SCHEDULE 3 continued
(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.
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) 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 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 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.
(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.
(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.
(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
(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.
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(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.
(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.
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.
(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.
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.
(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.
(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 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 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.
(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.
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
(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.
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) 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.
(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.