Tower Hamlets London Borough Council and another v Sherwood and another

JurisdictionEngland & Wales
JudgeLord Justice Chadwick,Lord Justice Longmore,Lord Justice Peter Gibson
Judgment Date18 February 2002
Neutral Citation[2002] EWCA Civ 229
CourtCourt of Appeal (Civil Division)
Date18 February 2002
Docket NumberCase No: A3/2001/1995

[2002] EWCA Civ 229

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CHANCERY DIVISION

MISS SONIA PROUDMAN QC (sitting as a Deputy Judge)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

Lord Justice Peter Gibson

Lord Justice Chadwick and

Lord Justice Longmore

Case No: A3/2001/1995

Between
London Borough of Tower Hamlets & Anr
Claimants/ Respondents
and
Sherwood & Anr
Defendants/ Appellants

Mr Peter Knox (instructed by Thomas Boyd White, Bexleyheath) for the Appellants

Mr J Coggins (instructed by Messrs. Downs, Dorking) for the Respondents

Lord Justice Chadwick
1

This is an appeal against an order made on 9 August 2001 by Miss Sonia Proudman QC sitting as a Deputy Judge of the High Court in proceedings brought to restrain the appellants, Mrs Marion Sherwood and Mrs Ann Miller, from continuing to trade from, and to remove, refreshment kiosks at Tower Hill. The claimants in the proceedings (and the respondents to this appeal) are the London Borough of Tower Hamlets, and Historic Royal Palaces, an incorporated charity.

2

The London Borough of Tower Hamlets (to which, for convenience, I shall refer as "the Council") is the local authority and the highway authority for Tower Hill. Historic Royal Palaces claims to be entitled to exercise whatever remain of the rights formerly exercised by the Crown in respect of l and within the area of Tower Hill and known as the "ancient liberties" (or "the Liberty") of the Tower of London. It is also, now, the holder from the Crown of a lease of that part of Tower Hill, to the west of the Tower of London, on which the appellants' kiosks are situated. Save where it is necessary to make a distinction, I will refer to the Crown, the Tower of London authorities and Historic Royal Palaces as "the Tower".

3

The kiosks from which Mrs Sherwood and Mrs Miller trade are substantial purpose built structures, erected within the past ten years at considerable expense to designs approved by the Council, the Tower and English Heritage. The structures are built on foundations. They are connected to mains supplies of the usual services. They cannot be regarded as either temporary or moveable. They were erected with the consent of the Council and the Tower in circumstances to which it will be necessary to refer in some detail later in this judgment. Thereafter the appellants were granted street trading licences under the provisions in Part III of the London Local Authorities Act 1990. It is common ground that those licences have since determined.

4

The claim to restrain the appellants from continuing to trade, and for orders requiring them to demolish and remove "their receptacles", is made on the basis that, as the Council contends, the appellants are now engaged in unlawful street trading. The appellants deny that they are street traders; and so deny that they are subject to the regulatory code contained in Part III of the Act. It is not, I think, in doubt that, if the appellants are correct on that point, the claim against them in the proceedings must fail. But, if the appellants are wrong on that primary point, they raise, as a further defence, the subsidiary point that the kiosks are not "receptacles" for the purposes of that regulatory code; with the consequence, it is said, that there is no requirement under Part III of the Act that they should remove them. They point out, as is the case, that there is no claim in the proceedings for possession of the l and on which the kiosks have been erected.

5

The appellants claim, by way of a counterclaim under CPR Part 20 to which the Council, Historic Royal Palaces and the Crown Estate Commissioners are named as defendants, that they are each respectively entitled to the grant of a 25 year lease (alternatively, a licence) from the date upon which the erection of the relevant kiosk was completed; and an order restraining the defendants to the counterclaim from removing or interfering with the kiosks or (in the alternative) restraining them from doing so without the payment of appropriate compensation.

Control of street trading under Part III of the 1990 Act

6

The regulatory code under Part III of the London Local Authorities Act 1990 is now found, following amendment by section 6 of the London Local Authorities Act 1994, in the Schedule to the 1994 Act. Control of street trading is based on the grant, conditions, variation and revocation of a "street trading licence"; that is to say, a licence granted under Part III and valid for a period of not less than six months nor more than three years. There are subsidiary provisions enabling street trading to take place lawfully under a temporary licence (that is to say, a licence valid for a single day or for a period not exceeding six months) but it is not necessary to do more than note that they exist. The primary means of control is through a street trading licence. Section 38(1) of the 1990 Act provides that it is an offence for a person who is not the holder of a street trading licence to engage in street trading in a London borough.

7

Section 24(1) empowers a borough council, if they consider that street trading should be licensed in their area, to pass a resolution ("a designating resolution") designating any street within the borough as a "licence street". A street trading licence is granted in order to authorise trading in a licence street. This is made clear by section 23 of the Act, which provides that it is unlawful for any person to engage in street trading in a licence street unless authorised to do so by a street trading licence.

8

Section 24(1) of the Act provides, in terms, that the borough council may by subsequent resolution rescind a designating resolution. The consequences of "de-designation" are not spelt out; although it seems reasonably clear that, from the time when the subsequent resolution takes effect, the street ceases to be a licence street. It is unnecessary to decide whether a street trading licence granted in respect of that street thereupon ceases to have the effect of authorising trading in that street. What is not in doubt is that an existing street trading licence granted in respect of that street could not be renewed on an application under section 25(1) of the Act – see section 25(4)(a)(iv). The point is not a live one in the present appeal, for the reason that the existing street trade licences determined by effluxion of time on 31 March 2000. The period thereafter during which the appellants were permitted to continue trading was covered by the grant of temporary licences, which have also determined. Whatever rights the appellants may now have to trade from their respective kiosks, those rights are not enjoyed under any current street trading or temporary licence.

The statutory definition

9

The judge held that the appellants were engaged in street trading. Whether she was correct to take that view is the first issue in this appeal.

10

"Street trading" is defined, for the purposes of Part III of the 1990 Act, in section 21(1). It means, so far as material:

"the selling or exposing or offering for sale of any article … in a street for gain or reward".

In that context "street" includes: "(a) any road or footway; (b) any other area, not being within permanently enclosed premises, within 7 metres of any road or footway, to which the public have access without payment; and (c) any part of such road, footway or area". But the definition in subsection (1) of section 21 is subject to the provisions of subsection (2). The relevant provisions, in the context of this appeal, are these:

"The following are not street trading for the purposes of this Part of the Act: —

(a) … (e) …

(f) the use for trading under Part VIIA of the Highways Act 1980 of any object or structure placed on, in or over a highway;

(g) the operation of facilities for recreation or refreshment under Part VIIA of the Highways Act 1980;

(h) … (i) …

(j) the sale, exposure or offer for sale of articles … on any l and comprised in a street (not being part of a highway) within the meaning of subsection (1) above by the owner or occupier of the l and or by a bona fide employee of the owner or occupier of the l and."

11

The appellants' primary contention is that, independently of subsection (2), they do not fall within the definition in subsection (1) of section 21. As it is put in the skeleton argument prepared for the purposes of this appeal:

"As a matter of impression, it seems rather odd to describe someone who trades from inside a permanent building which he (or rather she) alone occupies, with foundations dug into the ground, and connected to the underground water and electricity supplies and sewage system, as a "street trader" – i.e. someone who is selling articles "in a street" (see the definition in section 21(1)). Rather, she is selling articles in a kiosk. That is where the articles are kept, and that is where she is when she sells them."

12

In support of that primary contention – and, in the alternative, as an independent route to the conclusion that they are not engaged in street trading – the appellants rely on paragraph (f) in section 21(2) of the Act. The point is put in two ways. First, it is said that that paragraph expresses what would otherwise be implied: that trading from a permanent structure on the highway is not within the mischief at which Part III of the 1990 Act was directed and so not within the scope of the words used in section 21(1). Second, that even if trading from a permanent structure on the highway would otherwise be within the scope of those words, it is taken out of the definition of street trading by that paragraph in section 21(2).

13

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1 cases
  • Arklow Holidays Ltd v Bord Pleanála and Others
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    • 21 July 2011
    ...681. Talbot v. Berkshire County Council [1994] Q.B. 290; [1993] 3 W.L.R. 708; [1993] 4 All E.R. 9. Tower Hamlets LBC v. Sherwood [2002] EWCA Civ 229, (Unreported, Court of Appeal, Sonia Proudman Q.C., 18th February, 2002). Van Schijndel and Van Veen v. SPF (C-430/93 and 431/93) [1995] E.C.R......

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