B e f o r e :
MR JUSTICE GOLDRING
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| | DEREK DAVIES AND LINDA ATKINS
| Claimants
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| | - and -
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| | CRAWLEY BOROUGH COUNCIL
| Defendant
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Mr Masters for the Claimants
Mr Warren for the Defendant
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JUDGMENT
AS APPROVED BY THE COURT
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Crown Copyright ©
MR JUSTICE GOLDRING:
Introduction
- Mr. Davies and Mrs. Atkins each own a mobile catering van. Mr. Davies’ van is located in Manor Royal, Crawley. It has been since before 1990. Mrs. Atkins’ was in Fleming Way, Crawley. She has now ceased trading. She had been there since 1996. Mrs. Atkins obtained planning permission in 1997. Mr. Davies obtained a certificate of lawful use in 2000. On 2 January 2001, Crawley Borough Council (“the Council”) resolved to adopt a street trading scheme under section 3 of the Local Government (Miscellaneous Provisions) Act 1982 (“the 1982 Act”). The streets where the vans were located were designated as prohibited under Schedule 4. Other streets were designated as consent streets. Each was offered a site on a consent street. The Council resolved to charge a fee of £5000 per year for such a site. As a result, neither could lawfully remain where they were. If they were to take up the offer of an alternative site, the fee would be payable. Each seeks, among other things:
(1) An order quashing the Council’s decision, to adopt the scheme making certain streets prohibited and others consent streets;
(2) An order quashing the decision to charge £5000 per year.
(3) A declaration that the decision under the 1982 Act “should also be declared to have effect as if it were a resolution under section 102 of the Town and Country Planning Act 1990 (“the 1990 Act).”
The relevant statutory provisions
Local Government (Miscellaneous Provisions) Act 1982
- “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.” Section 3
“…“consent street” means a street in which street trading is prohibited without the consent of the district council…
“prohibited street” means a street in which trading is prohibited…” Schedule 4, paragraph 1
“A district council may by resolution designate any street in their district as-
(a) a prohibited street;
(b) a licence street;
(c) a consent street.” Schedule 4, paragraph 2(1)
- Paragraph 2(3) provides that there must be published a notice before a resolution is passed. The notice, among other things,
“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 soon as practicable after the expiry of the period…the council shall consider any representations relating to the proposed resolution which they have received before the expiry of that period…After the council have considered those representations, they may, if they think fit, pass such a resolution relating to the street…” Schedule 4, paragraphs 2(6)-(8)
“A district council may charge such fees as they consider reasonable for the grant…of a…street trading consent. Schedule 4, Paragraph 9
- It is a criminal offence to engage in street trading in a consent street without authority. Schedule 4, paragraph 10
The Town and Country Planning Act, 1990
- Planning permission is required for any development of land. Section 57(1)
- Section 191 deals with certificates of lawfulness. Its effect is that the use of land is lawful if no enforcement action in respect of it would succeed. That was the position in 2000 regarding Mr. Davies (he having traded for more than 10 years). If that be the case, the planning authority is obliged to issue a certificate of the lawfulness of existing use.
- Section 75 deals with the “Effect of planning permission.”
“…any grant of planning permission to develop land shall…enure for the benefit of the land and all persons for the time being interested in it.” Section 75(1)
“If, having regard to the development plan and any other material considerations, it appears to a local planning authority that it is expedient in the interests of the proper planning of their area…that any use of land should be discontinued…they may by order…require the discontinuance of that use…” Section 102(1)(a) and (b)
“An order under section 102 shall not take effect unless it is confirmed by the Secretary of State, either without modification or subject to such modifications as he considers expedient…” Section 103(1)
“Section 115 “shall have effect where an order is made under section 102…requiring a use of land to be discontinued…
If…it is shown that any person has suffered damage in consequence of the order [under section 102]…(a) depreciation of the value of an interest to which he is entitled in the land…or…(b) by being disturbed in his enjoyment of the land…that authority shall pay compensation in respect of that damage…” Section 115(1)-(2)
The European Convention
- Article 1 of Protocol 1 of the Convention (“Article 1”) states:
“Every…person is entitled to the peaceful enjoyment of his possessions. No-one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest…”
The facts
- Although there are areas of dispute on the facts as revealed in the witness statements, I have to do the best I can on the information I have. I place considerable reliance on the contemporaneous documents: particularly reports submitted to various committees and minutes of meetings. When referring to the bundles, I shall refer to the Claimants’ bundle as one, Ms Howell’s (the Council solicitor’s) as two.
- Manor Royal is an industrial estate in Crawley. There are many different factories or offices there. Most do not have canteens. There is a demand for food at lunchtime. It has (at least partly) been satisfied by mobile vans. Mr. Davies first placed his van in a lay-by outside (what is now) SmithKline Beecham before 1990. He had no planning permission. He changed his van in 1996. It is now large.
Spring 1997
- According to Ms Howell’s statement,
“During Spring 1997…The Council was made aware of amenity and traffic congestion problems from the activities of street traders on highway land on the Manor Royal Industrial Estate. Complaints were received from occupiers of the buildings immediately adjacent to the sites from which several of the traders were operating. The principal concerns…were the inconvenience and risk of damage and injury caused by traders’ customers’ vehicles parking on the highway, in lay-bys and on verges and pavements near traders’ stalls and units. In addition…there were some allegations that…means of access…had on occasion been blocked by the parked vehicles…Increased litter was also identified as a problem…There were a number of meetings between Officers and Members of both the Council and the [West Sussex County Council (“WSCC”), the Highway Authority] to discuss the complaints. WSCC…had discounted the use of its Highways Act powers as inappropriate. WSCC encouraged the Council to consider use of the powers available to the Council under the 1982 Act.” (2/3, paragraphs 2.3-4)
- On 1 August 1997, SmithKline Beecham complained about Mr. Davies’ van. The terms of the letter make it plain this was not for the first time (see paragraph 1). They “object strongly to the presence of the illegal trader operating outside our premises.” (1/34)
- Mrs. Atkins says she began trading from a layby in August 1996. Before doing so, she contacted the Council and was told it was nothing to do with them. She should speak to the highways department of the West Sussex County Council. They told her that provided she did not interfere with the cycle lane, they would not stop her trading.
- In 1997 the Council told Mrs. Atkins she needed planning permission to trade from the lay-by. Mrs. Atkins applied and was given permission on 15 September 1997. Ms. Howell says that Mrs. Atkins’ was one of several planning permissions granted. The Development Control Committee had found “insufficient planning grounds on which to refuse the applications.” (1/3, paragraph 2.5) Ms. Howells also says that WSCC had objected to the grants of planning permission. (paragraph 2.7)
- On 4 June 1988 Mr. Davies first applied for a certificate of lawfulness. It was refused because he had not been trading for 10 years.
- On 24 May 1999 the planning committee considered Mr. Davies’ van. The Committee “was informed that complaints had been received regarding the siting of snack van which often caused a build up of congestion within and around the lay-by and also high visual impact on the surrounding street scene because due to its size. The continuing siting of this…van contravened policies…of the Crawley…Plan…the highway surveyor had visited the site and believed it was an inappropriate use of the highway land. He had expressed concern of (sic) the safety implications…The Committee noted that the facility had operated…for a considerable length of time…also the clear need for catering facilities in the Manor Royal Estate, and had regard to the possibility of other premises or mobile facilities in carefully selected locations being acceptable in planning terms…The Planning Department had requested that a planning application be submitted by 29 March 1999 but so far no application had been received…RESOLVED [that]…an Enforcement Notice be served…requiring discontinuance…” (1/37)
- No enforcement notice was served. Mr. Davies appealed the refusal of the certificate of lawfulness. SmithKline Beecham had objections. (1/38)
The 1982 Act is raised
- According to Ms Howells, the complaints continued.
“The Crawley Liaison Group, a body comprised of Members of the Council and WSCC…considered the matter on several occasions. Officers of both Local Authorities also continued to discuss street trading…and a suitable means of controlling it. Throughout the discussions, WSCC asserted that street trading would most appropriately controlled by the Council under the 1982 Act and that Highways Act measures were not suitable…In the light of WSCC’s position…and of continuing complaints…in May 1999 Officers…considered it appropriate to put the matters before Members.” (2/4, paragraphs 2.7-8)
The Environment Committee meet: 9 February 2000
- On 9 February 2000 the Environment Committee met. The Borough Secretary and Environmental Services Officer prepared a report for it. Paragraph 1.1 stated that “[Its] purpose…is to consider the planning and highway consequences of mobile catering units/van on industrial estates, and to consider the designation of “consent streets” and “prohibited streets” with regard to controlling street trading within the industrial areas of Crawley under the [1982 Act].”
- Paragraph 2.1 referred to the “highly visible locations” of the vans.
“…during summer months most accommodate customers by providing seating on nearby grass verges or pavements, and all have the potential to cause traffic congestion within the area. Complaints to both Crawley Borough Council and West Sussex County Council Highway Department have highlighted the several traffic problems including road safety worries and issues of amenity.”
- Paragraph 2.2 referred to the planning position.
“The unauthorised siting of…vans was drawn to the attention of the Local Planning Authority in 1997 when complaints were received regarding highway congestion…Similar operators within the area were investigated and invited to apply for planning permission…Some of them claimed to have occupied the sites for longer than ten years and therefore applied for certificates of lawful use…” There was reference to the granting of planning permission in three cases, one temporary. “The operators were made aware that the granting of planning permission does not convey any other consents or authorisations…”
- Paragraph 3 dealt with planning and enforcement action.
“Since 1997 the number of unauthorised snack vans has increased approx. 100% within the industrial areas of Crawley, causing problems of congestion and loss of amenity. Inviting…operators to apply for planning permission and consequently authorising enforcement action should the application be refused has had limited impact on regulating development and reducing nuisance…”
- Paragraph 5 considered “procedural remedies.” Sections 137 and 143 of the Highways Act 1980 were considered. Each had difficulties. Enforcement under the planning provisions was raised too. “Recent Planning enforcement action…has emphasised that planning enforcement notices provide a limited regulatory vehicle.”
- The 1982 Act was said to give
“the Council the power to regulate street trading by designating any street within their district as a prohibited…or consent street…Similar steps are used in relation to streets in the town centre and around entrances to schools…The use of this regulation would provide the Council with the means to effectively control all street trading in the Manor Royal…industrial area and in doing so improve the industrial areas environment.”
- Paragraph 6 considered the “Financial Implications.”
“There will be a cost associated with…enforcing the trading consents…administration costs in issuing licenses for street trading, whilst a fee can be charged, it will be difficult initially to get it at a level which will guarantee recovery of all the costs.”
- Paragraph 7 summarised the position.
“The current number of mobile catering units in the industrial areas are a cause for concern as the number of complaints regarding traffic congestion and loss of amenity increase rapidly. Current highway and planning legislation provide a very limited instrument to regulate the catering units. It is often a cumbersome process to achieve the removal of one van, and loopholes in the legislation provide the operators with an easy solution of relocating their units outside the enforceable area…[the 1982 Act]…provides a means for the Council to control all street trading within…[the]…area, by firstly prohibiting the main thoroughfares and currently congested road which would therefore improve the appearance and traffic movement throughout the area; secondly, by agreeing to consented streets which would be strictly controlled by a licensing system provided by the Council so that the catering facilities can be allowed to meet local employees’ needs.”
- There was an appendix attached which described each of the vans, its location and the associated problems.
- It was resolved that the notices be published and that “arrangements for the issue of permits and any fees…be considered at the time that Committee consideration is given to the response to the notice.” (2/42)
- Mr. Davies disputes any problem with congestion. PC Ribbans of Horsham traffic department has found no letter of complaint regarding his van for 2000-01. (2/155)
- In my view, it is clear there was for some time concern about the street trading from vans. The Council wanted the WSCC to do something. The WSCC wanted the Council to do something. It encouraged the Council to consider the use of the 1982 Act. The fact that planning permissions were granted did not cause the concern to abate. The number of vans increased. The report to the Environmental Committee of 9 February 2000 was the product of that concern. The fact it was prepared supports what Ms. Howell says in her witness statement. That document with its attachments was on the face of it reasonable and balanced. The problems with planning enforcement are easily understood. Mr. Davies’ position highlighted one aspect. As a matter of common sense it must be difficult to enforce planning regulations against a van in a lay-by. For example, a move to a different position in the lay-by might mean the procedure had to start again. The Highways Act provided no answer, not least because the Highway Authority did not want to become involved. It seems to me a scheme under the 1982 Act could reasonably be thought to balance the need for provision of facilities on the estate with some overall control. Such a scheme could reasonably be thought to provide a comprehensive solution to what was a real problem. However, again in my view reasonably (and in accordance with Schedule 4), no final decision was to be taken until representations had been considered.
Mr. Davies’ enforcement notice is considered: 5 May 2000
- On 5 May 2000 Mr. Davies’ position was considered by the Planning Committee. Although it had been the intention to serve an Enforcement Notice on him, that was abandoned. The minutes make the reasoning clear. The inspector had previously found that Mr. Davies had been trading from the van from 1990. Counsel advised that his reasoning could not be challenged. The Enforcement Notice would be met by a plea of lawfulness which was bound to succeed. It was not an issue of planning policy.
- Other possible remedies were referred to. The Highways Act was considered. So was the Environment Committee’s resolution under the 1982 Act. The “Conclusion” was that there were
“other remedies available to the Local Authorities which should now be pursued without delay, so that the complaints of nearby occupiers can be addressed…It is recommended…that the street trading prohibition be pursued to remedy the perceived problems at the site.”
- In short, the Council felt it could not dispute Mr. Davies’ appeal. It plainly was unhappy. However, I do not accept Mr. Masters’ suggestion on behalf of the Claimants, that action under the 1982 Act was simply a reaction to Mr. Davies’ position. Consideration of the 1982 Act had been going on for some time.
The notice is first published: 10 May 2000
- On 10 May 2000 the notice was published in the Crawley Observer. Fleming Way and Manor Royal were both prohibited streets. Representations were to be made by 16 June 2000. The scheme was to take effect on 1 October 2000. (1/48-9)
Events after publication of the notice
- On 19 May the Environment Committee was dissolved. Responsibility for the street trading scheme was delegated to the Licensing Committee. (Ms. Howell’s statement, paragraphs 3.2 and 3.3) On 7 June 2000 Mr. Davies was granted a certificate of lawfulness, on the basis that “The use has subsisted for 10 years.” (1/14)
The letter of objection: 16 June 2000
- On 16 June 2000 Argles Stoneham Burstows wrote a very long letter of objection to the Council. Among many matters, it raised the possibility of discontinuance under section 102. It also raised Article 1. (1/50) On 21 June 2000, Mr. Payne, a solicitor from the Council responded in a telephone call to the letter. I have the attendance note of the conversation. Among other things, he referred to a “grey area.” He accepted the Council had a duty to “play it straight.” He “accepted that he could see the situation from our view point and that it did smack of mal (sic) fides and he accepted that the Council had effectively lost the inquiry and this came along.” (1/54)
- It seems to me Mr. Payne’s response is of very limited value in my assessment of events. I see nothing which suggests mala fides on the part of the Council.
The Licensing Committee meet for the first time: 10 July 2000
- On 10 July 2000, the Licensing Committee met. It was provided with the information before the Environment Committee on 9 February 2000. The background was summarised.
“…the Environment Committee passed a resolution proposing to control or prohibit street trading on Manor Royal Industrial Estate. The necessity for such a scheme had become increasingly apparent since many industrial and other units…do not have canteen facilities. As a result, a proliferation of mobile catering vans to cater for the unmet demand of workers…has developed to an extent that led the Committee to the view that some elements of control are necessary to ensure that the catering vans are located conveniently for consumers whilst avoiding traffic congestion. There are also issues of hygiene, general cleanliness and general administration that a licensing system could not address.” (2/45. Paragraph 2.1)
- The response to the notice was summarised. Sixteen letters were received. There were two petitions with in all some 650 signatures. Mention was made of solicitors’ letters too. “All representations opposed any changes to the unregulated status quo…All representations take up consistent themes: that the existing service is essential and provides good quality refreshments for workers and staff whose companies do not provide canteen facilities, menus are varied, opening hours consistent. Many representations pointed to the absence of company staff canteens…Many commented that the present locations had no adverse effect on traffic congestion (indeed some observed that if the units were moved or shut down car travel…would increase)…Some proprietors commented that they had asked “the Council” about their position on trading before they started and say that little interest one way or the other was expressed…” (Paragraphs 3.2-3)
- There was reference to the representations in the context of the particular sites. As to Mrs. Atkins, the Committee was told that
“she operates in a 70 foot lay-by on Fleming Way with the benefit of planning permission. In her first…letter she stated that her undertaking causes neither congestion nor complaint…her van is the smallest operating…Members agreed at the Environment Committee that Fleming Way must be a prohibited street…It is also to be noted that Mrs. Atkins’ trailer is permanent/static, thereby contravening a condition of the planning permission requiring removal of the unit outside trading hours, and this does not help the position. The officer is of the view that it would be [a] possible place for Mrs. Atkins to relocate in Jenner Road, which is some way from her current position.” (Paragraph 5(d))
- As to Mr. Davies,
“In a lengthy legal submission solicitors…have sought to persuade the Authority that their client’s successful appeal now renders his catering immune from the proposed control regime, and that such a scheme would be contrary to their client’s private property and economic interest which should be respected in the light of the planning decision…the outcome were the issues to be litigated…uncertain. The solicitors…suggest that a solution…could be…to draw a line around the lay-by…excluding it from the prohibited regime…Whilst the Committee should be in no doubt that Mr. Davies’ determination to remain…could trigger costly proceedings of uncertain outcome, the fact he may have “lawful” use in planning terms is only one of the factors the Committee needs to take into accounts in deciding whether, as part of a regulated regime, Manor Royal should be a prohibited or a consent street. They should also need to consider the wider and very important question of whether an individual proprietor should be permitted to continue trading on a main traffic route in a lay-by that is very close to a traffic light control junction. The size of the undertaking coupled with its location materially contributes to frequent and substantial congestion. Designation of all or part of Manor Royal as a consent street would not be consistent with the principles which are being proposed…” (Paragraph 5(e))
- As to “Financial Considerations,”
“The fee need not be restricted to the recovery of administrative costs. Market forces may be taken into consideration to a certain extent, although a Council is not entitled to raise revenue generally in the sense of maximising income in line with market forces…It is suggested that the fee is set at £5000 per annum payable under a monthly contract. This compares with something over £3000 for an 8 ft stall in the two-day market in the Town.” (Paragraph 7)
- The “Conclusion” was that
“The principle of the street trading scheme remains sound for the achievement of the urban amenity, street safety and regulated street catering…In the light of certain representations, certain changes to the draft scheme are proposed, to take account of road safety implications and to allow a regulated licensing of food outlets in areas where there is otherwise little catering provision. (Paragraph 8)
- Among the “Recommendations” it is said,
“The Committee need to decide whether in the light of the representations made it wishes to proceed with a control regime on the Manor Royal Industrial Estate…If it wishes to proceed the Committee need to decide whether…The implementation date should be extended beyond 1 October 2000…The consent fee should be fixed at £5000.” (Paragraph 9)
The Licensing Committee visit the site: 19 July 2000
- Consideration of the report was deferred on 10 July 2000 for a site visit of members. This took place on 19 July 2000. The areas visited were those “potentially affected by the scheme, in order to assess the size of the existing problems of congestion, road safety, obstruction and amenity.” (See 2/62 at paragraph 2.2; also 1/63, paragraph 3, 2/59 at paragraph 14)
- In my view the report submitted to the Committee was in broad terms detailed and reasonable. It fairly summarised the position as at that time. It considered the representations made in response to the notice. The issue of section 102 was raised: it was something mentioned in the solicitors’ letter. The suggestion that there was an inconsistency between the planning permissions and action under the 1982 Act was clear. The rationale for using the 1982 Act was again set out. On the face of it, what was said was sensible. The Licensing Committee did not simply rely on what it was told (whether by officers or objectors). It decided to make its own assessment by viewing the area. Its purpose in doing so was to assess the different contentions.
- As to the amount of the fee, £5000 was mentioned. Comparison with a market stall was drawn. On the face of it, that could reasonably be thought to be a fair comparison.
The Licensing Committee meet for the second time: the decision in principle is taken: 3 October 2000 (2/59)
- Mr. Davies wrote to the Committee on 30 September 2000. He sent a copy of his certificate of lawful use. Among other things, he disputed various assertions made by the Council, particularly regarding traffic congestion. He said the only complaints he had were from SmithKline Beecham. Mr. and Mrs. Goksu (other van owners) did too.
- The Committee met again on 3 October 2000. It considered the reports. Mr. Davies’ and Mr. and Mrs. Goksu’s letters were tabled. Members of the public present were invited to add any comments in support of their previous representations. Officers answered their queries.
“The Committee received legal advice on points of law relating to the operation of licence control regimes.” (Paragraph 16) It “further considered the report, the views of the Public and Officers’ views. [It resolved]…that the Committee agree in principle to the implementation of a licence control regime in the town’s industrial estates which provides for a transitional period of one year from 1 April 2001…that the fee for a Consent…should initially be set at £5000 per annum…that a further report be presented to a future meeting…to enable [it] to reach a decision on the operation of the scheme…” Among items to be considered were the criteria for the grant of licences and a list of proposed prohibited and consent streets and the reasons for designation. (2/59)
- Mr. and Mrs. Goksu complained about the meeting. They are not parties to this application. (1/83)
- On the face of it, again, the report presented to the Committee was detailed and reasonable. Representations were considered. Letters of objection were tabled. Comments were invited from the public. Although a decision in principle was taken, it was not the final decision. There was little said as to the justification of £5000 as the fee at that meeting. However, as will become clear, the fee was considered in detail in a separate paper at another meeting.
The Licensing Committee meet for the third time: 6 November 2000
- The Committee met again on 6 November 2000. Six Councillors were present. The various reports were submitted. “A number of letters and petitions had been presented prior to the meeting for consideration by Members.” (Minutes, 1/94, at paragraph 23)
- Additionally, there was another report. (1/89) “[Its] purpose is to examine the detailed scope and provisions of the Street Trading Scheme proposed to Members on 3rd October, which was accepted in principle, and to give publicity to the arrangements.”
- The representations were considered.
“The Committee heard representations from several traders regarding perceived discrepancy between the Council’s determination of their planning applications and the introduction of a different regulatory regime. The Committee were given legal assurance that the considerations which apply in relation to planning legislation are separate from the street trading regulatory regime and consent under any one Act will not discharge any obligations arising from the other.” The Committee was reminded that no trading could take place in a prohibited street and that any form of trading in a consent street would require consent “and that planning provisions will also be required once that trading gains any permanence.”
“The Committee considered matters of road safety, potential highway obstruction, impact and amenity issue, servicing and proliferation of units when considering on which streets to allow trading consent.” (Paragraph 3.2) Fleming Way and Manor Royal were designated prohibited streets.
- The criteria were clearly set out.
“Based on the above considerations, it is proposed that the decision on whether or not to grant any particular application for a…Consent in a particular location be based on the following criteria… Size… Safety… Proliferation… Obstruction… Servicing… Power… Visual Amenity… Advertising… Insurance…” (Paragraph 3.5)
- “The decision making process” was in terms referred to.
“There is no statutory right of appeal…The Human Rights Act 1998 requires the Council to take into account several issues when determining applications for consent including in this case the right to a fair hearing (Article 6). In this regard it is suggested that although the statute does not require it, any decision made at first instance by the Borough Secretary, be re-viewable by the Licensing Committee, thus allowing the applicant the right to be heard…Article 1 considerations concerning the protection of property would only come into play once consent was granted and the determination involved the revocation or conditional renewal of that consent… Although applicants may have a planning consent this in itself does not give rise to an entitlement to a street trading consent…Human Rights considerations require the balancing of potentially conflicting interests between applicants, individuals, businesses and the public generally. It is considered that the above measure are the least onerous and any interference with anyone’s rights are proportionate to the wider public objectives sought to be achieved by the scheme [Paragraph 4.2-5].
- The proposed re-designations required re-advertising.
“If after consideration of responses to the advertisement it is decided to proceed with the scheme, it is proposed that any traders operating on the designated consent streets should be invited to apply for consent to trade in those locations from April 2001…Traders who are currently trading in a prohibited street would be invited to apply for consent to trade from a consent street.” (Paragraph 5)
- Paragraph 6 dealt with the “Financial and Staffing Implications.”
“The Fee for consent…is proposed initially as £5000 per annum…This would be payable prior to issue of consent…A review of the workload for the Licensing Officer will be required as the scheme progresses, so that if necessary, income from the scheme is allocated specifically to new staff resources.”
- The “Conclusion and Summary” (Paragraph 7) put it in these terms.
“The need for the introduction of control of street trading on the industrial estates has been acknowledged, and the traders’ and others’ views have been considered. The proposed scheme offers a mechanism of regulating street trading in the interests of the street scene, safety and commercial image…The scheme will operate by the application of criteria which are essential for well regulated street trading.”
- The recommendations, among other things, were that the intention to proceed with the scheme be re-advertised, the criteria be adopted and publicised, the timescale be adopted and that the staffing implications be monitored and reviewed. (Paragraph 8)
- It was resolved “(1) that subject to the consideration of representations following re-advertisement it remains the Council’s intention to introduce a street trading regulatory regime and this be re-advertised…(2) the criteria for acceptable street trading as set out in paragraph 3.5 of the report be adopted…(3) the timescale should be as set out… (4) [there be a right of appeal from the borough secretary’s decision] (5) the Licensing Committee be the forum for hearing appeals… (6) the staffing implications…be monitored and reviewed.” (1/95)
- Once again, in my view, there was sensible and detailed consideration of the issues in the report submitted. Again, the representations which had been made were put before the Committee. The rationale for the scheme was explained again in detail. The clear and sensible criteria for granting consent were set out and were to be publicised. Existing traders were to be given the first opportunity for a new site. The decision taking process was explained in detail. The question of balancing the public and other interests was spelled out. An appeal process was decided upon. The fact that some of those affected had planning permission was clear from what was said. Even then, no irrevocable decision was taken. That was to await the representations following re-advertising.
Council Meeting: 22 November 2000
- On 7 November 2000 Mr. Davies wrote another letter of objection. Among many things, he raised the Human Rights Act and complained about the level of the proposed fee. He suggested it had been “plucked out of the air.” He referred to the fact that fees in other boroughs had been obtained by the traders and given to the Council. He referred to sections 102 and 103 of the 1990 Act. He warned of judicial review. (1/96)
- On 15 November 2000 the scheme was re-advertised (See 2/70 paragraph 2.2). Mr. Davies wrote a letter of objection on that date too. (1/100)
- On 22 November 2000 there was a Council meeting.
“The report of the Chair of the Licensing Committee [was moved]. It was emphasised that the development of this licensing issue was still very much the subject of on-going consultation as part of a formal exercise with all the parties concerned. The responses/concerns relating thereto, along with all the other factors involved, would be the subject of detailed discussions, with a full report to be discussed by the Committee at a meeting shortly before Christmas.” (1/103)
The Licensing Committee meet for the fourth time: the decision is finally taken: 2 January 2001
- On 23 November 2000 Mr. Davies (with others) wrote to Mr. Mullins, the chairman of the Licensing Committee. They raised, among other things, the licence fee and sections 102 and 103 of the 1990 Act. They stated that “You agreed you would give written advice [as to why] the Council haven’t referred to [the sections].”
- On 18 December 2000 there was a letter from Mrs. Thornton (on behalf of the Planning and Environmental Services Officer), apparently in response. She set out the rationale of the scheme. She stated that
“Some of the units which have been sited on streets for more than ten years were able to demonstrate that their use was lawful under [the 1990 Act]. Other more recent arrivals applied for and were granted planning permissions. These determinations do not override any other legal requirements, such as compliance with Environmental Health or Highways laws.” (1/106)
- Mr. Mullins too wrote in response to the letter of 23 November 2000. He said, among other things, that
“There is no intention on the part of the Council to revoke any planning permissions. If a location cannot meet the street trading criteria, that is not overridden by any permission under any other legislation.” (1/108)
The scheme itself
- Present at the meeting were seven Councillors. There was an apology from Mr. Oliver. He set out his views in a facsimile sent to the Committee. He was critical of the scheme. According to the Minutes, the Committee considered the reports and the responses. The Committee was informed of two further letters (from Mr. and Mrs. Goksu and Mrs. Atkins). Copies of letters of representation were available. Mr. Oliver’s facsimile was tabled for consideration by the Committee. (Paragraph 37)
- There was another report before the Committee. (1/112). Its purpose was to inform the Members of the responses to the re-advertisement. (Paragraph 1)
“Copies of all representations are available in the Members Room. Members are strongly advised to inspect these so that individuals affected by the proposed scheme can be assured that their views have been given a full and fair consideration.” (Paragraph 3.1) Specific letters of support were mentioned. There was one referred to for Mrs. Atkins’ van. (Paragraph 3.3)
- Under the heading “Consideration of Representations” individual locations were considered. As to Fleming Way and Manor Royal, they
“are not considered suitable trading locations because of the volume of traffic carried, and the policy for promotion of a high quality environment enhance Crawley’s business image…Fleming Way remains a busy road and may become more congested as further industrial sites are redeveloped…It is recognised that the re-location of Yum Yums…to a consent street may not seem immediately feasible, but the Council will consider carefully any alternative location for which the operator may seek consent to trade. No such approach has been made yet [by Mrs. Atkins].” (Paragraph 4.4)
- The conclusion was that
“Re-advertisement…has not resulted in representations which raise new issues…The re-iterated concerns regarding the impact of the…scheme on existing traders are considered for the most part unfounded, for the reasons set out [in paragraph 4], and for the most part are capable of solution within the terms of the scheme as adopted.” (Paragraph 5) Specific recommendations were made. They included making Fleming Way and Manor Royal prohibited.
- It was resolved to designate the streets as proposed. The voting was two in favour, two against, the Chairman’s casting vote being in favour.
Fees
- There was a separate report dealing with fees (1/117) Its purpose was “to consider the fees and charges regime for street trading consent…should the Council decide to proceed with the…regime.” (Paragraph 1)
- Mr. Oliver, in his facsimile, which was before the Committee, described the proposed fee as “extortionate.” He said that it was wrong (as was stated in the report on fees) that no written representations had been received from the traders. As he put it, “I, and I am certain, other Councillors have received such representations. Representations were made at the last Council meeting and Councillors and officers are well aware of the traders’ views.” He suggested a fully structured paper. (1/121)
- Paragraph 3, headed “Consideration,” stated that
“The level of fees…need not be restricted to the recovery of the costs of administering the street trading regime. [Paragraph 3.1]… The [1982] Act allows the Council… the ability to charge such fees as are considered reasonable for the grant of or renewal of consent…the ability to take into account market forces to a certain extent…[and] the introduction of further administration, enforcement and additional costs…” (Paragraph 3.2)
- There was reference to other street trading schemes in Crawley. The High Street and the Michaelmas Fairs were referred to. The fees charged for these short, mainly charitable events, equated to £4,380 p. a. A better comparison, it was suggested, was the trading fee for market stalls. They equated to £8750 for a 50 week year (although in fact only working for two days a week). Finally, it is said. “Based on the current number of traders, additional income in the range of £60,000 per annum will be generated assuming a fee base of £5000 is acceptable. It is believed that this will be more than sufficient to cover the Council’s additional costs in monitoring, enforcement and administration. This will need to be reviewed in the first year of operation, when the workload and resources required to manage the scheme can be assessed.” (Paragraph 3.7)
- Under the heading “Proposals” it is said,
“The fee of £5,000 p.a. suggested in the original report was based on £20 per day, on a five day working week over a fifty week working year period…This was suggested having regard to the consent fee for a market stall but was not pro-rata as it was recognised that that approach would be unfair. It is £15 per day cheaper…and additionally it should be noted that the street trading consent…will be for…365 days of the year.” (Paragraph 4.1) There is reference to written representations from the staff of two companies expressing concern about the amount of fees.
- An instalment regime is recommended, the sum to be payable 3 months in advance.
“Following a detailed explanation from the officers of the Council…members of the public…were invited to add any further comments they wished to make to the representations which had been received.” (Paragraph 37)
“It was noted that the level of fees set by the Council…need not be restricted to the recovery of the costs of administering the street trading regime. The Committee was reminded that the concept of a charge was entirely new for the traders, and was invited to consider the relevance of the comparators which had been used.” (Paragraph 38)
- It was resolved to adopt the £5000 as an initial fee. The instalment suggestion was accepted too.
- Again, in my view, what happened on 2 January 2001 amounted to a detailed and reasonable consideration of the issues regarding the scheme. After all, the first paper on the scheme was tabled on 9 February 2000. It was no less than some 11 months later, after five meetings, one site visit and three notices, that the scheme was agreed.
- At the meeting, the detailed representations were considered. The Members were in terms advised to read them. Each location was considered in the light of the representations regarding it. Mr. Oliver’s critical facsimile was filed. Further letters received were tabled. I consider the report on the scheme presented to the Members to have been detailed and reasonable.
- Ms. Howell says that the fee was subject to review, subject to an instalment option and discretionary hardship relief. The workload would be reviewed. Other councils’ fees were of little relevance to Crawley. The fee was set by reference to other high turnover areas in Crawley itself. The scheme itself was intended to protect and promote small businesses, and the rebate and instalment provisions were to ensure that the fee did not unreasonably prejudice traders. (Paragraph 6.17)
- I shall express my views on the fee later.
Events subsequently
- Further representations were made by van owners. Mr. Davies wrote on 3 January 2001. He said he wished to exercise his right of appeal (built into the Council’s policy). He objected to Manor Royal being prohibited; also to the fee of £5000. (1/126) In his response of 9 January 2001, Mr. Crossley, the Borough Solicitor said that
“You and most of the other traders left before the decision was taken, but I can tell you that although the committee were invited to consider whether there was a more preferable (sic) basis for calculating the fees, they were generally happy with the approach adopted and were minded only to consider a change if it could be demonstrated to them by the submission of audited accounts that the fees were unrealistic. I suspect that the committee would be unhappy at having to set different fees for different permits unless a rational basis could be agreed and if collectively you were able to provide information which was able to justify a reduction in the fee level based on trading accounts then I think Members would find that helpful.” (1/132)
- These comments suggest there was flexibility in the fee aspect of the scheme.
Council meeting: 17 January 2001
- There was a report from the Licensing Committee. As to the fees, it was said that
“Whilst [£5000] was a substantial sum, the Committee did not feel that it was out of line with other charges. There was also an instalment payment scheme introduced to enable traders to have permits for a shorter period with the minimum being 3 months.” (1/140)
Events after the resolution
- On 8 March 2001, Mr. Davies applied for consent to trade in Faraday Road. (1/151) I have a plan showing where it is: not far away from Royal Manor. (2/83) However, Ms Cox, Mr. Davies’ solicitor makes the point that Manor Royal was a busy thoroughfare. Faraday Road is not. (Second witness statement paragraph 4(ix)) In the event, Mr. Davies continues to trade in Royal Manor.
- Mrs. Atkins finally re-located to Woolborough Lane outside the scheme. That is further away. Unfortunately, she had to cease trading because she had insufficient business to make it viable. Her turnover figures, which I have, do not suggest a particularly successful business at the best of times.
- Mr. Davies also said he could not afford the fee of £1250 for a three month consent. He sent some copies of accounts for two years. (1/151) In his case, they were not good enough for the Council. It wanted audited accounts or accounts prepared by an accountant or the Inland Revenue tax assessment. (ASC3)
- Also in March 2001, there was a petition objecting to the level of the licence fee. (1/156)
The Law
The basic issues
- It is plain that within the terms of the 1982 Act, a council has a very wide discretion. Mr. Masters, on behalf of the Claimants, submits this Council acted unlawfully regarding this scheme in a number of ways. Underlying all his submissions is the allegation that the Council failed, or failed sufficiently, to take into account the fact that each of the Claimants had planning permission under the 1990 Act to site their vans in their respective lay-bys. He submits, as I understand him:
1) It was Wednesbury unreasonable for the Council to adopt the 1982 scheme in the first place. It was perverse or irrational or disproportionate or unfair to do so. It should have considered an order of discontinuance under section 102 of the 1990 Act. It should have applied section 102. It should have considered the payment of compensation under section 115.
2) Separately, and in any event, it acted perversely and irrationally in fixing the fee at £5000.
3) In adopting the scheme, it failed to have regard to Article 1.
- How then does Mr. Masters put the case in detail?
The European Convention apart
- The Claimants were in occupation of land, namely the lay-bys, in respect of which each had planning permission given by the Council. In consequence, each had an economic interest in the land. Each had built up goodwill. Each site was worth money. By deciding upon this scheme, the Council had deprived the Claimants of their rights without compensation. Having granted the planning permission in the first place, it was perverse to withdraw it not long afterwards. It was perverse to do so when the considerations under the 1982 Act were in reality planning considerations and there was open to the Council a planning route in respect of these Claimants to achieve what the 1982 Act would achieve. A notice of discontinuance under section 102 of the 1990 Act would have been consistent with the planning permission granted. It should at least have been considered. It should have been adopted. Compensation would then have been payable under section 115.
- Moreover, perversity and inconsistency apart, it was unlawful at least not to consider section 102 for another reason. The Council could not lawfully adopt a course amounting to a removal of a right without compensation, given there was available to it a course which would have permitted compensation: the section 102/115 route. In support of this submission, Mr. Masters seeks to rely on the well known principle set out in Colonial Sugar Refining v Melbourne Harbour Trust [1927] AC 343.
- I make it plain from the outset. I do not accept Mr. Masters’ submissions. They seem to me flawed in a number of respects.
- While planning permission runs with the land (section 75 of the 1990 Act), its grant does not give any right to land, here the lay-by. It merely permits the Claimants lawfully to use the land in a particular way. They cannot sell it. They have no right to occupy it. I reject the analogy with adverse possession which Mr. Masters submits in reliance on Perry v Clissold [1907] AC 73. In short, therefore, the 1982 scheme has not affected their rights to land.
- Moreover, it seems to me the Council was quite entitled to invoke the 1982 Act as opposed to relying on planning legislation. Indeed, although I conclude it was not the case, a failure to consider section 102 would not be fatal to the decision on the facts of this case.
- First, the evidence I have summarised shows there was a real problem with scattered street trading snack bars. The Highway Authority first suggested the 1982 Act. While I accept there are many similarities, as Mr. Masters submits, between planning matters and matters considered by the Council under the 1982 Act, there are significant differences. Action under the planning legislation would have been cumbersome and probably ineffective. It would be piecemeal. It would not be comprehensive. A van could easily move from one site to another. The 1982 Act gives the Council, after consultation, a wide discretion to adopt a comprehensive and flexible solution to a problem involving many different sites and different individuals to the benefit of the locality as a whole.
- Second, I accept the evidence that the position worsened over time. There were more vans in 2000 than in 1997, when planning permission was granted to Mrs. Atkins.
- Third, there was nothing inconsistent in applying the 1982 Act to Mr. Davies, who obtained permission not on planning grounds, but as a result of having traded unlawfully for a number of years. It was plain to him (or should have been) that his grant had nothing to do with planning criteria.
- Fourth, as my summary of the evidence makes clear, the scheme was only adopted after a prolonged consultation. At each stage, as I have indicated, the Members acted on the basis of reasonable reports setting out the material considerations. Before doing so, they considered the representations made.
- Fifth, the adoption of the scheme did not mean anyone had to cease trading. All it required was that those in prohibited streets had to move: in Mr. Davies’ case, very near.
- Sixth, the Council knew what the Claimants’ case on the issue of section 102 was. Their solicitor had told it.
- Seventh, Mr. Masters’ reliance on Colonial Sugar Refining v Melbourne Harbour Trust (above) (as followed in Minister of Housing and Local Government v Hartnell [1965] AC 1134) is misconceived. In that case Lord Worthington said (at page 359) that
“In considering the construction and effect of this Act the Board is guided by the well known principle that a statute should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms”
- Those cases concern statutory interpretation. Lord Worthington is saying no more than this. Where there is ambiguity, Parliament’s intention could not have been to take away rights of property without compensation. Or, as Lord Reid put it in Westminster Bank v Beverley [1971] AC508 at 529C,
“[The principle] flows from the fact that Parliament seldom intends to do that and therefore, before attributing such an intention to Parliament, we should be sure it was really intended.”
- Here, if I am right, no right of property is being taken away. At most what is happening is a restriction in the use to which the van can be put.
- (The European context possibly aside) domestic law does not oblige the Council, where two options are open to it, to adopt the route which bears compensation liability.
- In Westminster Bank v Beverley (above), the Council refused the bank planning permission on the grounds that a proposed extension might prejudice future widening of the adjoining road. It could have prescribed an improvement line. That would have had the same effect. It would also have meant that the bank received compensation. The House of Lords decided that the route chosen by the Council was lawful. As Lord Reid put it (at page 530C),
“Parliament has chosen to set up two different ways of preventing development which would interfere with street widening. It must have been aware that one involved paying compensation, but the other did not. Nevertheless, it expressed no preference and imposed no limit on the use of either. No doubt there might be special circumstances which make it unreasonable or an abuse of power to use one of those methods, but here none were found.”
- Lord Denning, in Hoveringham Gravels v Secretary of State [1975] 2 All E R, 931 at page 936e said that Westminster Bank v Minister of Housing and Local Government [above]
“shows that when there are two alternative courses open to a public authority- one of which gives rise to compensation and the other does not- the authority is entitled to adopt the one which does not give rise to compensation.”
- Mr. Masters seeks to distinguish Westminster Bank v Minister of Housing and Local Government and Hoveringham Gravels v Secretary of State. He submits that here the claimants had an existing right to property. Those cases did not concern the taking away of existing private rights of or over or enjoyment in property. He drew my attention to observations which supported his submission.
- I cannot accept that submission. Although existing rights might not have been affected in those cases, the basis of the decisions was spelled out in that part of Lord Reid’s judgment quoted above.
- The Privy Council decision in Grape Bay Ltd. v AG of Bermuda [2000] 1 WLR 574 underlines the problems in Mr. Masters’ submission. In that case the Government of Bermuda by regulation restricted the use of property. It was suggested it could not lawfully do so. At page 583 B, Lord Hoffman said this.
“It is well settled that restrictions on the use of property imposed in the public interest by general regulatory laws do not constitute a deprivation of property for which compensation should be paid…The give and take of civil society frequently requires that the exercise of private rights should be restricted in the general public interest. The principles which underlie the right of the individual not to be deprived of his property without compensation are, first, that some public interest is necessary to justify the taking of private property for the benefit of the state and, secondly, that when the public interest does so require, the loss should not fall upon the individual whose property has been taken but should be borne by the public as a whole. But these principles do not require the payment of compensation to anyone whose private rights are restricted by legislation of general application which is enacted for the public benefit. This is so even if, as will inevitably be the case, the legislation in general terms affects some people more than others. For example, rent control legislation restricts only the rights of those who happen to be landlords, but nevertheless falls within the general principle that compensation will not be payable.”
- I shall return to the balancing element of Lord Hoffman’s observations below.
- In short, it seems to me clear that under domestic law the Council was not obliged to follow the compensation route. The Council could reasonably invoke the 1982 Act. Planning enforcement could reasonably be thought not to be practicable and achieve the desired objective. The evidence suggests section 102 was considered. In any event, given the clear justification for using the 1982 Act, any failure to consider section 102 was not on the facts of this case unlawful.
The fee of £5000
- Mr. Masters submits that the Council failed to act fairly when setting the fee. No reasonable Council could have set this fee. It decided on £5000 at the outset on no proper basis. It never deviated from it. It was not proper to fix a fee and then invite consultation by inviting traders to submit accounts. It took into account irrelevant matters (for example, costs in enforcing the scheme in litigation such as the present). A total amount of £60,000 per year, which is contemplated in the report of 2 January 2001 cannot be reasonable.
- Mr. Warren emphasises that the fee would be reviewed after a year. It could be paid in instalments. There was a discretionary hardship allowance. It might be reduced on production of appropriate accounts. There is nothing to suggest this was a revenue charge. He relies on what Ms Howell says. (Paragraph 6.17)
- I do not accept Mr. Masters’ suggestion that having decided an arbitrary figure of £5000 at the beginning, representations to change it were unreasonably ignored. As the final paper made plain, the initial figure was arrived at after consideration of market stalls in Crawley. The matter was considered again at the final meeting. Comparisons were made. As became clear subsequently, the intention was there would be some flexibility.
- I accept Mr. Warren’s submissions. The final report (for 2 January 2001 Meeting) on the topic of fees, sets out the thinking. Comparisons within Crawley were drawn. They could not be said to be unreasonable. The fee was not set in stone. I do not accept (as I have indicated) that having suggested £5000 at the outset, the Council blindly stuck to it.
The European context
- Mr. Masters submits there was a breach of Article 1. He submits:
(1) The Council’s use of the 1982 Act interfered with the Claimants’ peaceful enjoyment of their possessions;
(2) They were unlawfully deprived of their possessions;
(3) The use of the 1982 Act was not proportionate.
- Mr. Warren submits:
(1) The Claimants had no possessions as defined by Article 1; there could not therefore be an interference with them;
(2) If they did, they were not deprived of them.
(3) In any event, the Council was doing no more than controlling the use of property as permitted by the second paragraph of Article 1.
The authorities
Possessions
- It is clear that the definition of possessions in Article 1 is autonomous and wide. It is by no means easy from the authorities to decide how wide.
- In Van Marle v Netherlands (1986) 8 EHRR, goodwill earned by accountants after some forty years in practice was held to be in the nature of a private right of property susceptible to protection under Article 1. In Tre Traktorer Aktiebolag v Sweden (1989) the issue was whether a restaurant licence to sell alcohol was susceptible to protection under Article 1. As it summarised in the headnote,
“economic interests connected with the running of a restaurant were possessions. The withdrawal of the licence interfered with the peaceful enjoyment of the applicant’s possessions…The interference constituted a measure of control of the use of the applicant’s property under the second paragraph of Article 1…However the burden placed on the applicant had to be weighed against the general interest. The state had a margin of appreciation. Having regard to the legitimate aim of the…policy…a fair balance had been struck between the economic interest of the applicant company and the general interest of…society.”
- In Mellacher v Austria (1989) 12 EHRR 391, reductions of rent in consequence of rent control legislation was held to constitute an interference with the enjoyment of the applicants’ rights as owners of properties. The measures amounted to control of the use of the properties.
- In Pine Valley Developments Limited and Others v Ireland 14 EHRR 319, the retrospective removal of outline planning permission was held to amount to an interference with a right of the applicants. It indicated that to hold otherwise would be “unduly formalistic.” The applicants had a “legitimate expectation of being able to carry out their proposed development.” The planning permission was a “component part” of the property. (see paragraph 51) There was an interference with the right to peaceful enjoyment of possessions.
- Mr. Masters effectively submits that the authorities show that the meaning of possession in Article 1 is wide enough to encompass the Claimants’ position. They had an economic interest in their vans. The planning permission was on the facts a component part of that economic interest. On it depended the value of the vans and the business. It was akin to goodwill. This case falls within the definition. Mr. Warren submits that to construe the planning permission on the facts of this case as property is to go wider than any authority so far has. There is no possession here. The Claimants interest is derived from the de facto use of their vans in the highway.
- Although I am doubtful that the definition of possessions is as wide as Mr. Masters contends, it is not an issue I need to decide in this case. I shall proceed on the assumption that Mr. Masters is right and that there has been (as would then inevitably follow) interference within the terms of Article 1.
Deprivation or control
- Has there been deprivation?
- De facto deprivation will suffice. As it was said in Sporrong and Lonroth v Sweden (1983) 5 EHHR, the court
“Must look behind appearances and investigate the realities of the situation complained of, since the Convention is intended to guarantee rights that are “practical and effective” it has to be ascertained whether [the] situations amount to de facto appropriation.”
- In Traktorer (above) the Court considered the meaning of deprivation. It also indicated how the matter should be approached if there was interference short of deprivation.
“Article 1 in substance guarantees the right of property. It comprises three distinct rules: the first rule, set out in the first sentence of the first paragraph is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule contained in second sentence of the first paragraph covers deprivation of possessions…; the third rule, stated in the second paragraph, recognises that…States are entitled…to control the use of property by enforcing such laws as they deem necessary in the general interest. However, the three rules are not distinct in the sense of being unconnected; the second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the first rule.”
- When dealing with the facts of that case (the removal of the restaurant licence), it said that
“Severe though it may have been, the interference at issue did not [amount to deprivation]. The applicant company, although it could no longer operate…as a restaurant business, kept some economic interests represented by the leasing of the premises and the property assets contained therein…There was accordingly no deprivation of property…the withdrawal of…[the] licence…constituted a measure of control of the use of property, which falls to be considered under the second paragraph of Article 1…”
- Mr. Masters submits there has been de facto deprivation in this case. Among other things, the effective value of the “possession” has been lost. The Claimants cannot trade where they were. Their vans have lost value. Their goodwill has been destroyed. That amounts to deprivation without compensation.
- I cannot accept that. The Claimants never had security of tenure. They retain their vans. They did not lose an ability to trade from them. They could trade from a position nearby on the same industrial estate. This is not a case of deprivation. It is a case of control within the second paragraph of Article 1.
The balance
- That leaves the balancing exercise for the court to carry out under the second paragraph of Article 1.
- Mr. Masters submits that in deciding whether the use of the 1982 Act was proportionate, the Court should regard the absence of compensation as highly material. He submits it is a highly relevant factor in determining whether a fair balance has been struck between the community at large and the rights of the individual. He refers me to Holy Monastries v Greece (1995) 20 El-IRK 48. It is of limited assistance.
- In my view, Article 1 itself bestows a very wide margin of appreciation. I have no doubt at all that the use of the 1982 Act on the facts of this case was proportionate: that it struck a fair balance and was well within the proper exercise of the Council’s discretion. Indeed, that would have been my view on these facts had I regarded this not as a case of control, but of deprivation.
- No-one submits the aims of a scheme such as this under the 1982 Act are not legitimate. There was good reason to invoke it. I have already dealt with that at length above. Fair balance does not require compensation in any case. In this case, where there was no question of the Claimants being required to cease trading, I am clear it does not. All that happened was that in the public good, and in common with others, they were required to move to a different position in the same general location. A system of appeals (outside the statute) was set up. A fee, payable by instalments, was reasonably decided upon. The fact that Mrs. Atkins has ceased to trade does not, I am afraid, make the use of the Act disproportionate.
- I add. Lord Hoffman’s analysis in Grape Bay Ltd. v AG of Bermuda (above), although not applying the Convention, seems to me effectively to set out the material considerations.
Conclusion
- In the circumstances, for the reasons I am afraid set out at some length, these applications are refused.
