Car park – Public space – Meaning of street – Respondent operating franchise from private car park in business village – Appellant council bringing proceedings against respondent for street trading without licence – Magistrates finding in favour of respondent – Whether car park on private land constituting street – Appeal allowed
The respondent operated a food franchise from the car park of a business village. He sold tea, coffee and snacks from a van adapted for that purpose to many regular customers from the offices located in the village. The appellant local authority informed the respondent that he required a licence to carry on his business activities. However, he argued that a licence was not required since he was operating on private property.
The appellants brought proceedings in the magistrates’ court alleging that the respondent had engaged in street trading without authorisation under Schedule 4 to the Local Government (Miscellaneous Provisions) Act 1982, contrary to para 10(1)(b). At the trial, a question arose as to whether the car park fell within the definition of “street” in para 1(1)(a) of Schedule 4, as “any road, footway, beach or other area to which the public have access without payment…”.
The magistrates found that the car park formed part of an office development comprising an office community situated on private land and used solely by office personnel, their visitors and delivery men. Moreover, there was no evidence of public use and no need to infer such use since it was unlikely that members of the public would use or misuse the car park. Accordingly, the magistrates concluded that there was no evidence to prove directly or by inference that the site used by the respondent was an area to which the public had access and, therefore, it was not a street within para 1(1)(a).
The appellants appealed by way of case stated. The question for the High Court was whether the magistrates had correctly interpreted the extended definition of the word “street” in para 1(1)(a) because they had considered authorities that dealt with the meaning of “public place” under the Road Traffic Act 1988 rather than the meaning of “street” within the 1982 Act. The appellants argued that the magistrates should have considered whether the public could potentially access the area on the payment of a fee.
Held: The appeal was allowed.
The magistrates had erred in their interpretation of the word “street” for the purposes of para 1(1)((a), in particular in failing to address the question of access without payment. The magistrates had before them ample evidence to conclude that the area from which the respondent operated was a street within para 1(1)(a) and they had been wrong not to reach that conclusion.
It was important to bear in mind the purpose of the 1982 Act, which provided the first codified regulation of street trading and enabled a local authority not only to assess the suitability of sellers operating without premises but also the nuisance or obstruction that they might cause. Therefore, it was not surprising that “street” was widely defined in para 1(1)(a) and it was unnecessary to limit that definition by introducing the concept of public place for other definitions in different legislation: R v Spence [1999] Crim LR 975 distinguished.
It was immaterial whether premises were private property for the purposes of considering what constituted a street under para 1(1)(a). However, it was important not to confuse a public space with “other areas to which the public had access without payment”. The key question was whether member of the public were entitled to go to a place without payment and not whether they actually did so: O’Gorman v Brent London Borough Council 91 LGR 555 considered.
Richard Banwell (instructed by the legal department of West Berkshire Council) appeared for the appellants; Timothy Boswell (instructed by Gardiner Leader, of Newbury) appeared for the respondent.
Eileen O’Grady, barrister
