Street trading — Permanent structure — Appellants building and occupying permanent refreshment kiosks under licence — Appellants granted street-trading licence in respect of kiosks — Council obtaining order that appellants cease trading and remove kiosks upon expiry of street-trading licence — Whether appellants engaging in street trading — Whether appellants having lease of kiosks — Part III of London Local Authorities Act 1990 — Part VIIA of Highways Act 1980 — Appeal allowed in part
The appellants operated refreshment kiosks at Tower Hill, London, on land designated as a highway that belonged to the first respondent council. The appellants had constructed the kiosks pursuant to a permission granted by the council under Part VIIA of the Highways Act 1980. The kiosks were substantial structures, built on foundations and connected to mains utility supplies. The council had assured the appellants that their licence to occupy the kiosks would continue to be renewed for “at least 20-odd years”.
The appellants held street-trading licences granted pursuant to Part III of the London Local Authorities Act 1990. Street trading was defined in section 21(1) of that Act as “the selling or exposing or offering for sale of any article… in a street”. Section 21(2) provided that where trading on a highway was permitted under Part VIIA of the 1980 Act, it would not be considered to be “street trading” for the purposes of the 1990 Act.
When the appellants’ street-trading licences determined, the respondents sought an order restraining them from continuing to trade and requiring them to remove the kiosks, on the basis that they were engaged in unlawful street trading. The appellants counterclaimed for the grant of a 25-year lease, or a licence of similar length, running from the date upon which construction of the kiosks had been completed. The judge found that although goods were displayed inside the kiosk, the actual selling took place in the street, and so amounted to street trading. He accordingly granted the order sought and dismissed the counterclaim.
On appeal, the appellants contended, inter alia, that they were not trading in the street, but from a permanent building, so they were not therefore subject to the regulatory code in Part III of the 1990 Act.
Held: The appeal was allowed in part.
1. The purpose of the street-trading legislation was to supplement the common law of nuisance by prohibiting street trading unless it was carried on in accordance with the regulations, regardless of whether it amounted to an interference with the public’s right to pass and repass over the highway sufficient to constitute a public nuisance. The mischief at which the legislation was aimed was not obstruction by permanent structures, but temporary obstructions such as stalls or handbarrows, which could be removed at the end of the day and required a summary remedy. Although the legislation also enabled local authorities to authorise such temporary obstructions, it was not intended to give them power to authorise the erection of permanent structures that were likely to permanently obstruct the ability of the public to pass along the highway. Obstruction of the highway by permanent structures was not a feature of street trading. Accordingly, the appellants’ business, which operated from a permanent structure, was not street trading, and the 1990 Act did not apply. The power to authorise permanent obstructions such as the kiosks came, instead, from Part VIIA of the Highways Act 1980.
2. The street-trading legislation could not be applied to the appellants’ business simply because the buyers were outside the kiosks in the street when sales took place. Parliament could not have intended that the question of whether an offence of street trading had been committed turned on a minute analysis of the moment at which a contract of sale was created, or upon which side of the counter it was made. The 1990 Act contemplated the sale of goods that were in the street, not merely a contract entered into in the street: Newman v Lipman [1951] 1 KB 333 applied.
3. The council had not promised the appellants that they could remain in occupation for a fixed term of 25 years, so no 25-year licence existed. Nor could the permission to erect the kiosks amount to a grant of a tenancy. The grant of a tenancy over the surface of a highway could not be regarded as calculated to facilitate, or as being conducive or incidental to, the discharge of a local authority’s functions as highway authority, and so did not fall within the powers conferred by section 111 of the Local Government Act 1972. In any case, the appellants had gone into occupation on the basis that there was no tenancy on offer. It followed that the judge had been right to dismiss their counterclaim.
4. The appellants had gone into occupation under revocable licences. However, the council were estopped from revoking those licences in view of the assurances they had given as to the prospects of continued renewal. The appellants had been encouraged to go onto the land and expend money on building the kiosks in the expectation that they would be allowed to remain for an indefinite, but lengthy, period. Since the appellants’ trading did not fall within the street-trading code, the council could not bring it to an end by the exercise of powers under Part III of the 1990 Act, and their purported revocation of the licence by those means was accordingly ineffective. Since there had been no other effective revocation, the council were not entitled to interfere with the appellants’ continued occupation of the kiosks, and the judge’s order against the appellants would be overturned.
Peter Knox (instructed by Thomas Boyd White, of Bexleyheath) appeared for the appellants; Jonathan Coggins (instructed by Downs Commercial, of Dorking) appeared for the first respondent council, and the second respondent, Historic Royal Palaces.
Sally Dobson, barrister