) or (4A) of section 38 (unlicensed street trading) of the Act of 1990; (b) any receptacle or equipment seized under section 14. (2)  An authorised officer of the Council or a constable— (a) may give a notice under this section to the person fromwhoma relevant item falling within subsection (1)(a) was seized (but no such notice may be given under this paragraph in respect of a motor vehicle); (b) shall give a notice under this section to the person fromwhoma relevant item falling within subsection (1)(b) was seized under section 14, and any such notice must be given as soon as reasonably practicable after the item was seized. (3)  A notice under this section shall be in such form as the Council may prescribe, and shall— (a) explain that unless the recipient of the notice completes it in accordance with subsection (4) and then returns it to the Council in accordance with subsection (5), the Council may dispose of the relevant item in question in accordance with section 16; and (b) set out— (i) the address to which the completed notice should be returned; (ii) the date by which it must be returned (which must be no earlier than the date on which expires the period of 14 days beginning with the date on which the notice was given under subsection (2) above). (4)  A notice under this section is completed by writing, in the appropriate place on the notice— (a) the name and full postal address of the recipient of the notice under subsection (2); and (b) (in the case of a notice given in accordance with subsection (2)(a)) confirmation— (i) that that person intends to contest any criminal proceedings brought in respect of the alleged offence in respect of which the item in question was seized; or (ii) if not, that he requires the Council to make a complaint for a disposal order under section 38C of the Act of 1990 (disposal orders) in respect of the relevant item in question; and (c) (in the case of a notice given in accordance with subsection (2)(b) above) confirmation that that person requires the Council to make a complaint for a disposal order under the said section 38C in respect of the relevant item in question; and (d) the signature of that person; and (e) the date on which it was signed. (5) A notice under this section, once completed, is returned by delivering it or sending it by post to the address set out on the notice as mentioned in subsection (3) (b)(i) on or before the date as mentioned in that subsection. 456

London Local Authorities Act 2012 (6)  If a notice given in accordance with subsection (2) is completed and returned in accordance with subsections (4) and (5) the Council must, no later than the date on which expires the period of 28 days beginning with the date on which the notice was received by them— (a) make a complaint to the magistrates’ court for a disposal order under section 38C of the Act of 1990 in respect of the relevant item in question; or (b) return the relevant item in question to the person whose name and address are written on the returned notice, unless, before the expiry of that period, an information has been laid and not withdrawn in respect of any alleged offence in respect of which the item was seized. (7) Any person who, in completing a notice under subsection (4) makes a statement which he knows to be false in a material particular shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. 16.  Return and disposal of seized objects by Council (1)  Subsection (4C)(a) of section 38 of the Act of 1990 (unlicensed street trading) shall apply as respects the Council as though after ‘subsection (4) above’ the words ‘(except where notice is given under section 15(2)(a) of the London Local Authorities Act 2012 (seizure: notices))’ were inserted. (2)  The Council may, in such manner as they think fit, dispose of— (a) any relevant item (within the meaning of section 15) seized under subsection (4) or (4A) of section 38 of the Act of 1990 (unlicensed street trading) if— (i) in respect of the alleged offence in question, a fixed penalty is paid in accordance with section 16 of the London Local Authorities Act 2004 before the expiry of the period mentioned in subsection (2) of that section; and (ii) the fixed penalty notice contained or was accompanied by written notice that the recipient could require the Council on or before the time when the fixed penalty was paid to make a complaint for a disposal order under section 38C of the Act of 1990 (disposal orders) in respect of the relevant item in question; and (iii) no such requirement was made of the Council on or before that time; or (b) any such relevant item seized under subsection (4) or (4A) or under section 14 if a notice was given under section 15 as soon as reasonably practicable after the article or thing was seized and the notice was not completed and returned to the Council in accordance with subsections (4) and (5) of that section. (3)  The Council may recover their costs of disposing of a relevant item under subsection (2) above from the person from whom the object was seized. (4)  Where a requirement of the sort mentioned under subsection (2)(a)(ii) was made on or before the time when the fixed penalty was paid, the Council must make a complaint for a disposal order under section 38C of the Act of 1990 (disposal orders) in respect of the relevant item in question. (5)  Subsection (8)(a)(i) of section 38 shall apply as respects the Council as though at the end the words ‘or under section 14 (seizure of certain objects) of the London Local Authorities Act 2012’ were inserted. (6)  In addition to the alternative requirements as set out in subsection (8)(a)(ii) (A) and (B) of section 38, one of which must be satisfied before compensation may be recovered under that subsection, the following alternative requirement is added in relation to the Council— ‘(C) (in the case of a relevant item (within the meaning of section 15  (seizure: notices) of the London Local Authorities Act 2012) 457

Appendix 1  Statutes seized under section 14 of that Act) the council has failed to comply with subsection (6) of the said section 15.’. (7)  Section 38C of the Act of 1990 (disposal orders) shall apply as respects the Council as though in subsection (1) the following paragraph were inserted after paragraph (b)— ‘or (ba) a relevant item under subsection (3) of section 16 (return and disposal of seized objects by Council) of the London Local Authorities Act 2012,’.

Part 5 Miscellaneous and supplemental 17.  Minor amendments to London Local Authorities Act 2007, etc. (1)  In section 24(4) of the Act of 2007 (littering from vehicles), for ‘subsection (2)’ substitute ‘subsection (4A)’. (2)  In subsection (3A) of section 59 of the Environmental Protection Act 1990 (as inserted by section 25(3) of the Act of 2007 (powers to require removal of waste unlawfully deposited)) for ‘waste control authority’ substitute ‘waste collection authority’. 18.  Proof of resolution In any proceedings which require proof of the passing of a resolution under this Act it shall be presumed, unless the contrary is proved, that the said resolution was duly passed and that any requirements relating to the passing of the resolution and the giving of any notices or information before or after the passing of the resolution were properly complied with. 19.  Liability of directors, etc. Where an offence under this Act committed by a body corporate is proved to have been committed with the consent of a director of the body corporate, he, as well as the body corporate, shall be guilty of the offence.

Section 11

SCHEDULE 1

MINOR AND CONSEQUENTIAL AMENDMENTS TO CITY OF WESTMINSTER ACT 1999 Offences 1  In paragraph (b) of section 24 (offences) after ‘temporary licence’ insert ‘or in completing a notice in accordance with subsection (4) of section 27B (seizure notices) of this Act’ Seizure 2  In new section 27A (seizure)— (a) in subsection (1) (as numbered by section 26(6))— (i) for ‘this section’ substitute ‘section 27 (unlicensed street trading) of this Act’; (ii) for ‘subsection (9) below’ substitute ‘section 27E (forfeiture of seized items by court) of this Act’; 458

London Local Authorities Act 2012 (b) in subsection (4) (as numbered by section 26(8)), for ‘subsections (5) and (6)’ substitute ‘subsections (1) to (3)’. 3  In new section 27C (return of seized items)— (a) in subsection (2) (as numbered by section 26(11))— (i) for ‘paragraph (f)’ substitute ‘subsection (6)’; (ii) for ‘article or thing’ substitute ‘item’; (iii) for ‘subsection (9) below’ substitute ‘section 27E (forfeiture of seized items by the court) of this Act’; (b) in subsection (3) (as so numbered), for ‘article or thing’ in all four places substitute ‘item’; (c) in subsection (4) (as so numbered)— (i) for ‘sub-paragraph (e)’ substitute ‘subsection (5)’; (ii) for ‘subsection (5) above’ substitute ‘subsection (1) of the said section 27A’; (d) in subsection (5) (as so numbered), for ‘Sub-paragraph (d)’ substitute ‘Subsection (4)’; (e) in subsection (6) (as so numbered), at the beginning insert ‘Subject to subsection (8) below,’; (f) in subsection (7) (as so numbered)— (i) for ‘Paragraph (h)’ substitute ‘Subsection (8)’; (ii) for ‘article, thing, receptacle or equipment’ substitute ‘item’; (g) in subsection (8) (as so numbered)— (i) for ‘paragraph’ substitute ‘subsection’; (ii) for ‘section 27C’ substitute ‘section 27I’. Forfeiture 4  In new section 27E (forfeiture of seized objects by court)— (a) in subsection (1) (as numbered by section 26(13)— (i) for ‘subsection (10)’ substitute ‘subsection (2)’; (ii) for ‘this section’ where it appears the first time substitute ‘section 27 (unlicensed street trading) of this Act’; (iii) for ‘this section’ where it appears the second time substitute ‘that section’; (b) in subsection (2) (as so numbered)— (i) for ‘subsection (9)’ substitute ‘subsection (1)’; and (ii) renumber paragraphs (i) and (ii) as (a) and (b); (c) in subsection (3) (as so numbered) for ‘this section’ substitute ‘the said section 27’. Compensation 5  In new section 27F (compensation)— (a) in subsection (1) (as numbered by section 26(14))— (i) for ‘This subsection’ substitute ‘This section’; (ii) in paragraph (a) (as so numbered) for ‘article, thing, receptacle or equipment’ substitute ‘item’; (iii) in paragraph (a) (as so numbered) for ‘subsection (5) or (6) above’ substitute ‘subsections (1) to (3) of section 27A (seizure) of this Act’; (iv) in paragraph (b)(i) (as so numbered) for ‘this section’ substitute ‘section 27 (unlicensed street trading)’; (b) in subsection (2) (as so numbered)— (i) for ‘subsection’ substitute ‘section’; 459

Appendix 1  Statutes (ii) for ‘article, thing, receptacle or equipment’ substitute ‘item’; (c) in subsection (3) (as so numbered)— (i) for ‘paragraph (b)’ substitute ‘subsection (2)’; (ii) for ‘subsection (5) or (6)’ substitute ‘subsections (1) to (4) of section 27A (seizure) of this Act’. Seizure of perishable items 6  In section 27G (as renumbered by section 26(16))— (a) in subsection (1)— (i) for ‘article or thing’ substitute ‘item’ in both places where those words appear; (ii) for ‘subsection (5) of section 27 (unlicensed street trading)’ substitute ‘subsection (1) of section 27A (seizure)’; (b) in subsection (2)— (i) for ‘subsection (5)’ where it appears the first time substitute ‘subsection (1)’; (ii) for ‘subsection (5)’ where it appears the second time substitute ‘subsection (3)’; (iii) for ‘subsection (10) of the said section 27’ substitute ‘subsection (2) of section 27E (forfeiture of seized items by court) of this Act’; (c) in subsection (5)— (i) for the words from the beginning to ‘section 27’ substitute ‘Subsections (1) to (4) of section 27C (return of seized items) and subsections (1) to (3) of section 27E (forfeiture of seized items by court) of this Act’; (ii) for ‘that section’ substitute ‘section 27A (seizure) of this Act’; (iii) for ‘article or thing’ in both places substitute ‘item’. (d) in subsection (6)— (i) for the words from the beginning to ‘section 27’ substitute ‘Subsections (6) to (8) of the said section 27C’; (ii) for ‘that section’ substitute ‘the said section 27A’; (iii) for ‘article or thing’ substitute ‘item’; (iv) for ‘paragraph (f)’ substitute ‘subsection (6)’; (e) in subsection (7)— (i) for ‘Subsection (11) of the said section 27’ substitute ‘Section 27F (compensation) of this Act’; (ii) for ‘paragraph (c)’ substitute ‘subsection (3)’; (iii) for ‘that section’ where it appears the first time substitute ‘the said section 27A’; (iv) for ‘paragraph (a)(ii)(A) or (B)’ substitute ‘subsection (1)(b) of the said section 27F’; (f) in subsection (8)— (i) for ‘article or thing’ substitute ‘item’; (ii) for ‘subsection (4)’ substitute ‘subsection (3)’; (g) in subsection (10) for ‘the said section 27’ substitute ‘section 27 (unlawful street trading) of this Act’; (h) in subsection (11) leave out ‘borough’. Motor vehicles 7  In section 27H (as renumbered by section 26(17)— (a) in subsection (2) for ‘subsection (5) or (6) of section 27 (unlicensed street trading)’ substitute ‘subsection (1) or (2) of section 27A (seizure)’; 460

London Local Authorities Act 2012 (b) in subsection (3) for ‘subsection (8)(f) of that section’ substitute ‘subsection (6) of section 27C (return of seized items) of this Act’; (c) in subsection (5) for ‘subsection (5) or subsection (6)’ substitute ‘subsection (1) or subsection (2)’. Disposal orders 8  In section 27I (as renumbered by section 26(18)— (a) for subsection (1) substitute— [(1)  This section applies in respect of a complaint made by the council for a disposal order under— (a) subsection (6)(a) of section 27B (seizure: notices) of this Act; (aa) subsection (8) of section 27C (return of seized items) of this Act; or (ab) subsection (3) of section 27D (disposal of seized objects by the council) of this Act; or (b) subsection (5) of section 27H (motor vehicles) of this Act, and items that are the subject of the complaint are referred to as ‘seized items’ in this section.’; (b) in subsection (2) omit ‘complainant’; (c) in subsection (3) for ‘article, thing, receptacle or equipment’ substitute ‘seized item’.

SCHEDULE 2 CITY OF WESTMINSTER ACT 1999 AS HAVING EFFECT AS AMENDED BY SECTION 20(2) OF THE LONDON LOCAL AUTHORITIES ACT 2004 CHAPTER 2 OF PART 3 OF THE LONDON LOCAL AUTHORITIES ACT 2007 AND THIS ACT 1.  Citation and commencement (1)  This Act may be cited as the City of Westminster Act 1999. (2)  This Act shall come into operation at the end of the period of two months beginning with the date on which it is passed. 2. Interpretation (1) In this Act, except as otherwise expressly provided or unless the context otherwise requires— ‘authorised officer’ means a person authorised by the council to act in relation to the relevant provisions of this Act; ‘the city’ means the City of Westminster; ‘the Commissioner’ means the Commissioner of Police of the Metropolis; ‘the council’ means the Westminster City Council; ‘house’ includes any part of a building constituting a separate dwelling; ‘ice cream trading’ means the selling, exposing or offering for sale of goods consisting wholly or mainly of ice cream, frozen confectionery or other similar commodities; ‘itinerant ice cream trading’ means ice cream trading from a vehicle which goes from place to place remaining in any one location in the course of trading for short periods only; ‘licence street’ means a street or part of a street designated under section 5 (designation of streets and specification of articles) and section 6 (designating resolution) of this Act; 461

Appendix 1  Statutes ‘receptacle’ includes a vehicle, trailer or stall and any basket, bag, box, vessel, stand, easel, board, tray or thing which is used (whether or not constructed or adapted for such use) as a container for or for the display of any article or thing or equipment used in the provision of any service; ‘street’ includes— (a) any road or footway; (b) any other area, not being within permanently enclosed premises, within 7 metres of any road or footway, to which the public obtain access without payment— (i) whether or not they need the consent of the owner or occupier; and (ii) if they do, whether or not they have obtained it; (c) any part of such road, footway or area; (d) any part of any housing development provided or maintained by a local authority under Part II of the Housing Act 1985; ‘street trading’ means, subject to subsections (1A) and (2) below and section 3 (Exemptions) of this Act— (a) the selling, offering for sale, display or exposing for sale of any article (including a living thing); and (aa) the purchasing of or offering to purchase any ticket for gain or reward; and (c) the supplying or offering to supply a service for gain or reward (whether or not the gain or reward accrues to the person actually carrying out the trading), in a street; ‘street trading licence’ means a licence granted under this Act but excludes a temporary licence; ‘street trading pitch’ means the area authorised by a street trading licence or a temporary licence for street trading purposes; ‘temporary licence’ means a licence granted under this Act for one or more days not exceeding six months. (1A)  In this Act ‘street trading’ shall also include the selling or exposure or offer for sale of any motor vehicle in the course of business if the vehicle is— (a) exposed or offered for sale on the internet; and (b) kept on a street during the period when it is so exposed or offered for sale. (2)  In determining whether activity amounts to street trading for the purposes of this Act, the fact— (a) that a transaction was completed elsewhere than in a street in the case where the initialoffer or display of the articles in question or the offer of services, as the case may be, took place in a street; (b) that either party to the transaction was not in a street at the time it was completed; (c) that the articles actually sold or services actually supplied, as the case may be, were different from those offered, shall be disregarded. 3. Exemptions The following are not street trading for the purposes of this Act— (a) trading only as a newsvendor provided that no undue interference or inconvenience or safety hazard is caused to people using the street and that the only articles sold, exposed or offered for sale are current newspapers or periodicals and that such articles are being sold, offered or exposed for sale— (i) without a receptacle; or (ii) from a single receptacle which does not— (a) exceed 1 metre in length or width or 2 metres in height; or 462

London Local Authorities Act 2012 (b) occupy a ground area exceeding 0.25 square metres; or (c) stand on the carriageway of the street. (b) the selling of articles or things to occupiers of premises adjoining any street, or the offering or exposing of them for sale by a delivery person from a vehicle which is used only for the regular delivery of milk or other perishable goods to those persons. (c) the selling, exposure or offer for sale of articles or the provision of services on private land adjacent to a shop provided that the selling, exposure or offer for sale of the articles or the provision of the services— (i) forms part of the business of the owner of the shop or person assessed for uniform business rate of the shop; and (ii) takes place during the period during which the shop is open to the public for business. (d) the doing of anything authorised by regulations made under section 5 of the Police, Factories, &c. (Miscellaneous Provisions) Act 1916 or by permit or order made under Part III of the Charities Act 1992. (e) trading by a person acting as a pedlar under the authority of a pedlar’s certificate under the Pedlars Act 1871, if the trading is carried out only by means of visits from house to house. 4.  Itinerant ice cream trading (1)  Nothing in this Act shall apply to itinerant ice cream trading in any street unless— (a) that street is a licence street; or (b) the street has been designated as a prohibited street under the following provisions of this section. (2)  If at any time it is necessary to prohibit itinerant ice cream trading in any street in the city which is not a licence street in the interests of preventing a safety hazard, obstruction to traffic or undue interference or inconvenience to persons using that street, the council may by resolution designate the street as a prohibited street and may from time to time rescind or vary any such resolution. (3)  The council shall not pass such a resolution unless they have first given notice in writing of their intention to do so— (a) to the Commissioner; (b) to the highway authority (except where the council is the highway authority); and (c) to any body which appears to the council to be representative of persons carrying on ice cream trading in the area affected by the proposed resolution. (4)  The notice shall— (a) give details of the proposed resolution and the reasons for it; and (b) state that representations may be made regarding the proposed resolution by the date specified in the notice as the due date which shall be not less than 42 days after the notice has been given. (5) As soon as practicable after the due date the council shall consider all representations received by that date and may at their discretion consider representations received after that date. (6)  The council shall give to any person who makes representations by the due date an opportunity to make oral representations to the council and may at their discretion give to other persons making representations a similar opportunity. (7)  The council may pass the proposed resolution, with any modifications they consider appropriate as a result of any representations received under this section. (8)  As soon as practicable after passing a resolution under subsection (7) above, the council shall by notice in writing inform all persons given notice of the proposed resolution. 463

Appendix 1  Statutes 5.  Designation of streets and specification of articles (1)  The council may pass any of the following resolutions— (a) a resolution designating a street or part of a street in the city as a licence street (a ‘designating resolution’); (b) a resolution specifying that in relation to a licence street or streets either— (i) only specified articles, things or services or classes of articles, things or services may be sold, offered or provided in that street; or (ii) the sale, offer or provision of specified articles, things or services or classes of articles, things or services are prohibited in that street (a ‘specifying resolution’). (2)  The council may from time to time rescind or vary any such resolution. 6.  Designating resolution (1)  The council shall not pass a designating resolution or rescind or vary such a resolution unless they have first given notice in writing of their intention to do so— (a) to the Commissioner; (b) to the highway authority (except where the council is the highway authority); (c) to any body which appears to the council to represent the relevant street traders; (d) to all licence holders whom the council could reasonably expect would be affected by the proposed resolution; and (e) where the proposed resolution would designate private land, to the owner of that land or to the person assessed for the uniform business rate on it. (2) The council may, if they think fit, also give notice in writing to residents associations or amenity societies representing residents living in the vicinity of the area which is the subject of a proposed designating resolution. (3)  The notice shall— (a) give details of the proposed resolution; and (b) state that representations may be made regarding the proposed resolution by the date specified in the notice as the due date, which date shall be not less than 28 days after the notice has been given. (4) As soon as practicable after the due date the council shall consider all representations received by that date and may at their discretion consider representations received after that date. (5)  The council shall give to any person who makes representations by the due date an opportunity to make oral representations to the council and may at their discretion give to other persons making representations a similar opportunity. (6)  The council may pass the proposed resolution with any modifications they consider appropriate as a result of any representations received under this section except that no designating resolution may be passed(a) in respect of private land without the consent of the owner of that land or the person assessed for the uniform business rate on it; or (b) in respect of a highway in respect of which the council is not the highway authority, without the consent of the highway authority. (7)  As soon as practicable after passing a resolution under subsection (6) above the council shall by notice in writing inform all persons given notice of the proposed resolution. (8) If a street trading pitch becomes temporarily unsuitable for street trading purposes the council may after consulting the Commissioner, the highway authority, the licence holder and any other body or person they think fit, temporarily designate an alternative location for that pitch. (9) A  temporary designation under subsection (8) above shall remain in force for a period of no longer than five years from the date of designation and the street 464

London Local Authorities Act 2012 trading licence for the temporarily unsuitable pitch may be transferred, with any necessary modification to that licence, to the temporarily designated pitch. 7.  Specifying resolution (1) The council shall not pass a specifying resolution or rescind or vary such a resolution unless they have first given notice in writing— (a) to all licence holders whom the council could reasonably expect would be affected by the proposed resolution; and (b) to any body which appears to the council to represent such licence holders. (2)  The notice shall— (a) give details of the proposed resolution; and (b) state that representations may be made regarding the proposed resolution by the date specified in the notice as the due date which date shall be not less than 28 days after the notice has been given. (3) As soon as practicable after the due date the council shall consider all representations received by that date and may at their discretion consider representations received after that date. (4)  The council shall give to any person who makes representations by the due date an opportunity to make oral representations to the council and may at their discretion give to other persons making representations a similar opportunity. (5) The council may pass the resolution with any modifications which they consider appropriate as a result of any representations received under this section. (6)  As soon as practicable after passing a resolution under subsection (5) above the council shall by notice in writing inform all parties given notice of the proposed resolution. 8.  Licensing of street traders (1)  Subject to section 4 (itinerant ice cream trading) of this Act it shall be unlawful for any person to engage in street trading (whether or not in or from a stationary position) within the city unless that person is authorised to do so by a street trading licence or a temporary licence. (2)  For the purposes of this Act a person shall be deemed to engage in street trading whether or not he regularly carries on the business of street trading. 9.  Street trading licences (1)  The council may grant a street trading licence on such reasonable terms and conditions relevant to street trading as the council may specify. (2)  Without prejudice to the generality of subsection (1) above such conditions may include conditions— (a) identifying the street trading pitch at which the licence holder may engage in street trading under the licence; (b) identifying the articles, things or services or the classes of articles, things or services which the licence holder may sell or expose or offer for sale or provide; (c) identifying the days and times during which the licence holder may engage in street trading; (d) identifying the nature, type and number of any receptacle which may be used by the licence holder in connection with the sale or exposure or offer for sale of articles or things or the provision of services; (e) requiring that any receptacle so used shall carry in a conspicuous position the name of the licence holder and the number of his licence in a form acceptable to the council; 465

Appendix 1  Statutes (f) identifying any position in the licence street or adjoining streets where articles or things needed for re-stocking any such receptacle may be stored and the period during which they may be so stored; (g) regulating the storage of receptacles or perishable goods; (h) regulating the deposit and removal of refuse and the containers to be used for the deposit of refuse and their location pending its removal; (i) requiring that the licence holder shall commence trading by a certain time on any day or forfeit his right to trade under his street trading licence for that day; and (j) requiring third party insurance cover. (3) Such conditions may also include conditions relating to the prevention of nuisance and may include specific restrictions relating to the hours between 10 p.m. on Sunday to Friday and 7 a.m. the day following and 10 p.m. on Saturday and 9 a.m. on Sunday. (4)  A street trading licence shall remain in force until it is cancelled or revoked by the council. (5)  A licence granted to an individual shall bear his photograph. The photograph, subject to subsection (7) below, shall be one of the photographs provided pursuant to subsection (3) of section 11 (applications) of this Act. (6)  Where a licence is granted to an individual the council may give him notice in writing, at intervals of not less than five years, requiring him to provide the council with three new photographs of the type prescribed by subsection (3) of section 11 (applications) of this Act, signed as there provided, but the council may, at their discretion, accept a lesser number of photographs. (7)  On each occasion when new photographs are provided by a licence holder pursuant to subsection (6) above the council shall re-issue his licence and the reissued licence shall bear one of the new photographs. (8)  Where a licence is granted to a company incorporated under the Companies Acts, to an unincorporated association or to a partnership to carry on ice cream trading, any individual carrying on ice cream trading in accordance with that licence shall at all times while he is so trading carry with him, and produce on request by an authorised officer or a constable, a recent photograph of himself authenticated by the company or on behalf of the unincorporated association or partnership, as the case may be, which holds the licence. (9)  Where a licence is granted to an individual he shall at all times while engaged in street trading (other than street trading of the type described in subsection (1A) of section 2 (interpretation) of this Act) carry with him, and produce on request by an authorised officer or a constable, either the licence or an approved form of identity issued by the council for the purposes of this Act. 10.  Standard conditions (1)  The council may prescribe standard conditions which are to apply to all street trading licences. (2)  Before prescribing such conditions or changing any condition so prescribed, the council shall first give notice in writing to all holders of street trading licences whom the council could reasonably expect would be affected by the proposed conditions or changes to the conditions and to any body which appears to the council to represent such licence holders. (3)  The notice shall— (a) give details of the proposed conditions or changes to the conditions; (b) state that representations may be made with regard to the proposal by the date specified in the notice as the due date, which date shall be not less than 28 days after the notice has been given. 466

London Local Authorities Act 2012 (4) As soon as practicable after the due date the council shall consider all representations received by that date and may at their discretion consider representations received after that date. (5)  The council shall give to any person who makes representations by the due date an opportunity to make oral representations to the council and may at their discretion give to other persons making representations a similar opportunity. (6)  The council may prescribe the proposed conditions or changes to conditions with any modifications they consider appropriate as a result of any representations received under this section. (7)  As soon as practicable and in any event no later than 7 days after prescribing such conditions or changes to conditions the council shall by notice in writing inform all the holders of street trading licences to whom previous notice was given under subsection (2) above of the conditions or changes to conditions and the conditions or changes to conditions shall come into force 35 days after the date on which the conditions or changes to conditions were prescribed. 11. Applications (1)  An application for the grant or variation of a street trading licence shall be made in writing to the council in such form as the council may prescribe. (2)  In the application the applicant shall state— (a) in the case of an application by an individual, his full name and home address and date of birth; (b) in the case of an application for a licence to carry on ice cream trading— (i) by a company incorporated under the Companies Acts, the name of the company and its registered office; (ii) by a partnership or unincorporated association, the names of its members and the address of its principal office; (c) the licence street in which, the days on which and times between which he desires to trade and, if appropriate, the street trading pitches from which he desires to trade; (d) the description of articles, things or services in which he desires to trade; and (e) such other particulars, relevant to street trading, as the council may reasonably require: and may in the case of an individual specify the name of the person to whom he would wish the licence to be granted in the circumstances of any of the events listed in section 20 (succession) of this Act. (2A)  In the case of an application for a street trading licence which, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 2 (interpretation) of this Act, the applicant shall provide evidence in writing— (a) that he has consent to trade on the land from the owner of the land in question; or (b) that he is the owner of the land in question. (3)  In the case of an application by an individual the applicant shall, with his application, hand to an authorised officer three identical clear full face photographs of himself, without headgear (unless on religious grounds theapplicant permanently wears headgear) or sunglasses, taken within the preceding 12 months, each photograph being signed by the applicant on the reverse, but the council may, at their discretion, accept a lesser number of photographs. (4)  If a standard condition prescribed under section 10 (standard conditions) of this Act requires third party insurance cover the applicant shall produce to an authorised officer proof of such third party insurance cover before a licence is granted. 467

Appendix 1  Statutes (5)  The council may make regulations prescribing the procedure for determining applications. (6)  Before making such regulations or changing them the council shall consult with any body which appears to the council to represent licence holders and give consideration to any representations received within 28 days of the date the council’s proposals were notified to the body concerned. 12.  Mandatory grounds of refusal (1) The council shall refuse to grant an application made under section 11 (applications) of this Act— (a) where the applicant is not an individual; (b) where the applicant is under the age of 17 years; (c) where the applicant holds a street trading licence in any other licence street granted under this Act, or a street trading licence in the area of another local authority granted under the London Local Authorities Act 1990 which, in either case, enables him to carry on street trading during the period stated in his application; (d) where the council are satisfied that there is not enough space in the street for the applicant to engage in the trading in which he desires to trade without causing a safety hazard or undue interference or inconvenience to persons or vehicular traffic using the street; (e) where the street to which the application relates is a street in respect of which a specifying resolution is in force and the grant of the licence would be contrary to any of the terms of that resolution; (f) to trade in a street which is not a licence street; (g) where the application, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 2 (interpretation) of this Act, unless the applicant has provided sufficient such evidence as is mentioned in subsection (2A) above to satisfy the council. (2)  Subsection (1)(a) above shall not apply where the application is to carry on ice cream trading. 13.  Discretionary grounds of refusal (1) The council may refuse to grant an application made under section 11 (applications) of this Act on any of the following grounds:— (a) that, in the case of an application for the grant of a licence the council considers that there are enough traders trading in the street or in any street adjoining the street in respect of which the application is made in the goods in which the applicant desires to trade; (b) that the applicant is on account of misconduct or for any other sufficient reason unsuitable to hold a street trading licence; (c) that the applicant has persistently failed to comply with any condition of his street trading licence or a previous street trading licence held by the individual, member of the unincorporated association or partnership or company concerned; (d) that the applicant is an individual who has persistently without reasonable excuse failed to make full personal use of a previous street trading licence; (e) that the applicant is a partnership, unincorporated association or company which has without reasonable excuse persistently failed to avail itself fully of a previous street trading licence; (f) that the applicant has at any time been granted a street trading licence by the council which was revoked or could have been revoked on the grounds 468

London Local Authorities Act 2012 that he had refused or neglected to pay fees or other charges due to them in respect of the licence; (g) that the applicant has failed to provide or to identify suitable or adequate premises for the storage of any receptacles or perishable goods in which he proposes to trade when street trading is not taking place; (h) that since the grant of a previous street trading licence the licence holder has persistently failed to remove to the place of storage the receptacles used by him for trading or any perishable goods in which he trades; (i) that in the vicinity of the street trading pitch concerned undue disturbance is likely to be caused as a result of the proposed activities of the applicant; (j) that in the case of an application for the grant of a street trading licence— (i) the only available position is in that part of the street which is in front of any part of the frontage of a shop or in front of the paved area of the frontage of that shop; and (ii) the articles, things or services mentioned in the application are sold or provided at the shop; (k) that in the case of an application for the grant of a street trading licence— (i) the only available position in the street is within the curtilage of a shop; and (ii) the applicant is not the owner or occupier of the premises comprising the shop. (2)  If the council consider that grounds for refusal exist under subsection (1)(a), (c), (d), (e) or (i) above they may grant the applicant a licence which permits him— (a) to trade on fewer days or during a shorter period in each day than is specified in the application; or (b) to trade on a different street trading pitch from that specified in the application; or (c) to trade in goods other than those specified in the application or in only some of the goods so specified. 14.  Cancellation of licences A holder of a street trading licence or a temporary licence may at any time surrender his licence with a written and signed request for its cancellation and the cancellation shall take effect when the licence together with the request for its cancellation is received by the council. 15.  Revocation of licences (1) The council may at any time revoke a street trading licence or a temporary licence if they are satisfied that(a) owing to circumstances which have arisen since the grant of the licence, there is not or will not be enough space in the street in which the licence holder trades for him to engage in the trading permitted by the licence without causing a safety hazard or undue interference or inconvenience to persons or vehicular traffic using the street; or (b) the licence holder is trading in breach of the terms of a specifying resolution; or (c) the licence holder is an individual who has persistently without reasonable excuse failed to make full personal use of his licence; or (d) the licence holder is a partnership, unincorporated association or company which has without reasonable excuse persistently failed to avail itself fully of the licence; or (e) the licence holder is on account of misconduct or for any other sufficient reason unsuitable to hold the licence; or 469

Appendix 1  Statutes (f) since the grant of the licence, the licence holder has for a period of four weeks or more failed to pay fees or charges due to the council in connection with the street trading licence or has failed to pay any charges due from him for accommodation provided in pursuance of subsection (2) of section 23 (receptacles and containers) of this Act; or (g) since the grant of the licence, the licence holder has persistently failed to pay fees or charges as they fall due to the council in connection with the street trading licence; or (h) since the grant of the licence, the licence holder has failed to make provision for the suitable and adequate storage when trading is not taking place of the receptacles used by him for trading or of any perishable goods in which he trades; or (i) since the grant of the licence, the licence holder has persistently failed to remove to the place of storage the receptacles used by him for trading or any perishable goods in which he trades; or (j) the licence holder has persistently failed to comply with any condition of his licence; or (k) in the vicinity of the street trading pitch concerned undue disturbance has been caused by the activities of the licence holder; or (l) the licence holder has failed to provide the council with the photographs required in pursuance of a notice under subsection (6) of section 9 (street trading licences) of this Act. (2)  If the council consider that a licence could be revoked on any of the grounds mentioned in paragraphs (a) to (d) and (k) of subsection (1) above they may instead of revoking it, vary its conditions by attaching further conditions— (a) reducing the number of days in any week or the period in any one day during which the licence holder is permitted to trade; or (b) specifying a different street trading pitch at which licensed street trading may take place; or (c) restricting the description of articles, things or services in which the licence holder is permitted to trade. 16.  Variation of licences (1)  In addition to changes to any of the standard conditions which the council may make under section 10 (standard conditions) of this Act the council may vary a street trading licence on 1st January in any year during the currency of the licence. (2)  Subject to the provisions of this Act, the council may also at any time vary a street trading licence on application by the licence holder in accordance with his application. 17.  Further provisions relating to refusal, revocation or variation of street trading licences (1)  The council shall before— (a) refusing an application for the grant of a street trading licence, other than on the grounds specified in section 12 (mandatory grounds of refusal) of this Act; (b) revoking a street trading licence or a temporary licence valid for a period exceeding 28 days; or (c) varying a street trading licence other than a variation to a standard condition as set out in section 10 (standard conditions) of this Act; give to the applicant or licence holder at least 21 days notice in writing of their proposal and the grounds on which the proposed refusal, revocation or variation would be based and giving the applicant or licence holder the opportunity to 470

London Local Authorities Act 2012 appear before the committee, subcommittee, authorised officer or panel of officers determining the matter. (2)  The council may consider and determine any of the matters set out in paragraph (a) to (c) of subsection (1) above where a shorter period of notice than the 21 days required by that subsection has been given, provided the applicant or licence holder has so consented in writing. (3)  If an application is refused or a licence is revoked or varied (other than under subsection (2) of section 16 (variation of licences) of this Act) the council shall notify the applicant or licence holder in writing of— (a) the decision together with the grounds and reasons for that decision; and (b) any rights of appeal against that decision. 17A.  Lapsing of licence in certain cases In the case of a street trading licence which authorises street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 2 (interpretation) of this Act, the licence shall lapse if— (a) the consent is discontinued by the person who gave it, or a successor in title of that person, and the council is provided with written notice of the discontinuation of the consent by the person who discontinues it; or (b) the holder of the licence no longer is the owner of the land in question, as the case may be. 18.  Appeals against refusal, revocation or variation of licences (1)  Any person aggrieved— (a) by a decision of the council to refuse an application under section 11 (applications) of this Act other than on any of the grounds specified in section 12 (mandatory grounds of refusal) of this Act or to revoke a street trading licence; or (b) by a decision of the council to grant a street trading licence on terms other than those sought; or (c) by a decision of the council to vary a street trading licence other than by a change to the standard conditions; or (d) by the attachment to a street trading licence of any condition other than a condition to which the licence had hitherto been subject or a standard condition; or (e) by a prohibition under subsection (2) of section 4 (itinerant ice cream trading) of this Act; may appeal to a magistrates’ court acting for the area in which the street trading pitch is situated or in which is situated the street to which the prohibition relates. (2)  An appeal under subsection (1) above may be brought— (a) in the case of an appeal under subsections (1)(a) to (d) above, at any time before the expiration of the period of 21 days beginning with the date upon which notification in writing is given of the decision; (b) in the case of an appeal under paragraph (e) of that subsection, at any time before the expiration of the period of 21 days beginning with the date on which the person aggrieved is informed under subsection (8) of the said section 4 of this Act of the council’s resolution to make the prohibition. (3) A  person desiring to appeal against such a decision as is mentioned in subsection (1) above shall give written notice to the magistrates’ court and to the council specifying the decision against which he wishes to appeal and the grounds upon which such appeal is made. (4)  An appeal by either party against the decision of the magistrates’ court under this section may be made to the Crown Court. 471

Appendix 1  Statutes (5) On an appeal to the magistrates’ court or to the Crown Court under this section, the court may make such order as it thinks fit, such order to be limited to the matter which is the subject of the appeal. (6)  Subject to subsection (7) below, it shall be the duty of the council to give effect to the order of the magistrates’ court or the Crown Court. (7)  The council need not give effect to the order of the magistrates’ court until the time for bringing an appeal under subsection (4) above has expired and, if such an appeal is duly brought, until the determination or abandonment of the appeal. (8) Where the council decide to revoke a street trading licence, or to vary its conditions (other than a standard condition) without the consent of the licence holder the revocation or variation shall not take effect until the time for bringing an appeal to the magistrates’ court or the Crown Court under subsection (1) or (4) above has expired or where such an appeal is duly brought, until the determination or abandonment of the appeal. (9)  Notwithstanding the provisions of subsection (8) above where the council— (a) has revoked a street trading licence on the grounds that the licence holder has failed to pay fees and charges due to the council and the licence holder has appealed it shall only be lawful for the licence holder to trade under the authority of that licence, until any appeal has been determined or abandoned, if— (i) all fees and charges due to the council have been paid; and (ii) he continues to pay fees and charges due to the council under that licence; (b) has revoked a street trading licence on any other grounds and the licence holder has appealed the licence holder may continue to trade under the authority of that licence by virtue of subsection (8) above only whilst he continues to pay fees and charges due to the council under that licence. 19.  Appeals to Secretary of State (1)  Any person aggrieved— (a) by a resolution varying or rescinding a designating resolution; (b) by a specifying resolution or a resolution varying such a resolution; (c) by a standard condition; or (d) by the amount of a fee or charge under section 22 (fees and charges) of this Act, may appeal to the Secretary of State whose decision shall be final. (2)  An appeal under subsection (1) above may be brought at any time before the expiration of a period of three months commencing on the date on which notice has been given in writing to the person aggrieved under subsection (7) of section 6 (designating resolution), subsection (6) of section 7 (specifying resolution), subsection (7) of section 10 (standard conditions) or subsection (15) of the said section 22 of this Act as appropriate. 20. Succession (1)  (a) The holder of a street trading licence who is an individual may at the time of making application under section 11 (applications) of this Act or at any time thereafter by written notice to the council specify the name and address of a relative (or employee under subsection (3)(e) below) to whom he would wish the licence to be granted if he— (i) dies; or (ii) retires having reached the age of 60; or (iii) notifies the council that owing to ill-health he is unable to continue to engage in the street trading permitted by the licence, and submits evidence to satisfy the council as to his ill-health, 472

London Local Authorities Act 2012 and he may vary his nomination at any time by giving written notice thereof to the council, specifying the name and address of such other person to whom he would wish the licence to be granted and such notice shall revoke all previous nominations made by the licence holder; (b) When a holder of a street trading licence has nominated a person in accordance with paragraph (a) above the council shall not (except as provided in paragraph (c) below) grant a licence in respect of the street trading pitch for which the former licence holder was licensed until the expiration of 28 days from the date of the death of the licence holder or his retirement or receiving the notification, as the case may be; (c) If during the said period of 28 days the person previously nominated by the licence holder as the person to whom he desired the licence to be granted in any of the events mentioned in paragraph (a) above makes application for the grant of a licence in respect of the street trading pitch concerned the council shall save as provided by subsection (1) (a) to (c) of section 12 (mandatory grounds of refusal) and subsection (1)(b) to (f) of section 13 (discretionary grounds of refusal) of this Act grant a licence to that person on the same terms and conditions as were previously in force. (2)  For the purposes of this section a person shall be treated as being related to another person if the latter is the wife, common law wife, husband, common law husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister of the former and shall be deemed to be so related notwithstanding that he is so related only through an illegitimacy or in consequence of adoption. (3)  The council may at their discretion— (a) grant the licence to a nominee where a licence holder has given up or proposes to give up his licence on grounds other than those specified in paragraph (a)(ii) or (a)(iii) of subsection (1) above; or (b) extend the period of 28 days specified in subsection (1)(b) above; or (c) grant the licence to a relative not mentioned in subsection (2) above; or (d) grant the licence to a relative as defined by subsection (2) above where the former licence holder failed to make a nomination; or (e) grant the licence to an employee of at least five years standing of the former licence holder where— (i) the former licence holder had previously notified the council of his employment of that person; and (ii) the former licence holder or the applicant has made available to the council all necessary tax and other records to prove that the person is or was a bona fide employee. (4)  The council shall not grant a street trading licence under subsection (3) above if to do so— (a) would cause a breach of a specifying resolution; or (b) would be contrary to the provisions of section 12 (mandatory grounds of refusal) of this Act. (5)  Where a street trading licence cannot be granted under this section because of the provisions of subsection (1)(c) of the said section 12 of this Act the council may at their discretion grant a licence to another relative of the former licence holder or to a relative of the person who, but for the provisions of subsection (1)(c) of the said section 12 of this Act, would have been granted the licence. 473

Appendix 1  Statutes 21.  Temporary licences (1)  The council may if they think fit on the receipt from any person of an application for that purpose and accompanied by the appropriate fee grant to that person a temporary licence. (2)  A temporary licence shall remain in force only for the day or period specified in the licence and(a) shall be in a similar form to a street trading licence with such modifications therein as the circumstances require; and (b) shall contain such terms and conditions as the council may specify. (2A)  In the case of an application for a temporary licence which, if granted, would authorise street trading on land which falls within paragraph (b) in the definition of ‘street’ in subsection (1) of section 2 (interpretation) of this Act, the applicant shall provide evidence in writing— (a) that he has the consent to trade on the land from the owner of the land in question; or (b) that he is the owner of the land in question. (2B)  An application for a temporary licence shall not be granted, if the licence would authorise street trading on land which falls within the said paragraph (b), unless the applicant has provided sufficient evidence, as is mentioned in subsection (3) of section 11 (applications) of this Act, to satisfy the council. (2C)  In the case of a temporary licence which authorises street trading on land which falls within the said paragraph (b), the licence shall lapse if— (a) the consent to trade on the land is discontinued, and the council is provided with written notice of the discontinuance of the permission by the person who gave the consent or by a successor in title to that person; or (b) the holder of the licence is no longer the owner of the land in question. (2D)  The council may revoke or suspend the operation of a temporary licence held in respect of land which falls within the said paragraph (b) if circumstances have arisen since the grant of the licence or are about to arise which necessitate such revocation or suspension on the grounds of safety. (2E) Where a temporary licence is revoked or suspended under subsection (2D) above, the council shall return to the licensee such proportion of any fee paid for the granting of the licence as is appropriate, taking into account the period for which the licence was granted and the period remaining on the licence when it was revoked or the period for which the licence was suspended, as the case may be. (3)  Where the holder of a street trading licence is not for the time being exercising his rights under the licence or has indicated in writing to the council his intention not to exercise those rights, a temporary licence authorising street trading from the same street trading pitch may be granted to any other person but subject to the condition that— (a) in a case where a temporary licence has been granted but has yet to come into effect; or (b) in a case where a temporary licence is granted for longer than 24 hours and has come into effect, the temporary licence shall, if the appropriate notice is given by the holder of the street trading licence, cease to be valid at the end of the day on which the appropriate notice expires. (4)  Where a temporary licence ceases to be valid under subsection (3) above— (a) if it ceases to be valid before it comes into effect, the application fee shall be returned to the applicant by the council; (b) in any other case, the proportion of the application fee which is attributable to any period in respect of which the temporary licence ceases to be valid shall be returned to the applicant by the council. 474

London Local Authorities Act 2012 (5) In this section ‘appropriate fee’ means such fee as the council may have determined under section 22 (Fees and charges) of this Act and ‘appropriate notice’ means 24 hours notice or 7 days notice where a temporary licence has been granted for longer than 24 hours. (6) The council may establish a register of persons to whom they would be prepared to grant temporary licences. 22.  Fees and charges (1)  The council may charge to applicants for the grant or variation of street trading licences such fees as are sufficient in the aggregate, taking one year with another, to recover the reasonable costs of dealing with such applications. (2) The council may recover from licence holders such charges as may be sufficient in the aggregate, taking one year with another, to cover the reasonable costs of— (a) the collection, removal and disposal of refuse or other services rendered by them to such licence holders; and (b) the cleansing of streets in which street trading takes place in so far as that cleansing is attributable to such trading; and (c) any reasonable administrative costs or other costs not otherwise recovered under this Act incurred in connection with the administration of the provisions of this Act; and (d) the cost of enforcing the provisions of this Act. (2A)  In calculating the levels of fees and charges under subsections (1) and (2) above, the council shall disregard costs incurred by them in relation to street trading of the type described in subsection (1A) of section 2 (interpretation) of this Act. (3)  The council may make a charge for the supply of an approved form of identity issued under subsection (9) of section 9 (street trading licences) of this Act and for a plate identifying a street trading pitch; any such charge shall not exceed the council’s reasonable costs of supplying those items. (4)  The council may charge an annual fee for registration or renewal of registration in the register established under subsection (6) of section 21 (temporary licences) of this Act, sufficient in the aggregate, taking one year with another, to cover the council’s cost of administering the registration scheme. (5) (a) The council may at the request of a majority of licence holders in a particular market or area provide other services to licence holders in that market or area; (b) The cost of these services may be included in the charge referred to in subsection (2) above provided that those costs are only included in the charges made to the licence holders in that particular market or area; (c) At any time a majority of licence holders in a particular market or area may request the council to cease to provide such services and the council shall, subject to any contractual arrangements, accede to such a request within three months of the request. (6)  Without prejudice to the generality of subsection (2) above it shall be lawful for the council to make a lower charge to licence holders who pay charges in full in advance or in full by means of standing order or direct debit. (7)  The council may require that an application for a licence or for variation of a licence under this Act be accompanied by the whole or part of the fee determined under subsection (1) above. (8)  The council may determine that a fee be charged on application for the grant of a temporary licence under section 21 (temporary licences) of this Act, and in determining the amount of such fees they shall have regard to the matters specified in subsections (1), (2) and where appropriate (5) above and such fees shall be included 475

Appendix 1  Statutes in the computation for the purposes of determining the charges under subsections (1) and (2) above. (9)  The council shall not determine or vary charges made under subsection (2) above unless they have first given notice in writing to— (a) all licence holders who would be affected by the proposal; and (b) any body which appears to the council to represent such licence holders. (10)  The notice shall— (a) give details of proposed charges; (b) state that representations may be made regarding the proposed charges by the date specified in the notice as the due date which date shall be not less than 28 days after the notice has been given; (c) be accompanied by a statement showing how the proposed charges have been computed. (11)  Within 21 days of the giving of the notice any body representative of licence holders may ask the council for such further information or explanations with regard to the proposed charges as the body concerned may reasonably require to ascertain whether the proposed charges are reasonable and in accordance with the provisions of this section and as soon as reasonably practicable the council shall comply with the request. (12) Where a request under subsection (11) above is made the period within which representations may be made shall be extended by the number of days in the period beginning with the date on which the request is made and ending on the date that it is complied with. (13)  As soon as practicable after the expiry of the period specified in subsection (10) above, with any extension under subsection (12) above, the council shall consider all representations received by that date and may at their discretion consider representations received after that date. (14)  The council shall give to any person who may make representations by the due date an opportunity to make oral representations to the council and may at their discretion give to other persons making representations a similar opportunity. (15) As soon as practicable the council shall by notice in writing inform all licence holders affected by the council’s decision as to the determination or variation of fees or charges. (16) The fees and charges as determined or varied by the council shall come into force on a date set by the council which shall be not less than 14 days from the date on which the decision as to the determination or variation of fees or charges was made. 23.  Receptacles and containers (1)  The council may sell or let on hire or otherwise provide to any person holding a street trading licence or a temporary licence under this Act receptacles for use by him in street trading. (2) The council may provide and maintain accommodation for the storage of receptacles and containers for the deposit of refuse arising in the course of street trading and for that purpose may— (a) adapt any premises or erect any buildings on any land belonging to them but not already appropriated for such purpose; and (b) make such reasonable charges as they think fit for the use of such accommodation. 24. Offences Any person who— 476

London Local Authorities Act 2012 (a) without reasonable excuse contravenes any of the conditions of a street trading licence or a temporary licence; or (b) in connection with an application for a street trading licence or a temporary licence or in completing a notice in accordance with subsection (4) of section 27B (seizure: notices) of this Act makes a statement which he knows to be false in a material particular; or (c) resists or intentionally obstructs an authorised officer in the execution of his duties under this Act; or (d) fails on demand without reasonable excuse in the case of an individual licence holder to produce to an authorised officer or to a constable his licence or other approved form of identity issued by the council for the purposes of this Act, or, in the case of an individual carrying on ice cream trading under a licence granted to a company incorporated under the Companies Acts or to a partnership or unincorporated association, to produce the photograph required by subsection (8) of section 9 (Street trading licences) of this Act, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. 25.  Power to remove receptacles (1) Where any receptacle used by a licence holder is not removed to a place of storage on the cessation of trading on any day it shall be lawful for the council to cause it to be removed to a place of storage and to recover from the licence holder the reasonable costs incurred by them in removing and storing the receptacle. (2)  Such reasonable charges as the council may incur in respect of the cost of removal and storage of a receptacle in pursuance of subsection (1) above, shall be payable by the licence holder before the return of the receptacle to him. (3)  The provisions of subsection (1) above are without prejudice to the power of the council to take other enforcement action against the licence holder for any breach of the conditions of his licence arising from the failure to remove the receptacle. (4)  If a receptacle removed under subsection (1) above is not recovered by the licence holder within three months of the date it was removed by the council it shall be lawful for the council to dispose of the receptacle in any way they think fit; the council shall take reasonable steps to sell the receptacle at the best possible price which can reasonably be obtained before disposing of it in any other manner. 26.  Employment of assistants A person holding a street trading licence or a temporary licence may employ any other person to assist him in the conduct of street trading authorised by the licence but if any person employed by a licence holder, whether or not the licensed holder is present, fails to comply with the conditions of the ***   licence held by his employer such failure shall be deemed to be a failure by the licence holder. 27.  Unlicensed street trading (1)  A person who is not the holder of a street trading licence or a temporary licence and who engages in street trading whether or not from a stationary position in the city shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. (2)  Any person who is the holder of a street trading licence or a temporary licence and who engages in street trading whether or not from a stationary position in the city on a day or in a place not specified in that licence without the council’s specific permission in writing shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale. 477

Appendix 1  Statutes (3) In any proceedings for an offence under this section or for an offence of aiding, abetting, counselling or procuring the commission of an offence under this section where it is shown that— (a) any article or thing was displayed (whether or not in or on any receptacle) in any street; or (b) any other article or thing of a similar kind to any article or thing referred to in sub-paragraph (a) above was in the possession of or under the control of any person who was displaying an article or thing; or (c) any receptacle or equipment was used in the display of any article or thing in any street; or (d) any receptacle or equipment used in the provision of any service was available in any street in such circumstances that a service was being offered; the article, thing, receptacle or equipment concerned shall be deemed to have been used for purposes for which a street trading licence was required unless it can be proved to the satisfaction of the court that the article, thing, receptacle or equipment was brought into the street for some purpose other than street trading. (4)  Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he, as well as the body corporate, shall be guilty of the offence and liable to the same maximum penalty as the body corporate. 27A. Seizure (1)  Subject to section 27G (seizure of perishable items) of this Act, if an authorised officer or a constable has reasonable grounds for suspecting that a person has committed an offence under section 27 (unlicensed street trading) of this Act he may seize— (a) any article or thing being offered for sale, displayed or exposed forsale; or (b) any other article or thing of a similar nature to that being offered or exposed for sale which is in the possession of or under the control of any person who is displaying an article or thing; or (c) any receptacle or equipment being used by that person, which may be required to be used in evidence in any proceedings in respect of that offence, or may be the subject of forfeiture under section 27E (forfeiture of seized items by court) of this Act. (2)  An authorised officer or constable may also seize, for examination purposes, any article or thing which he has reasonable cause to suspect may be an article or thing which is prohibited by a specifying resolution made under subsection (1)(b) of section 5 (designation of streets and specification of articles) of this Act and unless the article or thing is required for evidential purposes it shall be returned as soon as possible to the person from whom it was seized. (3)  An authorised officer or constable may also seize any receptacle or equipment (other than a motor vehicle) which(a) is in a street; and (b) he has reasonable cause to believe is intended to be used in connection with an offence under the said section 27 involving the sale, offer for sale, display, or exposing for sale of refreshments. (4)  An authorised officer shall produce his authority if required to do so by the person having control or possession of anything seized in pursuance of the powers in subsections (1) to (3) above. 27B.  Seizure: notices (1)  In this section, ‘relevant item’ means— 478

London Local Authorities Act 2012 (a) any receptacle used in the sale, offer for sale, display, or exposing for sale of refreshments which has been seized under section (1) or (2) of section 27A (seizure) of this act; (b) any receptacle or equipment seized under subsection (3) of that section. (2)  An authorised officer or a constable— (a) may give a notice under this section to the person from whom a relevant item falling within subsection (1)(a) above was seized (but no such notice may be given under this paragraph in respect of a motor vehicle); (b) shall give a notice under this section to the person from whom a relevant item falling within subsection (1)(b) above was seized, and any such notice must be given as soon as reasonably practicable after the item was seized. (3)  A notice under this section shall be in such form as the council may prescribe, and shall— (a) explain that unless the recipient of the notice completes it in accordance with subsection (4) below and then returns it to the council in accordance with subsection (5) below, the council may dispose of the relevant item in question in accordance with section 27D (disposal of seized objects by council) of this Act; and (b) set out— (i) the address to which the completed notice should be returned; (ii) the date by which it must be returned (which must be no earlier than the date on which expires the period of 14 days beginning with the date on which the notice was given under subsection (2) above). (4)  A notice under this section is completed by writing, in the appropriate place on the notice— (a) the name and full postal address of the recipient of the notice under subsection (2) above; and (b) (in the case of a notice given in accordance with subsection (2)(a) above) confirmation that that person— (i) intends to contest any criminal proceedings brought in respect of the alleged offence in respect of which the item in question was seized; (ii) if not, that he requires the council to make a complaint for a disposal order under section 27I (disposal orders) of this Act in respect of the relevant item in question; and (c) (in the case of a notice given in accordance with subsection (2)(b) above) confirmation that that person requires the council to make a complaint for a disposal order under the said section 27I in respect of the relevant item in question; and (d) the signature of that person; and (e) the date on which it was signed. (5) A notice under this section, once completed, is returned by delivering it or sending it by post to the address set out on the notice as mentioned in subsection (3) (b)(i) above on or before the date as mentioned in that subsection. (6)  If a notice given in accordance with subsection (2) above is completed and returned in accordance with subsections (4) and (5) above the council must, no later than the date on which expires the period of 28 days beginning with the date on which the notice was received by them— (a) make a complaint to the magistrates’ court for a disposal order under section 27I (disposal orders) of this Act in respect of the relevant item in question; or (b) return the relevant item in question to the person whose name and address are written on the returned notice, unless, before the expiry of that period, an information has been laid and not withdrawn in respect of any alleged offence in respect of which the item was seized. 479

Appendix 1  Statutes 27C.  Return of seized items (1)  The provisions of this section shall have effect where any item is seized under subsection (1) of section 27A (seizure) of this Act (except where a notice is given under section 27B(2)(a) (seizure: notices) in respect of the item) or is seized and retained because it is required for evidential purposes under subsection (2) of the said section 27A and references in those provisions to proceedings are to proceedings in respect of the alleged offence in relation to which the item is seized. (2)  Subject to subsection (6) below, following the conclusion of the proceedings the item shall be returned to the person from whom it was seized unless— (a) the court orders it to be forfeited under section 27E (forfeiture of seized items by the court) of this Act; or (b) any award of costs to the council by the court, which may include removal, return and storage costs, have not been paid within 28 days of the making of the order. (3)  Where after 28 days any costs awarded by the court to the council have not been paid to the council in full, the item may be disposed of in any way the council thinks fit and any sum obtained by the council in excess of the costs awarded by the court shall be returned to the person to whom the item belongs and when any item is disposed of by the council under this subsection the council shall have a duty to secure the best possible price which can reasonably be obtained for that item. (4)  Subject to subsection (5) below, where a receptacle seized under subsection (1) of the said section 27A is a motor vehicle used for ice cream trading the council or the Commissioner (as the case may be) shall, within three days of the receipt of an application in writing by the owner or registered keeper of the vehicle, permit him to remove it. (5)  Subsection (4) above shall not apply where— (a) the owner or registered keeper of the vehicle has been convicted of an offence under this Act or Part III of the London Local Authorities Act 1990; or (b) the owner or registered keeper of the vehicle is being prosecuted for a previous alleged offence under this Act or Part III of the said Act of 1990; or (c) the vehicle has been used in the commission of such an offence or previous alleged offence, if the offence or previous alleged offence was committed or is alleged to have been committed no more than three years before the seizure and (in the case of an alleged offence) the proceedings are continuing. (6) Subject to subsection (8) below, if no proceedings are instituted before the expiration of a period of 28 days beginning with the date of seizure, or any proceedings instituted within that period are discontinued, at the expiration of that period or, as the case may be, on the discontinuance of the proceedings, the item shall be returned to the person from whom it was seized unless it has not proved possible, after diligent enquiry, to identify that person or ascertain his address. (7)  Subsection (8) below applies where the item is not returned because— (a) it has not proved possible to identify the person from whom it was seized or ascertain his address; or (b) the person from whom it was seized and the owner (if different) have disclaimed or refused to accept it. (8) Where this subsection applies, the council may make a complaint to the magistrates’ court for a disposal order under section 27I (disposal orders) of this Act (whether or not proceedings for an offence under this section have been commenced). 27D.  Disposal of seized objects by council (1)  The council may, in such manner as they think fit, dispose of— 480

London Local Authorities Act 2012 (a) any relevant item (within the meaning of section 27B (seizure: notices) of this Act) seized under subsection (1) or (2) of section 27A (seizure) of this Act if, in respect of the alleged offence in question— (i) a fixed penalty is paid in accordance with section 16 of the London Local Authorities Act 2004 (c. i) before the expiry of the period mentioned in subsection (2) of that section; and (ii) the fixed penalty notice contained or was accompanied by written notice that the recipient could require the council on or before the time when the fixed penalty was paid to make a complaint for a disposal order under section 27I (disposal orders) of this Act in respect of the relevant item in question; and (iii) no such requirement was made of the council on or before that time; or (b) any such relevant item seized under subsection (1), (2) or (3) of the said section 27A if a notice was given under section 27B (seizure: notices) as soon as reasonably practicable after the article or thing was seized and the notice was not completed and returned to the council in accordance with subsections (4) and (5) of that section. (2) The council may recover their costs of disposing of a relevant item under subsection (1) above from the person from whom the object was seized. (3)  Where a requirement of the sort mentioned under subsection (1)(a)(ii) was made on or before the time when the fixed penalty was paid, the council must make a complaint for a disposal order under section 27I (disposal orders) of this Act in respect of the relevant item in question. 27E.  Forfeiture of seized items by court (1)  Subject to subsection (2) below the court by or before which a person is convicted of an offence under section 27 (unlicensed street trading) of this Act or for an offence of aiding, abetting, counselling or procuring the commission of an offence under that section may order anything produced to the court, and shown to the satisfaction of the court to relate to the offence, to be forfeited and dealt with in such manner as the court may order. (2)  The court shall not order anything to be forfeited under subsection (1) above where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to him to show causewhy the order should not be made and in considering whether to make such an order a court shall have regard— (a) to the value of the property; and (b) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making). (3)  For the avoidance of doubt the court may order forfeiture notwithstanding that the value of the article, thing, receptacle or equipment exceeds the maximum penalties referred to in the said section 27. 27F. Compensation (1)  This section shall have effect where— (a) an item is seized under subsections (1) to (3) of section 27A (seizure) of this Act; and (b) either— (i) not less than six months have passed since the date of the seizure and no information has been laid against any person for an offence under section 27 (unlicensed street trading) in respect of the act or circumstances which occasioned the seizure; or 481

Appendix 1  Statutes (ii) proceedings for such an offence have been brought and either the person charged has been acquitted (whether or not on appeal) and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought, or the proceedings (including any appeal) have been withdrawn by, or have failed for want of prosecution by, the person by whomthe original proceedings were brought; or (iii) (in the case of a relevant item (within the meaning of section 27B (seizure: notices) of this Act) seized under subsection (3) of section 27A (seizure) of this Act) the council has failed to comply with subsection (6) of section 27B (seizure: notices) of this Act. (2)  When this section has effect a person who has or at the time of seizure had a legal interest in the item seized may recover compensation from the council or (where it is seized by a constable) the Commissioner by civil action in the County Court in respect of any loss suffered by him as a result of the seizure and any such compensation shall not be included in the computation for calculating charges under section 22 (fees and charges) of this Act. (3)  The court may only make an order for compensation under subsection (2) above if satisfied that seizure was not lawful under subsections (1) to (4) of section 27A (seizure) of this Act. (4)  Any sums accruing to the council arising out of this section shall be included in the computation for calculating charges under the said section 22 of this Act. 27G.  Seizure of perishable items (1)  No item which is of a perishable nature (in this section referred to as a ‘perishable item’) shall be seized under the provisions of subsection (1) of section 27A (seizure) of this Act unless the council gives a certificate under subsection (2) below to the person from whom the item is seized. (2)  Where a perishable item is seized under the said subsection (1), the person from whom it is seized must be given a certificate— (a) stating the effect of subsection (3) below and subsection (2) of section 27E (forfeiture of seized items by court) of this Act; (b) giving the address from which the article or thing may be collected; (c) informing the recipient that if he is not the owner of the article or thing, then he should give the owner the information referred to in paragraphs (a) and (b) above. (3)  If the person from whom a perishable item was so seized fails to collect it within 48 hours of the seizure the council may dispose of it. (4)  When any perishable item is disposed of by the council under subsection (3) above, the council shall have a duty to secure the best possible price which can reasonably be obtained for it. (5)  Subsections (1) to (4) of section 27C (return of seized items) and subsections (1) to (3) of section 27E (forfeiture of seized items by court) of this Act shall apply to a perishable item seized under section 27A (seizure) of this Act only in cases where the item concerned has not been disposed of by the council at the conclusion of the proceedings in respect of the alleged offence in relation to which the item was seized. (6)  Subsections (6) to (8) of the said section 27C apply to a perishable item seized under the said section 27A only in cases where the item concerned has not been disposed of by the council at the expiration of the period mentioned in the said subsection (6); otherwise subsections (8) to (11) below shall apply. (7) Section 27F (compensation) of this Act shall apply with the omission of subsection (3) in respect of a perishable item seized under the said section 27A in 482

London Local Authorities Act 2012 cases where the article or thing concerned has not been disposed of by the council by the time the circumstances mentioned in subsection (1)(b) of the said section 27F arise otherwise subsections (8) to (11) below shall apply. (8)  Subsection (11) below shall have effect where the council have disposed of a perishable item under subsection (3) above and any of the following conditions apply. (9)  The first condition is that no proceedings in respect of the alleged offence in relation to which the article or thing was seized are instituted before the expiration of a period of 28 days beginning with the date of seizure of the article or thing, or any such proceedings instituted within that period are discontinued. (10)  The second condition is that— (a) not less than six months have passed since the date of the seizure and no information has been laid against any person for an offence under section 27 (unlawful street trading) of this Act in respect of the acts or circumstances which occasioned the seizure; or (b) proceedings for such an offence have been brought and either the person charged has been acquitted (whether or not on appeal) and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought, or the proceedings (including any appeal) have been withdrawn by, or have failed for want of prosecution by, the person by whom the original proceedings were brought. (11)  When this subsection has effect a person who has or at the time of seizure had a legal interest in the item seized may recover compensation from the council or (where it is seized by a constable) the Commissioner of Police of the Metropolis by civil action in the County Court in respect of any loss suffered by him as a result of the seizure and any such compensation shall not be included in the computation for calculating charges under section 22 (fees and charges) of this Act. 27H.  Motor vehicles (1)  Subsection (4) below applies where the following conditions are met. (2)  The first condition is that where, in ascertaining the identity of the person from whom a vehicle was seized under subsection (1) or (2) of section 27A (seizure) of this Act, the council has, before the expiry of 14 days from the date of the seizure, made a request to the Secretary of State for the supply of relevant particulars. (3)  The second condition is that those particulars have not been supplied to the council before the date after which the council would, but for this section, have to return the vehicle in accordance with subsection (6) of section 27C (return of seized items) of this Act. (4)  Where this subsection applies, the council must return the vehicle to its owner if— (a) no proceedings are instituted in respect of the alleged offence in respect of which the vehicle was seized before the expiry of the period of 14 days beginning with the date on which the relevant particulars are supplied; or (b) any such proceedings instituted within that period are discontinued, at the expiry of that period or on the discontinuance of the proceedings, as the case may be. (5)  If the council seeks to return a vehicle in accordance with the said subsection (1) or subsection (2), but the person to whom the council seeks to return the vehicle cannot be found or disclaims or refuses to accept the vehicle, the council may make a complaint for a disposal order in respect of the vehicle under section 27I (disposal orders) of this Act. (6)  In this section, ‘relevant particulars’ are particulars relating to the identity of the owner of the vehicle contained in the register of mechanically propelled vehicles 483

Appendix 1  Statutes maintained by the Secretary of State under the Vehicle Excise and Registration Act 1994 (c. 22). (7)  The owner of a vehicle for the purposes of this section shall be taken to be the person by whom the vehicle is kept. (8)  In determining who was the owner of a motor vehicle at any time, it shall be presumed that the owner is the person in whose name the vehicle is at that time registered under the Vehicle Excise and Registration Act 1994. 27I.  Disposal orders (1)  This section applies in respect of a complaint made by the council for a disposal order under— (a) subsection (6)(a) of section 27B (seizure: notices) of this Act; (aa) subsection (8) of section 27C (return of seized items) of this Act; or (ab) subsection (3) of section 27D (disposal of seized objects by the council) of this Act; or (b) subsection (5) of section 27H (motor vehicles) of this Act, and items that are the subject of the complaint are referred to as ‘seized items’ in this section. (2)  On a complaint to which this section applies, a magistrates’ court if satisfied that the council has made reasonable efforts to identify the person from whom the seized item was seized or its owner, as the case may be, or has made reasonable efforts to return the seized item, may make an order authorising the council— (a) to dispose of the seized item in question; and (b) after payment out of any proceeds arising from the disposal of the expenses incurred in the seizure, storage and disposal, to apply the balance, if any, towards the costs of the council as mentioned in paragraphs (a) to (d) of subsection (2) of section 22 (fees and charges) of this Act. (3)  The court shall not make a disposal order under subsection (2) above where a person claiming to be the owner of or otherwise interested in the seized item applies to be heard by the court, unless an opportunity has been given to him to show cause why the order should not be made. (4)  Subsection (5) below applies where— (a) a person appears before the court under subsection (3) above to show why the order should not be made; and (b) the court makes an order under subsection (2) above authorising the council to dispose of the item; and (c) the seized item in question is not of sufficient value to defray the expenses of seizing and storing it; and (d) the court is satisfied that the person mentioned in paragraph (a) above was the owner of the seized item in question or was the person from whom it was seized, as the case may be. (5)  Where this section applies, the court may order that the person mentioned in subsection (4)(a) above pay the expenses, or the balance of the expenses, reasonably incurred by the council in seizing and storing the seized item in question. (6)  In considering whether to make an order under subsection (2) above a court shall have regard— (a) to the value of the seized item; (b) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making); and (c) any other circumstances considered to be relevant. (7)  The court may make a disposal order under this section notwithstanding that the value of the seized item would exceed the maximum penalty for the offence in 484

London Local Authorities Act 2012 respect of which the seized item had originally been seized had the said offence been prosecuted to conviction. (8)  For the purposes of this section, ‘owner’ in respect of a vehicle, has the same meaning as it has for the purposes of the said section 27H. 28. Savings (1)  Nothing in this Act shall affect the sale or exposure or offer for sale by London Regional Transport or (as the case may be) any of its subsidiaries of refreshments at any shelter or other accommodation provided by either of them under section 65 (refreshment shelters etc.) of the London Passenger Transport Act 1938. (2)  This Act shall not apply in respect of any land owned by Railtrack PLC or London Regional Transport unless the land forms part of a highway for which the council is responsible as highway authority. (3)  Nothing in this Act shall afford a defence to a charge in respect of any offence at common law or under an enactment other than this Act. 29.  Provision as to notices (1)  Any notice, summons or other document required or authorised to be served or given in writing under this Act may be served or given either— (a) by delivering it to the person on whom it is to be served or to whom it is to be given; or (b) by leaving it at the usual or last known place of abode or business of that person, or, in a case where an address for service has been given by that person, at that address; or (c) by sending it by ordinary post addressed to that person at his usual or last known place of abode or business, or, in a case where an address for service has been given by that person, at that address; or (d) in the case of a company or body incorporated in England or Wales, by delivering it to the secretary or clerk of the company or body at their registered or principal office, or sending it by ordinary post addressed to the secretary or clerk of the company or body at that office. (2)  The delivery, in the absence of a holder of a street trading licence from his street trading pitch, of a document or notice to a person appearing to be an assistant employed by that licence holder shall be deemed to be delivery of that document or notice to the licence holder under subsection (1)(a) above. (3)  A notice required by this Act to be given shall be deemed to be given on the date it is delivered, left, affixed, or posted in accordance with this section. 30.  Proof of resolution In any proceedings which require proof of the passing of a resolution under this Act it shall be presumed, unless the contrary is proved, that the said resolution was duly passed and that any requirements relating to the passing of the resolution and the giving of any notices or information before or after the passing of the resolution were properly complied with. 31.  Exercise of powers Notwithstanding the provisions of section 101 of the Local Government Act 1972 the council’s powers under this Act may be exercised by a committee, sub-committee, officer or panel of officers. 32.  Disapplication of Part III of London Local Authorities Act 1990 (1)  Subject to subsection (2) below, on the date of commencement of this Act Part III (street trading) of the London Local Authorities Act 1990 shall cease to have effect in the city and on that date all— 485

Appendix 1  Statutes (a) applications made; (b) licences issued; (c) standard conditions prescribed; (d) fees and charges set; (e) designating, specifying and prohibition resolutions passed; (f) regulations for determining applications made; and (g) appeals made, under that Act shall be deemed to have been made, issued, prescribed, set or passed under this Act. (2)  In any case where, before the date of commencement of this Act, an application has been made for the renewal of a street trading licence under Part III of the said Act of 1990, and— (a) no decision on the application has been notified to the applicant; or (b) the council has refused renewal of the licence or granted a licence with conditions different from those of the existing licence, Part III of the Act of 1990 shall continue to apply to the application.

486

City of London (Various Powers) Act 2013

CITY OF LONDON (VARIOUS POWERS) ACT 2013 (2013, c 7) An Act to amend the provision for the control of street trading in the City of London; to make provision relating to City walkways; and for related purposes. [18th December 2013] 1. Citation This Act may be cited as the City of London (Various Powers) Act 2013. 2. Interpretation In this Act, ‘the 1987 Act’ means the City of London (Various Powers) Act 1987. Street Trading 3.  Temporary street trading (1)  The 1987 Act is amended as follows. (2)  In section 6 (interpretation of Part 3)— (a) in the definition of ‘licensed street trader’ — (i) after ‘person’ insert ‘(including a temporary licence holder)’; and (ii) after ‘by a’ insert ‘street trading’; (b) in the definition of ‘receptacle’, after ‘vehicle’ insert ‘, trailer’; (c) in the definition of ‘street trading licence’, at end insert ‘, and includes a temporary licence’; and (d) at the appropriate places, insert the following definitions— ‘“ice cream trading” means the selling, exposing or offering for sale of items consisting wholly or mainly of ice cream, frozen confectionery or other similar commodities; “temporary licence” means a licence granted under section 11A; “temporary licence holder” means the holder of a temporary licence and includes any person who, by virtue of an agreement of the sort described in section 11A(5) is entitled to exercise any rights conferred by a temporary licence;’. (3)  In section 10 (fees for street trading licences), at end insert— [(3)  In this section ‘street trading licence’ does not include a temporary licence.’. (4)  After section 11 insert— ‘11A.  Temporary Licences (1)  A temporary licence is a licence granted under this section which permits the temporary licence holder to carry on street trading— (a) in the licence area specified in the licence; (b) for the period (not exceeding 21 days) specified in the licence; and (c) in accordance with— (i) the terms and conditions of the licence; (ii) subject to such terms and conditions, the information provided in connection with the application for the licence; and (iii) the provisions of any agreement of the sort described in subsection (5), approved by the Corporation and specified in the temporary licence. (2)  The Corporation may on receipt of an application for a temporary licence grant the applicant a temporary licence subject to such conditions (including conditions as to charges and the recovery ofexpenses) as the Corporation may determine. 487

Appendix 1  Statutes (3)  An application for a temporary licence shall— (a) be made in writing to the Corporation in the form and manner prescribed by the Corporation; (b) be accompanied by the application fee chargeable under subsection (6); and (c) provide such details as the Corporation shall from time to time determine including, but not restricted to, the information described in subsection (4). (4)  The information referred to in subsection (3) is— (a) such information about the applicant as the Corporation may require; (b) particulars of the articles or things in which the applicant desires to trade; (c) a description of the area the applicant wishes to be specified in the temporary licence as the licence area, to be shown by reference to a plan; (d) particulars of the period (not exceeding 21 days) for which the applicant desires the temporary licence to have effect; (e) particulars of the days on which and the times between which the applicant desires to trade; and (f) full particulars of any proposed agreement of the sort described in subsection (5). (5)  Subsection (4)(f) refers to any proposed agreement between an applicant and any person that provides for such person to become a temporary licence holder by virtue of the temporary licence to which the application relates. (6)  The Corporation may charge such fees for applications for and grant of temporary licences as it may determine and as may be sufficient in aggregate to cover the reasonable administrative or other costs it incurs in connection with applications under this section. (7)  In this section ‘licence area’ means the area, not being an area in the part of Middlesex Street described in section 7 (street trading in Middlesex Street market), which is specified in a temporary licence as the area within which street trading is permitted.’. 4.  Unauthorised street trading: amendment of enactments In the City of London (Various Powers) Act 1965, in subsection (1) of section 13 (which prohibits unauthorised street trading), after ‘1987’ insert ‘or in accordance with a temporary licence granted under section 11A of that Act’. 5.  Temporary licences: offences (1)  Section 16 of the 1987 Act (which provides for offences and penalties in respect of unauthorised street trading) is amended as follows. (2)  In subsection (1), after ‘prescription of the licence’ insert ‘or any provision of a temporary licence’. (3)  After subsection (2) insert— [(2A) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, that person, as well as the body corporate, shall be guilty of the offence and liable to the same maximum penalty as the body corporate.’. 6.  Increased penalties for unlicensed street trading In section 16(3) of the 1987 Act for ‘level 2’ substitute ‘level 3’. 488

City of London (Various Powers) Act 2013 7. Enforcement (1)  At the appropriate place in section 6 of the 1987 Act insert— ‘“authorised officer”, in relation to any function of the Corporation under (sections 16A to 16G) of this Act, means— (a) any officer or employee of the Corporation; (b) any person by whom, in pursuance of arrangements made with the Corporation, any enforcement functions under this Part fall to be discharged; or (c) any employee of any such person, who is authorised in writing by the Corporation to act in relation to that function;’. (2)  After section 16 of the 1987 Act insert— ‘16A. Seizure (1)  Subject to subsection (2) and section 16E (seizure of perishable articles or things), if an authorised officer or a constable has reasonable grounds for believing that a person has committed an offence under section 16 (offence of unlawful street trading) the authorised officer or constable may seize— (a) any article or thing being offered for sale, displayed or exposed for sale; or (b) any other article or thing of a similar nature to that being offered or exposed for sale which is in the possession or under the control of any person who is displaying an article or thing; or (c) any receptacle or equipment being used by that person. (2)  An article or thing may only be seized under subsection (1) if it may be required to be used in evidence in any proceedings in respect of the offence in question, or may be the subject of forfeiture under section 16C (forfeiture of seized articles or things by court). (3)  An authorised officer shall produce the authority under which the authorised officer acts if required to do so by the person having control or possession of anything seized in pursuance of the powers in subsections (1) and (2). 16B.  Return of seized articles or things (1)  The provisions of this section shall have effect where any article or thing is seized under section 16A (seizure). (2)  In this section, references to proceedings are to proceedings in respect of the alleged offence in relation to which the article or thing is seized. (3) Subject to subsections (8) and (9), following the conclusion of the proceedings the article or thing shall be returned to the person from whom it was seized unless— (a) the court orders it to be forfeited under section 16C (forfeiture of seized articles or things by court); or (b) any award of costs to the Corporation by the court, which may include removal, return and storage costs, have not been paid within 28 days of the making of the order. (4)  Where after 28 days any costs awarded by the court to the Corporation have not been paid to the Corporation in full— (a) the article or thing may be disposed of; (b) any sum obtained by the Corporation in excess of the costs awarded by the court shall be returned to the person to whom the article or thing belongs; and (c) when any article or thing is disposed of by the Corporation under this subsection the Corporation shall have a duty to secure the best 489

Appendix 1  Statutes possible price which can reasonably be obtained for that article or thing. (5) Subject to subsection (6), where a receptacle seized under section 16A is a motor vehicle used for ice cream trading, the Corporation or the Commissioner of Police (as the case may be) shall, within 3 days of the receipt of an application in writing by the owner or registered keeper of the vehicle, permit the person to remove it. (6)  Subsection (5) shall not apply where— (a) the owner or registered keeper of the vehicle has been convicted of an offence under this Act; and (b) the offence was committed no more than 3 years before the seizure. (7)  Subject to subsection (9) and, in the case of a motor vehicle, to section 16F (motor vehicles), the article or thing shall be returned to the person from whom it was seized— (a) if no proceedings have been instituted before the expiry of 28 days beginning with the date of seizure, at the expiration of that period; or (b) if proceedings instituted within that period are discontinued, on such discontinuance taking place, unless it has not proved possible, after diligent enquiry, to identify that person or ascertain the person’s address. (8) Subsection (9) applies where the article or thing is not returned because— (a) it has not proved possible to identify the person from whom it was seized or ascertain the person’s address; or (b) the person from whom it was seized and the owner (if different) have disclaimed or refused to accept it. (9)  Where this subsection applies, the Corporation may make a complaint to the magistrates’ court for a disposal order under section 16G (disposal orders) whether or not proceedings for an offence under this section have been commenced. 16C.  Forfeiture of seized articles or things by court (1)  Subject to subsection (2), the court by or before which a person is convicted of an offence under section 16 may order anything produced to the court, and shown to the satisfaction of the court to relate to the offence, to be forfeited and dealt with in such manner as the court may order. (2)  The court shall not order anything to be forfeited under subsection (1) where a person claiming to be the owner of or otherwise interested in it applies to be heard by the court, unless an opportunity has been given to that person to show cause why the order should not be made. (3)  In considering whether to make an order under subsection (1), a court shall have regard— (a) to the value of the property; and (b) to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making). (4) The court may order forfeiture notwithstanding that the value of the article or thing exceeds the maximum penalty referred to in section 16. 16D.  Seizure: compensation (1)  This section shall have effect where— (a) an article or thing is seized under section 16A (seizure); and (b) either— 490

City of London (Various Powers) Act 2013 (i) the circumstances in subsection (2) apply; or (ii) not less than 6 months have passed since the date of the seizure and no proceedings have been instituted for an offence under section 16 in respect of the act or circumstances which occasioned the seizure. (2)  The circumstances mentioned in subsection (1)(b)(i) are that proceedings for an offence under section 16 have been brought and either— (a) the person charged has been acquitted (whether or not on appeal) and the time for appealing against or challenging the acquittal (where applicable) has expired without an appeal or challenge being brought; or (b) the proceedings (including any appeal) have been withdrawn, or have failed for want of prosecution, by the Corporation. (3)  When this section has effect, a person who has, or at the time of seizure had, a legal interest in the article or thing seized may recover compensation from the Corporation or (where it is seized by a constable) the Commissioner of Police by civil action in the county court in respect of any loss suffered by that person as a result of the seizure. (4)  The court may only make an order for compensation under subsection (3) if satisfied that seizure was not lawful under section 16A. (5)  Any compensation payable under subsection (3) shall not be included in the computation for calculating charges under section 12 (charges to licensed street traders). 16E.  Seizure of perishable articles or things (1)  No article or thing which is of a perishable nature (in this section referred to as a ‘perishable article or thing’) shall be seized under the provisions of section 16A (seizure) unless the Corporation gives a notice in writing under subsection (2) to the person from whom the article or thing is seized. (2) Where a perishable article or thing is seized under section 16A, the person from whom it is seized shall be given a notice in writing— (a) stating the effect of subsection (5) and section 16C (forfeiture of seized articles or things by court); (b) giving the address from which the article or thing may be collected; and (c) stating that if that person is not the owner of the article or thing, then that person should give the owner the information referred to in paragraphs (a) and (b). (3)  The Corporation shall store any perishable article or thing seized under section 16A at an appropriate temperature. (4)  If the person from whom a perishable article or thing was seized or the owner of the article or thing goes to collect the article or thing then it shall be returned to that person unless it has been disposed of under subsection (5). (5)  If the person from whom a perishable article or thing was seized fails to collect it within 48 hours of the seizure, the Corporation may dispose of it. (6)  When any perishable article or thing is disposed of by the Corporation under subsection (5), the Corporation shall have a duty to secure the best possible price which can reasonably be obtained for it. (7)  Section 16B(1) to (4) (return of seized articles or things) and section 16C(1) and (2) shall apply to a perishable article or thing seized under section 16A only in cases where the article or thing concerned has not been disposed of by the Corporation at the conclusion of the proceedings in respect of the alleged offence in relation to which the article or thing was seized. 491

Appendix 1  Statutes (8)  Section 16B(7) to (9) shall apply to a perishable article or thing seized under section 16A only in cases where the article or thing concerned has not been disposed of by the Corporation at the expiration of the period of 28 days beginning with the date of seizure; and otherwise subsections (10) to (12) shall apply. (9) Section 16D (seizure: compensation) shall, with the exception of subsection (4), apply in respect of a perishable article or thing in cases where the article or thing concerned has not been disposed of by the Corporation; and otherwise subsections (10) to (12) shall apply. (10)  Subsection (12) shall have effect where the Corporation has disposed of a perishable article or thing under subsection (5) and the following condition applies. (11) The condition referred to in subsection (10) is that no proceedings inrespect of the alleged offence in relation to which the article or thing was seized are instituted before the expiration of a period of 28 days beginning with the date of seizure of the article or thing, or any such proceedings instituted within that period are discontinued. (12) When this subsection has effect a person who has, or at the time of seizure had, a legal interest in the article or thing seized may recover compensation from the Corporation or (where it is seized by a constable) the Commissioner of Police by civil action in the county court in respect of any loss suffered by that person as a result of the seizure. (13)  Any compensation payable under subsection (12) shall not be included in the computation for calculating charges under section 12 (charges to licensed street traders). 16F.  Motor vehicles (1)  Subsection (4) applies where a motor vehicle has been seized under section 16A(1) (seizure) and the following conditions are met. (2) The first condition is that, in ascertaining the identity of the person from whom a vehicle was seized, the Corporation has, before the expiry of the period of 14 days from the date of the seizure, made a request to the Secretary of State for the supply of relevant particulars. (3)  The second condition is that those particulars have not been supplied to the Corporation before the date after which the Corporation would, but for this section, have to return the vehicle in accordance with section 16B(7). (4)  When this subsection applies and— (a) no proceedings are instituted in respect of the alleged offence in respect of which the vehicle was seized before the expiry of the period of 14 days beginning with the date on which the relevant particulars are supplied; or (b) any such proceedings instituted within that period are discontinued, the Corporation shall return the vehicle to its owner at the expiry of that period or on the discontinuance of the proceedings, as the case may be. (5)  If the Corporation seeks to return a vehicle in accordance with subsection (4), but the person to whom the Corporation seeks to return the vehicle cannot be found or disclaims or refuses to accept the vehicle, the Corporation may make a complaint to the magistrates’ court for a disposal order in respect of the vehicle under section 16G (disposal orders). (6) In this section, ‘relevant particulars’ are particulars relating to the identity of the owner of the vehicle contained in the register of mechanically propelled vehicles maintained by the Secretary of State under the Vehicle Excise and Registration Act 1994. 492

City of London (Various Powers) Act 2013 (7)  The owner of a vehicle for the purposes of this section shall be taken to be the person by whom the vehicle is kept. (8)  In determining who was the owner of a motor vehicle at any time, it shall be presumed that the owner is the person in whose name the vehicle is at that time registered under the said Act of 1994. 16G.  Disposal orders (1)  This section applies to a complaint made by the Corporation for a disposal order under— (a) section 16B(9) (return of seized articles or things); or (b) section 16F(5) (motor vehicles), and items in this section that are the subject of the complaint are referred to as ‘seized articles or things’ . (2)  On a complaint to which this section applies, the magistrates’ court, if satisfied that the Corporation has made reasonable efforts— (a) to identify the person from whom the seized article or thing was seized or its owner, as the case may be; or (b) to return the seized article or thing, may make an order under this section. (3)  An order under this section is an order authorising the Corporation— (a) to dispose of the seized article or thing in question; and (b) after payment out of any proceeds arising from the disposal of the expenses incurred in the seizure, storage and disposal, to apply the balance, if any, towards the costs of the Corporation as mentioned in section 12 (charges to licensed street traders). (4)  The court shall not make a disposal order under this section where a person claiming to be the owner of or otherwise interested in the seized article or thing applies to be heard by the court, unless an opportunity has been given to that person to show cause why the order should not be made. (5)  Subsection (6) applies where— (a) a person appears before the court under subsection (4) to show cause why the order should not be made; (b) the court makes a disposal order under this section authorising the Corporation to dispose of the article or thing; (c) the seized item in question is not of sufficient value to defray the expenses of seizing and storing it; and (d) the court is satisfied that the person mentioned in paragraph (a) was the owner of the seized item in question or was the person from whom it was seized, as the case may be. (6)  Where this subsection applies, the court may order the person mentioned in subsection (5)(a) to pay the expenses, or the balance of the expenses, reasonably incurred by the Corporation in seizing and storing the seized item in question. (7)  In considering whether to make a disposal order under this section, a court shall have regard— (a) to the value of the seized article or thing; (b) to the likely financial and other effects on any relevant person of the making of the order (taken togetherwith any other order that the court contemplates making); and (c) to any other circumstances considered to be relevant. (8)  The court may make a disposal order under this section even though the value of the seized article or thing exceeds the maximum penalty for the 493

Appendix 1  Statutes offence in respect of which the seized article or thing had originally been seized had the said offence been prosecuted to conviction. (9)  In this section, ‘owner’, in respect of a vehicle, has the same meaning as in section 16F; and ‘relevant person’ means the owner of the article or thing and (if different) the person from whom the article or thing was seized. 16H.  Provision of information by the Corporation The Corporation shall publish on its website information about— (a) the provisions of this Part; and (b) its policies as to enforcement of those provisions. 16I. Training (1)  The Corporation shall not authorise an officer to exercise powers under— (a) section 16A, or (b) section 15(1) of the London Local Authorities Act 2004 (fixed penalty offences) in respect of an offence under section 16(1) of this Act, unless it is satisfied that the officer has received adequate training in acting for those purposes. (2)  The Corporation shall make the training referred to in subsection (1) available also to constables who carry out any enforcement functions under this Part.’. (3)  In the London Local Authorities Act 2004, in Schedule 2 (which lists the offences in respect of which a fixed penalty notice can be given under section 15 (fixed penalty offences) of that Act), at the beginning insert— ‘A1

City of London (Various Powers) Act 1987 (c. xv)

16(1) (part)

Unauthorised street trading’.

8.  Charges to licensed street traders (1)  The 1987 Act is amended as follows. (2)  In section 12 the existing provision becomes subsection (1). (3)  At the end of section 12, leave out from ‘not’ to ‘Part’. (4)  At the end of section 12 insert— [(2)  Before determining charges made under subsection (1) the Corporation shall give notice in writing of the proposed charges to all licensed street traders and to any body which appears to the Corporation to represent them. (3)  A notice given under subsection (2) shall be accompanied by a statement showing how the proposed charges have been computed and shall specify a reasonable period, being not less than 28 days from the date of the notice, within which written representations concerning the proposed charges may be made to the Corporation. (4) A  body representative of licensed street traders which has received anotice given under subsection (2) may request the Corporation to supply such further information or explanation with regard to the proposed charges as the body may reasonably require in order to ascertain whether the proposed charges are reasonable and have been computed in accordance with the provisions of subsection (1). (5)  Where the Corporation receives a request made under subsection (4), the period for receipt of representations shall be suspended from the day of receipt until the day on which the request is complied with. 494

City of London (Various Powers) Act 2013 (6) The Corporation shall consider all representations which it receives within the time allowed for the receipt of written representations in accordance with this section. (7) When the Corporation has determined charges under this section the Corporation shall give notice in writing to all licensed street traders of the charges so determined and of the date on which those charges are to be brought into effect. (8)  In this section ‘licensed street trader’ does not include a temporary licence holder.’. (5)  Section 14(f) of the 1987 Act is repealed. 9.  Trading outside business premises After section 11A of the 1987 Act, insert— ‘11B.  Trading outside business premises (1)  An occupier of business premises shall be treated as not engaging in street trading if— (a) the occupier is engaged in ice cream trading from a receptacle; (b) the receptacle is located within 15 metres of the business premises; (c) the Corporation has approved the design, location and purpose of the receptacle; and (d) the business premises are occupied for the purpose of conducting a food business. (2)  Section 115E(2), (3) and (4) of the Highways Act 1980 shall apply to any approval under subsection (1)(c) as if— (a) approval under this section were permission under section 115E(1); and (b) the receptacle were an object or structure. (3)  In this section— “business premises” means premises forming the whole or any part of a non-domestic hereditament; “food business” means any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to any stage of production, processing and distribution of food; “non-domestic hereditament” means a hereditament shown in the local non-domestic rating list maintained by the Corporation under section 41(1) of the Local Government Finance Act 1988; “non-domestic rate” means the rate payable under section 43 of that Act; and “occupier”, in relation to business premises, means the person liable to pay the non-domestic rate in respect of those business premises.’.

495

Public Health (Ireland) Act 1878

Irish Statutes PUBLIC HEALTH (IRELAND) ACT 1878 Markets and Slaughter-houses 103.  Any urban authority shall have power, at a meeting specially convened for the purpose, of which not less than thirty days public notice has been given, and at which not less than two thirds of the members are present, and so that a clear majority of the entire body concurs, and that the Local Government Board approves, to do the following things, or any of them, within their district: To provide a market-place and construct a market house and other conveniences for the purpose of holding markets; To provide houses and places for weighing carts; To make convenient approaches to such market; To provide all such matters and things as may be necessary for the convenient use of such market; To purchase or take on lease or otherwise land or the right to use land, and public or private rights in markets and tolls for any of the foregoing purposes; To take stallages, rents and tolls in respect of the use by any person of such market; but no market shall be established in pursuance of this section so as to interfere with any rights, powers, or privileges enjoyed within the district by any person without his consent. For the purpose of enabling any urban authority to establish or to regulate markets, there shall be incorporated with this Act the provisions of the Markets and Fairs Clauses Act, 1847, in so far as the same relate to markets; that is to say, With respect to the holding of the market or fair, and the protection thereof; and With respect to the weighing of goods and carts; and With respect to the stallages, rents and tolls; Provided that all tolls leviable by an urban authority in pursuance of this section shall be approved by the Local Government Board. An urban authority may with respect to any market belonging to them make byelaws for any of the purposes mentioned in section forty-two of the Markets and Fairs Clauses Act, 1847, so far as those purposes relate to markets, and printed copies of any byelaw so made shall be conspicuously exhibited in the market. 104.  Any urban authority may purchase, and the directors of any market company, in pursuance, in the case of a company registered under the Companies Act1862, of a special resolution of the members passed in manner provided by that Act, and in the case of any other company, of a resolution, passed by a majority of three fourths in number and value of the members present, either personally or by proxy, at a meeting specially convened with notice of the business to be transacted, may sell and transfer to any urban authority, on such terms as may be agreed on between the company and the urban authority, all the rights, powers, and privileges, and all or any of the markets, premises, and things which at the time of such purchase are the property of the company, but subject to all liabilities attached to the same at the time of such purchase.

497

Appendix 1  Statutes

CASUAL TRADING ACT 1995*1 (1995 No. 19) An Act to provide for the control and regulation of casual trading and to provide for connected matters. [18th July, 1995] Be it enacted by the Oireachtas as follows: * 1

Annotations by Timothy C. Bird, B.C.L., B.L., December 1995. This annotation was first published in The Irish Current Law Statutes by Round Hall, Thomson Reuters and is reproduced here with the permission of the publishers. This annotation is also available on Westlaw IE.

Commencement Sections 6 and 17(1)(b) : October 1, 1995. Remainder of the Act in early 1996, Introduction and General Note The primary purpose of the Act is to achieve greater decentralisation, efficiency and flexibility in the regulation of casual trading by local authorities than under the regime provided by the Casual Trading Act, 1980 (“the 1980 Act ”), which is repealed by section 17 of the Act. The principal reforms which the Act effects are: (a) to devolve the licensing function from the Minister for Enterprise and Employment to the local authorities. The repealed 1980 Casual Trading Act operated on a dual licensing system which required that national licences be issued by the Department (of Enterprise and Employment as it now is) and that permits be issued by the local authorities. (b) provision for the use of bye-laws by local authorities as the method of regulating and controlling casual trading, thus facilitating greater flexibility and efficiency in regulating casual trading. (c) limiting the list of casual trading activities excluded from the scope of regulation under the 1980 Act. In other words bringing more activities within the scope of the definition of casual trading, thereby making them amenable to regulation. (d) a general improvement in the enforcement of casual trading legislation. (e) the Occasional Trading Act, 1979 is amended in a number of respects in order to allow the Minister greater flexibility in the control of occasional trading practices. Broadly speaking, “casual trading” means the selling of goods in a place to which the public have access as of right or in any other place that is designated as a casual trading area. By way of contrast, “occasional trading” means the selling of goods by retail in a premises or place to which the public do not have access as of right and of which the seller has been in continuous occupation for less than three months including the date of the selling. The essential difference between the two forms of trading is therefore that “casual trading” takes place on the public thoroughfare or in a place designated as a casual trading area while “occasional trading” takes place on privately-owned premises of which the seller is not in long-term continuous occupation. Citation Casual Trading Act, 1995. Statutory Instrument Casual Trading Act 1995 (Forms) Regulations 1996 (S.I. No. 146 of 1996). 498

Casual Trading Act 1995 Parliamentary Debates 440 Dáil Debates Cols. 277–306 (Second Stage) 440 Dáil Debates Cols. 427–455 (Second Stage Resumed) 440 Dáil Debates Cols. 1233–1256 (Second Stage Resumed) 440 Dáil Debates Cols. 1688–1717 (Second Stage Resumed) 440 Dáil Debates Cols. 1717 (Referral to Select Committee) June 13, 1995 Select Committee on Enterprise & Economic Strategy June 15, 1995 Select Committee on Enterprise & Economic Strategy June 21, 1995 Select Committee on Enterprise & Economic Strategy 455 Dáil Debates Col. 1097 (Report of Select Committee) 455 Dáil Debates Cols. 1296–1288 (Report & Final Stages) 144 Seanad Debates Cols. 761–821 (All Stages) Acts Referred to Auctioneers and House Agents Acts, 1947 to 1973 Casual Trading Act, 1980 County Management Acts, 1940 to 1994 Dublin Corporation (Markets & c.) Act, 1901 Housing Act, 1966 Local Government (No. 2) Act, 1960 Local Government (Planning and Development) Acts, 1963 to 1993 Occasional Trading Act, 1979 Public Health (Ireland) Act, 1878 Roads Act, 1993

1980 No. 43 1901 ¯c. cv. 1966 No. 21 1960 No. 40

1979 No. 35 1878 ¯c. 52 1993 No. 14

Citator Note July 18, 1995. Commencement Order: S.I. 267/1995. S.I. 350/1996. Be it enacted by the Oireachtas as follows:  95–19.07 Section 1. 1. Interpretation In this Act — ‘the Act of 1980’ means the Casual Trading Act, 1980; ‘authorised officer’ means a person appointed under section 10 to be an authorised officer; ‘casual trading area’ means land standing designated by bye-laws under section 6 as an area where casual trading may be carried on; ‘casual trading licence’ means a licence granted under section 4; ‘Dutch auction’ means a sale of goods by auction in which the price is reduced by the auctioneer until a purchaser is found; [‘local authority’ means a local authority for the purposes of the Local Government Act 2001 (as amended by the Local Government Reform Act 2014);](1) ‘market right’ means a right conferred by franchise or statute to hold a fair market, that is to say, a concourse of buyers and sellers to dispose of commodities; 499

Appendix 1  Statutes ‘the Minister’ means the Minister for Enterprise and Employment; ‘prescribed’ means prescribed by regulations made by the Minister; ‘selling’ includes agreeing or offering to sell, or displaying for sale, or inviting an offer to buy; [‘reserved function’, in relation to a local authority, shall be construed in accordance with section 131 (as amended by the Local Government Reform Act 2014) of the Local Government Act 2001.](1) (2)  In this Act — (a) a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended, adapted or extended by or under any subsequent enactment including this Act, (b) a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other enactment is intended, (c) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended. General Note This is the general interpretation section. Although used as a term in the Casual Trading Act, 1980 (and also in the Occasional Trading Act, 1979) the Bill as originally drafted did not contain a definition for ‘Dutch Auction’ which is now given the meaning of ‘a sale of goods by auction in which the price is reduced by the auctioneer until a purchaser is found.’ The definition was inserted by Ministerial amendment at the report and final stages of the Bill (455 Dáil Debates Col. 1269). (1) Definitions substituted by the Local Government Reform Act, 2014, s 5(8), Sch 2, Pt 6.

2.  Casual trading (1) Subject to subsection (2), ‘casual trading’ means selling goods at a place (including a public road) to which the public have access as of right or at any other place that is a casual trading area. (2)  Casual trading does not include— [(a) selling by auction (other than by Dutch auction) by the holder of a licence within the meaning of section 2(1) of the Property Services (Regulation) Act 2011, or a relevant authorisation within the meaning of section 82 of that Act, in respect of a service which falls, or substantially falls, as the case requires, within paragraph (a) of the definition of ‘property service’ in that first-mentioned section,](1) (b) selling to a person at the place where he resides or carries on business, (c) selling in respect of which it is shown by the seller— (i) that any profits therefrom are for use for charitable purposes or for other purposes from which no private profit is derived, and (ii) that no remuneration, emolument, gain or profit will accrue to the seller or his servants or agents [therefrom,](2) [(d) selling, during the period 1 May to 30 September in any year, by— (i) the grower (within the meaning assigned to that expression by the Casual Trading Act 1995 (Section 2(3)) Regulations 2004), or (ii) subject to the condition specified in relation to this subparagraph by those Regulations being satisfied, a servant or agent of the grower, of one or more of the following fruits and vegetables, namely— (I) strawberries, raspberries, blueberries, gooseberries, blackberries, loganberries, tayberries and currants, and (II) potatoes having loose skins and which have been harvested prior to maturity.](3) 500

Casual Trading Act 1995 (3)  The Minister may, by regulations, amend (whether by the addition, deletion or alteration of classes) the classes of selling specified in subsection (2) and that subsection shall have effect in accordance with any such regulations. (4) A  local authority may, as respects its functional area, by bye-laws under section 6 add to the classes of selling specified in subsection (2) and that subsection shall, in relation to that functional area, be construed and have effect in accordance with any bye-laws for the time being in force. General Note This section specifies the trading to which the Act applies, subject to exemptions in the case of certain classes of trading. It also enables the Minister for Enterprise and Employment, by regulations, to amend, and the local authorities to add to, such exempted classes of trading. The category of activities which do not include casual trading has been considerably foreshortened from what it was under the repealed 1980 Act. No longer specifically outside the meaning of ‘casual trading’ are the selling of agricultural or horticultural produce (including livestock); the selling of sweets, chocolates, confectionery, certain foods, fruit and non-alcoholic drinks at events to which the public are admitted (football matches, race meetings, etc); the selling of ice-cream, magazines, periodicals and newspapers, pious and religious objects; the selling of fish by fishermen and selling at a market or fair held in pursuance of a market right. It should perhaps be emphasised that the removal of the above exemptions does not make the activities in question unlawful, rather it makes them subject to regulation. In referring to their removal the Minister for Enterprise and Employment, Mr. Quinn, stated that ‘In the case of the removal of the current exemption relating to the sale of agricultural and horticultural produce, I would point out that I am aware of the rural development dimension which such direct selling can have in terms of adding value at the local level, for example, farm produced cheese. However, I consider that the provision which I am making under the Bill enabling local authorities to add such further exemptions as local circumstances dictate will cater adequately for this concern’ (440 Dáil Debates Cols. 282–283). In section 2(1) ‘casual trading’ is defined as selling goods at a place. In the repealed Act of 1980 the words used (also in section 2) were selling goods ‘by retail at a place …’ The present wording is crisper and covers all selling including selling by retail. Subsection (2) excludes from the definition of ‘casual trading’ selling by auction (other than by Dutch auction), selling to a person where he resides or carries on business and selling for charity or for other (unspecified) purposes from which no private profit is derived and provided no remuneration, emolument, gain or profit accrues to the seller. It may be noted that as far as sales for allegedly charitable or non-profit making purposes are concerned the onus of proving that the seller comes within the exception is placed on the seller. In Crosby v Delap [1992] I.L.R.M. 564 Johnson J. accepted that the proper interpretation of section 2(2)(g) of the 1980 Act (which dealt with selling for charitable purposes and which was worded in exactly the same terms as section 2(2)(c)), was that the onus of showing that the exception applied was on the defendant. In an earlier case, Skibbereen UDC v Quill [1986] I.L.R.M. 170, the defendants were charged with trading without a licence in the town of Skibbereen contrary to sections 3 and 5 of the Casual Trading Act, 1980. The charges were denied by the defendants on the ground that they were engaged in an exempted market pursuant to section 2(2)(h) of the Act. This provision, which is not continued in the present Act, exempted ‘selling at a market or fair held in pursuance of a market right.’ Such a right was defined as a right conferred by franchise or statute to hold a fair or market. Such a franchise was granted in 1675 and was purchased by Skibbereen UDC in 1949 but was never used. Section 9 of the repealed 1980 Act provided (as section 8 of the present Act does) for the extinguishing of existing market rights, but this provision had not been availed of. In reply to a consultative case stated Lynch J. ruled on the points of law that the franchise created by the charter was not terminated by the lack of exercise of it by the complainant UDC, but that neither was there an obligation on the complainant to hold markets in accordance with the terms of the charter. Further, whether or not the complainant held markets, under the charter those members of the public wishing to trade had rights, which were in the nature of proprietary rights, to attend at the market place on the days specified in the charter in order to engage in trading. Such trading came within the exemption of section 2(2)(h). It appears that this was the case because the original franchise for Skibbereen did not set limitations or boundaries and accordingly the defendants were entitled to hold a market (on Wednesdays and Saturdays, the days designated in the Franchise of 1675) at any place in the town, in the absence of any specified place designated by the Council.

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Appendix 1  Statutes Lynch J. further held that an individual trader could constitute a concourse of traders within the meaning of section 1 of the Act of 1980 (the provisions is the same under the present Act: see ‘market right’ in section 1), having regard to the provisions of section 11(a) of the Interpretation Act, 1937 whereby the plural includes the singular. It will be noted that selling to a person at his home or at his place of business is also excluded from the definition of casual trading. Such selling is, however, covered by the European Communities (Cancellation of Contracts Negotiated away from Business Premises) Regulations, 1989, S.I. No. 224 of 1989 : the ‘Doorstep Selling’ Regulations. Subsection (3) allows the Minister to add to, delete or alter the classes of selling which are specified as not coming within the meaning of ‘casual trading’. Subsection (4) allows a local authority, through its bye-laws and in respect of its own functional area only, to add to (but not to alter or delete) the classes of selling which at any time stand specified in subsection (2). (1) Paragraph substituted by the Property Services (Regulation) Act, 2011, s 101, Sch 8. (2) Word substituted by the Casual Trading Act 1995 (Section 2(3)) Regulations 2004, SI 191/2004, reg 5(a). (3) Paragraph inserted by the Casual Trading Act 1995 (Section 2(3)) Regulations 2004, SI 191/2004, reg 5(b).

3.  Restriction on casual trading (1)  A person shall not engage in casual trading unless he is, or is the servant or agent acting as such of, a person who holds a casual trading licence that is for the time being in force and the casual trading is in accordance with the licence. (2) (a) Where there is a casual trading area in the functional area of a local authority, a person shall not engage in casual trading in that functional area other than in that casual trading area unless he is the holder of a casual trading licence granted under section 4(1)(a)(iii) for the time being in force and the casual trading is in accordance with the licence. (b) The restriction effected by paragraph (a) shall not, during the currency of a casual trading licence granted to a person in respect of the functional area of a local authority and in force immediately before the designation of a casual trading area (being the first such area so designated by that authority under this Act) in the functional area of that authority, have effect in relation to the person. (3)  A person who contravenes this section shall be guilty of an offence. (4)  In a prosecution for an offence under subsection (1), it shall be presumed until the contrary is shown that, at the time of the casual trading to which the offence relates, the defendant, or, if he was at that time acting as a servant or agent of another person in relation to such trading, that that other person was not the holder of a casual trading licence for the time being in force. (5)  In a prosecution for an offence under subsection (2)(a) where it is shown that a person was engaging in casual trading, it shall be presumed until the contrary is shown that, at the time of the casual trading to which the offence relates— (a) there was a casual trading area in the functional area of the local authority concerned, (b) the casual trading was carried on in an area that was not a casual trading area, and (c) the defendant or, if he was at that time acting as a servant or agent of another person in relation to such trading, that that other person was not the holder of a casual trading licence granted under section 4(1)(a)(iii) for the time being in force. General Note This section prohibits casual trading unless carried out by a person who holds a casual trading licence, and contains limitations on such trading.

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Casual Trading Act 1995 Subsection (1) creates the general offence of casual trading without a valid casual trading licence. Subsection (4) reverses the evidential burden of proof and requires the defendant, in a prosecution for an offence under subsection (1), to show that he comes within the statutory provision. See Crosby v Delap [1992]  I.L.R.M. 564 and the General Note to section 2 above. A  person guilty of an offence under this section is liable to summary conviction to fines ranging from £50 for a first offence to £1,000 for a third or subsequent offence and to a fine not exceeding £10,000 on conviction on indictment with provision also for a custodial sentence and for continuing offences. Subsection (2)(a) places a restriction on casual trading other than in a casual trading area unless the trader is the holder of a licence which allows such casual trading as specified under paragraph (iii) of section (4)(1)(a). In effect, a trader must get a licence to trade at a location outside the casual trading area (where one exists) for events such as football matches, concerts, etc. However, the requirement of subsection (1) is ameliorated by subsection (2) which effectively provides that a trader is not restricted as to where he trades if he is the holder of a casual trading licence which was issued before the designation of a casual trading area by the local authority in its functional area. This provision allows a person who is the holder of a casual trading licence to trade anywhere within the functional area of the issuing local authority pending the designation, for the first time, of a casual trading area and allows a licence so issued to continue (after an area has been designated) until its expiry date, or unless it is revoked in accordance with the provisions of section 4(4). A casual trading licence is issued for 12 months maximum or for a shorter period. The provisions of subsection (2)(a) and (b) therefore come to this: where there is a designated casual trading area, trading outside it is prohibited unless licensed in accordance with the provisions of section 4(1)(a) (iii) (which allows trading at or in the immediate vicinity of events specified in the licence). There is no restriction on a licensed trader, as to location of trading within a functional area pending the first designation of a casual trading area by the local authority. Subsection (5) was added by Ministerial amendment at select committee stage (Select Committee on Enterprise and Economic Strategy, June 15, 1995). As with subsection (4), it places an evidential burden on an accused to show that he comes within the statutory provisions. The presumption is that there was a designated casual trading area, that he did not use it and that he was not the holder of a licence which permitted him to trade outside the designated area. Prior to an accused having any case to answer it must be shown that ‘a person was engaging in casual trading…’ Needless to say, this burden falls on the prosecution in every case.

4.  Casual trading licences (1)  (a) Subject to the subsequent provisions of this section, a local authority shall, on the application in writing of a person therefor and on payment to the local authority of the fee (if any) fixed by bye-laws under section 6, grant to the person a licence (referred to in this Act as ‘a casual trading licence’), in such form and specifying such matters as the local authority may determiane, authorising the person to engage in casual trading on specified days— (i) if no casual trading area stands designated in respect of the functional area of the authority under section 6, in that area, or (ii) at one place only in one specified casual trading area in the functional area of the authority, or (iii) at an event or events specified in the licence to which the public are admitted, whether subject to or free of charge, or at or in the immediate vicinity of the place where and on the day on which the event takes place. (b) A local authority may grant more than one casual trading licence to a person in respect of casual trading in different casual trading areas or at different specified places in a casual trading area. (2)  An application for a casual trading licence shall be made to the local authority concerned not less than 30 days before the first day on which it is intended to engage in the casual trading to which the application relates and shall be in such form as may be prescribed or in a form to the like effect. [(2A)  (a)  For the purposes of the assessment, charge, collection and recovery of any tax or duty placed under the care and management of the Revenue Commissioners— 503

Appendix 1  Statutes (i) a casual trading licence shall not be granted unless the application for a casual trading licence contains the applicant’s tax reference number, and (ii) the local authority concerned shall, upon the grant of a casual trading licence, or as soon as may be thereafter, notify the Revenue Commissioners in writing of the name, address and tax reference number of the person to whom the licence was granted and the conditions (if any) contained in the licence including the duration thereof. (b) In this subsection, ‘tax reference number’, in relation to an applicant for a casual trading licence, means— (i) in the case of an applicant who is an individual, the identifying number, known as the Revenue and Social Insurance (RSI) Number, and (ii) n the case of any other applicant, the identifying or reference number, stated on any correspondence, including a notice of determination of tax-free allowances, return of income or return of profits form or notice of assessment issued to the applicant by an inspector of taxes appointed under [section 852 of the Taxes Consolidation Act, 1997](1).](2) (3)  (a)  A casual trading licence may contain such conditions (if any) as the local authority concerned determines and specfies in the licence. (b) A person who holds a casual trading licence shall comply with the conditions of the licence. (c) A person who contravenes paragraph (b) shall be guilty of an offence. (4)  A local authority may revoke a casual trading licence if it is satisfied that a condition of the licence is being or has been contravened or if the person to whom it was granted is convicted of an offence in relation to the importation, possession or sale of goods committed while he was the holder of a casual trading licence or an offence under section 3. (5)  A local authority may refuse to grant a casual trading licence to a person if— (a) the person fails to furnish a completed application form for a casual trading licence, (b) the person fails to pay the appropriate fee (if any) with the said application form, or (c) a trading place for the purpose of casual trading is not available. (6)  A local authority may refuse to grant a casual trading licence to a person who has been convicted of an offence in relation to the importation, possession or sale of goods committed while he was the holder of a casual trading licence or an offence under this Act (other than an offence under section 5) during the period of 3 years before the date of application for the licence. (7)  A local authority shall not grant a casual trading licence to a person who was convicted of two or more offences (each offence being either an offence in relation to the importation, possession or sale of goods committed while the person was the holder of a casual trading licence or an offence under this Act (other than an offence under section 5)) if two, at least, of the convictions occurred less than 3 years before the first day on which the person proposes to engage in casual trading to which the application for the licence relates. [(8) Section 4A(4) (inserted by Regulation 4 of the European Union (Casual Trading Act 1995) Regulations 2018 (S.I. 308 of 2018)) shall apply for the purposes of the duration of a casual trading licence.](3) (9) A person who applies to a local authority for a casual trading licence shall furnish to the local authority the information requested in the form prescribed together with such further information as the local authority may request for the purposes of the exercise of its powers and functions under this section and, if the 504

Casual Trading Act 1995 person fails to comply with this subsection, the local authority may refuse to grant the person the licence. (10)  This section is without prejudice to the provisions of statutes or instruments made under statute or of any other laws governing the sale of goods by a person while the person is the holder of a casual trading licence. (11)  Upon the grant of a casual trading licence, or as soon as may be thereafter, the local authority concerned shall notify the Minister for Social Welfare in writing of the name and address of the person to whom the licence was granted and the conditions (if any) contained in the licence including the duration thereof. Citator Note s. 4, S.I. 146/1996. s. 4, (2A), inserted: 1996, No. 9, s. 141. General Note This section obliges a local authority, subject to certain specified circumstances, to grant a casual trading licence to an applicant who pays a fee (if any) fixed under section 6 and who fulfils certain conditions. It is envisaged that the licensing system will enable a local authority to either issue a general licence without territorial limitation in its own jurisdiction, or to confine it to casual trading areas or special events. The local authority concerned is also obliged to inform the Minister for Social Welfare when a licence is issued. The thrust of the licensing system is that a person is entitled to a licence, on terms specified by the local authority, provided he or she does not come within the exclusions stated in subsections (5), (6) and (7). A licence will permit trading on specified days and is valid for a period of up to 12 months. A licence may be revoked for contravention of its terms or in other stated circumstances. For example, a licence may be issued for the entire functional area of a local authority if the local authority in question has not designated a trading area. A licence may also be issued for one place only within a specified casual trading area or to cover events specified in the licence and a local authority may grant more than one licence to a person to allow trading in different casual trading areas or at different specified places in a casual trading area. Subsection (2) details the application procedure for a casual trading licence. Subsection (3) provides that conditions may be attached to a licence and that compliance with any conditions is mandatory, non-compliance being an offence attracting a fine of not more than £1,000 on summary conviction. Subsection (4) provides for the revocation, in stated circumstances, of a casual trading licence. Covered by this subsection would be offences in relation to the sale of goods under both the Consumer Information Act 1978 and the Sale of Goods and Supply of Services Act 1980. For example, under the 1978 Act it is an offence for a person acting in the course of a business (‘the SGSSA 1980’) to have in his possession with the intention of selling or offering for sale, goods to which a false or misleading trade description has been attached. Under the SGSSA 1980, section 11, for example, creates the offence (again, for a person acting in the course of a business) of publishing statements which purport to restrict the implied rights of the buyer under certain sections of the Sale of Goods Act, 1893. It is also an offence under section 16 of the SGSSA 1980 for a supplier to supply goods which do not comply with the terms specified for any guarantee which is given. It should perhaps be said that the SGSSA 1980 does not require that a guarantee be given with goods, only that where one is given it must comply with the provisions of section 16. A licence may also be revoked for a conviction under section 3, for breach of a term of a casual trading licence. Subsection (5) sets out the circumstances in which a local authority may refuse to grant a casual trading licence. Paragraphs (a) and (b) are straightforward, but paragraph (c) raises the question as to what is a ‘trading place’? It would appear to mean a ‘space’ in an already designated casual trading area. If this interpretation is correct, then a local authority can refuse to grant a casual trading licence if it has already issued licences sufficient in number to cover all the space available in its designated casual trading area. It is submitted that this is the correct interpretation of ‘trading place’; it must, for example, differ in meaning from ‘casual trading area’ and would appear to refer to a place within such an area. Further, the provisions of subsection (1)(a)(ii) (which speaks of authorising a person to trade on specified days ‘at one place only in one specified casual trading area in the functional area of the authority …’) add weight to the view that ‘a trading place’ means a place in a casual trading area. Thus, where, for example, a local authority designates 20 places

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Appendix 1  Statutes for casual trading within its functional area, it may, once the 20 places are allocated, refuse further licences on the ground that a trading place is not available. Subsection (6) allows a local authority to refuse a licence where a person has been convicted of an offence during the period of three years before the date of application for the licence. However, an offence in respect of the non-display of a licence (section 5) will not be a ground for refusal. It may be noted that the grounds for refusal of a licence are otherwise wide in that they may relate to an offence in connection with the importation, possession or sale of goods. Subsection (7) prohibits a local authority from granting a casual trading licence where a person has been convicted of two or more offences but only if at least two of the convictions were within three years of the date of the application for a licence to engage in casual trading. In other words, two or more recent convictions will disbar an applicant for a licence. Again, the minor offence of the non-display of a licence will not disbar an applicant. Under section 4(6) of the 1980 Act the then licensing authority, the Minister, was obliged to refuse a licence ‘if the latest conviction occurred less than five years before the first day on which the person proposed to engage in the casual trading to which the application for the licence relates and, two, at least, of the convictions occurred after the expiration of the last period (if any) of disqualification by virtue of this subsection for being granted a casual trading licence.’ Thus, it would appear that the present regime is less severe than was heretofore the case; a five year conviction-free period no longer being a pre-requisite for the grant of a licence. The power of the Minister to refuse to grant a casual trading licence (and the interpretation of section 4(6) of the 1980 Act) came before the High Court and, on appeal, before the Supreme Court in Hand v Dublin Corporation [1991] I.L.R.M. 556. In the High Court, Barron J. accepted that section 4(6) was not absolutely clear, and although ‘period of disqualification’ was not defined in the Act, it appeared to him to relate to any period of five years during which the applicant for a licence did not incur any relevant conviction. Further, that where there was a five year convictionfree period, one conviction after such a period was not sufficient to bring section 4(6) into operation. For a discussion on this point, see Annual Review of Irish Law, 1988, Byrne & Binchy, Round Hall Press, Dublin. The facts of Hand were that a group of 14 street traders had been engaged in street trading in Henry Street in Dublin without casual trading licences. Each of them applied for a licence but was refused pursuant to the provisions of section 4(6) of the 1980 Act as each of them had been convicted of two or more offences under section 3 of the Act. Despite being refused licences to trade, the plaintiffs continued to trade and were ultimately informed by an authorised officer possessed of statutory powers under the Act that if they continued to trade they would be removed by the Gardai. The plaintiffs sought a declaration that such of the provisions of sections 4 and 5 of the 1980 Act as purported to empower the Minister and the Local Authority to refuse to grant them casual trading licences or permits were invalid, having regard to the provisions of the Constitution, as constituting an unjust attack on their constitutional right to earn a livelihood as guarantee by Article 40.3 of the Constitution. The plaintiffs further submitted, inter alia, that the effect of section 4(6) was to deprive them of their means of livelihood and that the deprivation of the licence was a punishment out of all proportion to the nature of the offences committed. In the High court, Barron J. dismissed the plaintiffs’ claim and refused the relief sought. The Supreme Court, in dismissing the appeal and in holding that the impugned provisions of the 1980 Act were not inconsistent with the provisions of the Constitution, held (1) that the plaintiffs’ claim that the nature of the offences committed was out of proportion to the deprivation of their means of livelihood was not sustainable; (2) that where the Oireachtas was required to legislate for the control and regulation of casual trading in a public place to which the public has access as of right or on land occupied by and in the functional area of the local authority, and designated as a casual trading area by the authority, it was open to the Oireachtas to provide for strict control and regulation of that trading having regard to the common good; and (3) that the right to trade and earn a livelihood, recognised by the courts as amongst the unspecified personal rights guaranteed by Article 40.3 of the Constitution, is not an unqualified right and where a person engaged in casual trading has been convicted of an offence under the provisions of the Casual Trading Act, 1980, it is neither unjust nor unreasonable to deprive that person of the right to obtain a licence under the Act by reason of the fact of his having been convicted of a second or further offence under the Act. For a discussion on the constitutional aspect of the case see Annual Review of Irish Law 1991, Byrne & Binchy, Round Hall Press, Dublin. Subsections (6) and (7) were the subject of Ministerial comment at the report and final stage debate in the Dáil, in which the Minister, Mr. Rabbitte, referred to his commitment made to deputies

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Casual Trading Act 1995 in Committee to look further at some concerns ‘particularly those concerning the five-year ban from holding a casual trading licence following a conviction for an offence’. He said, ‘I have considered this matter further and have concluded that a five-year ban is unnecessarily harsh having regard to the general nature of casual trading offences. Therefore, I propose that the five year periods referred to in both subsections be amended to three years which will not seriously diminish their deterrent effect. I also propose in these amendments to delete the reference to the Casual Trading Act, 1980, the effect of which will be that all casual traders will commence trading under the new regime with clean records. This measure, while somewhat unusual, is essential to resolve the particular circumstances of a large number of traditional traders in Dublin city who would be unable to benefit for a considerable period from the more flexible powers of Dublin Corporation and other local authorities under the new regime which will entail licensing under the designated casual trading area system, or licensing under general bye-laws for special events. It is essential to take this opportunity to deal with the position whereby traders do not qualify for trading pitches, being debarred under the present five-year ban relating to two or more offences. In this context I have contacted Dublin Corporation and I hope progress can be made on this front. The proposed deletion of offences under the Casual Trading Act, 1980 is an essential part of the process of resolving this problem. It constitutes an amnesty for the women affected in respect of whom Deputies Gregory and Costello argued so strongly on Committee Stage.’ (455 Dáil Debates Cols. 1280–1281). Subsections (8), (9), (10) and (11) are self explanatory. As originally drafted, subsection (1)(a)(ii) contained a provision that a casual trading licence could not be granted by a local authority unless a tax clearance certificate in relation to that licence had been issued in accordance with the provisions of the Finance Act, 1992. A technical amendment to the Finance Act would have been necessary to accommodate the provisions. However, the provision was removed by Ministerial amendment in Select Committee (see Select Committee on Enterprise & Economic Strategy, June 15, 1995). The Minister of State, Mr. Rabbitte, stated that the removal followed ‘Government approval and acknowledgement that the original tax clearance requirement would present an unjustifiable and disproportionate burden on the casual trading community. I am satisfied that the alternative system for applicants to quote RSI numbers for their licences, which has been accepted as necessary by the casual traders association, will provide a more equitable approach to levelling the playing pitch for casual traders and established trading interests.’ (1) Words substituted by the Taxes Consolidation Act, 1997, s 1100, Sch 31. (2) Subsection inserted by the Finance Act, 1996, s 141. (3) Subsection substituted by the European Union (Casual Trading Act 1995) Regulations 2018, SI 308/2018, reg 3.

[4A  (1)  Regulation 13 (other than paragraph (c)) of the Regulations of 2010 shall apply for the purposes of this Act subject to the modification that— (a) ‘A local authority responsible for issuing a casual trading licence shall not make access to, or the performance of, the casual trading by a provider’ shall be substituted for ‘A competent authority in the State responsible for administering an authorisation scheme relating to a service activity shall not make access to, or the performance of, the service activity by a provider’, and (b) a reference to ‘licence’ shall be construed as reference to ‘scheme’. (2) Regulation 14(1) of the Regulations of 2010 shall apply for the purposes of this Act subject to the modification that ‘Every local authority responsible for issuing a casual trading licence shall ensure that the licensing procedures and formalities applicable to the casual trading licence’ shall be substituted for ‘Every competent authority in the State responsible for administering an authorisation scheme shall ensure that the authorisation procedures and formalities applicable to the scheme’. (3)  Regulation 15 (other than paragraphs (3), (4), (5) and (6)) of the Regulations of 2010 shall apply for the purposes of this Act subject to the modifications— 507

Appendix 1  Statutes (a) that the following paragraph shall be substituted for paragraph (1): [(1) A  local authority responsible for issuing a casual trading licence shall exercise its power of assessment in relation to the operation of the licensing scheme on the basis of criteria that are not arbitrary.’, (b) in paragraphs (1), (2), (7), (8), (9) and (10), that a reference to ‘a competent authority’ shall be construed as a reference to ‘a local authority’, and (c) in paragraphs (1), (2), (7), (8), (9) and (10), that a reference to ‘an authorisation’ shall be construed as a reference to ‘a casual trading licence’. (4)  Regulation 16 of the Regulations of 2010 shall apply for the purposes of this Act subject to the following modifications— (a) that a reference to ‘an authorisation’ shall be construed as a reference to ‘a casual trading licence’, (b) that a reference to ‘authorisations’ shall be construed as a reference to ‘casual trading licences’, (c) that a reference to ‘a competent authority’ shall be construed as a reference to ‘a local authority’, and (d) in paragraph (3), that ‘the local authority responsible for issuing a casual trading licence’ shall be substituted for ‘the competent authority in the State responsible for administering the scheme to which the authorisation relates’. (5)  Regulation 17 of the Regulations of 2010 shall apply for the purposes of this Act subject to the following modifications(a) that a reference to ‘A competent authority in the State’ shall be construed as a reference to ‘A local authority’, (b) that a reference to ‘an authorisation’ shall be construed as a reference to ‘a casual trading licence’, (c) that a reference to ‘authorisations’ shall be construed as a reference to ‘casual trading licences’, and (d) in paragraph (1), that ‘the local authority responsible for issuing a casual trading licence’ shall be substituted for ‘the competent authority in the State responsible for issuing authorisations for that activity’. (6)  Regulation 18 of the Regulations of 2010 shall apply for the purposes of this Act subject to the following modifications— (a) that ‘Every local authority responsible for issuing a casual trading licence’ shall be substituted for ‘Every competent authority in the State responsible for administering an authorisation scheme’, (b) in paragraph (1)(a), that a reference to an ‘authorisation’ shall be construed as a reference to a ‘casual trading licence’, (c) in paragraphs (3), (4), (5) and (7), that a reference to ‘a competent authority in the State’ shall be construed as a reference to ‘a local authority responsible for issuing a casual trading licence’, and (d) in paragraph  (6)(b), that a reference to ‘competent authority’ shall be construed as a reference to ‘local authority’. (7)  Regulation 19 of the Regulations of 2010 shall apply for the purposes of this Act subject to the following modifications(a) in paragraph (1), that ‘a casual trading licence, a local authority responsible for issuing a casual trading licence’ shall be substituted for ‘an authorisation, a competent authority in the State’, (b) in paragraph (3)(i) that a reference to ‘an authorisation’ shall be construed as a reference to ‘a casual trading licence’, and (ii) that a reference to ‘competent authority’ shall be construed as a reference to ‘local authority’, and 508

Casual Trading Act 1995 (c) in paragraph  (4), that ‘local authority responsible for issuing a casual trading licence that refuses an application for a casual trading licence’ shall be substituted for ‘competent authority in the State that refuses an application for an authorisation’. (8)  Regulation 20 of the Regulations of 2010 shall apply for the purposes of this Act subject to the following modifications in paragraph (1)— (a) that a reference to ‘competent authority in the State’ shall be construed as a reference to ‘local authority responsible for issuing a casual trading licence’, (b) in subparagraph (e), that ‘a casual trading licence’ shall be substituted for ‘an authorisation’, and (c) in subparagraph (f)— (i) in clause (i), that ‘a casual trading licence’ shall be substituted for ‘an authorisation’, and (ii) in clause (ii), that ‘local authority’ shall be substituted for ‘competent authority in the State (other than a professional body or other organisation acting as the relevant competent authority in the State)’. (9)  Regulation 21 (other than paragraph  (6)) of the Regulations of 2010 shall apply for the purposes of this Act subject to the following modifications— (a) in paragraph (1), that a reference to ‘competent authority in the State’ shall be construed as a reference to ‘local authority responsible for issuing a casual trading licence’, and (b) in paragraph (5), that a reference to ‘competent authority in the State’ shall be construed as a reference to ‘local authority responsible for issuing a casual trading licence’. (10)  In this section, ‘Regulations of 2010’ means the European Union (Provision of Services) Regulations 2010 (S.I. No. 533 of 2010).](1) (1) Section inserted by the European Union (Casual Trading Act 1995) Regulations 2018, SI 308/2018, reg 4.

5.  Display of casual trading licences (1)  A person carrying on casual trading at any place shall— (a) display the number of the casual trading licence relating to the trading in such manner as may be determined by the local authority and in such a position at the place as to be clearly visible and easily legible to members of the public at the place, and (b) if so requested, produce the licence on demand to any person at the place. (2)  A person who contravenes this section shall be guilty of an offence. General Note This section, which is self-explanatory, deals with the display of casual trading licences. As originally drafted, the section provided for a rather more public display of the licence but this was changed by Ministerial amendment in Select Committee (Select Committee on Enterprise & Economic Strategy, June 21, 1995) to the present reading in order, according to Minister Rabbitte, ‘to take into account concerns expressed … regarding the need to avoid displaying the home address of traders on casual trading licences for reasons relating to their safety and security.’

6. Bye-laws (1)  A local authority shall, as soon as may be after the commencement of this Act, make bye-laws in relation to the control, regulation, supervision and administration of casual trading in its functional area. (2) Without prejudice to the generality of subsection (1), bye-laws under this section may make provision in relation to one or more of the following matters: 509

Appendix 1  Statutes (a) the designation of— (i) any land (including a public road, other than a motorway or a busway within the meaning in each case of the Roads Act, 1993) in its functional area to which the public have access as of right or any land occupied by and in the functional area of the authority, or (ii) with the consent of another local authority, any land (including a public road, other than a motorway or a busway within the meaning in each case of the Roads Act, 1993) in the functional area of that other authority or any land occupied by and in the functional area of that authority, as a place where casual trading may be carried on (in this Act referred to as ‘a casual trading area’), (b) the specification of the maximum area that may be occupied in a casual trading area by a person engaged in casual trading, (c) the regulation of access to casual trading areas, [(d) the fixing of fees in respect of casual trading licences which fees (if any) shall be reasonable and proportionate to the cost of the administration of a casual trading licence scheme and do not exceed the cost of such administration,](1) (e) the provision of trading places for disabled persons, (f) the enforcement of the bye-laws. (3)  When deciding whether to designate any land as a casual trading area or to revoke a designation made in bye-laws under this section, a local authority shall have regard to the proper planning and development of its functional area (including the preservation and improvement of the amenities thereof), the development plan for its functional area and any special amenity order (within the meaning in each case of the Local Government (Planning and Development) Acts, 1963 to 1993) relating to its functional area, the traffic likely to be generated by the casual trading in the casual trading area and to all other matters that it considers relevant to its decision. (4)  When making bye-laws under subsection (2)(d), a local authority may have regard to the facilities and services provided by it to persons engaged in casual trading. (5) Bye-laws under this section may contain such incidental, subsidiary and ancillary provisions as a local authority considers necessary or expedient for the purposes of the bye-laws. (6) Before making bye-laws under this section (other than bye-laws under subsection (2)(d)), a local authority shall— (a) publish notice of the proposed bye-laws in at least two newspapers circulating in the area to which the proposed bye-laws relate— (i) indicating the times at which, the period (being not less than one month) during which and the place (being a place within their functional area) where a copy of the proposed bye-laws may be inspected, and (ii) stating that the local authority will consider any submissions in relation to the proposed bye-laws which are submitted to the authority in writing by any person within 2 weeks after the end of the period referred to in subparagraph (i) of this paragraph. (7)  A person may, within 2 weeks after the end of the period for inspection of the proposed bye-laws, make submissions in writing to the local authority in relation to proposed bye-laws and the local authority shall, before deciding whether to make the bye-laws, take into consideration any submissions duly made to it and not withdrawn. (8)  (a) A  person who is aggrieved by any proposed bye-laws (other than byelaws under subsection (2)(d)) may, within a period of 21 days beginning on the date of compliance by the local authority concerned with subsection 510

Casual Trading Act 1995 (6), appeal to the District Court against the proposed bye-laws and that Court may, on the hearing of the appeal, prohibit the proposed bye-laws or authorise them subject to such conditions (if any) as it may deem appropriate and specify. (b) Notice of an appeal under this subsection shall be given to the local authority concerned and an officer of the local authority shall be entitled to appear and be heard on the hearing of the appeal. (c) A party concerned may appeal to the Circuit Court from a decision of the District Court. (9)  The making of bye-laws under this section shall be a reserved function. (10) As soon as may be after the making of bye-laws under this section, notice of their making and of the place where copies thereof may be purchased or inspected shall be published in Iris Oifigiúil and in at least two of the newspapers circulating in the area to which the bye-laws relate. (11) A  local authority shall not proceed to make bye-laws relating to casual trading (other than bye-laws under subsection (2)(d)) before the expiry of 30 days from the date of compliance by the local authority concerned with subsection (6) in relation to the bye-laws and, if an appeal is brought against the proposed bye-laws, before the final determination of the appeal. (12)  A person who contravenes a bye-law under this section shall be guilty of an offence. Citator Note s. 6, see Bridgeman v The Mayor Aldermen and Burgesses of Limerick [2000] 9 I.C.L.M.D. 96, H.C., June 2, 2000. General Note This section gives general powers and flexibility to a local authority to make bye-laws relating to the control, regulation, supervision and administration of casual trading in its functional area, including bye-laws relating to the designation of casual trading areas, the maximum area to be occupied by a person in a casual trading area, the regulation of access to casual trading areas, the fixing of fees, and enforcement. It also provides for the procedure to be followed by a local authority in the making of bye-laws, and for appeals. Subsection (1) obliges a local authority to make its bye-laws ‘as soon as may be’ after commencement of the Act. This period of time is not defined but it can be taken as meaning that a local authority must make its bye-laws within a reasonably short time of enactment. Subsection (2) allows for the designation by a local authority of land within its own functional area to be used for casual trading and (subsection 2(a)(ii)) for the designation, with consent, of the land of another local authority, all proposed bye-laws, with the exception of those relating to fees (subsection (2)(d)) are subject to inspection and appeal. Subsection (9) makes the making of bye-laws a reserved function. Under the 1980 Act the designation of land was a reserved function. The provision in subsection (9) of this Act is more comprehensive in that it covers all bye-law making functions of a local authority, including the fixing of fees under subsection (2)(d). For a discussion of the reserved executive functions of local authorities see Administrative Law in Ireland, Hogan & Morgan (2nd ed., 1991, Sweet & Maxwell) at pp. 166–172. Generally speaking the reserved functions of local authorities are detailed in the second schedule to the County Management Act, 1940. A reserved function is one which may not be exercised as an executive function by the manager. It may be noted that unless a function is declared to be a reserved function it may be exercised by the manager. In Lyons v. Corporation of Kilkenny, High Court, (Unreported) February 13, 1987, Barron J. held, inter alia, that the order of the Kilkenny County Manager was made ultra vires as the defendant (Kilkenny Corporation) could not delegate to him its power to make bye-laws. The case arose out of the setting by the County Manager of charges for the rental of trading bays. In issue was section 7(8) of the 1980 Act which empowered the local authority to make bye-laws in relation to the control, administration, supervision and regulation of casual trading areas in its functional area. The local authority made a bye-law purporting to delegate its power to the manager and it was this purported delegation which was held ultra vires the Corporation as the power to make bye-laws resided with the Corporation and could not be delegated.

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Appendix 1  Statutes The Court also held that a casual trading permit, issued by the defendant Corporation pursuant to section 5 of the 1980 Act on payment of a fee of £20, entitled the permit holder to engage in casual trading at the place specified in the permit. The decision in the Kilkenny case was followed some short time later by Egan J. in Comerford v O’Malley [1987] I.L.R.M. 595. The facts of this case were that section 7(2) of the 1980 Act (a provision which is identical in all material respects to section 6(3) of this Act) set out a number of matters to which the local authority was obliged to give consideration before designating any lands as a casual trading area. Tullamore UDC, after consideration of section 7(2) of the 1980 Act, passed a resolution in accordance with the Act designating O’Connor Square, Tullamore as a designated trading area to be regulated in accordance with ‘the proposed bye-laws annexed to this resolution’ in accordance with the provisions of section 7(8) of the 1980 Act. The designation was made despite the fact that the Square was considered unsuitable for the purpose by the Garda Superintendent and was not considered the most suitable place by the Council’s engineer or by the local planning officer. The applicant, who had opposed the designation, appealed to the Circuit Court where the Judge affirmed the resolution of the Council unconditionally. The applicant got leave to apply for judicial review and applied to the High Court for an order of certiorari quashing the respondent judges’ order, his contention being that the respondent’s affirmation of the Council’s resolution was perverse in view of the preponderance of evidence against the choice of O’Connor Square as a casual trading area. On this point the applicant lost. However, the order of the respondent judge was quashed on grounds other than those of perversity on the part of the Council and was remitted to him with a direction to reconsider it and reach a decision in accordance with the findings of the Court. Egan J. held, inter alia, that the Council, not the Circuit Judge, was the tribunal given the power by statute (the 1980 Act) to designate an area and that at the hearing of the appeal there had been insufficient evidence to justify the reversal of the decision of Tullamore UDC, despite the opinions of the officials. Egan J. found that ‘it would be wrong for the Circuit Court to attempt to nullify that power save in very exceptional circumstances, which said circumstances do not exist in this case.’ Egan J. also held that Tullamore UDC had given consideration to the matters set out in section 7(2) as was their duty. However, the Council had acted ultra vires its powers conferred by section 5(1) of the 1980 Act and accordingly the order of the respondent judge should be quashed and the matter remitted to the respondent, pursuant to Order 84, rule 26(4) of the Rules of the Superior Courts 1986. The ultra vires issue arose out of the Council making bye-laws which were, according to Egan J. ‘clearly ultra vires section 5 of the Act’ insofar as they ‘appear to invest the Council with the power to refuse applications to persons who hold a current licence and this power is not limited, as it should have been, to their powers of refusal under section 5(4) and (7) of the 1980 Act.’ In other words the Council were not limiting themselves to the grounds of refusal as set out in the subsections referred to. (1) Paragraph substituted by the European Union (Casual Trading Act 1995) Regulations 2018, SI 308/2018, reg 5.

[6A.  Guidelines with respect to performance of functions under section 6 (1)  The Minister may prepare and issue to local authorities guidelines, in writing, regarding the performance by them of their functions under section 6 in relation to bye-laws. (2)  Without prejudice to the generality of subsection (1), guidelines under this section may include guidelines as to the particular provision that a local authority should make by bye-laws under section 6 in relation to each of the matters mentioned in subsection (2) of that section. (3)  Local authorities shall have regard to guidelines for the time being in force under this section in performing their functions under section 6 in relation to byelaws. (4)  The Minister may amend or revoke, in writing, guidelines issued under this section. (5)  The Minister shall cause a copy of any guidelines issued under this section and of any amendment or revocation of them to be laid before each House of the Oireachtas.](1) (1) Section inserted by the Consumer Protection Act, 2007, reg 98.

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Casual Trading Act 1995 7.  Acquisition and extinguishment of market rights (1)  A local authority may acquire any market right in respect of a market or fair in its functional area by agreement or compulsorily. (2)  Section 10 of the Local Government (No. 2) Act, 1960, and Part V of and the Third and Fourth Schedules to the Housing Act, 1966, shall apply in relation to a market right in respect of markets or fairs as they apply in relation to land— (a) with the substitution of references to such market right for references to land, (b) with the deletion of— (i) ‘and of the map referred to therein’ in section 78(1) of the said Housing Act, 1966, (ii) ‘and shall have attached thereto a map of the land to which it applies’ in section 82(1) of the said Housing Act, 1966, (iii) ‘by reference to a map’ in paragraph 3 of the said Third Schedule, and (iv) ‘and of the map referred to therein’ in paragraph 4(a) of the said Third Schedule, and (c) with any other necessary modifications. (3)  References in the said Local Government (No. 2) Act, 1960 (other than section 2), to the appropriate Minister shall, in relation to acquisition under this section or borrowing for the purposes of such acquisition, be construed as references to the Minister for the Environment. (4) Where, after the commencement of this section, a market right in respect of a market or fair in the functional area of a local authority remains unexercised for a period of not less than 10 years, then, the market right concerned shall stand extinguished. General Note This section repeats section 8 of the repealed 1980 Act except that, in addition, it provides that a market or fair which remains unexercised for a period of not less than 10 years after the commencement of the section will be extinguished. This section should be read in the context of section 8 which empowers a local authority to extinguish a market right in certain defined circumstances. It is perhaps worth nothing that, quite apart from the power to extinguish contained in section 8, subsection (4) of this section provides for the automatic extinction of a right after 10 years lack of use. In this respect the section appears to take note of the decision of Skibbereen UDC v Quill [1986] I.L.R.M. 170 in which Lynch J. held, inter alia, that mere failure to hold a market would not extinguish a market right.

8.  Powers of local authorities in relation to market rights owned by them (1)  A local authority may carry on, manage and regulate a market or fair to which a market right owned by it relates as if it were a market established by it under the Public Health (Ireland) Act, 1878, and shall have all such powers as may be necessary for those purposes. (2)  A local authority may by order extinguish a market right owned by it. (3)  (a) A  local authority shall not extinguish a market right under this section unless it provides, or has already provided, alternative facilities in the same vicinity as the market or fair to which the right relates and comprising or including facilities reasonably corresponding in all respects, having regard to all the circumstances, to the market or fair. (b) Where a local authority acquires a market right compulsorily under this Act, it shall not discontinue the holding of the market or fair to which it relates unless it provides, or has already provided, alternative facilities in the same vicinity as the market or fair to which the right relates and comprising or including facilities reasonably corresponding in all respects, having regard to all the circumstances, to the market or fair. 513

Appendix 1  Statutes (4)  (a)  Whenever a local authority proposes to extinguish a market right under this section the local authority shall— (i) give notice in writing of the proposal to any person appearing to the authority to have an interest in the right, and (ii) publish notice of the proposal in at least two newspapers circulating in the area in which the market or fair to which the right relates is held. (b) Notices under this subsection shall include particulars of the facilities proposed to be provided or already provided by the local authority in the place of the market or fair to which the right proposed to be extinguished relates. (c) A  notice under this subsection may be served on any person by sending it by registered post in an envelope addressed to him at his usual or last known address. (5)  (a)  A person who is aggrieved by a proposal of a local authority to extinguish a market right may, within a period of 21 days beginning on the date of compliance by the local authority concerned with subsection (4)(a)(ii) in relation to the right, appeal to the District Court against the extinguishment and that Court may, on the hearing of the appeal, if it is of opinion that the extinguishment would, notwithstanding the alternative facilities to be provided or already provided by the local authority and having regard to all the circumstances, constitute an undue interference with the facilities enjoyed by the public in relation to the market right, prohibit the proposed extinguishment or authorise the extinguishment subject to such conditions (if any) at it may deem appropriate and specify. (b) Notice of an appeal under this subsection shall be given to the local authority concerned and an officer of the local authority shall be entitled to appear and be heard on the hearing of the appeal. (c) A party concerned may appeal to the Circuit Court from a decision of the District Court. (6) A  local authority shall not proceed with a proposal to extinguish a market right under this section before the expiry of 30 days from the date of compliance by the local authority concerned with subsection (4)(a)(ii) in relation to the right or, if an appeal is brought against the proposal, before the final determination of the appeal. (7)  The extinguishment of a market right under this section shall be a reserved function. (8) A  local authority may do any act or thing which may be necessary or incidental to the doing of anything which the local authority is authorised by the other provisions of this section and of sections 6 and 7 to do. General Note This section deals with the powers of local authorities in relation to market rights owned by them. It repeats section 9 (as amended) of the repealed 1980 Act and provides (a) that facilities already provided by a local authority may be taken into consideration in the context of extinguishing a market right; (b) for limitation on an appeal to the District Court to an aggrieved person (subsection (5)(a)); and (c) for appeal to the Circuit Court from the District Court. Subsection (4) only allows a local authority to extinguish a market right subject to the safeguards in respect of nature to interested parties and publication of the intention to extinguish. Subsection (5)(a) provides that ‘a person who is aggrieved’ by a proposal to extinguish a market right may bring an appeal against the proposal to the District Court within the prescribed period of 21 days from the date of publication of intent to extinguish a right. Doubtless, a person who is or who has been a casual trader would come within the description of ‘a person who is aggrieved’, but so also would any person who resides within the ambit of influence of the local authority in question. It is submitted that this is so because it is possible to envisage a person other than a trader being aggrieved at a proposal to extinguish a right which may have pertained in a town or locality for a considerable period of time. Subsection (5)(b) provides for notification of an appeal

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Casual Trading Act 1995 to be given to the local authority and subsection (5)(c) provides that either side may appeal from a decision of the District Court to the Circuit Court, where the appeal would be by way of a full re-hearing of the case. Subsection (5)(a) was discussed briefly at the Select Committee on Enterprise and Economic Strategy, June 21, 1995. It will be recalled that in Skibbereen UDC  v Quill [1986]  I.L.R.M. 170, the UDC, although entitled to do so within the terms of section 9 of the 1980 Act, had not extinguished the existing market rights (see General Note to section 2 above). In his judgment Lynch J. held, inter alia, that simple failure to hold a market would not extinguish the right. This was supported by section 9 ‘which provided for the extinguishment of franchises to hold fairs when the interests of third parties were taken into account, and while non-user by the grantee of a market might result in forfeiture of the franchise to the State, this would not in itself extinguish the market which would remain in existence for the benefit of the locality.’

9.  Prohibition of false information and alteration of licences (1)  A person shall not give false information to a local authority in relation to an application for the grant of a casual trading licence. (2)  A person shall not with intent to deceive either alter or use a casual trading licence. (3)  A person shall not forge a document purporting to be a casual trading licence. (4) A  person who contravenes subsection (1), (2) or (3) shall be guilty of an offence. (5)  It shall be a defence for a person charged with an offence under this section in relation to the giving of false information to a local authority to show that he did not know and could not, with the exercise of reasonable care, have known that the information was false. General Note Section 9 repeats the provisions of section 10 of the repealed 1980 Act, except for the deletion of the reference to the Minister. It may be noted that as far as subsection (2) is concerned mens rea is a requirement of the offence. As far as subsection (5) is concerned, the defence is based subjectively on lack of knowledge and on the exercise of reasonable care. It is submitted that the burden to be discharged by a defendant is evidential and not persuasive (R v Hunt [1987] A.C. 352) although the wording of subsection (5) would appear to suggest that what is involved is the persuasive burden. If the burden which falls on a defendant is indeed persuasive it may be set no higher than the burden which falls on a defendant in civil proceedings, namely ‘the balance of probabilities’: R v Sodeman [1936] 2 All ER 1138 and R v Carr-Briant [1943] KB 607; 29 Cr App R 76.

10.  Powers of authorised officers and Garda Síochána (1)  A local authority may appoint officers of the local authority or other persons to be authorised officers for the purpose of this Act, and an authorised officer appointed under this subsection may exercise the powers conferred by this section on authorised officers only in the functional area of the authority by which he was appointed or in the functional area of another local authority with whom an agreement exists for the exercise or performance by officers of the first-mentioned authority in the functional area of that other authority of the powers and functions of an authorised officer. (2)  (a)  An authorised officer or a member of the Garda Síochána may— (i) enter, inspect and examine any place where he has reasonable cause to believe that casual trading is being engaged in, (ii) require any person whom he has reasonable cause to believe to be engaging in casual trading— (I) to produce, if it is not being displayed, a casual trading licence authorising such trading and to permit the officer or member to examine the licence, and (II) if he fails, neglects or refuses to produce such a licence or, in a case in which it is not being displayed, to furnish to the officer 515

Appendix 1  Statutes his name and address and, if he is the servant or agent of another person, the name and address of the other person, (iii) make sure examination and inquiry as may be necessary to ascertain whether the provisions of this Act or of bye-laws made thereunder are being complied with, (iv) require any person whom he has reasonable cause to believe to be engaging in casual trading in contravention of this Act to give such information as is in his power to give as to the ownership of any goods being sold in the course of such trading, (v) require any person whom he has reasonable cause to believe to be engaging in casual trading in contravention of this Act to produce to him any documents, books or records relating to such trading in his power, possession or control and give to him such information as he may request in relation to entries in those documents, books or records and examine, copy or take extracts from any such document, book or record. (b) An authorised officer who proposes to perform a power or function conferred on him by paragraph (a)(i) may request a member of the Garda Síochána to accompany him if he has reasonable cause to apprehend any obstruction in the execution of his duty. (3) A  person shall not obstruct or interfere with, or give false information to, an authorised officer or a member of the Garda Síochána in the performance of his functions under this Act. (4)  (a)  A person shall not fail, refuse or neglect to comply with a requirement of an authorised officer or a member of the Garda Síochána under this section. (b) A person shall be deemed not to have failed or refused to comply with a requirement of an authorised officer or a member of the Garda Síochána under this section to produce a casual trading licence if he gives to the officer or member his name and address and, if he is the servant or agent of another person, the name and address of that other person. (5)  If a person fails, refuses or neglects to comply with a requirement of a member of the Garda Síochána under this section, the person may be arrested and any goods which he is selling or has in his possession for sale at the place where the member believed him to be engaging in casual trading and the receptacle, vehicle or stand on or in which the goods are and all utensils, boxes and other articles (including money) thereon and any draught animal attached thereto may be seized, detained and removed by the said or any other member of the Garda Síochána without a warrant. (6)  A person who contravenes subsection (3) or (4)(a) shall be guilty of an offence. General Note This section is similar in nearly all respects to section 11 of the repealed 1980 Act. In place of the Minister, the power to appoint authorised officers now resides with the local authority. It may be noted that this power of appointment is not a reserved power. Essentially, the section empowers authorised officers and members of the Garda Síochána to enter, inspect and examine any place where they have reasonable cause to believe casual trading is taking place and to satisfy themselves that any such casual trading is being carried out by licensed persons in accordance with the terms of their licences. It is, what may be termed an ‘entry, search and seizure section’ based on ‘reasonable cause of belief’. Stone in Entry, Search & Seizure (2nd ed., Sweet & Maxwell) states that ‘Where a police officer or other official, takes action under a power which does not require a warrant [as the powers under this section do not] … there will generally be a requirement that reasonable grounds for suspicion exist, before action is taken. … The test whether there was a reasonable and probable cause for the arrest or prosecution is an objective one, namely, whether a reasonable man, assumed to know the law and possessed of the information possessed by the defendant, would believe that there was a reasonable and probable cause.’; Dallison v Caffrey [1965] 1 Q.B. 348, 371. On the point generally see Stone, ibid at pp 1.17–1.19 and see also R v IRC, ex p Rossminster [1980] AC 952.

516

Casual Trading Act 1995 The offences contained in subsections (3) and (4) relate to obstruction and failure to comply with a request of either an authorised officer or a Garda. However, subsection (4)(b) makes compliance with the requirements in respect of the production of a casual trading licence a rather simple matter, providing as it does that compliance is satisfied once a person gives his name and address to the Garda or the authorised officer. Subsection (5) permits a Garda to arrest a person who fails, refuses or neglects to comply with a requirement of a Garda under the section. It also empowers the same or another Garda to seize and detain the goods and chattels of the putative offender without a warrant. It is not entirely beyond doubt that the arrest may be made without warrant but on an overall construction of the subsection it would appear that this is so. The subsection does not differ from subsection (5) of section 11 of the repealed 1980 Act. It has long been the case at common law that a police officer may arrest a person whom he reasonably believes to have committed a felony. On this point and on arrest without warrant authorised by statute see The Irish Criminal Process, Ryan & McGee (1983, Mercier Press) at pp 97–99.

11.  Further powers of Garda Síochána (1)  A member of the Garda Síochána may, without warrant, arrest a person whom he has reasonable cause to believe to be contravening a provision of this Act at any place and may seize and remove any goods which he is selling or has in his possession for sale at the place. (2)  If a member of the Garda Síochána has reasonable cause to believe that a person is engaging in casual trading in contravention of this Act at any place he may require the person to remove himself and his goods from that place and, if the requisition is not complied with, may without warrant arrest the person and seize and remove any goods which he has in his possession at the place for the purposes of casual trading. (3) References in this section to goods include references to the receptacle, vehicle (including a vehicle used for towing) or stand in or on which the goods are exposed or carried and all utensils, boxes and other article (including money) which are on or in such receptacle, vehicle or stand for the purposes of the trading and any draught animal attached thereto or left at the place where the receptacle, vehicle or stand is for the purpose of moving it. General Note This section, which is self-explanatory, deals with further powers of the Garda Síochána. It should be read in conjunction with section 10. It repeats section 12 of the 1980 Act, subject to further expansion of the term ‘vehicle’ so as to include a vehicle used for towing.

12.  Disposal of goods seized by Garda Síochána (1)  Whenever any goods are seized and removed under this Act by a member of the Garda Síochána, a Superintendent may in the case of perishable goods not less than 12 hours and in the case of any other goods not less than 3 days after the seizure cause the goods to be sold and shall out of the proceeds of such sale defray all expenses incurred in the seizure, removal, storage and sale of the goods and shall pay the surplus of such proceeds to the person who at the time of the seizure was the owner of the goods. (2) Whenever any such goods as aforesaid unclude any article intended for human food or drink and such article is at any time before the sale thereof under this section unfit in the opinion of the Superintendent for human consumption, the Superintendent may cause such article to be destroyed. (3) If, before any such goods as aforesaid are sold under this section, any person satisfies the Superintendent that he is the owner of such goods and pays to the Superintendent all expenses incurred in the seizure, removal, storage and any intended or attempted sale of goods, the Superintendent shall hand over such goods to such person. 517

Appendix 1  Statutes (4)  (a)  In this section ‘a Superintendent’ means a Superintendent of the Garda Síochána. (b) References in this section to goods include references to every receptacle, vehicle, stand, utensil, article, and animal seized and removed under this Act with the goods. General Note This section repeats section 13 of the 1980 Act with the exception that goods seized may be disposed of on the authority of a ‘Superintendent’ of the Garda rather than, as heretofore, on the authority of the Commissioner. In other words, there is a loosening of the power to dispose through delegation. The section is straightforward in that it provides for seizure and disposal of goods subject to conditions; there is also a power to destroy and an obligation to return goods to the owner on payment of all costs incurred.

13.  Registers of licences (1)  A local authority shall establish and maintain a register (which shall be known as the Register of Casual Trading Licences and referred to subsequently in this section as ‘the register’) for the functional area of the authority of the casual trading licences granted by it under this Act containing such particulars (including particulars in relation to the revocation of such licences) as the Minister considers appropriate and specifies to the authority. (2)  A local authority may amend an entry in or delete an entry from the register. (3)  The register may be established and maintained in a form that is not legible if it is capable of being converted into a legible form. General Note This section, which is self-explanatory, obliges a local authority to establish and maintain a register of licences. The register may be computerised, provided that it can be converted into a legible form.

14. Penalties (1)  A person guilty of an offence under section 3 shall be liable— (a) on summary conviction— (i) in the case of a first offence, to a fine not exceeding £50, (ii) in the case of a second offence, to a fine not exceeding £250, (iii) in the case of a third or subsequent offence to a fine not exceeding £1,000, or (b) on conviction on indictment, to a fine not exceeding £10,000 together with, in the case of a continuing offence, a fine not exceeding £500 for each day or part of a day on which the offence is continued after the first such day or to imprisonment for a term not exceeding 6 months or to both the fine or fines and the imprisonment. (2)  A person guilty of an offence under this Act (other than section 3) shall be liable on summary conviction to a fine not exceeding £1,000. (3)  A summary offence under this Act may be prosecuted by the local authority in whose functional area the offence is alleged to have been committed or by another local authority with whom an agreement exists for the exercise by the latter authority of the powers and functions under this section of the former authority. (4)  Where an offence under this Act is committed by a body corporate and the offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any person who, being a director, manager or secretary of such body, or a person who was purporting to act in any such capacity, that person as well as the body corporate, shall be guilty of an offence and shall be liable to be proceeded against and punished as if he were guilty of the firstmentioned offence. 518

Casual Trading Act 1995 General Note This section sets out the penalties which attach to offences under the Act. A distinction is drawn between offences under section 3 (penalties for breaches of which are graded) and those under the remainder of the Act. A person guilty of a summary offence (other than a section 3 offence) is liable on conviction to a fine not exceeding £1,000, the penalty for conviction on indictment being at large.

15.  Laying of regulations Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. General Note This is a negative vetting procedure for Regulations. It is self-explanatory.

16.  Amendment of Occasional Trading Act, 1979 (1)  The Occasional Trading Act, 1979, is hereby amended— (a) in section 2, by the substitution of the following subsection for subsection (3) : ‘(3)  The Minister may, by regulations, amend (whether by the addition, deletion or alteration of classes) the classes of selling specified in subsection (2) and that subsection shall have effect in accordance with any such regulations.’, (b) in section 4, by the insertion of the following subsection after subsection (13) : ‘(14)  Upon the grant of an occasional trading permit, or as soon as may be thereafter, the Minister shall notify the Minister for Social Walfare in writing of the name and address of the person to whom the permit was granted and the conditions (if any) contained in the permit, including the duration thereof.’, and (c) in section 9 — (i) by the substitution of the following subsection for subsections (1), (2) and (3): ‘(1) A  person guilty of an offence under section 3(1) of this Act shall be liable— (a) on summary conviction, to a fine not exceeding £1,000, or (b) on conviction on indictment, to a fine not exceeding £10,000 together with, in the case of a continuing offence, a fine not exceeding £500 for each day or part of a day on which the offence is continued after the first such day or to imprisonment for a term not exceeding 6 months or to both the fine or fines and the imprisonment.’, and (ii) in subsection (4), by the substitution of ‘£1,000’ for ‘£500’. (2)  Regulations under subsection (3) of section 2 of the Occasional Trading Act, 1979, in force immediately before the commencement of this section, shall continue in force after such commencement as if made under the said subsection (3), as inserted by this section, and may be amended or revoked accordingly. General Note This section was not in the Bill as initiated. It was inserted by Ministerial amendment at the Select Committee stage (Select Committee on Enterprise and Economic Strategy, June 21, 1995). It amends the Occasional Trading Act, 1979 in certain respects. According to the Minister of State, Mr. Rabbitte, ‘The purpose of this amendment is to maintain consistency between the Occasional

519

Appendix 1  Statutes Trading Act, 1979, with regard, in the first instance, to the power of the Minister for Enterprise and Employment, by regulations to amend the classes of trading which may be exempted from the 1979 Act, secondly, the provision of information to the Minister for Social Welfare relating to licences issued and thirdly, penalties. In addition, the amendment under subsection (2) proposes to save regulations already made under section 2(3) of the Occasional Trading Act, 1979, to bring it into line.’

17.  Repeal and transitional provision (1)  The following are hereby repealed: (a) the Act of 1980, and (b) section 6 of the Dublin Corporation (Markets & c.) Act, 1901. (2)  Subsection (1)(a) shall not, during the currency of a casual trading licence or a casual trading permit in force immediately before the commencement of this section, apply in relation to the licence or permit or the holder thereof and the carrying on of casual trading in accordance with the licence or permit shall be deemed not to be in contravention of this Act, and the Act of 1980 shall, notwithstanding subsection (1) (a), continue to apply during such currency in relation to the licence or permit and in relation to the holder thereof. (3)  Subsection (1)(a) shall not affect the amendments effected by section 7(3) or section 17 of the Act of 1980. General Note This section provides for the repeal of the 1980 Act and for transitional measures. Subsection (1)(b) provides for the repeal of section 6 of the Dublin Corporation (Markets etc.) Act, 1901. This amendment was necessary in order to regularise a problem faced by Dublin Corporation regarding casual trading in the Thomas Street area of the city. The 1901 Act made it uncertain as to whether casual trading was permissible in and around the Iveagh Market to the extent that Dublin Corporation had been unable to issue permits for trading in that area under the 1980 Act. The repeal effected by subsection (1)(b) removes that uncertainty. Repeals are governed by section 19 of the Interpretation Act, 1937.

18.  Short title and commencement (1)  This Act may be cited as the Casual Trading Act, 1995. (2)  This Act shall come into operation on such day or days as, by order or orders made by the Minister, may be fixed therefor either generally or with reference to any particular purpose or provision and different days may be so fixed for different purposes and different provisions and for the repeal of different provisions of the enactment specified in section 17(1)(a). Citator Note s. 18, S.I. 267/1995.

520

Appendix 2 Precedents

Appendix 2 – Precedents 1.  2.  3.  4.  5.  6.  7. 

Model Byelaw Set 10: Guidance Notes Model Byelaw Set 10 Regular Trading Application Form Regular Trader Holiday Form Rules And Regulations For A Stall Licence Tenancy At Will Market Management Agreement

523

p 525 p 528 p 532 p 540 p 542 p 548 p 553

Model Byelaw Set 10: Guidance Notes INTRODUCTION 1.

These model byelaws for markets have been revised to reflect recent changes to national legislation. Every attempt has been made to ensure that changes are up to date, but authorities should check for themselves, and take legal advice where necessary.

THE ENABLING POWER 2.

Section 60 of the Food Act 1984 provides for a local authority who maintain a market to make byelaws for regulating the use of the market place, for preventing nuisances or obstructions, for regulating porters, fixing certain charges and for preventing the spread of fires. As the legislation requires the local authority to consult the fire authority, draft byelaws should be accompanied by confirmation that this has been done.

3.

These model byelaws are intended as a guide to local authorities in their preparation of byelaws for regulating the use of their markets.

4.

Local authorities should ascertain as to whether they have any other enforcement powers available at either a national or local level, before seeking leave from the Secretary of State to make market byelaws.

5.

Byelaws should be adopted only if required to address an existing problem. If councils are in any doubt about the layout of the byelaws, they are advised to use the model byelaws or contact the byelaws team byelaws@communties. gov.uk.

6.

The byelaws should be numbered. Copies of any earlier byelaws that are being revoked should be sent with the new draft byelaws.

CONSULTATION 7.

In drafting proposed byelaws, local authorities must have due regard to their Public Sector Equality Duty and the provisions of the Equality Act 2010, including the requirement to the need to eliminate unlawful discrimination, harassment or victimisation, and to advance equality of opportunity and foster good relations between persons who share a relevant protected characteristic and persons who do not share it

8.

Local authorities should consider Public Spaces Protection Order designed to deal with anti-social behaviour in a public place and apply restrictions to how that public space can be used to stop or prevent anti-social behaviour. The order is issued by the council and before the order can be made the council must consult with the police and whatever community representatives they think appropriate, including regular users of the public space. Before the order is made the council must also publish the draft order. Further details can be found in  Reform of anti-social behaviour powers: statutory guidance for frontline professionals. 525

Appendix 2  Precedents

HOW TO USE MODEL BYELAW SET 10 Interpretation provisions 9.

The interpretation provision should be used to define terms which are repeated several times in the text of the byelaws. Councils should only include definitions which appear in the text of the byelaws that the council has selected. Where a defined word only appears in the text of one of the byelaws which a council proposes to adopt, that definition may be included within the text of the byelaw instead, preferably as a separate sub-paragraph.

FURTHER INFORMATION ON MODEL BYELAW SET 10 For preservation of order 10. Model byelaw 12 deals with requirements on the preservation of order and seeks to prohibit the use of various noise equipment in markets. 11. Section 62 of the Control of Pollution Act 1974  controls most uses of a loudspeaker. Therefore when considering making this byelaw local authorities should have regard to whether loudspeakers can be covered through section 62 and whether the market where the byelaw would be applied falls within section 62 in a specific market context – namely, a highway or any other road, footway, square or court which is for the time being open to the public. If the market where the byelaw would apply is not located in such a place, then retaining a reference to loudspeakers in the model byelaw may be considered on the grounds section 62 will not apply.

Livestock markets 12. Local authorities should have regard to the provisions in the  Welfare of Animals at Markets Order 1990 when making byelaws.

Revocation 13. The text of model byelaw 20 contains a number of instructions which may require further elaboration: •

“insert name” – the relevant name will be that of the council which made the byelaws, even if that council is no longer the local authority for that area or is now defunct

•

“insert date” – this is the date on which the byelaws were made

•

“insert name of confirming authority/authority that gave leave to make the byelaw” – eg The Secretary of State for the Home Department or Communities and Local Government

•

“insert date byelaws were confirmed” – this is different from the date on which they byelaws came into force 526

Model Byelaw Set 10: Guidance Notes

HOW TO CONTACT MHCLG 14. Applications seeking leave from the Secretary of State to make the byelaws and any queries should be addressed to: Byelaws Team Ministry of Housing, Communities and Local Government 2nd Floor NE, Fry Building 2 Marsham Street London SW1P 4DF Email: [email protected]

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Appendix 2  Precedents

Model Byelaw Set 10 Councils should download this model byelaw set and adapt it as required The guidance notes for Model Byelaws Set 10 should be consulted when using these Model Byelaws. MODEL BYELAWS – SET 10 [Name of Council]

BYELAWS FOR MARKETS ARRANGEMENT OF BYELAWS 1. Interpretation 2.

Market days and hours

3.

Prevention of obstruction

4.

Prevention of obstruction

5.

Prevention of obstruction

6.

Authority to use space

7.

Authority to use space

8.

Authority to use space

9.

Maintaining cleanliness

10. Prevention of spread of fire 11. Prevention of spread of fire 12. Preservation of order 13. Preservation of order 14. Preservation of order 15. Animals 16. Animals 17. Livestock markets 18. Livestock markets 19. Penalties 20. Revocation Byelaws for markets made by name of Council under section 60 of the Food Act 1984 with respect to name, location and description of markets to which the byelaws are to apply

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Model Byelaw Set 10

INTERPRETATION 1.

In these byelaws: “the council” means name of Council; “goods” means anything brought into the market place for the purpose of sale; “market” means the market maintained by the council and known as____________________ / any market maintained by the council and listed in the Schedule to these byelaws; “market hours” means the hours on a market day appointed by the council for the holding of a market; “market day” means a day appointed by the council for the holding of a market; “market officer” means the person or persons appointed by the council to exercise general management, supervision and control of a market; “sell” and “sale” include exposing and exposure for sale; “stall” includes any place or space used or intended to be used for the sale of goods; “vehicle” means a mechanically propelled vehicle [whether or not] intended or adapted for use on roads but does not include an invalid carriage.

MARKET DAYS AND HOURS 2.

No person shall sell in a market place any goods other than during market hours.

PREVENTION OF OBSTRUCTION 3.

No person shall bring a vehicle [insert if required or a cycle] into the market place during market hours without reasonable excuse.

4.

No person in charge of a vehicle shall, during market hours allow it to be halted in the market place, or in its immediate approaches, for longer than is reasonably necessary for the loading or unloading of goods.

5.

No person shall bring any goods into the market place more than one hour before the market hours begin or allow them to remain there more than one hour after the market hours end.

AUTHORITY TO USE SPACE 6.

No person shall occupy any stall or deposit any goods on any stall without the permission of the market officer.

7.

No person shall set up or attempt to set up a stall in the market place without the permission of the market officer.

8.

Where the council: a.

designate any part of the market place for the sale of particular goods or any class of goods, or for sales by auction, and

b.

display in a conspicuous place a public notice to that effect 529

Appendix 2  Precedents

no person shall sell goods, or hold sales by auction, except in accordance with the terms of that designation.

MAINTAINING CLEANLINESS 9.

Every tenant or occupier of a stall shall: a. b. c.

ensure that the stall is properly cleansed before and after market hours and as often as may be necessary during those hours; ensure that all refuse accumulated in connection with the stall is placed in a receptacle provided or approved by the council for that purpose; as often as is necessary, ensure that the contents of the receptacle are removed to an area designated by the council for that purpose.

PREVENTION OF SPREAD OF FIRE 10. No person shall light a fire in any part of the market place. 11. No person shall keep or sell any explosive or highly flammable substance in the market place.

PRESERVATION OF ORDER 12. No person shall ring any bell or blow any horn or use any other noisy instrument or loudspeaker to attract the attention or custom of any person. 13. No persons shall post or display any bill, placard or poster, other than a description of goods advertised for sale, in any part of the market place except with the permission of the market officer. 14. No person in the market place or in its immediate approaches shall, except by way of sale, distribute or attempt to distribute to the public any printed matter except with the permission of the market officer.

ANIMALS 15. No person shall bring into or allow to remain in the market any dog or other animal belonging to him or in his charge unless it is attached to a lead, or otherwise kept sufficiently secured, and kept at all times under his control. 16. (a)

No tenant or occupier of a stall shall keep any dog or other animal at his stall.

(b)

Nothing in paragraph (a) above shall prevent a blind, partially sighted or deaf person from keeping with him any assistance dog belonging to him or in his charge.

LIVESTOCK MARKETS 17. No person shall enter or remain in any sale ring during the time that it is being used for the sale of any animal otherwise than for the purpose of controlling the animal. 530

Model Byelaw Set 10 18. Every person who brings any animal into any pen in the market place shall ensure that the pen is properly cleansed no more than one hour after the end of the market hours.

PENALTIES 19. Any person offending against any of these byelaws shall be liable on summary conviction to a fine not exceeding level 2 on the standard scale.

REVOCATION 20. The byelaws made by insert name on insert date and confirmed/approved by insert name of confirming authority on insert date of confirmation are hereby revoked.

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Appendix 2  Precedents

Regular Trading Application Form APPLICATION FORM Application for Occupancy of a unit at XXXXXXX Market

GUIDANCE ON COMPLETING YOUR APPLICATION General guidance XXXXXXX  Market welcomes applications from individuals and businesses interested in taking occupancy within the XXXXXXX section of the market. If you are interested in leasing/renting (delete as appropriate) a unit and becoming a trader within our vibrant market, please complete this application form in full, in accordance with the following guidance. Please ensure that you; •

Complete this form in BLOCK CAPITALS and in black ink only.

•

Answer any questions that you do not feel applies to you with ‘N/A’.

•

Clearly label additional sheets, showing which question they relate to.

Completed application forms should be returned to the following address: The Managers Office XXXXXX XXXXXX XXXXXX All Completed Application forms will be assessed and if successful will be held on file until a suitable unit becomes available.

ASSESSMENT OF APPLICATIONS Applications will be assessed using the scoring criteria below:

532

533 15

20

30

20

100

Total possible score

Credit Reference (5)

Evidence of viability (10)

15

Complaints Procedure (5)

Returns Policy (5)

How do they intend to actively market their business? (5)

Stall Design/Display (10)

or for new traders Supplier references (5)

Payment History (10) – 10 Good to 1 Poor Audited accounts (5) Supplier references (5)

Ability/willingness to accept payment by Debit/Credit Card (5)

Experience (10) – 10 Good to 1 Poor

Product/Service range (10) – 10 Good to 1 Poor

Robustness of Business Plan (20) – 20 Good to 1 Poor

Existing traders – one year audited accounts showing sound financial history. New traders – evidence of commercial viability for new business start-up

Clear customer policy that shows how the business will deliver excellent customer service, dealing with complaints, returns and faulty goods etc.

Assessment of the expertise of business in the chosen area, demonstrating skills and experience of product/service range.

Complete product/service portfolio containing a well defined and rationalised product /service range. Uniqueness of business within current market operation (10)

Proposals for the design of the trading unit and overall soundness of business plan.

Finance

Customer Service

Experience

Product

Business Plan

Regular Trading Application Form

Appendix 2  Precedents

TIMESCALES Completed application forms will be assessed and applicants informed of the outcome of their written application within 14 days. Successful applicants will be invited to an interview once a suitable unit becomes available.

FURTHER INFORMATION Assistance and guidance with completing these forms will be provided if required. We strongly advise that you contact us to discuss this process. If you require further information or would like to book an appointment, please contact: XXXXXX XXXXXXX XXXXXXX XXXXXXX Tel: Email:

Section A Applicant Information This section of the application form is for information relating to the person submitting the application. Surname Forename(s) Title

............................................................................................... ...............................................................................................

Mr □ Mrs □ Miss □ Ms □ Please specify) Other................................. Address Line 1 ............................................................................................... Address Line 2 ............................................................................................... Address Line 3 ............................................................................................... Postcode ............................................................................................... Telephone Number ............................................................................................... (Day Time) ............................................................................................... Mobile Number ............................................................................................... Fax No ............................................................................................... Email Address ............................................................................................... National Insurance No ............................................................................................... Date of Birth ............................................................................................... Place of Birth ...............................................................................................

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Regular Trading Application Form

Section B Business Information This section of the application form should provide information relating to the business being put forward to trade in the market. Where this information is the same as above please state ‘AS ABOVE’ Name of Business ....................................................................................................... Please list all owners/partners .................................................................................... Please give contact details of all owners/partners ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... Website address of business ........................................................................................ (If applicable)

Section C Additional Business Information This section of the application form should provide additional information relating to the business above. In particular it is important for the application to address the issues of quality of the product/service and also offer an explanation of the product/ service range and how this is to be displayed or presented. Is the operation to be a new business?    Yes □   No □ If No, how long has the business been established? ................................................... What is the VAT number of the company? (If applicable) .......................................... Please indicate which category/categories the products/services you wish to sell are in: Food

Fresh meat & poultry Fresh fish Frozen foods Fruit & vegetables General food – tinned/packets/dried Bread/cakes Ice-cream/confectionery, soft drinks Delicatessen, dairy products, cooked meats

535

Appendix 2  Precedents Clothing & footwear

Lifestyle & Home Lifestyle & Home

Services

Health & Beauty

Other

Ladies, gents, children’s clothing Underwear, nightwear, swimwear, Sportswear Footwear Bags, belts, luggage Jewellery Paper goods, Household textiles (bedding, curtains) Furniture Household goods, cleaning, DIY Crockery, cutlery, glassware Floor coverings (carpets/rugs) Small electrical Mobile telephones Toys & hobbies Candles, frames & pictures Flowers, plants, gardening Music, CDs, computers Catering Hair, nails, beauty, Shoe repairs, key cutting, Clothing alterations Optician Pharmacy Post Office Toiletries, perfumes Cosmetics Health foods, vitamin supplements Pet food Car accessories Fishing tackle

If not listed please provide details:

Please provide detailed information about the products/services that you wish to sell ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... 536

Regular Trading Application Form Please enclose with your application photographic evidence of your products/ services which demonstrates how they are to be presented/displayed. No. of photographs included: .....................................................................................

IF SELLING FOOD: Are you registered as a food business?

Yes □

No □

If yes state the local authority where you are registered Are you aware of where it is grown/sourced/produced?

Yes □ No □ Please state  ................................................................................................................. Are you affiliated with any recognised food group? Yes □ No □ Please state  .................................................................................................................

Section D Staff Information This section of the application form should offer information about the individuals who will be employed by the business and should include the business owner(s) if they are to work on the stall. All applications should show evidence of the expertise the trader has in the product area selected, including training and/or qualifications, previous work experience, experience of sourcing stock or other such evidence. Businesses wishing to sell products or provide services in which they have limited experience should demonstrate how they are to develop an expertise in this area. (Please use additional sheets as required) How many employees will the business have? ............................................................ What formal training will the staff members have? ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... What product knowledge and retail experience will the staff have? ..................................................................................................................................... ..................................................................................................................................... .....................................................................................................................................

Section E Stall Requirements This section of the application is to provide information about the space requirements of the business. Unit Applied for ..........................................................................................................

537

Appendix 2  Precedents Please state your minimum space requirements in terms of counter space, fridges, freezers, display units, storage etc in order for your business to operate. ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... What equipment would you like to bring with you to the unit? ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... Please identify the utilities/services that your business will require Gas Electricity Extraction Telephone Water Drainage

□ □ □ □ □ □

Please describe how you envisage the stall will be fitted out ..................................................................................................................................... ..................................................................................................................................... ..................................................................................................................................... .....................................................................................................................................

Section E – Continued Please provide an artist’s impression, image or photograph showing how the stall will look:

538

Regular Trading Application Form

Section F Finances Traders will be liable for (stall rent, service charge, business rates, metered electricity and or gas) (delete as appropriate). XXXXXXX Market is keen to promote sustainability and therefore applicants will be required to provide evidence of their financial standing within their application. The payment history of all existing tenants will be assessed as part of the scoring. All businesses must provide information relating to their current financial standing. This must include a profit and loss ledger for the last 12 months, highlighting both fixed/capital costs and operational revenues. New and existing businesses must provide 2 supplier references. If existing businesses cannot provide a profit and loss ledger, please provide business account statements and any additional information you have to support your financial standing. ..................................................................................................................................... ..................................................................................................................................... .....................................................................................................................................

Section G Business Plan This section of the application form is to allow you to provide additional information in support of your application. It is necessary that applicants submit supplemental information, specifically a Business Plan for your venture. The business plan should be a comprehensive analysis of the business and comprise further details than the information above. This should include more detailed information relating to the rationale behind the business start-up (including detailed market analysis and product information) and business operations (including additional financial information and performance management). Business Plan included?    Yes □   No □ Additional information included (please list) ..................................................................................................................................... ..................................................................................................................................... .....................................................................................................................................

539

Appendix 2  Precedents

Regular Trader Holiday Form TRADER HOLIDAY APPLICATION APPLICATIONS MUST BE MADE AT LEAST 7 DAYS IN ADVANCE OF THE FIRST DAY OF HOLIDAY PLEASE PRINT CLEARLY APPLICANTS NAME ___________________  DATE _____________________ I  WISH TO CLAIM HOLIDAY ALLOWANCE FOR MY STALL (S) ON THE FOLLOWING DAY (S) DAYS

STALL (S)

DATE(S)

TUESDAY FRIDAY SATURDAY *I accept that if I have any outstanding arrears at the first day of this holiday, I will not be entitled to the allowance applied for on this form and will be liable for the full rent accrued during my absence *TRADER SIGNATURE __________________________________ TO BE FILLED IN BY MARKET OFFICER: RECEIVED  BY _______________________  DATE ________________________ ----------------------------------------------------------------------------------------------------

TRADER HOLIDAY APPLICATION APPLICATIONS MUST BE MADE AT LEAST 7 DAYS IN ADVANCE OF THE FIRST DAY OF HOLIDAY APPLICANTS NAME ___________________  DATE _____________________ I  WISH TO CLAIM HOLIDAY ALLOWANCE FOR MY STALL (S) ON THE FOLLOWING DAY (S) DAYS

STALL (S)

DATE(S)

TUESDAY FRIDAY SATURDAY

540

Regular Trader Holiday Form TRADERS PLEASE NOTE: IT IS YOUR RESPONSIBILTY TO RETAIN THIS SECTION. IN THE EVENT OF A QUERY WITH YOUR HOLIDAY ENTITLEMENT YOU WILL BE ASKED TO PRODUCE THIS FORM AS EVIDENCE OF ANY HOLIDAY DATES APPLIED FOR. *I accept that if I have any outstanding arrears at the first day of this holiday, I will not be entitled to the allowance applied for on this form and will be liable for the full rent accrued during my absence *TRADER SIGNATURE __________________________________ TO BE FILLED IN BY MARKET OFFICER: RECEIVED  BY _______________________  DATE ________________________

541

Appendix 2  Precedents

Rules And Regulations For A Stall Licence All Tenants/Licensees shall ensure the full compliance of all market rules and regulations as listed below:

1. PAYMENT OF FEES 1.1 All tolls and charges for the use of stall, as approved from time to time by the xxx committee, are to be paid each Market day on demand to the Market Officer appointed for the purpose of receiving the same. 1.2 All outstanding refunds the Operator initiates to the customer via the Shopper Charter shall be made payable on demand

2. MARKET HOURS 2.1 Trading hours shall be from 0700 to 1800 hours on each market day or during such times as the Markets Manager may from time to time determine. 2.2 The licensee must not bring any goods into the Market or Market Place prior to 0500 hours, nor allow any to remain in the market or Market Place prior to 0500 hours, nor allow any goods to remain in the market or Market Place after 1845 or at such times as the Markets Manager may from time to time determine. 2.3 Skips or boxes will not be accepted for storage in the market after 1800 hours on a Monday or after 1900 hours on a Tuesday to Saturday (Inclusive). 2.4 If the licensee fails to occupy the stall by 09.00 on any day, the Markets Manager or his authorised representative may offer the use of the stall for the day casually to another trader, in accordance with the provisions for allocating casual stalls. 2.5 The Markets Manager may, in his absolute discretion, cancel the market on any given day and the Council shall not be liable for any loss incurred as a result of the cancellation.

3. NON-OCCUPATION OF THE STALL 3.1 Non-occupation of the stall for reasons other than certified sickness must not exceed nine market days in any calendar year, except in exceptional circumstances and with prior approval of the Markets Manger. 3.2 During the first six market days of any personal absences the licensee shall indemnify the Council for the difference between the tendered fee and the basic stall fee only, subject to the licensee giving the Council fourteen days notice in writing of the intended absence. In all other cases other than certified sickness, the full rent shall be due. 3.3 The licensee shall be allowed absences for certified sickness for a period not exceeding six occasions in anyone calendar year. 542

Rules And Regulations For A Stall Licence 3.4 All absences due to illness must be covered by a Doctor’s Certificate or Letter.

4. TRANSFER OF STALLS AND SUB-LETTING 4.1 The sub-letting of this stall is strictly forbidden. All goods sold or offered for sale must be the sole property of the Licensee / Tenant. Any breach of this sub-clause will result in the licence / lease of occupation being terminated forthwith. 4.2 Any person using this stall shall on request by the Market Manager or his assistant, furnish proof as his right to trade from the stall and shall, on request, furnish proof as to the ownership of any goods being sold or displayed for sale. 4.3 Once the licensee has held this licence for at least ten continuous years, the licensee shall be allowed to transfer the licence in accordance with the conditions outlined below, and subject to the approval of the Council. The date, at which this licence commences for the purpose of this Subclause, is the official date of commencement as shown above. 4.4 Such transfer will only be allowed if the licensee’s entire market holding is eligible to be transferred and the licensee arranges for the entire market holding to be so transferred. Licensees may qualify for this regulation by terminating the occupation of any stall, which are not eligible for transfer. 4.5 The transfer of the licence shall only be allowed on the grounds of ill health or retirement. In respect of ill health, the application must be supported by a letter from a qualified medical practitioner and the Council reserves the right to require an independent medical, at the licensee’s expense to be undertaken by a medical practitioner nominated by the council. In respect of retirement, the licensee must have attained the age of fifty-five, proof of which will be required in the form of a birth certificate. 4.6 Any licensee who so transfers their market undertaking shall not be allowed to trade, either permanently or casually, on any of the Council’s Markets from the date of transfer for a period of five years. 4.7 No change in the class of goods to be sold shall be allowed at the time of transfer unless the intended goods to be sold are unrepresented on the Market. 4.8 The new licensee shall be required to pay a stall fee based on a formula as may be determined from time to time by the Council. 4.9 Any transfer shall require the issue of a new licence for each stall for, which an administrative charge shall be made. 4.10 The Council reserves the right to refuse an application to transfer the stall if, in the opinion of the Markets Manager, the person to whom the stall is to be transferred is deemed unsuitable. 4.11 For the purpose of Clause 4, any licensee who occupies a stall or stalls in partnership with another person, or persons or as a Director or Shareholder of a company shall give up his or her rights in respect of all stalls. 543

Appendix 2  Precedents

5. THE EMPLOYMENT OF YOUNG PERSONS 5.1 Licensees / Tenants are required to comply with the provisions of the Children and Young Person Act 1933, the Education Act 1944/1948, the Employment of Children’s Act 1973, and any other Act, Local Acts or Byelaws relating to the employment of young children. 5.2 No child below the age of 16 years shall be employed. 5.3 No child shall be employed without first having obtained an employment card issued by xxxx. Employment cards must be produced when requested by the Markets Manager or his authorised representative. 5.4 No child shall be employed on Saturday, or on any school holiday for more than 4 hours and a continuous period of six hours, must be allowed for rest between 07:00 and 19:00 or any day in which the child is employed. 5.5 No child shall be employed in offering goods for sale or in handling cash in any premises where retail trade or business is carried out. 5.6 For the purpose of this regulation, a child is any person of statutory school age. Employed includes assisting in the trade or occupation even where the child receives no monetary reward and includes any child related to the Licensee / Tenant.

6. CONDUCT OF TRADERS 6.1 The Licensee / Tenant shall be responsible for the actions of all servants and ensure that all servants comply with the conditions of this Licence/ Lease. 6.2 The Licensee / Tenant shall comply with and ensure that all servants comply with all reasonable directions of the Markets Manager or his authorised representatives. 6.3 The Licensee / Tenant must be actively engaged in the business and in trading from the stall, except for licensees as provided for in Section 3 above. No person other than the Licensee / Tenant or servants shall use the stall or sell or offer for sale any articles from the stall. 6.4 The use of obscene language or any act or conduct, which may cause offence to other traders, Market Officers or members of the public, is strictly forbidden. In particular abusive or discriminatory behavior of a racist or sexist nature is strictly forbidden. 6.5 Any act, including shouting, throwing of items, which is performed to a degree or an extent, which is likely, (in the opinion of the Market Officer); to be a nuisance or annoyance to other traders or members of the public is forbidden. Licensees / Tenants are not allowed to perform any act, which may cause persons to congregate around the stall, so as to cause an obstruction in any gangway or roadway. 6.6 The use of radios, tape recorders, record players or the production or reproduction music is forbidden. Unless for demonstration purposes only. 6.7 No Licensee / Tenants shall offer goods for sale by wholesale or by auction. 544

Rules And Regulations For A Stall Licence 6.8 Hawking or carrying goods for sale in the market is forbidden. 6.9 The Licensee / Tenant shall comply with and ensure that all servants comply with all relevant statutes, statutory Instruments, Local Acts, Byelaws and Common Law. 6.10 The Markets Manager, or his duly authorised representative for this purpose, may where reasonably necessary for the well being of the general Public, the market itself, or other Licensees / Tenants, prevent any Licensee / Tenant from employing in any capacity whatsoever and whether paid or unpaid, any person, provided that such refusal may only be exercised after representations have been made by the Licensee / Tenant or his representative to the Markets Manager.

7. CONDITIONS RELATING TO USE OF STALLS 7.1 The Licensee / Tenant must display prominently at the stall at all times while trading, a standard name board of a type as approved by the Council and stating legibly and conspicuously: The name of the Licensee / Tenant. 7.2 No sign, other that any connected with the retail business being undertaken at the stall may be displayed without the Market Manager’s permission. All such signs shall comply with the Traders Description Act and shall not be in any way misleading or offensive to members of the Public. 7.3 All goods displayed for sale must be priced. 7.4 All goods must be stored, exhibited or exposed for sale within the defined area of the stall only and no goods must be hung from the front of the stall or allowed to encroach into the Public alleyways of the market. 7.5 All goods, which are hanging, must be displayed as follows: •

All goods and equipment must be displayed within the perimeter of the stall.

•

Goods will be allowed to drape the front of the stall, providing they are hung from the equipment that is within the confines of the stall area. Such goods must be flush to the stall edge.

•

No goods shall be positioned at a height greater than seven feet from the stall counter, unless all goods are displayed behind the lighting, to which the lighting facility becomes the height barrier.

7.6 The Licensee / Tenant shall be responsible for the control, collection, and removal of trade refuse, in such a manner as may be prescribed from time to time by the Council and for the cleanliness of the stall and fixture and fittings during and at the close of the market. 7.7 The Licensee / Tenant shall ensure that no goods, boxes, crates or like articles, no trucks, no trolleys or like vehicles and no litter shall be left or deposited in any gangway, open area, Public highway or other private property. 7.8 All Licensee / Tenant shall ensure a clear gangway of such articles (Reg 7.7) by no later than 10:00. 545

Appendix 2  Precedents 7.9 The Licensee / Tenant nor any servant shall remove or interfere with any property of the Council whatsoever, either at the stall occupied or at any other stall. 7.10 The driving, nailing, screwing, stapling or other fixing of any device into Council property is strictly forbidden. 7.11 No lighting, electrical equipment or heating equipment is permitted, other than that installed by the Council. Only an authorised servant of the Council is permitted to alter, remove or exchange any of the electrical equipment provided by the Council. 7.12 No traders shall transport goods on any travellator. 7.13 The Licensee / Tenant shall ensure total compliance with the Shoppers Charter.

8. CONDITIONS RELATING TO USE OF STALLS 8.1 No vehicle shall enter into or remain in any of the intersecting passageways or open areas of the market except at such times and under such conditions as may be determined from time to time by the Council. 8.2 No vehicle may be left in the Market after being loaded or unloaded and occupiers shall comply at all times with statutory’ parking regulations currently in force.

9. GENERAL PROVISIONS 9.1 The Council, its officers and servants, shall not be liable by contract or otherwise, for any loss of, or damage to property, however caused and whether or not due to the condition of the structure of any stall, building equipment or due to the condition of any floor surfaces. 9.2 The Licensee / Tenant is required to have Public Liability and Products Liability Insurance, in respect of third party claims, up to such limit as may from time to time be determined by the Council. 9.3 The Markets Manager may, in exceptional circumstances, alter, vary or rescind any of these regulations, either in respect of individual traders or groups of traders, subject to such alterations, variation or rescinding being of temporary nature only. 9.4 The official date of commencement of this Licensee / Lease shall be the authorised first day of standing after completion of this Licence / Lease unless such Licence / Lease is issued as a result of any changes in conditions by the Council, in which case the official date of commencement shall be the same as on the previous Licence. 9.5 A Licensee / Tenant is required to notify the Markets Manager in writing of any change of address. 546

Rules And Regulations For A Stall Licence

10. NOTICE TO TERMINATE OR SUSPEND 10.1 In the event of any breach of these conditions, or of any conduct prejudicial to the efficient management of the market, the Markets Manager may, in his absolute discretion. •

Suspend the Licensee from standing for such a period as he thinks fit.

•

Determine the use and occupation of the stall forthwith a formal enforcement procedure, as determined from time to time by the Council, shall apply to this sub-clause.

10.2 In the event of any disciplinary action being taken, it shall apply equally to all Licensees’ on all trading days. 10.3 Except under Sub-clause 10.1, notice in writing must be given of either party’s intention to determine the occupation of a stall, such notice to expire at close of the next appropriate Market day after receipt of such notice. 10.4 Any notice required to be served by the Council, shall be deemed to be served if delivered personally to the Licensee or if sent by post to the Licensee’s last known address.

547

Appendix 2  Precedents

Tenancy At Will NAME/ADDRESS OF TENANT] Dear Sirs, Re: Unit [   ], [   ] Market This letter constitutes a Tenancy at Will granted to enable [   ](“the Lessee”) to take occupation of [Address of Unit] (“the Demised Premises”) with effect from […..] whilst the Council (“the Lessor”) and the Lessee complete a formal lease of the Demised Premises on the terms set out in the Heads of Terms attached to this letter. The Lessee must enter into the lease within ten weeks of the date of this letter. Until such time as the lease is completed, the Council can retake possession of the Demised Premises or the Lessee can vacate the Demised Premises at any time The terms of this tenancy are as follows:Demised Premises: Unit [   ] as identified coloured pink on the attached plan (referred to as the Demised Premises hereafter) together with appropriate and sufficient pedestrian rights over the common areas [coloured brown] on the attached plan The Building: The building known as XXX Market as edged red on the attached plan Rent: £…. per week exclusive payable weekly in arrears (although the Lessor will not take action for non-payment in circumstances where the Lessee is paying regularly on a weekly in advance basis). User: To use the Demised Premises for the sole purpose of selling the goods specified below: [list goods] Insurance: The Lessor to insure The Building with a reputable insurance office to the full reinstatement value of The Building. The Lessee will be responsible for procuring their own contents and public liability and loss of profit interruption to business from fire or other avoidable cause insurances. Repairs: The Landlord to be responsible for all repairs to The Building, the Premises and all the services therein with the exception of: •

The internal decoration of the Property, with the Lessee to redecorate at the end of the lease however and whenever terminated,

•

Any repairs to the Demised Premises or building necessitated by the Lessee’s negligent, inappropriate or neglectful behaviour, or wilful damage, which will be repaired by the Lessor with the cost recharged to the Lessee.

Outgoings: The Lessee agrees: (i)

the Lessee’s electricity consumption will be sub-metered and charged directly,

(ii) the Lessee’s telephone costs to include line rental, Broadband analogue lines and calls, will be monitored and charged directly, 548

Tenancy At Will (iii) the cleaning of the Demised Premises will be the responsibility of the Lessee, (iv) removal of Lessee’s non-office waste will be the responsibility of the Lessee (v) To pay any cost incurred by the Lessor caused by the inappropriate, negligent or neglectful actions of the Lessee, (vi) To pay for additional or replacement keys (each tenant will receive up to two keys on commencement), (vii) To pay business rates payable in respect of the Demised Premises (whether as a pro rata recharge based upon the total lettable area of the Building to the Lessor should the Building be under a single assessment, or directly should each unit be separately rated), provided that if at any time the Lessor should be granted charitable status in respect of the Building consequent upon which rates for the Demised Premises shall no longer be payable then this liability shall cease. The Lessee will be fully responsible for the payment of Business Rates. Alterations: The Lessee is not to make any alterations or additions to the Demised Premises, nor to remove any walls, floors or structural parts, or to cut or maim any of its walls or timbers. Alienation: The Lessee is not permitted to assign, sublet or share the whole or any part or parts of the Demised Premises in any way. Indemnification: The Lessee to indemnify and save harmless the Council from and against all actions, claims and demands either at common law or otherwise howsoever caused, arising out of the use of the Demised Premises and from and against all costs and expenses occasioned by the Council thereby. Nuisance: The Lessee will not use any part of the Demised Premises for a purpose which may in the Landlord’s opinion constitute a nuisance or which may cause a nuisance, annoyance or inconvenience to the Landlord or its tenants or to any person including any conduct or activity which amounts to any act of discrimination or harassment, whether on the grounds of race, sex, sexual orientation, religious belief, age or disability of employees of the Landlord or the tenant or of other tenants of the landlord or their employees. Lessor access: The Lessee will allow the Lessor and all persons authorised by it to enter the Demised Premises at any reasonable time for the purpose of ascertaining whether the terms of this agreement have been complied with. Signage: The Lessee shall not display or permit to be displayed any posters, notices or advertisements of any kind on the Demised Premises without the prior written consent of the Lessor. Clear areas: The Lessee is not to work, or store goods or materials or waste outside of the Demised Premises, and is to keep all corridors and fire exits clear at all times. Regulations: The Lessee is to comply with the Markets Rules & Regulations, Health and Safety at Work Act 1974 and all other statutory consents, planning permissions, building byelaws, fire officer requirements, etc. required for the use of the Demised Premises. Drains: The Lessee is not to allow oil, grease or other noxious substances to enter the drains. 549

Appendix 2  Precedents Defective Premises: Defective Premises Act 1972 During the term the Lessee will be required to notify the Council of all items of repair needed to the Demised Premises whether responsibility for remedial work lies with the Council or the Lessee. The Lessee shall inform the Council of the steps taken by the Lessee in carrying out any items of repair. The Lessee shall insure against liability under the last preceding paragraph under their insurance. Claims: The Lessee shall indemnify and save harmless the Council from and against all actions, claims and demands which may be brought or made against the Council, whether at common law or otherwise by reason of an accident or injury to any person, or damage to, or loss of property in or upon or adjacent to the said Demised Premises howsoever caused or arising as a result of any failure on the part of the Lessee to comply with the repairing obligations on his part mentioned above or as a result of any failure on the Lessee’s part to comply with the obligations imposed upon him under ‘Arrears’ paragraph below. The Lessee shall insure against liability under the last preceding paragraph under their insurance. Forfeiture: Notwithstanding the forfeiture provisions contained in the agreement, if the Lessee shall be in breach of any of the terms of the agreement as an alternative to immediate termination of this Agreement the Council at its absolute discretion may give written notice for the Lessee to remedy the breach within a reasonable period. If the Lessee does not comply within the period given, the Council and/or its agents may enter the Demised Premises immediately to rectify the breach and the whole of the costs incurred by the Council including surveyors, legal, contractors fees and Value Added Tax would be recharged to the Lessee and demanded as an additional rental payment. Termination: i)

If any rent shall be in arrears and unpaid for the period of 14 days after the same shall have become due, (whether formally demanded or not) or if the Lessee shall fail to perform or observe any of the Lessee’s obligations and stipulations recorded above, then in any such case it shall be lawful for the Council at any time thereafter to re-enter upon the said Demised Premises take immediate possession of the Stall and thereupon the tenancy shall absolutely determine but without prejudice to the right of action of the Council in respect of any breach of any of the obligations and stipulations on the part of the Lessee herein contained.

ii)

Whereas if and whenever the Lessee shall pay the said rents referred to in the preceding clauses more than 14 days after the due date by which the same shall become due, the Lessee shall pay to the Council interest upon and for such an arrears of rent at the rate of 5% per annum above the current base rate of the Principal Banker calculated from such due date to the actual day of payment thereof.

iii) If the Lessee ceases to occupy the Stall for a period of 28 consecutive trading days or more or there is evidence to show that the Lessee has ceased trading, it shall be lawful for the Council at any time thereafter to re-enter upon the said Demised Premises, take immediate possession of the Stall, and thereupon the tenancy shall absolutely determine but without prejudice to the right of action of the Council in respect of any 550

Tenancy At Will breach of any of the obligations and stipulations on the part of the Lessee herein contained. Notices: Please note that a notice under this Tenancy at Will must be in writing and unless the receiving party acknowledge receipt is valid if (and only if) it complies with the following conditions:1.

The notice must be given by hand or sent by registered post or recorded delivery

2.

The notice must be served •

Where the receiving party is a company – at its registered office or at the Demised Premises

•

Where the receiving party is the Tenant (not being a company) at the Demised Premises

•

where the receiving party is the Landlord or the Guarantors/Surety and that party is not a company – at that party’s address shown in this Tenancy at will or at any alternative address specified in a notice given by that party to the other parties

•

a notice sent by registered post or recorded delivery is to be treated as served on the third day after posting (excluding Sundays, Bank Holidays and any Tuesday following a Bank Holiday which falls on a Monday) whenever and whether or not it was received

•

If the receiving party is more than one person a notice to one is a notice to all

•

In this clause party includes the Guarantors/surety

Compensation: The Lessee will not be entitled to any compensation at the end of this tenancy at will howsoever terminated. Good Employer Conditions: It is the City Council’s policy that its Demised Premises shall not be used by ‘sweat shop’ type employers. Accordingly, the following conditions apply which require lessees, tenants or licensees to:i)

Recognise and encourage the freedom and right of any employee to be a member of a trade union.

ii)

Recognise and negotiate with for the purpose of collective bargaining any trade union(s) which is or are representative of employees.

iii) Observe such obligations as are imposed upon them by the Health and Safety at Work Act 1974, the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Employment Rights Act 1996 insofar as they apply to the company. iv) Ensure that if outworkers are employed, they are under no worse conditions of service than those enjoyed by other employees in the company. v)

Inform the relevant statutory authority of the occupation of the Demised Premises and give permission for the Council to do likewise, accepting our data sharing conditions 551

Appendix 2  Precedents Conditions i) to iv) shall be included in the agreement but shall not apply when less than five people are employed. Condition v) shall apply to all firms, businesses and companies irrespective of size. Costs: Each party shall bear its own costs in respect of the preparation of this Agreement and on any future leases or renewals providing that such renewal is by agreement. DO NOT TEAR – PLEASE RETURN WHOLE OF COPY LETTER To be completed by the Lessee/Tenant 1)

I accept the above terms and conditions and agree to be bound by them for the Demised Premises.

2) I  acknowledge receipt and acceptance of the current Market Rules & Regulations Signed: ………………………………………………. Lessee/Tenant Date: ……………………………………………..

552

Market Management Agreement FOR PRIVATE OPERATORS THIS AGREEMENT is made on the day of BETWEEN [………….] (hereinafter referred to as “the Council”) of the one part and (hereinafter referred to as “the Contractor”) of the other part

WHEREAS: (1)

The Council is the market authority for the Area of [……………] (as hereinafter defined) and is the owner of the Market and Fair Rights (as hereinafter defined) and in such capacity is vested with the rights and duties of holding regulating managing and controlling all markets and fairs therein.

(2)

Pursuant to such rights the Council currently maintains and operates within the Area the Markets and Fairs (as hereinafter defined) on the days and at the times specified.

(3) The Council intends to contract out the management and operation of its Markets and Fairs within the Area (including those Markets and Fairs currently held at the date of this Agreement and those which shall be established by the Council pursuant to its rights so to do) and for that purpose is willing to observe and perform the terms and conditions set out in Part 1 of Schedule 2 to this Agreement for the Contract Period (as hereinafter defined). (4) The Council intends to reserve to itself the ownership of the Market and Fair Rights and in its capacity as the market authority the Council retains all the rights accorded to such ownership including the rights to suppress any undertakings established or likely to be established by rival operators within the area. (5) The Contractor is willing to manage and operate on behalf of the Council the Markets and Fairs (including those Market and Fairs currently held at the date of this agreement and those which shall be established by the Council) during the Contract Period (as hereinafter defined) and to discharge and perform the Functions (as hereinafter defined) in accordance with and subject to the terms and conditions set out in Part II of Schedule 2 to this Agreement paying to the Council a Management Fee (as hereinafter defined) together with an Additional Management Fee (as hereinafter defined) to be determined and paid at the times and in the manner specified without any deduction and in accordance with the Remuneration Provisions contained in Schedule 4 to this Agreement.

NOW IT IS HERBY AGREED AND DECLARED AND THIS DEED WITNESSES THAT: Definitions and Interpretation 1.

In this Agreement 553

Appendix 2  Precedents “The Area” means the Area of land shown edged red on the plan attached to this Agreement. “The Market and Fair Rights” mean the Market and Fair Rights together with the tolls, liberties, free customs, franchises and other such rights held and exercised by the Council in the Area. “The Market and Fairs” mean the Markets and Fairs maintained and operated by the Council pursuant to its market and Fair Rights in the Area and listed in Schedule 1 to this Agreement on the days and at the times specified therein. “The Contract Period” means the period of [   ] years from the date of this Agreement. “The Functions” mean those functions set out in Schedule  3 to this Agreement. “The Management Fee” and “The Additional Management Fee” have the meanings accorded to them in the Remuneration Provisions contained in Schedule 4 to this Agreement. 2.

In consideration of the terms and conditions set out in Schedule  2 to this Agreement the Council appoints the Contractor as its agent to manage and operate the Markets and Fairs on behalf of the Council during the Contract period and to discharge and perform the Functions paying to the Council the Management Fee together with the Additional Management Fee to be determined and paid at the times and in the manner specified without any deduction and in accordance with the Remuneration Provisions contained in Schedule 4 to this Agreement.

3.

In the event that the Council should desire to sell, lease, transfer or otherwise deal with or dispose of the Market and Fair Rights during the Contract Period it shall grant to the Contractor the right of pre-emption of such rights in accordance with the terms and conditions set out in Schedule  5 to this Agreement.

4.

Disputes between the Council and the Contractor arsing out of or in connection with this Agreement shall be referred to arbitration. The parties shall adopt the following procedure in relation to such arbitration, namely, any dispute shall be referred to an Arbitrator to be agreed upon by the parties or in default of this Agreement within 3 weeks of the first name being proposed by either party to the other to an arbitrator to be nominated by the President for the time being of the Law Society or in the case of his incapacity by the Vice President thereof. The award of the Arbitrator shall be final and binding upon both parties. If upon referral to an Arbitrator of any dispute between the parties, the arbitrator shall find that the Authorised Officer (as defined in paragraph 1 of Part 1 of Schedule  2 to this Agreement) in the exercise of his power and discretions under the Agreement has acted unreasonably in all the circumstances in the issue of any notice instruction or certificate or the giving or withholding of any consent the Arbitrator shall have the power to make an award which has the effect of amending such notice instruction certificate or decision to give or withhold consent in such manner as the Arbitrator thinks fit.

5.

Failure by the Council at any time to enforce the provisions of this Agreement or to require performance by the Contract or any of the provisions of this Agreement shall not be construed as a waiver of forbearance of any such 554

Market Management Agreement provision and shall not affect the validity of this Agreement or any part thereof or the right of the Council to enforce any such provisions in accordance with its terms. 6.

The Council in no way warrants the accuracy of any representation which may be made to the Contractor prior to its entering into this Agreement and the Contractor acknowledges that it did not rely upon any representation made by or on behalf of the Council when entering into this Agreement.

7.

This Agreement shall not confer upon the Contractor any legal estate or interest in any of the Council’s land and premises (save as to the rights of pre-emption referred to in paragraph 3 of this agreement).

IN WITNESS WHEREOF the parties hereto have caused their respective Common Seals to be hereunto affixed the day and year first year first before written The Common Seal of the Council of the [………………………..] Was hereunto affixed in the presence of the Solicitor to the Council [Signature]

SCHEDULE 1 The Markets and Fairs

SCHEDULE 2 Terms and Conditions PART 1 On the part of the Council (1) For the purposes of the overall supervision of this Agreement and in particular the exercise of the Council’s Market and Fair Rights powers and duties under this Agreement the Council shall forthwith appoint an authorised Officer (“the Authorised Officer”) who shall be [………………………] or his nominee or successor. (2) Whenever subsequent to the original appointment of an Authorised Officer a new Authorised Officer is appointed, the Council shall forth with give notice in writing to the Contractor of any such appointment and until notice of such subsequent appointment shall have been given the Contactor shall be entitled to treat as Authorised Officer the person last notified to the Contractor as being Authorised Officer. (3)

Any notice information or communication given by or made to the Authorised Officer shall be deemed to have been given by or made to the Council.

(4)

At all reasonable times the Authorised Officer shall be available for consultation and liaison with the Markets Manager (as defined in paragraph 1 of Part II of Schedule 2 to this Agreement) for the purpose of good and effective day to day management and operation by the Contractor to the Council’s Markets and Fairs pursuant to the terms of this Agreement. 555

Appendix 2  Precedents (5) The Council may from time to time make such Bye-laws and Regulations in accordance with its rights powers and duties to do so contained in the Markets and Fairs Clauses Act 1847, the Public Health Act 1961, The Animal Health Act 1981, the Food Act 1984, and other statutory enactments or authority, shall be deemed by the Authorised Officer to be necessary or expedient for the purposes of operating regulating controlling and managing the Council’s Markets and Fairs in the Area PROVIDED THAT no such Bye-laws or Regulations shall be made before consultation between the Authorised Officer and the Markets Manager has taken place. (6)

The Council shall enforce and protect the Market and Fair Rights by proceedings if necessary and without prejudice to the generality of the foregoing to enforce the provisions of Part III and Part X11 of the Local Government (Miscellaneous Provisions) Act 1982 the costs of such action to be borne by the Contractor in any event insofar as such costs are not recoverable during the course of such proceedings PROVIDED THAT no such enforcement or protection shall occur before consultation between the Authorised Officer and the Markets Manager has taken place.

(7) If in the event of the Council being obliged to relocate or reduce the area of land occupied for the purposes of the holding of any Market or Fair resultant upon any statutory procedures on enactments (and without prejudice to the generality of the foregoing to include road works or any other civil engineering works) it shall relocate such Market or Fair either temporarily or permanently dependent upon the particular circumstances and shall pay compensation for disturbance to the Contractor such compensation to be assessed by reference to the loss of profit occasioned to the Contractor during the period of disturbance based upon an average of profits earned during the three previous years of trading by the Contractor at the Market of Fair such compensation also to include the costs of and occasioned by the relocation closure or reduction PROVIDED THAT no such relocation closure or reduction shall occur before consultation between the Authorised Officer and the Markets Manager has taken place. PART II On the part of the Contractor (1) The Contractor shall forthwith appoint a Markets Manager (the Markets Manager”) who shall for the purposes of this Agreement be responsible for the day to day management and operation of the Market and Fairs within the Area [in accordance with the Job Description forming part of his Contract of Employment with the Contractor]. (2) After consultation between the Authorised Officer and the Markets Manager and as agent for the Council the Contractor shall grant in the name of the Council such licences (“the Licences”) or tenancies (“the Tenancies”) as may be appropriate to stallholders (The Stallholders”) of market stalls or pitches in the Council’s Markets for an agreed consideration by way of rent, licence fee or stallage (“the Charges”) in the standard forms of agreement annexed to this Schedule amended to suit the particular circumstances by agreement between the Contractor and the Authorised Officer. (3) The Contract or shall use its best endeavours to ensure that members of the public attending the Market and Fairs in the Area of service and comply with 556

Market Management Agreement any such statutory provisions Bye-laws and Regulations in force for the time being. (4) The Contractor shall ensure the due observation and performance by the stallholders of their obligations contained in the Licences or Tenancies granted to them by the Contractor as agent for the Council. (5) If the Contractor is desirous of entering into an agreement for a further term after the expiration of the Contract Period and of such its desire give to the Council notice in writing not less than six months before the expiration of the Contract Period then the Council shall at or before the expiration of the Contract Period at the cost of the Contractor enter into an agreement for a further contract period of ten years or such period as the parties may agree at a remuneration to be agreed between the parties not less than three months before the expiration of the contract Period and failing agreement to be determined by and Arbitrator to be appointed by the President for the time being of the Law Society or in the case of his incapacity by the Vice President thereof and with and subject to the same conditions as in this Agreement (this present condition for renewal excepted) PROVIDED THAT there is then no subsisting breach of any of the Contractors obligations under this Agreement. (6) The Contractor shall determine the Charges to be paid by the Stallholders in accordance with any statutory enactment or authority where the same is applicable but not in such a manner or of such an amount as to be unreasonable or unlawful. (7)

After consultation between the Authorised Officer the Market Manager and the Market Traders’ representatives and with the consent of the Authorised Officer (such consent not to be unreasonably withheld) and in accordance with any statutory enactment or authority where the same of applicable the Contractor may increase the level of the Charges above those currently demanded but not so as to increase such Charges to level which may be unreasonable or unlawful.

(8) The Contractor shall observe and comply with all statutory provisions Byelaws and Regulations in force for the time being whether made by the Council in its capacity as the Market Authority or by any Government Department having control over regulations of Market and Fairs. (9) The Contract shall provide sufficient accommodation for members of the public attending the Markets and Fairs and to hold sales on all lawful days and to do all things in accordance with the usages of the Markets and Fairs and not to do or suffer or permit to be done anything which might lead to the forfeiture of the Market or Fair or of their Tolls but to use its best endeavours to further and improve the Markets and Fairs. (10) During the Contract Period the Contractor shall exercise proper attention in fulfilling the terms and obligations contained in this Agreement and to the entire satisfaction of the Authorised Officer. (11) The Contractor shall keep the records and books of account of the Charges received by the Contractor from the Stallholders pursuant to the provisions contained in the Licences or Tenancies of market stalls or pitches granted by the Contractor as agent for the Council and produce the same for inspection by the Authorised Officer on reasonable notice and supply copies thereof to the Authorised Officer upon request without charge. 557

Appendix 2  Precedents (12) The contractor shall pay to the Authorised Officer the Management Fee and the Additional Management Fee as defined in the Remuneration Provisions contained in schedule  4 to this Agreement at the times and in the manner specified without any deduction. (13) The Contractor shall collect the Charges form the Stallholders and after consultation between the Authorised Officer and the Market Manager shall enforce the payment of such charges by taking legal proceedings if necessary or by levying distress or otherwise if the Stallholders fail or neglect or refuse to pay. (14) After consultation between the Authorised Officer and Markets Manager and the Market Traders’ representatives the Contractor as agent for the Council and at the Council’s expense shall enforce by legal proceeding if necessary the Byelaws and Regulations for the time being in force and for the better regulation and control of the Council’s Markets and Fairs on the Area a copy of such Bye-laws and Regulations currently in force being annexed to this Schedule. (15) If in the event that a Stallholder holding a Licence or Tenancy is deemed by the Contractor to be an unsuitable person to hold such Licence or Tenancy it shall inform the Markets Manager in writing and the Markets Manger shall in writing recommend to the Authorised Officer that the Stallholder’s Licence or Tenancy be revoked forthwith in accordance with the terms and conditions of such Licence or Tenancy and the Authorised Officer shall consent to such a recommendation unless he considers that there are reasonable grounds for withholding such consent. (16) The Contractor shall use its best endeavours to identify appropriate sites for the operation of future Markets and Fairs and once such sites have been identified and after consultation between the Authorised Officer and Markets Manager the Contractor shall relocate or establish as soon as reasonably practicable thereafter such Markets or Fairs on such sites in accordance with the Council’s rights powers and duties to do so the costs of and occasioned by such relocation or establishment to be borne by the Contractor in any event. (17) The Contractor shall not assign transfer sub-contract or licence the benefit of this agreement or any part of it except with the consent of the Council and upon such conditions as the Council may think fit. (18) Except insofar as is provided by the terms of this Agreement the Contractor is not and shall in no circumstances hold itself out as being authorised to enter into any contract on behalf of the Council or in any other way to bind the Council to the performance, variation, release or discharge of any obligation. (19) The Contactor has not and shall in no circumstances hold himself out as having the power to make vary discharge or waive any Bye-law or regulation of any kind. (20) The Contractor shall indemnify the Council against all actions proceedings costs claims demands damages charges and expenses whatsoever arising out of the use if the Markets and Fairs by the Contractor or by reason of the attendance of members of the public at such Market and Fairs or arising out of the collection of the Charges or the enforcement of the payment of the same or otherwise arising out of the performance or breach of the terms of this Agreement. (21) If the Contractor shall commit any breach of the Contractor’s obligations under this Agreement or fail to perform any of the terms and conditions contained 558

Market Management Agreement in the Agreement on its part or if the Management fee and/or the Additional Management Fee or any part thereof remains unpaid for 30 days after becoming due whether lawfully demanded or not or shall suspend payment of its debts or convene or hold a meeting of creditors or shall have a Receiver appointed by the Court or any debenture holder or go into liquidation whether voluntary or otherwise (except a voluntary liquidation by a solvent company for the purpose of amalgamation or reconstruction) or shall make any arrangement with the Contractor’s creditors or any arrangement for the benefit of such creditors or if distress or execution shall be levied or threatened upon any of Contractor’s property or any judgement against the Contractor shall remain unsatisfied for more than 14 days the Council at its sole option may without prejudice to any of its remedies under this Agreement and without prejudice to any right of action which shall accrue or shall already have accrued terminate this Agreement and retake possession of the Council’s rights contracted out to the Contractor under the terms of this Agreement and any of the Council property or goods in the possession of the Contractor. (22) If the Contractor shall have offered or given or agreed to give to any person any gift or consideration of any kind as an inducement or award for doing or forbearing to do or having done forborne to do any action in relation to the obtaining of this Agreement or any other Agreement with the Council or for showing or forbearing to show favour or disfavour in relation to this Agreement or any other Agreement with the Council or if the like acts shall have been done by any person employed by the Contractor or acting on the Contractor’s behalf (whether with or without the knowledge of the Contractor) or if in relation to the Agreement or any other Agreement with the Council the Contractor or any person employed by the Contractor or acting on the Contractor’s behalf shall have committed any offence under the Prevention of Corruption Acts 1889 to 1916 or shall have given any fee or award to any officer of the Council which shall have been exacted or accepted by such officer by virtue of his office or employment and is otherwise than such officer’s proper remuneration the Council shall be entitled to terminate this Agreement and to recover from the Contractor the amount of any loss resulting from such termination. (23) If the Council shall exercise it rights under paragraphs 22 or 23, above, to terminate this Agreement the Contractor shall thereupon become liable to pay to the Council the amount of any loss or damage suffered by the Council as a result of such termination as damages for such breach.

SCHEDULE 3 The Functions performed by the Contractor on behalf of the Council (1) To operate regulate control and manage the Council’s Market within the Area and the sales of [all livestock] [and agricultural produce] [commodities] by members of the public therein in accordance with all statutory provisions Byelaws and Regulations made by the Council for such purpose pursuant to the provisions contained in paragraph 5 of Part I of Schedule 2 hereof. (2) To operate regulate control and manage the Council’s Fairs within the Area in accordance with all statutory provisions Bye-laws and regulations made by the Council for such purpose pursuant to the provisions contained in paragraph 5 of Part 1 Schedule 2. 559

Appendix 2  Precedents

SCHEDULE 4 The Remuneration Provisions “The Management Fee” –

means the sum payable by the contractor to the Council on the usual quarter days without deduction.

“The Additional Management Fee” –

means the annual sum payable by the Contractor to the Council calculated on 31st December in each year without any deduction by applying the relevant Percentage Payable of the Net Annual Profits by reference to the Bands during each Turnover Period from time to time.

“The Percentage Payable” –

means the total of the following amounts expressed as a percentage of the Net Annual Profits: Band 1 – Ten per cent (10%) (?) of the Net Annual Profits up to £20,000 (?) per annum received by the Lessee in respect of the Markets and Fairs. Band 2 – Fifteen per cent (15%) (?) of the Net Annual Profits up to £50,000 per annum received by the Contractor to the Council in respect of the Markets and Fairs. Band 3 – Twenty per cent (20%) (?) of Net Annual Profits in excess of £50,000 (?) per annum received by the Contractor to the Council in respect of the Markets and Fairs.

“Net Annual Profits” –

means the Contractor’s net profits after deduction from the Gross Annual Turnover of [   ] [together with all legal costs incurred by the Contractor in connection with this Agreement].

“Gross Annual Turnover” –

means the aggregate of the Charges received by the Contractor derived from the Markets and Fairs managed and operated within the Area as certified by a firm of Chartered Accountants on the 31st December in each year for the preceding period of 12 months.

“Turnover Period” –

means each period of one year commencing on the day of

SCHEDULE 5 The Rights of Pre-Emption If at any time during the Contract Period the Council intends to sell lease, transfer or otherwise deal with or dispose of the Market and Fair Rights (“the Disposal”), or any part thereof, it covenants with the Contractor that (a)

It shall before offering the Market and Fair Rights for disposal 560

Market Management Agreement (i)

inform the Contractor of its intention to make the Disposal by serving a notice (“the Notice”) on the Contractor, and

(ii) require the Contractor (if is wishes to purchase the Market and Fair Rights) to make an offer in writing within 2 months of the service of the Notice (b) If the Contractor makes such an offer within 2 months of the Council’s Notice the Council shall either accept of reject the Council’s offer and if it accepts it there shall then subsist a binding contract between the parties and completion of the sale of the Council’s interest to the Contractor (free from mortgage, charges, or other incumbrances) shall take place within one month of the Council accepting the Contractor’s offer. (c)

If no such offer is made by the Contractor to the Council then the Council shall be free to accept any other offers for the purchase of the same.

(d) If such offer made by the Contractor is unacceptable to the Council and no agreement has been reached within two months from the service of the Council’s Notice, then an independent Surveyor shall be appointed to determine the value of the Market and Fair Rights in the open market at the date of service of the Council’s Notice, the appointment to be made by agreement between parties and in default of agreement by the President for the time being of the Royal Institution of Chartered Surveyors or any other person authorised by him to make appointments on is behalf, at the request of the first of them to apply. If the valuation of the Market and Fair Rights made by the President or any person on his behalf, is unacceptable to the Council or the Contractor, then the Council shall be free to accept any other offers for the purchase of the same.

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Appendix 3 Other Materials

Appendix 3 – Other Materials Markets Licensing Policy HM Land Registry Practice Guide 15: overriding interests and their disclosure HM Land Registry Practice Guide 18: franchises HM Land Registry Practice Guide 66: overriding interests that lost their automatic protection in 2013 The Royal Commission on Market Rights and Tolls

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p 567 p 572 p 578 p 584 p 596

Markets Licensing Policy

Markets Licensing Policy 1. INTRODUCTION The Council recognises the importance of markets in the local economy and the character of the area. They remain an important Council service and contribute in a number of ways to the local communities they serve. The Council’s markets are described in more detail in Section 2 of this policy and they represent an important investment by the Council in delivering economic regeneration and town centre vitality. The Council is keen to maintain the balance of markets throughout its area and also ensure that there is consistency in the way that markets are organised. In this context the Council has decided to implement a markets policy which sets out the basis upon which markets are held and the process by which applications for new markets will be considered. The Council recognises that there are many different types of market activities and the policy adopted by the Council is intended to cater for each type of market. In particular, the Council’s policy distinguishes between commercial markets and those that are largely community-based with a strong charitable element. Section 5 of the markets policy deals with the different types of market and the Council’s approach in considering applications in respect of such markets. Prior to implementing this policy the Council has taken the opportunity of consulting with the following organisations: In addition, the Council has consulted internally with the relevant Council sections responsible for licensing, economic regeneration, tourism and town centres. The policy will be reviewed on an annual basis.

2. MARKETS Insert here a description of the markets operated by the Council and the powers under which they operate. There will need to be reference to a resolution confirming the relevant powers.

3. MARKET RIGHTS The right to hold a market gives the owner of the right certain important powers, including the ability to control other markets held within 6⅔ miles of the market owner’s own market. The Council, by virtue of its statutory powers, enjoys market rights throughout its area and is in a position to consider applications for market events. Section 5 of this policy sets out the basis on which applications will be dealt with by the Council. This right has been exercisable for many years and the Council has taken into account relevant UK and European legislation in drawing up this markets policy.

4. WHAT IS A MARKET EVENT? The Council’s markets policy is intended to cover all market events held within the Council’s area. In order that potential market operators are fully aware of the Council’s definition of a market the following guidelines are provided: 567

Appendix 3  Other Materials a)

the legal definition of a market is a “concourse of buyers and sellers” (this means that the public are entitled to attend market events to buy and sell).

b)

A  market will comprise not less than five stalls, stands, vehicles, whether moveable or not or pitches from which articles are sold.

c)

There will be an operator of the market who will be responsible for the organisation and delivery of the event.

d)

The term “market event” includes car boot sales, antique and craft markets, general markets, farmers’ markets and charity markets.

e)

A  market may sometimes be held as an integral part of a special event and where this arises the market element will fall within the Council’s markets policy.

The Council’s markets policy differentiates between markets of a commercial nature and community-based markets which have a strong charitable element. This markets policy does not cover street trading activities. Where this is the case the Council’s licensing section should be consulted.

5. LICENSING OF MARKETS UNDER THE COUNCIL’S MARKETS POLICY The Council’s consent to a market event must be given before the market takes place. Markets will only be licensed once an application for a markets licence has been successfully pursued. Any market that takes place without such a licence is in breach of the Council’s markets policy and will be subject to enforcement action as described in Section 10. The Council will consider applications in respect of the following categories of market events: i)

Commercial markets

ii)

Community-based markets with a strong charitable element

The criteria set out in Section 4 will be relevant in respect of both categories of market event.

i)  Commercial markets A commercial market is one which is operated for profit and where the traders are engaged in a business activity of selling goods for their own purposes. The Council will consider applications in respect of commercial markets having regard to the following requirements: a)

No market will be authorised within 6⅔ miles of an existing market unless it can be demonstrated that the new market will not undermine the existing market and not prejudice the overall market offer.

b)

In respect of any consent the operator must have adequate insurances, comply with trading standards guidelines, health and safety requirements and any other statutory provisions laid down by the Council.

c)

A fee will be paid in respect of any consent given by the Council and the fee will be based on the size of the market and the frequency of the market. Refer to Section 6 in respect of fees.

d)

The goods to be sold on the market will be approved by the Council. 568

Markets Licensing Policy e)

A  licensing agreement will be entered into between the operator and the Council and such licensing agreement must be concluded before the market takes place.

f)

The Council will insist on such other requirements as are deemed appropriate to ensure consumer and public safety standards.

ii)  Community-Based Markets With A Strong Charitable Element Community-based markets are organised by local communities or organisations with the intention of raising funds for a specific charity or celebrating a special event The Council will consider applications in respect of community-based markets having regard to the following requirements: a)

the markets must be operated on a non-profit making basis to assist a charity or community event and the operator shall supply relevant information to the Council if requested. While it is acknowledged that some traders will be selling goods for their own purposes, the Council will look for the event to have a strong charitable element in the way the event is organised.

b)

In respect of any consent the operator must have adequate insurances, comply with trading standards guidelines, health and safety requirements and any other statutory provisions laid down by the Council.

c)

A  licensing agreement will be entered into between the operator and the Council and such licensing agreement must be concluded before the market takes place.

d)

The Council will insist on such other requirements as are deemed appropriate to ensure consumer and public safety standards.

Applications in respect of both commercial markets and community-based markets should be made to the following:

PLEASE INSERT DETAILS Information about the Council’s markets policy can also be obtained online with the relevant application forms PLEASE INSERT DETAILS The Council will endeavour to deal with applications for a markets licence within a period of twenty eight days. An operator of a market event is therefore urged to submit an application as early as possible to ensure that the Council has adequate time to consider the relevant matters in an appropriate way. In considering the application the Council will require sufficient information to deal with all the issues set out in the criteria listed above and also covered on the application form. Failure to provide such information is likely to lead to a delay in the Council coming to a decision. If the Council decides to refuse an application it will set out the reasons for its decision and will advise the procedure for submitting an appeal in respect of the refusal. Normally any appeal must be submitted within fourteen days of the Council’s written decision.

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6. FEES Fees will be an issue for local determination but the following example might assist in the assessment process: Number of stalls

Single Market

Additional amount per market – up to 12 markets per year

Additional amount per market – over 12 markets per year

Less than 15

£50

£30

£20

15 – 24

£100

£75

£50

25 – 34

£150

£120

£100

35 – 44

£200

£150

£125

45 – 54

£250

£200

£150

55 – 100

£500

£400

£300

In respect of community-based markets it is proposed that an administration fee of £100 is paid to cover the Council’s administrative costs.

7. OTHER APPROVALS It is important to emphasise that any approval given by the Council in respect of its market policy does not remove the requirement for other relevant approvals to be obtained. In particular the operator of a market should ensure that where the market is being held on private land, the approval of the landowner is obtained. The Council may wish to receive evidence of such approval. Planning permission might also be required and any market operator should consult with the Council’s Planning Department to ascertain whether any planning considerations are relevant. Attention is also drawn to the provisions of the Licensing Act 2003 in respect of any entertainment provided at the market or where a Temporary Events Notice might be required in respect of the sale of hot food or alcohol.

8. PARISH AND TOWN COUNCILS The Council recognises the important role played by Parish and Town Councils in serving their local communities and also acknowledges the contribution made by Parish and Town Councils to a wide range of community events which include, on occasions, a market element. The Council will discuss with Parish and Town Councils the extent to which this market policy will apply to them and in the context of the outcome of such discussions will review the implementation of the policy.

9. SECTION 37 OF THE LOCAL GOVERNMENT (MISCELLANEOUS PROVISIONS) ACT 1982 This section applies if the Council has adopted Section 37 This Section deals with temporary markets and any operator of a temporary market, together with the occupier of land on which the market is to be held, are

570

Markets Licensing Policy required to give to the Council not less than one month’s notice of the holding of the market. No notice is required if the proceeds of sale of the temporary market are to be applied solely or principally for charitable, social, sporting or political purposes. The Council reserves the right, in appropriate circumstances, to require evidence in respect of such matters. Any notice given by the operator and the occupier of the land shall state: i)

the full name and address of the person intending to hold the market.

ii)

the day or days on which it is proposed that the market will be held and its proposed opening and closing times.

iii)

the site on which it is proposed that the market will be held.

iv) the full name and address of the occupier of the land if he is not the person intending to hold the market. It is important to emphasise that the requirements of Section 37 are quite separate to the licensing of events under the Council’s Markets Policy set out in Section 5. The operator and the occupier of the land should ensure that a notice is given to the Council under the requirements of Section 37 as soon as proposals for a temporary market are under consideration. This will enable the Council to give preliminary consideration to a proposal and indicate its likely view on a subsequent application for a markets licence. Failure to give a notice under Section 37 is a criminal offence and liable to a summary conviction in the Magistrates’ Court.

10. ENFORCEMENT The Council will monitor the application of its markets policy and any market event which is established after the date of the implementation of this markets policy will be subject to the Council’s requirements. Any market which is not approved by the Council under Section 5 of its markets policy will be subject to legal action and the Council will seek an appropriate remedy in the courts to prevent the market being held and/or damages as appropriate. In addition, any market operator acting in contravention of any market licence granted by the Council will run the risk of the licence being terminated by the Council on such terms as the Council determines and, in such circumstances, the Council reserves the right to refuse any future applications for market licences submitted by the operator concerned or any person or organisation associated with the operator.

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Appendix 3  Other Materials

HM Land Registry Practice Guide 15: overriding interests and their disclosure Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. INTRODUCTION This guide explains HM  Land Registry’s approach to overriding interests which applicants must disclose on registrable dispositions of the registered estate, and on first registration. It gives details of the effect of the Land Registration Act 2002 and the Land Registration Rules 2003 on overriding interests, and sets out the procedures you need to follow in disclosing these interests. Potential applicants who are not legally qualified and who need further guidance on the disclosure procedure should contact HM Land Registry Customer Support.

2. OVERRIDING INTERESTS Overriding interests are interests to which a registered title is subject, even though they do not appear in the register. They are binding both on the registered proprietor and on a person who acquires an interest in the property. They have always been a feature of the registration system, though the term itself was first introduced in the Land Registration Act 1925.

2.1  Effect of the Land Registration Act 2002 on overriding interests One of the aims of the Land Registration Act 2002 is to reduce the number of overriding interests and to replace as many as possible of them with register entries. This is in keeping with its overall objective of making the register as complete a record of title as possible. It does this by: •

reducing the scope of some overriding interests

•

providing for the eventual abolition of others

•

requiring people applying for registration to provide information about unregistered interests, so that notice can be entered in the register in respect of them

•

providing that, once an interest has been the subject of a notice in the register, it loses its overriding status forever, even if the register entry is cancelled

In addition the Land Registration Act 2002 distinguishes, for the first time, between interests that override first registration and those that override subsequent registrable dispositions. It, therefore, contains two separate lists of interests with overriding status. Schedule  1 lists those that override first registration (they do so by virtue of sections 11(4) or 12(4) of the Land Registration Act 2002). Schedule 3 lists those that override registered dispositions (they do so by virtue of sections 29(2) or 30(2) of the Land Registration Act 2002). Schedule  12 contains important transitional provisions. 572

HM Land Registry Practice Guide 15 Background information on the types of overriding interest mentioned in the Land Registration Act 2002 are given in  Overriding interests in more detail. Details of those which must be disclosed by applicants are in Disclosable overriding interests.

3. REDUCING THE NUMBER OF OVERRIDING INTERESTS The Land Registration Act 2002 contains a number of mechanisms by which overriding interests will be brought into the register. These include: •

designating certain interests that were to lose their overriding status – this happened at midnight on 12 October 2013 (section 117 of the Land Registration Act 2002)

•

a general power for HM Land Registry (subject to service of notice) (rule 89 of the Land Registration Rules 2003) to note overriding interests that come to, or are brought to, our attention (section 37 of the Land Registration Act 2002). This might include, for example, noting the burden of a legal easement on a registered title, or making a building estate subject to an interest disclosed on an application relating to a single plot

•

the duty of applicants to disclose overriding interests affecting the land. See Disclosable overriding interests

4. DISCLOSABLE OVERRIDING INTERESTS 4.1  When to disclose an overriding interest You must disclose overriding interests when making an application for first registration or for registration of a registrable disposition of the registered estate. You must disclose any such interest (unless it is an interest of a kind mentioned in Interests not to be disclosed) that is within the actual knowledge of the person applying for registration. There is no need to carry out any special investigation, although you might need to explain to your client what interests should be disclosed. 4.2  Interests not to be disclosed Do not disclose interests of the kinds mentioned in sections 33 and 90(4) of the Land Registration Act 2002, and in rules 28(2) and 57(2) of the Land Registration Rules 2003. These are: •

an interest under a trust of land

•

an interest under a settlement under the Settled Land Act 1925

•

a lease granted for a term of three years or less, unless it is of a kind that has to be registered

•

a Public – Private Partnership (PPP) lease. PPP Leases are made overriding interests by section 90 of the Land Registration Act 2002. They are leases of parts of the London Transport railway system granted under public-private partnership agreements

•

an interest capable of being registered under the Commons Registration Act 1965

•

an interest in any coal or coal mine 573

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a local land charge

•

a public right

•

a lease with less than one year to run

•

a restrictive covenant between lessor and lessee so far as relating to the demised premises

•

any interest apparent from the deeds and documents accompanying an application for first registration

•

a lease granted under the terms of a  relevant social housing tenancy  (see sections 4(5A) and 132(1) of the Land Registration Act 2002, as amended by section 157(3) of the Localism Act 2011)

Registrable dispositions are not overriding interests and should not be disclosed.

4.3  How to disclose an interest to HM Land Registry

4.3.1  Dispositions of registered estates Disclosable overriding interests are referred to in panel 11 of form AP1. You should complete this panel on any application to register a registrable disposition, where there are overriding interests to disclose. If there are interests to disclose, you must lodge an additional form, form DI (rules 28 and 57 of the Land Registration Rules 2003). You must also lodge documentary evidence (rule 57(4) of the Land Registration Rules 2003) of the interest where such evidence exists. A  certified copy of the document will usually be sufficient.

4.3.2  First registrations You should complete panel 11 of form FR1, where there are overriding interests to disclose. However, you only need to disclose interests on form DI if they are not apparent from an examination of the title deeds and documents (rule 28(2)(b) of the Land Registration Rules 2003). For example, you will not need to complete a form DI for a lease having overriding status if a certified copy of the lease is enclosed with the title deeds. However, you will need to disclose on form DI interests for which no documentary evidence exists, such as a right acquired by prescription or a customary right.

5. OVERRIDING INTERESTS IN MORE DETAIL 5.1  Short leases Leases of land (as opposed to leases of rentcharges, profits, franchises, manors or easements) that do not have to be registered are overriding interests (this is the effect of Schedule 1, paragraph 1 and Schedule 3, paragraph 1 of the Land Registration Act 2002. See also section 90(5) of the Land Registration Act 2002). This means most, but not all, leases granted for a term of seven years or less. The registration requirements are slightly different for leases out of registered (section 27(2)(b) of the Land Registration Act 2002) and unregistered (section 4(1)(d), (e) and (f) of the Land Registration Act 2002) titles, see practice guide 25: leases – when to register for more details. Under section 70(1)(k) of the Land Registration Act 1925, any lease granted for a term of 21 years or less was an  overriding interest. Any such lease existing 574

HM Land Registry Practice Guide 15 on 13 October 2003 will continue to have overriding status, until it is noted in the register (Schedule 12, paragraph 12 of the Land Registration Act 2002).

5.2  Interests of persons in actual occupation This item is more narrowly defined than its equivalent in section 70(1)(g) of the Land Registration Act 1925, and there are different provisions for first registrations and for dispositions of registered land (Schedule 1, paragraph 2 and Schedule 3, paragraph 2 of the Land Registration Act 2002 respectively). •

the basic provision protects “an interest belonging to a person in actual occupation, so far as relating to land of which he is in actual occupation”

•

note that, if a person only occupies part of the land, the interest only has overriding status for that part. This is a new provision

•

in the case of dispositions only, an interest is not protected if inquiry was made of the person claiming it before the disposition took place, and they failed to disclose it when they could reasonably have been expected to do so (Schedule 3, paragraph 2(b) of the Land Registration Act 2002). Unlike the present law, this exception does not apply on first registration

•

in the case of dispositions only, an interest is not protected if it is not obvious, on a reasonably careful inspection of the land, that the person claiming it is occupying the land. This is a new provision. It does not apply on first registration, and it does not apply if the person taking the disposition actually knows about the claimant’s interest (Schedule 3, paragraph 2(c) of the Land Registration Act 2002)

•

interests belonging to persons receiving rents and profits, but not actually occupying the land, are no longer protected. There is a transitional provision which gives limited protection against dispositions, but not against first registration, to any such interests that exist when Land Registration Act 2002 comes into force (Schedule 12, paragraph 8 of the Land Registration Act 2002)

Certain kinds of interest can never be overriding interests under this heading. They are: •

an interest under a settlement under the Settled Land Act 1925 (Schedule 1, paragraph  2 and Schedule  3, paragraph  2(a) of the Land Registration Act 2002). However, an interest under a trust of land can have overriding status, if it otherwise qualifies

•

a pending land action, a writ or order affecting land issued or made by a court for the purpose of enforcing a judgment or recognisance, an order appointing a receiver or sequestrator, or a deed of arrangement (section 87(3) of the Land Registration Act 2002)

•

a spouse or civil partner’s right of occupation under the Family Law Act 1996 (section 31(10) of the Family Law Act 1996, as amended by Schedule  11, paragraph 34 of the Act) as amended by the Civil Partnership Act 2004

•

in the case of dispositions only, a lease granted to take effect in possession more than three months ahead, and which has not taken effect in possession at the time of the disposition. This reflects the requirement to register such a lease (Schedule 3, paragraph 2(d) of the Land Registration Act 2002)

•

rights of tenants arising from a desire notice under the Leasehold Reform Act 1967 (Schedule 11, paragraph 8(2)(a) of the Land Registration Act 2002) 575

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in the case of dispositions only, exercise of the Preserved Right to Buy (Schedule 11, paragraph 18(10) of the Land Registration Act 2002)

•

rights under an access order made under the Access to Neighbouring Land Act 1992 (Schedule 11, paragraph 26(4) of the Land Registration Act 2002)

•

rights of tenants under the Leasehold Reform, Housing and Urban Development Act 1992 (Schedule 11, paragraph 30(3) of the Land Registration Act 2002)

•

rights arising from a request to a landlord for the grant of an overriding lease under the Landlord & Tenant (Covenants) Act 1995 (Schedule  11, paragraph 33(4) of the Land Registration Act 2002)

5.3  Easements and profits a prendre On first registration, any legal easement or profit a prendre is an  overriding interest (Schedule 1, paragraph 3). On registrable dispositions, the position for legal easements and profits a prendre was the same as for first registrations until 12 October 2006 (this is the combined effect of Schedule 3, paragraph 3 and Schedule 12, paragraph 10 of the Land Registration Act 2002). Since 13 October 2006, there have been some exceptions. An unregistered legal easement or profit will now only override registered dispositions if it is: •

obvious on a reasonably careful inspection of the land

•

known to the person to whom the disposition is made

•

exercised within the year before the disposition

•

(if a profit) registered under Schedule  3, paragraph  3 of the Commons Registration Act 1965

A  transitional provision (Schedule  12, paragraph  9 of the Land Registration Act 2002) relates to an easement or profit which was an overriding interest in relation to a registered estate immediately before the Land Registration Act 2002 came into force. If the easement or profit concerned would not otherwise fall within paragraph 3 of Schedule 3 of the Land Registration Act 2002, that paragraph will take effect as if the interest concerned were not excluded from it. Under the Land Registration Act 1925, it was possible for an equitable easement or profit to be an overriding interest if it was openly exercised and enjoyed (Celsteel Limited v Alton House Holdings Limited [1985] 1 WLR  204; Thatcher v Douglas (1996) 146 NLJ 282). This is no longer the case under the Land Registration Act 2002. One effect of this transitional provision is, therefore, to preserve the overriding status of existing equitable easements and profits of this kind. But it can only affect land which is already registered; only legal easements or profits can now override first registration.

5.4  Other interests Other overriding interests include: •

relevant social housing tenancies

•

a customary right

•

a public right

•

a local land charge

•

an interest in any coal or coal mine, the rights attached to any such interest, and the rights of any person under sections 38, 49 or 51 of the Coal Industry Act 1994 576

HM Land Registry Practice Guide 15 •

in the case of land to which title was registered before 1898, rights to mines and minerals (and incidental rights) created before 1898

•

in the case of land to which title was registered between 1898 and 1925 inclusive, rights to mines and minerals (and incidental rights) created before the date of registration of the title

•

PPP leases – PPP Leases are made overriding interests by section 90 of the Land Registration Act 2002. They are leases of parts of the London Transport railway system granted under public-private partnership agreements

5.5  Adverse possession Rights acquired, before the Land Registration Act 2002 came into force, under the Limitation Act 1980 or under section 75 of the Land Registration Act 1925, had overriding status for three years (Schedule  12, paragraphs 7 and 11 of the Land Registration Act 2002). From 13 October 2006, they will only be protected if the claimant is in actual occupation of the land (under paragraph 2 of either Schedule 1 or Schedule 3 of the Land Registration Act 2002, and subject to the exceptions in those paragraphs. The transitional provision in Schedule 12, paragraph 8 of the Land Registration Act 2002, which applies only to dispositions, may sometimes be relevant as well), or, on first registration, if the proprietor has notice of them (sections 11(4) (c) and 12(4)(d) of the Land Registration Act 2002).

6. THINGS TO REMEMBER We only provide factual information and impartial advice about our procedures.

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HM Land Registry Practice Guide 18: franchises Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. INTRODUCTION One form of franchise is a right granted by the Crown or, to use the classic definition, “a royal privilege or branch of the royal prerogative subsisting in the hands of a subject, by grant from the King”. See, for example, Spook Erection Ltd v Secretary of State for the Environment [1989] QB 300, 305. It is this form of franchise that is the subject of this guide, rather than the modern concept of a commercial franchise.

2. NATURE OF FRANCHISE A franchise requires a grant from the Crown in the form of a charter or letters patent. It may also be claimed by prescription (which presupposes a grant that has been lost). It is likely that franchises were also validly granted in the past by certain Lords who had palatine powers (“jura regalia”) within their Lordships. These are the Earls of Chester, the Earls and Dukes of Lancaster, the Earls and Dukes of Cornwall and the Bishops of Durham. A franchise does not carry with it ownership of the physical land and is distinct from the freehold or leasehold estates in land. The most common franchise is the right to hold a market or fair. A right of market confers on  the owner  a monopoly right, that is to say the exclusive right to hold markets within a radius of 6 ⅔ miles (Birmingham City Council v Anvil Fairs [1989] 1 WLR 312, 313). A fair is a market held at rarer intervals (Wyld v Silver [1963] Ch 243, 261). A  market franchise can be confiscated by the Crown or abolished by Act of Parliament (Wyld v Silver [1963] Chapters 243, 255 and 263). A statute may abolish a market franchise by granting similar rights (Manchester Corpn v Lyons (1882) 22 Ch D  287). Where a statutory market has replaced a franchise market, it is not possible to register the original franchise market.

3. REGISTRATION OF FRANCHISES Formerly, a franchise was not capable of separate registration, but from 13 October 2003 it has been possible to register title to certain franchises. Registration of franchises is voluntary and the triggers to compulsory first registration listed in section 4 of the Land Registration Act 2002 do not apply. To be capable of registration, a franchise must constitute a legal estate and be either: • perpetual •

for a term of years absolute with more than seven years unexpired 578

HM Land Registry Practice Guide 18 Registration of a franchise does not prejudice a right of the Crown to forfeit the franchise (rule 196B of the Land Registration Rules 2003).

4. AFFECTING FRANCHISES AND RELATING FRANCHISES 4.1  Types of franchise recognised by the Land Registration Act 2002 The Land Registration Rules 2003 distinguish between two types of franchise. A franchise can be either: •

an ‘affecting franchise’ – “a franchise which relates to a defined area of land and is an adverse right affecting, or capable of affecting, the title to an estate or charge”

•

a ‘relating franchise’ – “a franchise which is not an affecting franchise” (rule 217(1) of the Land Registration Rules 2003)

4.2  Relating franchises more common We believe that most franchises are relating franchises. In particular, there is strong authority for the view that a market franchise will be a relating franchise. Even if the market franchise relates to an area that can still be defined, it does not appear to give the franchise-holder the right to enter the land without the landowner’s consent (Attorney-General v Horner (1884) 14 QBD 245, 254 – 255, 260. (Affirmed (1885) 11 App Cas 66  HL)), and so does not confer property rights adversely affecting the title to any estate or charge. 4.3  Registration of a relating franchise The Land Registration Rules 2003 allow for the registration of a relating franchise without a title plan (rule 5 of the Land Registration Rules 2003). As a result such a franchise: •

will be described verbally in the property register

•

will not be shown on the index map but will instead be recorded in the index of relating franchises and manors, which is a verbal index (rule 10 of the Land Registration Rules 2003)

We can only enter a notice in respect of the burden of an adverse right affecting the title to an estate or charge (sections 32(1) and 132(3)(b) of the Land Registration Act 2002). It follows that relating franchises cannot be noted in the titles of those registered estates falling within the area of the franchise. It is HM  Land Registry’s view that unregistered relating franchises have never been unregistered interests in land because they did not affect a registered estate so they were never an “overriding interest”. Therefore, unlike affecting franchises, they were not affected by section 117 of the Land Registration Act 2002 (see Loss of overriding interest status). But where a relating franchise has been enjoyed in a particular venue, such as by agreement with the landowner, then that agreement may be protected by notice in the register of the land subject to the right. Similarly a right akin to a prescriptive easement to enjoy the franchise in a particular venue may have been acquired. That, too, may be protected in the register of the land affected. Nonetheless it is HM  Land Registry’s view that even the acquisition of such a right does not turn a relating franchise into an affecting franchise. 579

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4.4  Registration of an affecting franchise If you have grounds for believing that the franchise you seek to register is an affecting franchise, and you wish us to register it as such, you must make this clear in the application for registration. If we believe it to be more likely than not, on the evidence supplied, that the franchise is an affecting franchise, we will: •

serve notice on all the registered proprietors of estates in land, charges and relevant franchises within the defined area of the franchise

•

seek to give notice to the unregistered owners, chargees and relevant franchiseholders

Exactly how we do this and what information we require for it to be done will depend on the circumstances of the particular case. It should be noted, however, that if a franchise is an affecting franchise, the defined area of land which it affects will be the defined area of land at the date of its grant. In the case of a presumed lost grant the defined area will depend upon the circumstances (Loose v Lynn Shellfish Ltd [2014] EWCA Civ 846). Only if there are no objections, or all the objections are groundless or disposed of (by agreement or proceedings), can the registration proceed and notice of the affecting franchise be entered in all the registered titles affected. A registered affecting franchise will: •

have a title plan

•

be shown on the index map

5. DOCUMENTS TO BE LODGED When applying for the first registration of a franchise, you must provide: •

form FR1 for each franchise that is claimed. Markets and fairs are separate franchises so even if a charter grants both a market and a fair, a separate application should be made for each. As well as appearing correct in law, there are good practical reasons for this, since the market and fair can be dealt with separately and one will often be leased without the other. If however the charter grants more than one fair, for example, these may be treated as one franchise and registered under a single title

•

a certified copy of the charter or letters patent granting the franchise. If the document is in Latin, we will also require a translation

•

where the application is for first registration of an affecting franchise, a plan showing the extent of the land affected and sufficient detail to allow us to identify the land clearly on the Ordnance Survey map

•

if the application is for first registration of a relating franchise, details of the current administrative area (the county or unitary authority) in which the franchise operates

•

all documents proving devolution of title to the applicant in accordance with normal conveyancing practice. Please note that it is not sufficient to just prove the original grant of the franchise, you must also prove the devolution of title to the applicant.

•

all other deeds and documents relating to the title to the franchise and in the applicant’s control (‘control’ means “physical possession, or the right to 580

HM Land Registry Practice Guide 18 possession, or the right to take copies of the document”, rule 217(1) of the Land Registration Rules 2003 •

if the applicant is unable to produce a full documentary title, evidence to account for the absence (see practice guide 2: first registration of title where deeds have been lost or destroyed)

•

if the claim is based on prescription, evidence in one or more statutory declarations or statements of truth of at least 20 years’ enjoyment

•

form DL in duplicate listing all the documents lodged

•

the appropriate fee. This is a scale 1 fee based on the value of the interest being registered. Article 2(6) (voluntary registration: reduced fees) does not apply to the first registration of franchises

Please note that you may make an application for first registration on the basis of certified copy deeds and documents only. For information about this see  practice guide 1: first registration – Applications lodged by conveyancers – acceptance of certified copy deeds. Remember that where you choose to make your application on the basis of certified copy deeds and documents only, this must still include evidence of the chain of title to the applicant.

6. APPLICATION FOR A RESTRICTION IN FORM A Where a person or persons apply to be registered as proprietor(s) of a franchise and a sole proprietor or survivor of joint proprietors will not be able to give a valid receipt for capital money, application must be made for entry of a restriction in Form A (rules 94(2) and (3) of the Land Registration Rules 2003). The application should be made in form RX1 or where a HM Land Registry form of transfer has been used for the disposition to the applicant, in that form.

7. SERVICE OF NOTICE ON THE CROWN We may want to serve notice of an application for registration of a franchise on a representative of the Crown. You should lodge any relevant correspondence with the Crown as part of the application. In the case of a franchise of wreck, or royal fish (a whale, porpoise, or sturgeon caught near the British coast or cast ashore there. In these circumstances they belong to the Crown or, in the Duchy of Cornwall, to the Prince of Wales), we will serve notice on the Receiver of Wreck. It is possible that we may consider serving notices on other parties who may have an interest.

8. CLASS OF TITLE Unlike applications for first registration of an estate in land, it is often difficult for the owner of a franchise to prove their title to it to the satisfaction of the registrar; an owner of an estate in land can show physical possession of it but  the owner  of a franchise cannot do this. While the evidence of the original grant may be lodged together also with a modern title stretching back, say, 15 or 30 years, there will often be a gap of many centuries for which no information is available. Unless HM  Land Registry is completely 581

Appendix 3  Other Materials satisfied with the evidence that is lodged, a qualified title may be offered. This is particularly the case where the franchise is based on a manorial grant. See practice guide 1: first registrations.

9. LOSS OF OVERRIDING INTEREST STATUS Before 13  October 2013, franchise property rights adversely affecting land (perhaps a right of entry) are overriding interests (Paragraph 10 to Schedule 1 and Paragraph 10 to Schedule 3 of the Land Registration Act 2002), which means that they automatically bound the owners of the land involved (sections 11, 12, 29, 30 of the Land Registration Act 2002). At midnight on 12 October 2013 they lost their automatic overriding status and they now need to be protected in the register. Applicants for registration have a duty on all first registrations, or upon a disposition of registered land, to disclose such franchise property rights of which they have knowledge and which affect their property. For further information see practice guide 15: overriding interests and their disclosure. Additionally those with the benefit of franchise property rights that have not been protected in the register can apply for them to be noted in the register of a title that is subject to them provided they bind the then registered proprietors. A fee is payable under the current Land Registration Fee Order for such an application. Where the land is not registered, franchise property rights can be protected by a caution against first registration. For further information see practice guide 66: overriding interests losing automatic protection in 2013.

10. OBJECTIONS AND DISPUTES 10.1  Possibility of objection Disputes involving franchises are most likely to occur where an application has been made for registration of a franchise as an affecting franchise, or to note franchise property rights have been noted resulting in the registered proprietor applying to cancel the unilateral notice, and one of the people served with notice objects to the application. 10.2  Requirements for objection Any person wishing to object to an application must deliver to the registrar a written statement signed by them or their conveyancer. It must state that the objector objects to the application, state the grounds for the objection and give the objector’s name and address to which communications may be sent (rule 19 of the Land Registration Rules 2003). 10.3  Consideration of objection by HM Land Registry If we receive an objection, then it will not be possible to determine the application until the objection is disposed of, unless the registrar is satisfied that the objection is groundless (section 73 of the Land Registration Act 2002). If the objection is not groundless, we must give notice of the objection to the applicant (section 73(5) of the Land Registration Act 2002). We will then ask both parties: •

whether they wish to negotiate

•

whether they consider that it may be possible to reach an agreement 582

HM Land Registry Practice Guide 18 If all parties respond positively, we will allow them time to settle the matter by agreement. However, as soon as it becomes clear that the two sides are unable to reach an agreement we must refer the matter to  the tribunal  (section 73(7) of the Land Registration Act 2002). We will do this immediately if the parties do not wish to negotiate. The tribunal will then either: •

set a date to hear and determine the matter

•

direct one of the parties to start proceedings in court. If it decides to hear the matter, further details of the procedure to be followed and of the position as to costs will be supplied by it

11. SUBSEQUENT DEALINGS WITH A REGISTERED FRANCHISE The owner of a franchise may deal with it in much the same way as other registered estates. For example, the owner may sell or lease the franchise. The sale or grant of a lease of a registered franchise must be registered (section 27(2)(c) of the Land Registration Act 2002) and will not operate at law until the registration requirements have been met (section 27(1) of the Land Registration Act 2002). If the term of the lease is for more than seven years, registration will take the usual form of opening a new title and entering notice in the register of the lessor’s title (Paragraph 4 to Schedule 2 of the Land Registration Act 2002). If the term does not exceed seven years, the registration requirement is simply that notice be entered in the lessor’s title (Paragraph 5 to Schedule 2 of the Land Registration Act 2002). The effect of the rule of priority on dispositions of registered estates under section 29 of the Land Registration Act 2002 is altered in relation to franchises, so that a right of the Crown to forfeit the franchise is a ‘protected interest’ for the purposes of section 29(2)(a) (rule 196(2) of the Land Registration Rules 2003).

12. THINGS TO REMEMBER We only provide factual information and impartial advice about our procedures.

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HM Land Registry Practice Guide 66: overriding interests that lost their automatic protection in 2013 Please note that HM Land Registry’s practice guides are aimed primarily at solicitors and other conveyancers. They often deal with complex matters and use legal terms.

1. INTRODUCTION This guide deals with the protection of those overriding interests that lost their overriding status at midnight on 12  October 2013: section 117 of the Land Registration Act 2002 and rule 2 of the Land Registration Rules 2002 (Transitional Provisions) (No 2) Order 2003. These interests are: •

a manorial right

•

a right in respect of the repair of a church chancel

•

a franchise (for further information see  practice guide 18: franchises: registration under the Land Registration Act 2002)

•

right to rent that was reserved to the Crown on the granting of any freehold estate (whether or not the right is still vested in the Crown)

•

a non-statutory right in respect of an embankment or sea or river wall

•

a right to payment in lieu of tithe

These interests can be protected: •

where the title is registered, by a notice in the register, or

•

where the title is not yet registered, by caution against first registration

•

provided they bind the registered proprietor (See  The land was registered before 13  October 2013). A  fee will be payable under the current Land Registration Fee Order, see HM Land Registry: Registration Services fees.

An applicant seeking to protect their interest by way of notice or caution against first registration may apply for an official search of the index map to establish whether or not any part of the land searched is registered and, if so, the title numbers concerned and the type of registration that has been disclosed. See  practice guide 10: index map – official search. If you do not require indemnity provisions in respect of an index map search you could consider using MapSearch. This service is available free of charge for Business e-services customers who have portal access and provides immediate search results.

2. INTERESTS ALREADY PROTECTED BY ENTRIES IN THE REGISTER As a result of information provided to HM Land Registry on an application, an entry may already have been made to protect such an interest. Where such an entry is made, the interest ceased to be an overriding interest (Section 29(3) of the Land Registration Act 2002). In such a case, it will not be necessary to make a further application to protect the interest. 584

HM Land Registry Practice Guide 66 For example, if the following entry appears in the register. “The land is subject to a rent of 1s 0d reserved to the Crown by a Conveyance thereof dated 17  July 1893 made between (1) The Queen’s Most Excellent Majesty (2) The Board of Trade and (3) The Commissioner of The Piers and Harbour of Clayport. NOTE: Copy filed.” The Crown rent created by the conveyance of 17  July 1893 is therefore already protected and has ceased to be an overriding interest. Examples of other entries that may appear in the register are: “The land was formerly copyhold of the Manor of Pinechester. This registration takes effect subject to the reservation of any rights of the lord referred to in the 12th Schedule of the Law of Property Act 1922.” “The land was formerly copyhold of the Manor of Pinechester and on the enfranchisement thereof there were excepted the mines and minerals and rights referred to in section 48 of the Copyhold Act 1852. Such mines and minerals and rights are not included in this registration.” “The land was formerly copyhold of the Manor of Pinechester and on the enfranchisement thereof there were excepted the mines and minerals and rights referred to in section 23 of the Copyhold Act 1894. Such mines and minerals and rights are not included in this registration.” Our view is that these entries are notices in respect of manorial rights and therefore such rights will have ceased to be overriding interests so that further protection is unnecessary. There may, however, be arguments to support the contrary view. Accordingly, applications may be made for a notice in respect of specific manorial rights even though one of these entries already appears in the register.

3. ENTRY OF NOTICES IN THE REGISTER An application for entry of a notice may be for either: •

a unilateral notice

•

an agreed notice

There are different procedures for entering unilateral notices and agreed notices and for cancelling the entries once made. The forms of the entries in the register are also different. However, all types of notice have the effect of protecting the priority of the interest to which they relate provided the interest is valid. For more information see practice guide 19: notices, restrictions and the protection of third party interests.

3.1  The nature and effect of notices A  notice is an entry made in the register in respect of the burden of an interest affecting a registered estate or charge. The effect of a notice is very limited. The entry of a notice does not guarantee that the interest that it protects is valid or even that it exists (section 32 of the Land Registration Act 2002). A notice will only ensure that the priority of the interest protected will not be automatically postponed on the registration of a subsequent registrable disposition for valuable consideration, if the interest is valid. Please be aware that once the interest has been noted, overriding 585

Appendix 3  Other Materials status is lost and cannot be regained even if the notice is cancelled (section 29(3) of the Land Registration Act 2002). Once entered in the register, any notice other than a unilateral notice will only be cancelled if the registrar is satisfied that the interest protected has come to an end, or that the interest claimed is otherwise invalid. A person applying for an agreed notice to be cancelled must produce evidence to satisfy the registrar that this is the case.

3.2  The duty to act reasonably A person must not lodge an application for a notice without reasonable cause. If they do, they owe a duty to anyone who suffers damage, and the person adversely affected may bring an action for damages (section 77 of the Land Registration Act 2002). 3.3  Unilateral notices A unilateral notice may be entered without the consent of the relevant proprietor. The applicant is not required to satisfy the registrar that their claim is valid and does not need to support their claim to the interest with any evidence. The registrar will however check that the interest claimed is of a type that may be protected by unilateral notice. The relevant proprietor is not notified of the application until after the entry has been made so they will not usually be able to object to the application. However, they will always be notified after the application has been completed. They can then apply at any time to cancel the notice and, by doing so, require the person claiming the benefit of the protected interest to prove the validity of their claim. There are two elements to any unilateral notice entry appearing in the register. The first part gives brief details of the interest protected and identifies that the entry is a unilateral notice; the second part gives the name and address of the person identified by the applicant as the beneficiary of the notice. This information is necessary as it is the beneficiary who will be served with notice and required to prove the validity of the interest if the relevant proprietor applies to cancel the notice. An example of a unilateral notice entry would be: “(22  January 2004)  UNILATERAL NOTICE in respect of a liability to contribute to the maintenance and repair of the embankments of the River Hythe adjoining the land in this title and arising by virtue of the custom of the Township of Hythehampton. (22 January 2004) BENEFICIARY: James Dean Perry of The Manor House, Upper Hythe, Cornshire XX1 3AB.”

3.4  Applying for a unilateral notice

3.4.1  Application form An application for a unilateral notice must be made in form UN1 and the usual fee is payable.

3.4.2  Details of the nature of the applicant’s claim Details of the nature of the interest claimed must be set out in the relevant panel of form UN1. This information may be given either: •

as a statement by the beneficiary or someone authorised by them

•

as a certificate given by a conveyancer

586

HM Land Registry Practice Guide 66 The applicant is not required to lodge any other document in support of their claim. However, if they do so, the registrar will retain a copy of it and refer to it in the notice entry. This would mean that the document would be available for public inspection. Any such document, even if it is an original, will be stored electronically and will then be destroyed (rule 203(2) of the Land Registration Rules 2003).

3.4.3  Identifying the beneficiary of the notice An application for a unilateral notice must identify who is to be named in the entry as the beneficiary of the notice and must provide up to three addresses for service to be entered in the register. The addresses given may be postal, DX or electronic addresses although one must be a postal address, though not necessarily an address in the UK (rule 198-9 of the Land Registration Rules 2003 provides further information about addresses for service and when service shall be regarded as having taken place). Any cancellation notice in respect of the unilateral notice will be sent to the beneficiary at the address(es) for service in the register. Where appropriate, one address given may be ‘care of’ the beneficiary’s conveyancer to ensure that a cancellation notice is not inadvertently overlooked when received.

3.4.4  Registration of a new or additional beneficiary of a unilateral notice In order that the register may be kept up to date, someone who is or has become entitled to the benefit of an interest that is protected by a unilateral notice may apply to be entered as the beneficiary of that notice. The application must be made in form UN3 and must be accompanied by the fixed fee prescribed under the Fee Order – see practice guide 19: notices, restrictions and the protection of third party interests.

3.5  Agreed notices An agreed notice can only be entered in the register either: •

by, or with the consent of, the relevant proprietor (or someone entitled to be registered as such)

•

if the applicant can satisfy the registrar that the interest claimed is valid

We are not obliged to serve notice on the relevant proprietor before approving an application for an agreed notice made without the proprietor’s cooperation. In most cases we will determine the application on the basis of the evidence lodged without involving the proprietor. However, if the application is one based on evidence rather than proprietor cooperation, we will always notify the proprietor that the entry has been made when we complete the application. When the application is one for an agreed notice to protect the right to the repair of the church chancel, we will always serve notice. Agreed notice entries must give details of the interest that they protect. Often this is achieved by referring to a document that describes, or that created, the interest. The document itself may be scanned and stored electronically and made available for inspection. Once the document has been scanned it will be destroyed even if it is the original. An example of an agreed notice entry would be: “(22  January 2002)  A  Conveyance dated 17  July 1893 made between (1) The Queen’s Most Excellent Majesty (2) The Board of Trade and (3) The Commissioner of The Piers and Harbour of Clayport reserves a rent of 1s 0d to the Crown. NOTE: Copy filed.” 587

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3.6  Applying for an agreed notice

3.6.1  Application form An application for an agreed notice must be made in form AN1 and accompanied by the fee prescribed under the current Land Registration Fee Order.

3.6.2  Applications based on evidence rather than consent In practice most applications of this type are likely to be made without the consent of the registered proprietor. Where the consent is available, see Applications made with the cooperation of the relevant proprietor. Where the application is not made with consent, it must be accompanied by sufficient evidence to satisfy the registrar of the validity of the applicant’s claim (rule 81(1) of the Land Registration Rules 2003). The evidence required to satisfy the registrar of the validity of the claim will of course vary on a case-by-case basis. Examples of the type of evidence that may satisfy the registrar of the validity of a claim are set out in Evidence of the applicant’s claim).

3.6.3  Evidence of the applicant’s claim A franchise A  franchise requires a grant from the Crown in the form of a Charter or Letters Patent. It may also be claimed by prescription (which presupposes use since before 1189 or a later grant that has been lost). The Land Registration Rules 2003 (rule 217(1) of the Land Registration Rules 2003) distinguish between: •

an ‘affecting franchise’ – “a franchise that relates to a defined area of land and is an adverse right affecting, or capable of affecting, the title to an estate or charge”, and

•

a ‘relating franchise’ – “a franchise that is not an affecting franchise”

A  franchise may be registered. For more information, see  practice guide 18: franchises: registration under Land Registration Act 2002. Most franchises are considered to be relating franchises and are not overriding interests because they do not affect land. They cannot, therefore, be the subject of an application for a notice. There is strong authority for the view that a market franchise will be a relating franchise. Even if the market franchise relates to an area that can still be defined, it does not appear to give the franchise-holder the right to enter the land without the landowner’s consent, and so does not confer property rights adversely affecting the title to any estate or charge. To establish the validity of the applicant’s claim to an affecting franchise for the purpose of an agreed notice it will normally be necessary to supply a certified copy (together with a certified translation if the copy document is in Latin) of the Charter or Letters Patent. We will accept as a certified copy: •

a transcript

•

a photocopy

•

a photograph (provided it is readable)

•

a certified copy of the relevant entry in the Charter Rolls or Patents Rolls supplied by the National Archives (formerly the Public Records Office), or

•

a copy extract of a published calendar of Charter and Patent Rolls (provided the abstract supplies sufficient detail) 588

HM Land Registry Practice Guide 66 We will also need to be satisfied that the franchise has been vested in the applicant for the agreed notice and we may also require evidence by way of statutory declaration or statement of truth that it remains actively exercised, and this last requirement will be regarded as an essential requirement where the franchise is claimed by prescription. See practice guide 73: statements of truth for information about the use of statements of truth in support of applications to HM Land Registry.

Manorial rights In their report Land Registration for the 21st century – A Conveyancing Revolution (Law Com 271), the Law Commission took the view that ‘Manorial rights’ has a precise meaning. Such rights are narrower than the appurtenances deemed to be included in the conveyance of a Manor by virtue of the Law of Property Act 1925 section 62(3) (or the Conveyancing Act 1881 section 6(3)). The rights in question were listed in some detail in paragraphs 5 and 6 of Schedule 12 to the Law of Property Act 1922. Although this list of rights relates to the effect of enfranchisement under the Law of Property Act 1922 it may nevertheless be taken to be “a comprehensive statement of these rights” (see Law Com 271 at para 8.41). They are: “(5) An enfranchisement by virtue of this Act of any land (including any mines and minerals hereinafter mentioned) shall not affect any right of the lord or tenant in or to any mines, minerals, limestone, lime, clay, stone, gravel, pits, or quarries, whether in or under the enfranchised land or not, or any right of entry, right of way and search, or other easement or privilege of the lord or tenant in, on, through, over, or under any land, or any powers which in respect of property in the soil might but for the enfranchisement have been exercised for the purpose of enabling the lord or tenant, their or his agents, workmen, or assigns, more effectually to search for, win, and work any mines, minerals, pits or quarries, or to remove and carry away any minerals, limestone, lime, stones, clay, gravel, or other substances had or gotten therefrom, or the rights, franchises, royalties, or privileges of the lord in respect of any fairs, markets, rights of chase or warren, piscaries, or other rights of hunting, shooting, fishing, fowling, or otherwise taking game, fish, or fowl. Provided that the owner of the enfranchised land shall, notwithstanding any reservation of mines or minerals in this Act (but without prejudice to the rights to any mines or minerals, or the right to work or carry away the same), have full power to disturb or remove the soil so far as is necessary or convenient for the purpose of making roads or drains or erecting buildings or obtaining water on the land. (6) An enfranchisement by virtue of this Act shall not affect any liability subsisting at the commencement of this Act (whether arising by virtue of a court leet regulation or otherwise) for the construction maintenance cleansing or repair of any dykes, ditches, canals, sea or river walls, piles, bridges, levels, ways and other works required for the protection or general benefit of any land within a manor or for abating nuisances therein; and any person interested in enforcing the liability may apply to the court to ascertain or apportion the liability and to charge the same upon or against the land or any interest therein; and the court may make such order as it thinks fit; and the charge when made by the order shall be deemed to be a land charge within the meaning of the Land Charges Registration and Searches Act, 1883 (as amended by any subsequent enactment), and may be registered accordingly; and, in addition, the jurisdiction of any court leet, customary or other court, in reference to the matter is hereby transferred to the court.” 589

Appendix 3  Other Materials The registrar has the same view. However, we are aware that there are different views. To establish the validity of their claim for the purposes of an agreed notice the applicant will normally need to produce: •

• •

•

evidence that the land in question was previously copyhold of the manor in question (this will usually be provided by producing a copy of the deed of enfranchisement or compensation agreement) evidence that it was the custom of the manor in question that the lord had the rights claimed, for example by evidence from the court rolls evidence that the rights in question survived enfranchisement (this will usually be provided by producing a copy of the deed of enfranchisement or compensation agreement) evidence of the applicant’s title to the particular manorial rights claimed (this will usually consist of an abstract or epitome of title showing the applicant’s title to the lordship of the manor and that the rights have not been severed from the lordship)

In a case where it is proposed to make an application for the substantive registration of mines and minerals (which is a corporeal interest) see  practice guide 65: registration of mines and minerals. These applications should not be confused with applications to protect manorial rights (which is an incorporeal interest). The substantive registration of mines and minerals are not affected by section 117 of the Land Registration Act 2002.

A Crown rent A Crown rent includes, but may not be limited to: • •

the rent payable to the Crown for freehold land in a manor of ancient demesne, or the rent reserved to the Crown under the grant of a freehold estate, whether or not that estate was situated in a manor of ancient demesne

The applicant will normally need to lodge a copy of the grant under which the Crown rent arises and, where the applicant is not the Crown, evidence of the devolution of the Crown rent to the applicant and confirmation that the Crown rent is still payable.

A non-statutory right in respect of an embankment or sea or river wall A non-statutory right in respect of an embankment or sea or river wall relates to a proprietary (as opposed to contractual) liability that has arisen by grant, a covenant supported by a rentcharge, prescription, custom or tenure. Where the liability has arisen by grant or by a covenant supported by a rentcharge, the applicant will normally need to produce a copy of the deed under which the right arises and evidence of the devolution of the right to the applicant. Where the right has arisen through prescription or custom, the applicant will normally need to produce a statutory declaration or statement of truth dealing with how the right arose and how the benefit of it passed to the applicant. See practice guide 73: statements of truth for information about the use of statements of truth in support of applications to HM Land Registry. Liability arising by reason of tenure is expected to be very rare because it appears that strictly no such liability could arise by way of a grant after 1189 other than a grant from the Crown. Where the applicant has evidence of such a grant it should be 590

HM Land Registry Practice Guide 66 lodged in addition to evidence showing how the benefit of the right is vested in the applicant. It is thought to be more likely however that a copy of the grant will not be available in such cases and the existence of a tenurial liability will be sought to be established by showing (by way of statutory declaration or statement of truth) that successive owners of the land in question had maintained the embankment, sea or river wall for many years.

A right to payment in lieu of tithe It appears that the only payments in lieu of tithe that still exist are those made payable out of or charged on land by any Act of Parliament other than one of the Tithe Acts. These payments are often called ‘corn rents’ but it should be noted that not all payments called ‘corn rents’ are made in lieu of tithe. The applicant will normally need to produce evidence as to the statutory provision on which the payment is based, evidence of the devolution to the applicant of the benefit of the right to the payment and confirmation that the payment is still payable.

A right in respect of the repair of a church chancel Chancel repair liability is the liability of the owner of land to pay for the repair of the chancel of a parish church (see Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003]  UKHL  37). In England the parochial church council, and, in Wales, the Representative Body of the Church in Wales, have the right to collect the money. There may be liability where land was formerly attached to a rectory. Such former rectorial land is not necessarily close to a church building. Owners affected include private persons, ecclesiastical corporations, universities and colleges and other corporate bodies. These owners are known as lay-rectors. There have been arguments that chancel repair liability is not an interest in land that can be protected by notice. HM Land Registry currently operates on the basis that it does constitute such an interest. But we will serve notice on the proprietor before making an entry of an agreed notice. The applicant will normally need to produce a statutory declaration or statement of truth detailing how the liability arose and how the benefit of the right to enforce it has devolved to the applicant. Where the liability or the benefit to it has been the subject of a deed, a copy of the deed should be produced if it is available to the applicant. See practice guide 73: statements of truth for information about the use of statements of truth in support of applications to HM Land Registry.

3.6.4  Applications made with the cooperation of the relevant proprietor Unless the applicant can satisfy the registrar of the validity of the interest claimed, the application must be made by or with the consent of the relevant proprietor, or by or with the consent of someone who is entitled to apply to be registered as the relevant proprietor. Where the applicant (or the person giving their consent) is entitled to be registered as proprietor, evidence of that entitlement must be lodged. Three common examples where someone may be entitled to be registered as proprietor are where: •

they have recently taken a transfer of the estate or charge but have not yet become registered as proprietor. For example, where form AN1 is lodged at the same time as the application for registration 591

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the sole relevant proprietor has died and is the personal representative they are the trustee in bankruptcy of the relevant proprietor and the estate or charge forms part of the bankrupt’s estate

Where there are joint proprietors or there are persons who, jointly, are entitled to be registered as the relevant proprietor, all must consent or join in as applicants. Any consent lodged with the application may be given in panel 15 of form AN1 or it may be lodged separately.

3.7  Variation of a noted interest Where an interest that has been noted in the register is varied, the priority of the interest, as varied, should be protected in the register – see practice guide 19: notices, restrictions and the protection of third party interests for more information. 3.8  Cancelling and removing notices from the register

3.8.1  Cancellation of a unilateral notice ‘Cancellation’ of a unilateral notice is the term used (section 36 of the Land Registration Act 2002) to describe the procedure whereby the beneficiary of the notice is required to prove the validity of the interest claimed. If they cannot do this, the notice is cancelled. Only the relevant proprietor (or someone entitled to be registered as the relevant proprietor) may apply to cancel a unilateral notice but they may do so at any time without giving reasons for doing so. If the application is made by someone entitled to be registered as the relevant proprietor, the applicant must also provide evidence of their entitlement. The registrar will accept a conveyancer’s certificate to confirm the applicant’s entitlement. An application to cancel a unilateral notice must be made in form UN4 (section 36 of the Land Registration Act 2002 and rule 86 of the Land Registration Rules 2003). There is no fee for making the application. When an application to cancel a unilateral notice is received the registrar will serve notice of the application on the beneficiary, who then has a set period of 15 working days in which to object to the application. If the beneficiary does not object to the application within that period, or any extension to it, the notice is cancelled. If the beneficiary does object, they will need to set out the grounds for their objection since we will first consider whether the objection has any chance of success. If it cannot succeed, it will be cancelled (section 73(6) of the Land Registration Act 2002). To succeed the beneficiary will have to provide details of the law or facts which entitle them to the notice. Once we have established that an objection is not groundless, we will give details to the applicant. Any dispute about whether the notice should be cancelled that cannot be resolved by agreement will be referred to the Land Registration division of the Property Chamber, First-tier Tribunal. See practice guide 37: objections and disputes: HM Land Registry practice and procedures and practice guide 38: costs in disputed applications for more information.

3.8.2  Removing a unilateral notice An application to remove a unilateral notice must be made by the registered beneficiary, by their personal representative or trustee in bankruptcy or by a conveyancer on behalf of the applicant. The application must be made in  form UN2  (rule 85 of the Land Registration Rules 2003). No fee is payable for an application to remove a unilateral notice. 592

HM Land Registry Practice Guide 66

3.8.3  Cancellation of an agreed notice An application to cancel an agreed notice must be made in form CN1 (rule 87 of the Land Registration Rules 2003) and must be accompanied by appropriate evidence to satisfy the registrar that the protected interest has come to an end. There is no fee for making the application. Neither the Land Registration Act 2002 nor the Land Registration Rules 2003 restrict who may apply for cancellation, but the registrar may only approve the application if satisfied that the interest protected has come to an end. If the interest protected by the notice has only come to an end in part, the registrar must make an appropriate entry.

4. CAUTION AGAINST FIRST REGISTRATION Where the legal estate affected by the overriding interest is unregistered, the person with the benefit of that interest may make an application to register a caution against first registration. For further information about cautions against first registration generally see practice guide 3: cautions against first registration. In the case of an affecting franchise it is possible to register a caution against first registration of that franchise and against registration of any estate in land that it affects. Although it is possible to register a caution against first registration of a relating franchise (rather than against the land to which it relates), such a caution will not provide protection on an application for first registration of the land to which it relates, as it does not affect that land, meaning the owner of the relating franchise is not entitled to an interest affecting a qualifying estate within section 15(1)(b) of the Land Registration Act 2002.

4.1  The nature and effect of cautions against first registration The effect of a caution against first registration is very limited. It entitles the cautioner to be given notice by the registrar when there is any application for first registration affecting the land comprised in the caution against first registration (section 16 of the Land Registration Act 2002) or when the owner of the legal estate to which the caution relates applies to cancel the caution (section 18(3) of the Land Registration Act 2002). On receipt of the notice, the cautioner must then, within the prescribed notice period (see Rule 197 of the Land Registration Rules 2003), decide whether to object to the application for first registration. For further information about the practice and procedure relating to objections see practice guide 37: objections and disputes: HM Land Registry practice and procedures. A caution against first registration has no other effect at law and in particular does not confirm the validity of, or confer any priority upon, the interest of the cautioner. 4.2  The duty to act reasonably A person must not lodge a caution against first registration without reasonable cause. If they do, they owe a duty to anyone who suffers damage, and the person adversely affected may bring an action for damages (section 77 of the Land Registration Act 2002). 4.3  Applying for a caution against first registration

4.3.1  Application form An application for a caution against first registration must be made in  form CT1  accompanied by the fee prescribed under the current Land Registration  Fee Order, see HM Land Registry: Registration Services fees. 593

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4.3.2  Extent of land to which the caution relates The form CT1 must provide sufficient particulars to enable the extent of the land affected by the caution to be identified on the Ordnance Survey map (rule 42 of the Land Registration Rules 2003). In the majority of cases it will be necessary to supply a plan unless a postal description identifies the property. Where a plan is used it must be prepared to a suitable scale and show clearly, by edging or other reference, the precise extent of the land to be subject to the caution. If you do not provide a plan and we cannot otherwise identify the property, we will reject the caution application. Relating franchises do not affect land but a caution may be lodged in respect of first registration of such a franchise – see Caution against first registration. If in order the caution will be registered in the index of verbal descriptions kept under Rule 10(1)(b), Land Registration Rules 2003.

4.3.3  Details of the nature of the cautioner’s claim Details of the nature of the interest the cautioner claims must be set out in panel 10 of form CT1, which is a statement of truth made either by or on behalf of the cautioner or by a conveyancer. The cautioner is not required to lodge any other document in support of their claim.

5. INTERESTS NOT PROTECTED BY NOTICE OR CAUTION AGAINST FIRST REGISTRATION BEFORE 13 OCTOBER 2013 Where any of the interests the subject of this guide were not protected by notice or caution against first registration before 13 October 2013, they do not automatically cease to exist on that date. The position is as set out below. The courts have still to consider if and when it may be possible after 12 October 2013 for the holder of the interest to have the register altered so that a notice is entered where the registered proprietor has taken free of the interest following first registration or following the registration of a disposition for valuable consideration. They have also still to consider whether indemnity may ever be payable where the register cannot be altered in this way. HM Land Registry will still accept applications for the registration of notices to protect overriding interests that lost their automatic protection after 13 October 2013 and will not check whether the registered proprietor has changed since this date before proceeding with the application.

5.1  The land was registered after 12 October 2013 Prior to first registration the legal owner of the land will be bound by any such interests because each of them is a legal interest. On first registration they will hold the estate free of such interests unless they are protected by notice at the time of first registration. When an application is made for first registration, the registrar will enter the burden of such an interest which appears from their examination of the title to affect the registered estate (rule 35 of the Land Registration Rules 2003). 5.2  The land was registered before 13 October 2013 Even if the interest has not been protected by the entry of a notice in the register, the land will remain subject to it. But, unless such a notice is entered, a person who acquires the registered estate for valuable consideration by way of a registrable disposition after 12 October 2013 will take free from that interest (section 29 of the 594

HM Land Registry Practice Guide 66 Land Registration Act 2002). Until such a disposition is registered the person having the benefit of the interest may apply to protect it by entry of notice.

6. THINGS TO REMEMBER We only provide factual information and impartial advice about our procedures.

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The Royal Commission on Market Rights and Tolls On 5 July 1887 the Royal Commission on Market Rights and Tolls was established in order to inquire into the question of market rights and tolls in the United Kingdom of Great Britain and Ireland. It provides a primary historical source of unparalleled value. Its terms of reference were as follows: to inquire as to the extent to which market rights are in the hands of: (1) local authorities, (2) trading companies, and (3) private persons or bodies of persons other than trading companies; and to inquire generally how and under what authority such rights are exercised, what are the revenues in respect of those rights, distinguishing the receipts from tolls, rent, stallages, and other dues, from other sources of receipt; what is the accommodation given in return for the charges levied; in what ratio market tolls and dues stand to the value of the marketable commodities on which they are levied, and how far market rights, market byelaws and regulations, market tolls, rents, stallages, and dues, and tolls affecting market towns are restrictive of trade; and to report as to the advisability of local authorities acquiring existing market rights, and the arrangements desirable for that purpose, and as to the advisability of prohibiting the farming by local authorities of market tolls, rents, stallages, and other dues, and the placing of restrictions on the sale of goods outside the market that may be lawfully sold in the market, and also of providing that the tolls, &c. of markets held by local authorities shall from time to time be revised with the view to their being regulated by the necessary expenditure in connection with the markets, and that such markets shall be free and open when the capital charges in respect of them have been paid off by the incomes from the markets or otherwise, and also to report generally as to the alterations which may be desirable in the existing law relating to markets, having due regard to the interests of those concerned. On the issue of the warrant establishing the Royal Commission, a series of questions were prepared to elicit the fullest information as to the management of markets, their costs, and the profits derived from tolls, stallages, rents and other sources. In 1889 the First Report of the Royal Commission on Market Rights and Tolls was published by Mr C.I. Elton QC and Mr B.F.C. Costelloe. Between 1888 and 1891 the Commissioners conducted extensive inquiries into market and fair rights throughout Great Britain and Ireland, hearing evidence from the owners of market rights and other witnesses at local level. Inquiries were also made as to the operation of foreign markets in France, Belgium, Prussia, Saxony, Austria, and the United States. Some 12 volumes of evidence, and other material such as statistics, were published. In 1891 the final Report was published. The conclusions of the Royal Commission on Market Rights and Tolls were never implemented in Britain and Ireland, and market and fair rights to this day continue to be exercised extensively in England and Wales by franchise and statutory market owners. The conclusions and recommendations of the Royal Commission are as follows: I.

It is obvious that the restriction, the removal of which is now proposed, belongs to a state of society wholly different from that of the present day. The distance fixed as that within which no market is to be allowed to compete with any other is produce for sale. It seems to have been thought desirable that each locality should have its own commercial centre, and it was desired that all sales and purchases should take place there. The existence of railway 596

The Royal Commission on Market Rights and Tolls communication, and generally the changed conditions of modern life, have rendered this limitation arbitrary and inconvenient. Where, however, the monopoly rights, which we desire to abolish, have existed from time immemorial, created and protected by law, we consider that the owners of these rights are entitled to fair compensation for the legal abolition of their privilege; following in this respect the precedent which has been universally adhered to in similar cases. We have resolved therefore: (1) That it is desirable to put an end to the system under which no person is allowed to hold a market within a certain distance of an already existing market; due regard being had to the interests of the present possessors of the monopoly rights. (2)

II.

That when monopoly rights are done away, the amount of compensation equitably due for the abolition of such rights should be determined by a Commission appointed for the purpose; and that the sums so adjudged should be paid to the holders of the rights in question out of the public funds.

It does not appear to use to lie within the scope of our functions to advise as to the precise source from which compensation should be supplied; whether from the general revenue of the State, or from local funds derived from the county or borough in which the markets affected are situated. It may be that the most satisfactory solution would be found in a combination of the two. Considering the vagueness and uncertainty of the law regulating these monopoly rights, it is not probable that the amount required for their redemption would be of such magnitude as to place serious difficulties in the way of the operation. Where little or no accommodation has been provided for the public by the owner of the monopoly right, the question will, undoubtedly arise whether he can be held to have fulfilled the legal condition on which such right was granted. The circumstances of each case would require separate investigation, and this would be best undertaken by a special tribunal appointed for the purpose. When the monopoly of market rights is done away, the objection to markets in private hands will be greatly diminished, since free competition cannot fail to act as a check on local abuses. But the desire that markets, whether actually existing or about to be created, shall be placed in the hands of Local Authorities is in our belief general, and the existence of this feeling cannot be ignored; and there must be many cases in which action on the part of the Local Authorities will be necessary in order to supply the wants of the district. We are therefore of the opinion: (3) That the local authorities, whether in county or borough, ought to be empowered to purchase markets now in private hands, either by agreement or by compulsion, the price in the latter case to be fixed by arbitration.

III. We do not consider that under any circumstances Local Authorities, being actually in possession of a market, ought to part with their rights and responsibilities in regard to such market. Where a market is so leased the persons using it are in a worse position than if it were wholly in private hands. For, in the latter case, they would have the 597

Appendix 3  Other Materials resource of appealing to the Local Authority to protect them against abuses; whereas in the case of a market owned and leased out by the Local Authority, the Authority itself is interested in maintaining an arrangement which tends to raise the value of the property so leased or to protect it from diminution. We are therefore of the opinion: (4) That local authorities should be prohibited from leasing out markets, saving existing leases for periods not exceeding seven years. That local authorities having leased out markets for long periods or in perpetuity should have power to resume possession upon payment of compensation to be settled by arbitration. We do not think that any compulsion should be placed on the Local Authorities in cases where they, and therefore presumably the people of the district, are content that markets should remain in private hands. It is for them rather than for the State to determine a question of a character so entirely local. IV. We have therefore resolved: (5) That no local authority ought to be compelled to purchase a market now owned by any private person or company, but should be free to exercise or abstain from exercising the powers proposed to be given. V. We hold: (6)

That the rights to be abolished ought to include octrois1, transit tolls, and all restraints whatever, of an analogous character, on free sale, purchase, and carriage.

VI. It is evident that inasmuch as a market is used by other persons besides the residents in the borough in which it is situated, cases may and will occur in which the interests of such residents and those of the more distant users of the market will be at variance. The urban ratepayers may gain more by the profits of the market than they will lose by the increased price of commodities. The farmer who supplies the market receives no advantage from the profits which the Local Authority may make out of it. It therefore seems just and necessary that some power of appeal against excessive tolls should be given; and we think that this power may be most fitly entrusted to the County Council. We therefore advise: (7) That where compulsory powers to take land, &c. have been or may be hereafter granted to local authorities owning markets, e.g., a municipality, the tolls should not be raised without the consent of the County Council; and in future cases shall be fixed on agreement with the County Council. VII. We think it is also reasonable that a Local Authority desiring compulsory powers to take land should be able to obtain such powers with as little cost delay as possible, and we think that the right of granting such powers would be most fitly vested in the County Council, subject to an appeal to the Local Government Board. We therefore recommend: 1

These are privileges granted by Government especially relating to exclusive right of trade, or a tax levied on certain articles on their admission into a town.

598

The Royal Commission on Market Rights and Tolls (8)

That County Councils should be empowered to grant to local authorities owning markets compulsory power to take land, &c., subject to an appeal to the Local Government Board.

(9)

That where the local authority is itself a County Council, the power under these two clauses should be exercised by the Local Government Board.

VIII. In cases where markets continue to be held by private persons it is desirable that some provision should be made against oppressive or inconvenient regulations, and for the securing of equal treatment to all classes concerned. This can best be done by enforcing the establishment of fixed rules to be approved by some competent and impartial Authority, to which the frequenters of the market shall be able to appeal. We have therefore concluded. (10) That all market owners should be required to make byelaws for the administration of their markets. Such byelaws shall be subject to the approval of the Local Government Board. IX. For reasons already given, we consider: (11) That the local authority for the purpose of the acquisition of market rights should be (i) in cities and boroughs, the Municipal Council; (ii) in Local Board Districts, the Local Board, until superseded by a District Council, and then the District Council; (iii) in other places, the District Council when established, and until that time the County Council. X.

We are further of the opinion: (12) That in cases where markets are held by trustees for public purposes, powers should be given to the Market Rights Commission, at the instance of the local authority, to transfer to such authority the market, with its assets and liabilities, subject to the provisions of the trust. (13) That all markets in hands of local authorities should be subject to the provisions of the Markets and Fairs Clauses Act and Public Health Act.

XI. The following further resolutions are either consequent on those already explained or relate to matters of detail which are dealt with in the Report: (14) That market rights formerly belonging to Corporations now dissolved, and vested pro tempore in the Charity Commissioners, should be vested in District Councils when established, and until that time in the County Council. (15) That where market owners have exercised no rights or received no tolls or other charges during the seven years preceding the date of this report, such rights should be considered as having lapsed. Considering the length of time during which our sittings have continued, the date fixing the resolution might with advantage be changed to that of the warrant appointing this Commission, viz., the 5th day of July, 1887. (16) That market owners levying tolls or other charges without statutory powers should be required to submit to the Market Rights Commission within a certain specified time a scale of such charges; and that after such scale has been confirmed, section 37 of the Markets and Fairs Clauses Act, imposing a penalty for charging unauthorised tolls, should apply. 599

Appendix 3  Other Materials (17) That market owners not having statutory powers should be required to publish a scale of tolls and other charges and byelaws, as required in the case of markets established under the Public Health Act. (18) That all powers given to local authorities in respect of markets by the Public Health Act should be extended so as to include fairs. (19) That local authorities owning fairs should have power, with the consent of the Local Government Board, to abolish wholly or partially such fairs or to remove the same. (20) That local authorities owning markets should be required to keep a separate account of income and expenditure, distinguishing capital expenditure, and in a form to be prescribed by the Local Government Board; and that such accounts should be furnished to the Local Government Board. (21) That all inequalities of charges in respect of persons or trading classes should be prohibited, except upon account of special advantages of position or accommodation. All exemptions of persons from market charges to cease. (22) That money payments in all cases should be substituted for tolls in kind. (23) That markets which are now required to be provided with machines for weighing cattle should be furnished with sufficient and suitable accommodation for the same; the question of sufficiency and suitability to be determined by the Board of Agriculture, after inspection. (24) That a Market Rights Commission, to endure for such time as may be necessary, and to be constituted in such manner as Parliament may determine, be appointed to hear and decide all questions referred to or arising out of the foregoing resolutions. (25) That it is desirable to collect statistics of market prices or commodities, through the agency of market owners, as far as may be possible. (26) That it is desirable to collect statistics of the market prices of meat, and in particular that the prices of cattle at per stone live weight should be collected (in the same manner as the prices of corn are now returned) in such markets as may be selected for the purpose by the Board of Trade.

600

Index [all references are to page number] Abolition orders fairs, and, 111 Abuse of franchise change of days, and, 55 disturbance by levying a rival market or fair, and, 92–93 effect, 105–106 excessive toll, and, 63 generally, 104–105 Accounts generally, 149 Acquisition of market rights charter, by inquisition, 19 nature, 17–18 non-derogation from grant, 18–19 writ of ad quod damnum, 19 letters patent, by inquisition, 19 nature, 17–18 non-derogation from grant, 18–19 writ of ad quod damnum, 19 prescription, by immemorial user, 20 introduction, 19 long user, 20 lost modern grant, 20–21 statute, under common law incidents, and, 25–26 general, 21–22 local Acts, 22–24 public Acts, 24–25 special Acts, 22–24 usage, by immemorial user, 20 introduction, 19 long user, 20 lost modern grant, 20–21 nature of user, 21 writ of ad quod damnum, 19 Acts of ownership evidence of market rights, and, 189–190

Acts of Parliament evidence of market rights, and, 189 Advertisement controls regulation of markets and fairs, and, 138 Allocations policy Market Toolkit, and generally, 204–205 procedures, 206 stalls, 206 Amusements generally, 2–3 Ancient demesne toll and stallage, and, 74 Ancient user evidence of market rights, and, 189 Animal disease regulation of markets and fairs, and, 129–132 Animal Health Act 2001 accounts, 149 charges in statutory markets, and, 72 European Services Directive, 143 regulation of markets and fairs, and generally, 116 weights and measures, 126 statutory markets and fairs, and, 24 weights and measures, and, 126 welfare of animals, 129 Animal welfare regulation of markets and fairs, and, 129–132 Article 4 directions regulation of markets and fairs, and, 137 Badgering generally, 35 Balance of convenience injunctions, and generally, 172–173 interlocutory relief, 163 Bringing goods for sale rights of the public, and, 33–34 601

Index Business rates market premises, 149 stallage, and, 153–154 stalls, 149–153 tolls, and, 154–155 Byelaws Animal Health Act 2001, 116 certainty, and, 118 Food Act 2004, 115–116 franchise markets and fairs, 113 Markets and Fairs Clauses Act 1847, 114–115 reasonableness, and, 117–118 repugnant to general law, and, 117 statutory markets and fairs, 114–116 ultra vires, and, 117 validity, 116–118 Car boot sales regulation of markets and fairs, and, 141 Casual trading generally, 1–2 Irish dimension acquisition of market rights, 220–222 byelaws, 220 Competition Authority report, 223–225 definition, 218–219 enforcement, 222 extinguishment of market rights, 220–222 generally, 222 guidelines, 220 interpretation, 218 licences, 219–220 ‘market right’, 222 meaning, 218 statutory basis, 218 statutory markets and fairs, and, 24–25 Cattle charges in statutory markets, and, 72 distress for rent, and, 35 protection on way to market, and, 35 regulation of markets and fairs, and, 127–129 stallage, and, 65 weights and measures, and, 127–129 Challenges to decisions allocation of stalls, 199–200 background, 193 bias, 195

Challenges to decisions (contd) charges, 200–201 declarations, 194 error of fact, 195 error of law, 194 fettering of discretion, 194 grounds, 194–195 inadequate reasons, 195 injunctions, 194 irrelevant considerations, 195 legitimate expectation, 195 letting terms, 200 mandatory orders, 194 over-rigid adherence to policy, 194–195 practice and procedure, 161 prohibiting orders, 194 ‘public authority’, 194 purpose, 193 quashing orders, 194 regeneration schemes, 198–199 remedies, 194 reviewable decisions, 196–197 statutory framework, 193–195 summary, 201–202 termination of market licence, 197–198 ultra vires acts, 195 unauthorised delegation of power, 194 unreasonableness, 195 Change of days for holding franchise markets and fairs, 55–56 power of Secretary of State, 56–57 statutory markets and fairs, 56 Charters evidence of market rights, and, 188 inquisition, 19 nature, 17–18 non-derogation from grant, 18–19 writ of ad quod damnum, 19 Churchyards location of market place, and, 43 Clerk of the market generally, 11–13 Common law distance disturbance by levying a rival market or fair, and, 77–80 Communications Market Toolkit, and, 205–206 Consent of owner disturbance by levying a rival market or fair, and, 91 602

Index Damages (contd) disturbance, and generally, 97 introduction, 77 limitation of actions, 97 measure, 83–85 same day rival market, 82 interlocutory injunctions, and, cross-undertakings, 164–165 generally, 163–164 recovery of toll by distress, and, 73 Days for holding markets and fairs change franchise markets and fairs, 55–56 power of Secretary of State, 56–57 statutory markets and fairs, 56 feast days, 54–55 franchise markets and fairs, 53 statutory markets and fairs, 54 Sundays, 54–55 Death of owner transfer of market rights, and, 28 Declarations against interest evidence of market rights, and, 190 Declaratory relief generally, 161 Deregulation regulation of markets and fairs, and, 141–142 Devolution of rights conveyance, 26–27 death of owner, 28 introduction, 26 lease, 26–27 method, 26–28 mortgage, 27–28 Disciplinary action Market Toolkit, and, 206 Distress toll and stallage, and, 73 Disturbance burden of proof, 97 damages, 97 evidence of right, 169–170 generally, 77 hindering the market, by, 96 injunctions, 97 levying a rival market or fair, by abuse of franchise by market owner, and, 92–93 common law distance, 77–80 consent of owner, and, 91 defences, 91–93

Contracts regulation of markets and fairs, and, 118–119 Conveyances transfer of market rights, and, 27 Corporation tax generally, 156 Correction of markets generally, 10–11 Courts of pie powder generally, 7–8 Creation of market rights charter, by inquisition, 19 nature, 17–18 non-derogation from grant, 18–19 writ of ad quod damnum, 19 letters patent, by inquisition, 19 nature, 17–18 non-derogation from grant, 18–19 writ of ad quod damnum, 19 prescription, by immemorial user, 20 introduction, 19 long user, 20 lost modern grant, 20–21 statute, under common law incidents, and, 25–26 general, 21–22 local Acts, 22–24 public Acts, 24–25 special Acts, 22–24 usage, by immemorial user, 20 introduction, 19 long user, 20 lost modern grant, 20–21 nature of user, 21 writ of ad quod damnum, 19 Cross-undertakings as to damages interlocutory injunctions, and, 164–165 Crown grant toll and stallage, and, 75 Damage injunctions, and, 171–172 Damages acquisition by charter or letters patent, and, 19 balance of convenience, and, 163 cross-undertakings, and, 164–165 deregulation, and, 141–142

603

Index Disturbance (contd) levying a rival market or fair, by (contd) ‘different day’ evidence of damage, 82–83 grant from Crown, and, 91–92 introduction, 77 irregularities by market owner, and, 92–93 lack of accommodation, and, 92 measure of damages, 83–85 ‘rival market’, 85–88 sales in shops and other premises nearby, 88–91 ‘same day’ presumption, 81–82 statutory markets and fairs, and, 92 limitation of actions, 97 market rights vested in person other than owner, of, 100 nature of action, 97 obstructing the market, by, 96 possessory action, 97 practice and procedure evidence of right, 169–170 generally, 166–167 shams, 170 remedies generally, 97 statutory markets and fairs, 98–100 right to peaceable enjoyment, 77 selling by sample in the market, in, 94–96 selling outside the market, by defences, 94 insufficient room to sell within, and, 94 intention to evade toll, 93–94 introduction, 93 overcrowding, and, 94 without a toll, 93 shams, 170 statutory markets and fairs levying a rival market or fair, 92–93 remedies, 98–100 Ecclesiastical persons toll and stallage, and, 74 Enforcement action planning permission, and, 137–138 Engrossing generally, 35 introduction, 4

Environmental protection regulation of markets and fairs, and, 139 European Services Directive regulation of markets and fairs, and, 142–144 Evidence injunctive relief damage, 171–172 disturbance of right, 169–170 market right, 167–168 market rights acts of ownership, 189–190 Acts of Parliament, 189 ancient user, 189 attested copies of original documents, 188 charter, 188 declarations against interest, 190 grants, 188–189 immemorial user, 188 injunctions, and, 167–168 introduction, 188 letters patent, 188 long user, 188 Queen’s Printer’s copy of Acts, 188 reputation, 190 verdicts and judgments, 190–191 Extinction Fairs Act 1871, 111 general Act, 109–111 special Act, 109–111 statutory markets, 111–112 Extraordinary jurisdiction generally, 11 Failure to provide sufficient accommodation generally, 37–38 Fairs abolition orders, 111 accounts, 149 acquisition of rights charter, 17–19 letters patent, 17–19 prescription, 19–21 statute, 21–26 usage, 19–21 change of days for holding franchise markets and fairs, 55–56 power of Secretary of State, 56– 57 statutory markets and fairs, 56

604

Index Fairs (contd) charter, by inquisition, 19 nature, 17–18 non-derogation from grant, 18–19 writ of ad quod damnum, 19 conveyance, 27 correction, 10–11 courts of pie powder, 7–8 creation of rights charter, 17–19 letters patent, 17–19 prescription, 19–21 statute, 21–26 usage, 19–21 days for holding change, 55–57 feast days, 54–55 franchise markets and fairs, 53 statutory markets and fairs, 54 Sundays, 54–55 death of owner, 28 devolution of rights conveyance, 27 death of owner, 28 introduction, 26 lease, 27 method, 26–28 mortgage, 27–28 distinction from markets, 2–3 disturbance generally, 77 hindering the market, by, 96 injunctions, 97 levying a rival market or fair, by, 77–93 market rights vested in person other than owner, of, 100 nature of action, 97 obstructing the market, by, 96 possessory action, 97 remedies, 97 right to peaceable enjoyment, 77 selling by sample in the market, in, 94–96 selling outside the market, by, 93–94 extinction by Act Fairs Act 1871, 111 general Act, 109–111 special Act, 109–111 statutory markets, 111–112 extraordinary jurisdiction, 11

Fairs (contd) forfeiture abuse of franchise, 104–105 effect, 107–108 effect of non-user and abuse, 105–106 general, 103 neglect to take toll, 108 non-user of franchise, 103–104 waiver, 106–107 frequency, 2 hours of holding franchise markets and fairs, 57 Metropolitan Police District, 58 statutory markets and fairs, 57–58 immemorial user, by, 20 Irish dimension casual trading, 218–222 Competition Authority report, 223–225 historical perspective, 209–213 market rights, 225–226 recent case law, 226–237 Royal Prerogative, 214–217 land registration franchises, 32 overriding interests, 30–32 lease, 27 letters patent, by inquisition, 19 nature, 17–18 non-derogation from grant, 18–19 writ of ad quod damnum, 19 long user, by, 20 lost modern grant, by, 20–21 manorial courts, 8–9 market authority, 17 meaning, 1 mortgage, 27–28 origins, 1–6 owner, 17 place of See also Place for holding fairs lands upon which may be held, 42–51 protection of goods and cattle, 35 removal, 40–42 rights and duties of owners, 35–39 rights of the public, 33–35 stalls and pens, 51 prescription, by immemorial user, 20

605

Index Fairs (contd) prescription, by (contd) introduction, 19 long user, 20 lost modern grant, 20–21 registration franchises, 32 overriding interests, 30–32 regulation See also Regulation of markets and fairs byelaws, 113–118 contract, 118–119 recent developments, 141–147 statute, 119–141 returns, 149 sale of goods hay and straw, 102 horses, 102 introduction, 101 stolen goods, 101–102 statute, under common law incidents, and, 25– 26 general, 21–22 local Acts, 22–24 public Acts, 24–25 special Acts, 22–24 suppression, 112 surrender, 108 taxation See also Taxation business rates, 149–155 corporation tax, 156 income tax, 155–156 tolls, 154–155 value added tax, 156–157 title, 15–17 transfer of rights conveyance, 27 death of owner, 28 introduction, 26 lease, 27 method, 26–28 mortgage, 27–28 power, 28–30 usage, by immemorial user, 20 introduction, 19 long user, 20 lost modern grant, 20–21 nature of user, 21 writ of ad quod damnum, 19

Feast days days for holding market and fairs, and, 54–55 Fish regulation of markets and fairs, and, 132–133 Fixed places rights of the public, and, 34–35 Food Act 2004 charges in statutory markets, and, 70–71 regulation of markets and fairs, and generally, 115 weights and measures, 129 statutory markets and fairs, and, 24 transfer of market rights, and, 30 weights and measures, and, 129 Food safety regulation of markets and fairs, and, 133–134 Forestalling generally, 35 introduction, 4 Forfeiture abuse of franchise, 104–105 effect, 107–108 effect of non-user and abuse, 105– 106 general, 103 neglect to take toll, 108 non-user of franchise, 103–104 waiver, 106–107 Franchise markets and fairs change of days for holding generally, 55–56 power of Secretary of State, 56–57 days for holding, 53 introduction, 3–4 hours of holding, 57 Franchises abuse effect, 105–106 generally, 104–105 distinction from market place, 26 forfeiture abuse, 104–105 effect, 105–106 general, 103 neglect to take toll, 108 non-user, 103–104 waiver, 106–107 generally, 1–3 incorporeal hereditaments, as, 15 606

Index Franchises (contd) non-user effect, 105–106 generally, 103–104 title, 15–17 Frankpledge correction of the market, and, 10–11 General Acts extinction, and, 109–111 title to the franchise, and, 17 Grants disturbance by levying a rival market or fair, and, 91–92 evidence of market rights, and, 188–189 Hay and straw sale of goods in market overt, and, 102 Highways effect of statutory regulation, 46–48 generally, 43–46 obstruction de minimis principle, 48–49 generally, 48 ‘highway’, 50 ‘obstruction’, 49–50 pitching a stall, 50 statutory nuisance, 51 Hindering the market generally, 96 Horses sale of goods in market overt, and, 102 Hours of holding markets and fairs franchise markets and fairs, 57 Metropolitan Police District, 58 statutory markets and fairs, 57–58 Immemorial user acquisition of market rights, and, 20 evidence of market rights, and, 188 Income tax generally, 155–156 Incorporeal hereditaments business rates, 152 generally, 166 market rights, and, 184 mortgages, 27 overriding interests, 30–31 power to transfer market owner, 28 public body, 29 title to the franchise, 15 tolls, 154

Injunctions balance of convenience, 172–173 damage, 171–172 deregulation, and, 141 disturbance of market owner’s franchise generally, 166–170 levying a right of market, 82 nature of action, 97 evidence damage, 171–172 disturbance of right, 169–170 market right, 167–168 generally, 161–162 interlocutory relief balance of convenience, 163 circumstances in which granted, 163–164 cross-undertakings as to damages, 164–165 damages, 163 generally, 162 importance, 165–166 serious question to be tried, 163 jurisdiction, 162 powers of local authorities, 173–180 quo warranto, and, 161 regulation of markets and fairs, and, 138 shams, 170 Wolverhampton BC v B&Q, 178–180 Irish dimension casual trading acquisition of market rights, 220–222 byelaws, 220 Competition Authority report, 223–225 definition, 218–219 enforcement, 222 extinguishment of market rights, 220–222 generally, 222 guidelines, 220 interpretation, 218 licences, 219–220 ‘market right’, 222 meaning, 218 statutory basis, 218 Competition Authority report, 223–225 historical perspective fairs, 209–210 607

Index Irish dimension (contd) historical perspective (contd) introduction, 209 markets, 210–213 market rights, 225–226 occasional trading, 218 recent case law Bridgeman v Limerick Corporation, 232–233 DPP v McDonald, 227–230 Duffy v Dublin Corporation, 226–227 Hand v Dublin Corporation, 231–232 introduction, 226 Listowel Livestock Mart v Bird, 234–237 O’Mahony v Biggs, 227–230 Simmonds v Cork CC, 233–234 Simmonds v Kilkenny BC, 234 Skibbereen UDC v Quill, 230–231 Royal Prerogative, 214–217 Judgments evidence of market rights, and, 190–191 Judicial review allocation of stalls, 199–200 background, 193 bias, 195 charges, 200–201 declarations, 194 error of fact, 195 error of law, 194 fettering of discretion, 194 grounds, 194–195 inadequate reasons, 195 injunctions, 194 irrelevant considerations, 195 legitimate expectation, 195 letting terms, 200 mandatory orders, 194 over-rigid adherence to policy, 194–195 practice and procedure, 161 prohibiting orders, 194 ‘public authority’, 194 purpose, 193 quashing orders, 194 regeneration schemes, 198–199 remedies, 194 reviewable decisions, 196–197 statutory framework, 193–195 summary, 201–202

Judicial review (contd) termination of market licence, 197–198 ultra vires acts, 195 unauthorised delegation of power, 194 unreasonableness, 195 Land registration markets and fairs, and franchises, 32 overriding interests, 30–32 Landlord and tenant regulation of markets and fairs, and, 138–139 Leases transfer of market rights, and, 27 Letters patent evidence of market rights, and, 188 inquisition, 19 nature, 17–18 non-derogation from grant, 18–19 writ of ad quod damnum, 19 Levying a rival market or fair abuse of franchise by market owner, and, 92–93 common law distance, 77–80 consent of owner, and, 91 defences, 91–93 ‘different day’ evidence of damage, 82–83 grant from Crown, and, 91–92 introduction, 77 irregularities by market owner, and, 92–93 lack of accommodation, and, 92 measure of damages, 83–85 ‘rival market’, 85–88 sales in shops and other premises nearby, 88–91 ‘same day’ presumption, 81–82 statutory markets and fairs, and, 92 Licensing regulation of markets and fairs, and, 118–119 Market Toolkit, and, 203–204 Limitation of actions disturbance, and, 97 Litter regulation of markets and fairs, and, 139 Livestock markets generally, 3 Local Acts statutory markets, and, 22–24 608

Index Localism Act 2011 regulation of markets and fairs, and, 146–147 Long user acquisition of market rights, and, 20 evidence of market rights, and, 188 Lords of manors toll and stallage, and, 74–75 Lost modern grant acquisition of market rights, and, 20–21 Management arrangements Market Toolkit, and, 204 Manorial courts generally, 8–9 Market authority generally, 17 Market overt generally, 39 hay and straw, 102 horses, 102 protection of buyer, 101 stolen goods, 101–102 Market owners market authority, as, 17 right to peaceable enjoyment, and, 77 transfer of market rights, and, 28 toll and stallage, and, 75–76 Market place badgering, 35 bringing goods for sale, 33–34 churchyards, in, 43 engrossing, 35 extent, 39 failure to provide sufficient accommodation, 37–38 fixed places, 34–35 forestalling, 35 highways, on effect of statutory regulation, 46–48 generally, 43–46 obstruction, 48–50 statutory nuisance, 51 land upon which may be held churchyards, 43 generally, 42–43 highways, 43–46 mode of sale, 34 obstruction of highways de minimis principle, 48–49 generally, 48 ‘highway’, 50

Market place (contd) obstruction of highways (contd) ‘obstruction’, 49–50 pitching a stall, 50 ownership, and, 42–43 pens, 51 protection of goods and cattle, 35 provision of pens and stalls, 51 re-grating, 35 removal bad removal, 41 consequences, 42 duty, 41 general requisites, 41 good removal, 41 outside the area, 40 right, 40–42 within the area, 40 rights and duties of the owner extent of market place, 39 protection of goods and cattle, 35 site, 35–38 rights of the public bring goods for sale, 33–34 fixed place, to, 34–35 frequent market place, to, 33–34 mode of sale, 34 stalls, to, 34–35 site failure to provide sufficient accommodation, 37–38 generally, 35–37 stalls duties of owner, 51 rights of the public, 34–35 transfer, 26 Market premises business rates, and, 149 Market rights creation and acquisition charter, 17–19 letters patent, 17–19 prescription, 19–21 statute, 21–26 usage, 19–21 evidence acts of ownership, 189–190 Acts of Parliament, 189 ancient user, 189 attested copies of original documents, 188 charter, 188 declarations against interest, 190

609

Index Market rights (contd) evidence (contd) grants, 188–189 immemorial user, 188 injunctions, and, 167–168 introduction, 188 letters patent, 188 long user, 188 Queen’s Printer’s copy of Acts, 188 reputation, 190 verdicts and judgments, 190–191 Irish dimension, 225–226 transfer and devolution conveyance, 27 death of owner, 28 introduction, 26 lease, 27 method, 26–28 mortgage, 27–28 vested in person other than owner, of, 100 Market Toolkit allocation, 204–205 assistance from NABMA, 207 communication, 205–206 disciplinary action, 206 introduction, 203 licensing, 203–204 management arrangements, 204 policies and procedures, 206 powers, 203 rent increases, 206 stall allocation, 206 succession, 205 Markets accounts, 149 acquisition of rights charter, 17–19 letters patent, 17–19 prescription, 19–21 statute, 21–26 usage, 19–21 change of days for holding franchise markets and fairs, 55–56 power of Secretary of State, 56–57 statutory markets and fairs, 56 charter, by inquisition, 19 nature, 17–18 non-derogation from grant, 18–19 writ of ad quod damnum, 19 clerk of the market, 11–13

Markets (contd) conveyance, 27 correction, 10–11 courts of pie powder, 7–8 creation of rights charter, 17–19 letters patent, 17–19 prescription, 19–21 statute, 21–26 usage, 19–21 days for holding change, 55–57 feast days, 54–55 franchise markets and fairs, 53 statutory markets and fairs, 54 Sundays, 54–55 death of owner, 28 devolution of rights conveyance, 27 death of owner, 28 introduction, 26 lease, 27 method, 26–28 mortgage, 27–28 distinction from fairs, 2–3 extinction Fairs Act 1871, 111 general Act, 109–111 special Act, 109–111 statutory markets, 111–112 extraordinary jurisdiction, 11 forfeiture abuse of franchise, 104–105 effect, 107–108 effect of non-user and abuse, 105–106 general, 103 neglect to take toll, 108 non-user of franchise, 103–104 waiver, 106–107 frequency, 2 hours of holding franchise markets and fairs, 57 Metropolitan Police District, 58 statutory markets and fairs, 57– 58 immemorial user, by, 20 Irish dimension casual trading, 218–222 Competition Authority report, 223–225 historical perspective, 209–213 market rights, 225–226 610

Index Markets (contd) Irish dimension (contd) recent case law, 226–237 Royal Prerogative, 214–217 land registration franchises, 32 overriding interests, 30–32 lease, 27 letters patent, by inquisition, 19 nature, 17–18 non-derogation from grant, 18–19 writ of ad quod damnum, 19 long user, by, 20 lost modern grant, by, 20–21 manorial courts, 8–9 market authority, 17 meaning, 1 mortgage, 27–28 origins, 1–6 owner, 17 place of See also Market place lands upon which may be held, 42–51 protection of goods and cattle, 35 removal, 40–42 rights and duties of owners, 35–39 rights of the public, 33–35 stalls and pens, 51 prescription, by immemorial user, 20 introduction, 19 long user, 20 lost modern grant, 20–21 registration franchises, 32 overriding interests, 30–32 regulation See also Regulation of markets and fairs byelaws, 113–118 contract, 118–119 recent developments, 141–147 statute, 119–141 returns, 149 sale of goods hay and straw, 102 horses, 102 introduction, 101 stolen goods, 101–102 stallage See also Stallage

Markets (contd) stallage (contd) differential, 68–69 exemptions, 74–76 in kind, 68 recovery, 72–73 right, 65–67 statutory markets and fairs, 69–71 variable, 68–69 wrongfully taken, 73 statute, under common law incidents, and, 25–26 general, 21–22 local Acts, 22–24 public Acts, 24–25 special Acts, 22–24 wrongfully taken, 73 street markets, 6–7 suppression, 112 surrender, 108 taxation See also Taxation business rates, 149–155 corporation tax, 156 income tax, 155–156 tolls, 154–155 value added tax, 156–157 title, 15–17 toll See also Toll differential, 68–69 exemptions, 74–76 in kind, 68 nature, 59 recovery, 72–73 right, 60–65 statutory markets and fairs, 69–71 transfer of rights conveyance, 27 death of owner, 28 introduction, 26 lease, 27 method, 26–28 mortgage, 27–28 power, 28–30 usage, by immemorial user, 20 introduction, 19 long user, 20 lost modern grant, 20–21 nature of user, 21 writ of ad quod damnum, 19 611

Index Markets and Fairs Clauses Act 1847 charges in statutory markets, and, 69–70 regulation of markets and fairs, and generally, 114–115 weights and measures, 126–127 weights and measures, and, 126–127 Mart generally, 3 Metropolitan Police District hours of holding fairs, and, 58 Mode of sale rights of the public, and, 34 Mortgages transfer of market rights, and, 27–28 Neglect to take toll forfeiture, and, 108 Non-user of franchise forfeiture, and effect, 105–106 generally, 103–104 Nuisance regulation of markets and fairs, and, 139 Obstructing the market generally, 96 Obstruction of highways de minimis principle, 48–49 generally, 48 ‘highway’, 50 ‘obstruction’, 49–50 pitching a stall, 50 Occasional trading Irish dimension, 218 Owners market authority, as, 17 transfer of market rights, and, 28 Ownership market place, and, 42–43 Peaceable enjoyment disturbance, and, 77 Pedlars regulation of markets and fairs, and generally, 141 recent developments, 145–146 Pennage generally, 65 Pens generally, 51 pennage, and, 55 Permitted development regulation of markets and fairs, and, 136–137

Piccage generally, 65 Place for holding fairs badgering, 35 bringing goods for sale, 33–34 churchyards, in, 43 engrossing, 35 extent, 39 failure to provide sufficient accommodation, 37–38 fixed places, 34–35 forestalling, 35 highways, on effect of statutory regulation, 46–48 generally, 43–46 obstruction, 48–50 statutory nuisance, 51 land upon which may be held churchyards, 43 generally, 42–43 highways, 43–46 mode of sale, 34 obstruction of highways de minimis principle, 48–49 generally, 48 ‘highway’, 50 ‘obstruction’, 49–50 pitching a stall, 50 ownership, and, 42–43 pens, 51 protection of goods and cattle, 35 provision of pens and stalls, 51 re-grating, 35 removal bad removal, 41 consequences, 42 duty, 41 general requisites, 41 good removal, 41 outside the area, 40 right, 40–42 within the area, 40 rights and duties of the owner extent of market place, 39 protection of goods and cattle, 35 site, 35–38 rights of the public bring goods for sale, 33–34 fixed place, to, 34–35 frequent market place, to, 33–34 mode of sale, 34 stalls, to, 34–35 612

Index Place for holding fairs (contd) site failure to provide sufficient accommodation, 37–38 generally, 35–37 stalls duties of owner, 51 rights of the public, 34–35 transfer, 26 Planning advertisement controls, 138 Article 4 directions, 137 control, 137–138 enforcement action, 137–138 existing market rights, 134–136 injunctions, 138 permission, 134–137 permitted development, 136–137 Policies and procedures Market Toolkit, and, 206 Possessory action disturbance, and, 97 Practice and procedure declaratory relief, 161 disturbance of market owner’s franchise evidence of right, 169–170 generally, 166–167 shams, 170 evidence of injunctive relief damage, 171–172 disturbance of right, 169–170 market right, 167–168 evidence of market rights acts of ownership, 189–190 Acts of Parliament, 189 ancient user, 189 attested copies of original documents, 188 charter, 188 declarations against interest, 190 grants, 188–189 immemorial user, 188 injunctions, and, 167–168 introduction, 188 letters patent, 188 long user, 188 Queen’s Printer’s copy of Acts, 188 reputation, 190 verdicts and judgments, 190–191 injunctive relief balance of convenience, 172–173

Practice and procedure (contd) injunctive relief (contd) damage, 171–172 disturbance of market owner’s franchise, 166–170 evidence, 167–172 generally, 161–162 interlocutory relief, 162–166 jurisdiction, 162 powers of local authorities, 173– 180 shams, 170 interlocutory injunctions balance of convenience, 163 circumstances in which granted, 163–164 cross-undertakings as to damages, 164–165 damages, 163 generally, 162 importance, 165–166 serious question to be tried, 163 judicial review, 161 quo warranto, 161 recent developments car boot sales, 186–188 conclusion, 188 introduction, 180–181 nature of legal challenges, 181 Sunday trading challenge, 181– 184 Treaty of Rome, 184–186 writs of scire facias, 159–161 Prescription immemorial user, 20 introduction, 19 long user, 20 lost modern grant, 20–21 nature of user, 21 toll, and exemptions, 75–76 general right, 60 Public Acts statutory markets, and, 24–25 Public bodies transfer of market rights, and, 28–29 Public law judicial review allocation of stalls, 199–200 background, 193 charges, 200–201 letting terms, 200 regeneration schemes, 198–199 613

Index Public law (contd) judicial review (contd) reviewable decisions, 196–197 statutory framework, 193–195 summary, 201–202 termination of market licence, 197–198 Queen’s Printer’s evidence of market rights, and, 188 Quo warranto practice and procedure, 161 Rates market premises, 149 stallage, and, 153–154 stalls, 149–153 tolls, and, 154–155 Reasonableness toll, and, 62–63 Registration markets and fairs, and franchises, 32 overriding interests, 30–32 Re-grating generally, 35 introduction, 4 Regulation of markets and fairs animal disease, 129–132 Animal Health Act markets generally, 116 weights and measures, 126 animal welfare, 129–132 byelaws Animal Health Act 2001, 116 certainty, and, 118 Food Act 2004, 115–116 franchise markets and fairs, 113 Markets and Fairs Clauses Act 1847, 114–115 reasonableness, and, 117–118 repugnant to general law, and, 117 statutory markets and fairs, 114– 116 ultra vires, and, 117 validity, 116–118 car boot sales, 141 contract, 118–119 deregulation, 141–142 enforcement and sanctions, 125–126 environmental protection, 139 European Services Directive, 142– 144 fish, 132–133

Regulation of markets and fairs (contd) Food Act 2004 generally, 115–116 weights and measures, 129 food safety, 133–134 landlord and tenant, 138–139 licence, 118–119 litter, 139 Localism Act 2011, 146–147 Markets and Fairs Clauses Act 1847 generally, 114–115 weights and measures, 126–127 nuisance, 139 pedlars generally, 141 recent developments, 145–146 planning advertisement controls, 138 Article 4 directions, 137 control, 137–138 enforcement action, 137–138 existing market rights, 134–136 injunctions, 138 permission, 134–137 permitted development, 136–137 recent developments, 141–147 Regulatory Enforcement and Sanctions Act 2008, 125–126 statute animal welfare, 129–132 car boot sales, 141 cattle, 127–129 enforcement and sanctions, 125– 126 environmental protection, 139 fish, 132–133 food safety, 133–134 landlord and tenant, 138–139 litter, 139 nuisance, 139 pedlars, 141 planning, 134–138 recent developments, 141–147 street trading, 119–124 Sunday opening, 140 temporary markets, 124–125 weights and measures, 126–129 statutory nuisance, 139 street trading adoption of code, 120 City of London, 124 designation of streets, 120 614

Index Regulation of markets and fairs (contd) street trading (contd) district councils, 120–122 generally, 119–120 Greater London, 122–124 Sunday opening, 140 temporary markets, 124–125 town and country planning advertisement controls, 138 Article 4 directions, 137 control, 137–138 enforcement action, 137–138 existing market rights, 134–136 injunctions, 138 permission, 134–137 permitted development, 136–137 ultra vires, and, 116 weights and measures cattle, 127–129 generally, 126–127 welfare of animals, 129–132 Regulatory Enforcement and Sanctions Act 2008 regulation of markets and fairs, and, 125–126 Remedies disturbance, and generally, 97 statutory markets and fairs, 98–100 Removal of market bad removal, 41 consequences, 42 duty, 41 general requisites, 41 good removal, 41 outside the area, 40 right, 40–42 within the area, 40 Rent increases Market Toolkit, and, 206 Reputation evidence of market rights, and, 190 Returns generally, 149 Right to peaceable enjoyment disturbance, and, 77 Royal Commission on Market Rights and Tolls evidence of market rights, and, 190 Irish dimension, and, 213 Royal Prerogative Irish dimension, 214–217

Sale of goods hay and straw, 102 horses, 102 introduction, 101 stolen goods, 101–102 Scire facias creation by statute, and, 21 practice and procedure, 159–161 Selling by sample in the market generally, 94–96 Selling outside the market defences, 94 insufficient room to sell within, and, 94 intention to evade toll, 93–94 introduction, 93 overcrowding, and, 94 without a toll, 93 Sovereign toll and stallage, and, 74 Special Acts extinction, and, 109–111 statutory markets, and, 22–24 title to the franchise, and, 17 Stall allocation Market Toolkit, and, 206 Stallage amount, 67 business rates, and, 153–154 differential, 68–69 distress, 73 exemptions ancient demesne, 74 common law, at, 74–75 Crown grant, by, 75 ecclesiastical persons, 74 lords of manors, 74–75 market owner, by, 75–76 prescription, by, 75–76 Sovereign, 74 statutory abolition, 76 in kind, 68 increase, 67 meaning, 65 nature, 65–66 power to increase, 67 recovery action, by, 72 distress, by, 73 right, 65–67 statutory markets and fairs Animal Health Act 2001, 71 Food Act 2004, 70–71

615

Index Stallage (contd) statutory markets and fairs (contd) LG(MP)A 2002, 71 Markets and Fairs Clauses Act, 69–70 other Acts, 72 time of payment, 66–67 variable, 68–69 wrongfully taken, 73 Stalls business rates, and, 149–153 duties of owner, 51 obstruction of highways, and, 50 rights of the public, 34–35 transfer, 26 Statute sessions generally, 3 Statutory markets and fairs change of days for holding generally, 56 power of Secretary of State, 56–57 common law incidents, and, 25–26 days for holding change, 56 generally, 54 disturbance, and levying a rival market or fair, 92 remedies, 98–100 extinction, 111–112 general, 21–22 hours of holding, 57–58 local Acts, 22–24 public Acts, 24–25 special Acts, 22–24 toll and stallage, and Animal Health Act 2001, 71 Food Act 2004, 70–71 LG(MP)A 2002, 71 Markets and Fairs Clauses Act, 69–70 other Acts, 72 Statutory nuisance regulation of markets and fairs, and, 139 Stolen goods sale of goods in market overt, and, 101–102 Straw sale of goods in market overt, and, 102 Street markets generally, 6–7

Street trading adoption of code, 120 City of London, 124 designation of streets, 120 district councils, 120–122 generally, 119–120 Greater London, 122–124 Succession Market Toolkit, and, 205 Sunday trading car boot sales, 186–188 days for holding market and fairs, and, 54–55 recent developments car boot sales, 186–188 Shops Act challenge, 181–184 regulation of markets and fairs, and, 140 Suppression generally, 112 Surrender generally, 108 Taxation business rates market premises, 149 stallage, and, 153–154 stalls, 149–153 tolls, and, 154–155 corporation tax, 156 income tax, 155–156 tolls, 154–155 value added tax, 156–157 Temporary markets regulation of markets and fairs, and, 124–125 Title generally, 15–17 Toll amount excessive, 63 reasonableness, 62–63 articles liable, 64–65 business rates, and, 154–155 definition, 59 differential, 68–69 distress, 73 excessive, 63 exemptions ancient demesne, 74 common law, at, 74–75 Crown grant, by, 75 ecclesiastical persons, 74 lords of manors, 74–75 616

Index Toll (contd) exemptions (contd) market owner, by, 75–76 prescription, by, 75–76 Sovereign, 74 statutory abolition, 76 forfeiture, and, 108 grant, by, 60 in kind, 68 increase, 61–62 liable articles and sales, 64–65 liable persons, 63–64 nature, 59 neglect to take, 108 persons liable to pay, 63–64 power to increase, 61–62 prescription, by, 60 reasonableness, 62–63 recovery action, by, 72 distress, by, 73 sales liable, 64–65 statutory markets and fairs Animal Health Act 2001, 71 Food Act 2004, 70–71 LG(MP)A 2002, 71 Markets and Fairs Clauses Act, 69–70 other Acts, 72 toll-free markets, 61 Toll-free markets generally, 61 introduction, 6 persons liable to pay toll, and, 64 Toolkit allocation, 204–205 assistance from NABMA, 207 communication, 205–206 disciplinary action, 206 introduction, 203 licensing, 203–204 management arrangements, 204 policies and procedures, 206 powers, 203 rent increases, 206 stall allocation, 206 succession, 205 Town and country planning advertisement controls, 138 Article 4 directions, 137 control, 137–138

Town and country planning (contd) enforcement action, 137–138 existing market rights, 134–136 injunctions, 138 permission, 134–137 permitted development, 136–137 Transfer of market rights conveyance, 26–27 death of owner, 28 introduction, 26 lease, 26–27 market owner, by, 28 method, 26–28 mortgage, 27–28 power, 28–30 public body, by, 28–29 statutory powers, 30 Treaty of Rome recent developments, 184–186 Ultra vires regulation of markets and fairs, and, 116 Usage immemorial user, 20 introduction, 19 long user, 20 lost modern grant, 20–21 nature of user, 21 Value added tax generally, 156–157 Verdicts and judgments evidence of market rights, and, 190–191 Waiver forfeiture, and, 106–107 Wake generally, 3 Weights and measures correction of the market, and, 10 regulation of markets and fairs, and cattle, 127–129 generally, 126–127 Welfare of animals regulation of markets and fairs, and, 129–132 Writ of ad quod damnum acquisition of market rights, and, 19 Writ of scire facias creation by statute, and, 21 practice and procedure, 159–161

617