Ipsofactoj.com: International Cases [2002] Part 13 Case 1 [CAEW]


COURT OF APPEAL, ENGLAND & WALES

Coram

Sherwood

- vs -

London Borough of Tower Hamlets

LORD JUSTICE PETER GIBSON

LORD JUSTICE CHADWICK

LORD JUSTICE LONGMORE

18 FEBRUARY 2002


Judgment

Chadwick LJ

  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 land 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 land 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:-

    ....

    (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;

    ....

    (j)

     

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

  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. As a further and alternative route to the conclusion that they are not engaged in street trading the appellants rely on paragraph (j) of section 21(2) of the Act. It is said that each of the appellants is the occupier of the land on which the relevant kiosk has been erected; that the sale, exposure or offer for sale of articles sold from that kiosk takes place on that land; and that that land, if comprised in a street, is comprised in a street which is not part of a highway. In support of the third limb of that contention each of the appellants submits that the land on which her kiosk has been erected is not comprised within a way used by the public to pass from one place to another; but is merely part of a wider area over which the public have had access. Mrs. Miller (but not Mrs. Sherwood) advances the additional argument that the land on which her kiosk has been erected has never been dedicated by the Crown as highway.

    TRADING UNDER PART VIIA OF THE HIGHWAYS ACT 1980

  14. A distinction is drawn, by the provisions in paragraphs (f) and (g) of section 21(2) of the London Local Authorities Act 1990, between “street trading” for the purposes of Part III of that Act and trading under Part VIIA of the Highways Act 1980. Part VIIA (which comprises sections 115A to 115K) was inserted into the Highways Act 1980 by an amendment made by section 20 of the Local Government (Miscellaneous Provisions) Act 1982.

  15. Part VIIA of the 1980 Act applies to a highway not used by vehicular traffic. In particular, it applies to a highway in respect of which a pedestrian planning order is in force, to a footpath, to a footway and to a local Act walkway – see section 115A(1) of the Act. In that context “footpath” and “footway” have the meanings assigned by section 329(1) of the Act. It has not been in dispute on this appeal that, if the appellants’ kiosks have been erected in, on or over a highway, then the highway is one to which Part VIIA of the 1980 Act applies.

  16. Section 115B(1) of the 1980 Act empowers a council (including, in that context, the council of a London Borough – see section 329(1) of the Act) to place structures on, in or over a highway to which Part VIIA applies for the purpose of enhancing the amenity of the highway and its immediate surroundings or of providing a service for the benefit of the public or a section of the public. Section 115C(1) empowers a council to provide, maintain and operate facilities for recreation or refreshment or both on a highway to which Part VIIA applies. Section 115E(1) empowers a council to grant a person permission to do on, in or over a highway to which Part VIIA applies anything which the council could do under sections 115B or 115C; and to use structures on, in or over such a highway for a purpose which will result in the production of income.

  17. Those powers are exercisable subject to restrictions. In particular, where a structure is to be placed on, in or over a highway for a purpose which would result in the production of income, or is to be used to provide facilities for refreshment, the powers are not to be exercised without the consent of “the frontagers with an interest” – see sections 115B(6) and (7), 115C(4) and 115E(2) and (3). In that context “frontagers” means the owners and occupiers of any premises adjoining the part of a highway on, in or over which a structure would be placed or on which facilities for refreshment would be provided; but frontagers have an interest only in proposals to place structures or to operate facilities wholly or partly between their premises and the centre of the highway – see section 115A(7) of the Act.

  18. Section 115F(1) of the 1980 Act empowers a council to grant a permission under section 115E upon such conditions as they think fit, including conditions requiring the payment to the council of such reasonable charges as they may determine. But, except where the council are the owners of the subsoil beneath the part of the highway in relation to which the permission is granted, the charges may not exceed “the standard amount”. In a case where the structure is erected and operated by the person to whom permission is granted, the standard amount means such charges as will reimburse the council their reasonable expenses in connection with granting the permission – see section 115F(3)(c) of the Act.

  19. It is not suggested by the appellants that they, or either of them, have been granted permission to erect and operate the kiosks under section 115E of the 1980 Act. It is clear that the requirements as to notices and consents subject to which the powers under that section are exercisable were not satisfied. But, it is said, Part VIIA of the 1980 Act was enacted for the purpose of enabling a council to do what it could not otherwise do – that is to say, to erect or authorise the erection of permanent structures on, in or over the highway, to permit trading from such structures and (incidentally) to control such trading through the imposition of conditions under section 115F(1) of the Act. In particular, Part VIIA of the 1980 Act enabled a council to do what it could not do under the street trading legislation (then contained in Part IV of the London County Council (General Powers) Act 1947).

  20. The obvious feature of a permanent structure in, on or over the highway is that it is likely permanently to obstruct (to a greater or less degree) the ability of the public to pass along the highway. In that context it is pertinent to note the limitation placed, by the provisions of section 115D, on the exercise by a council of its powers under sections 115B and 115C (and so, by extension, the powers under section 115E) of the 1980 Act. The power to erect a permanent structure (or to grant permission for the erection of such a structure) cannot be exercised so as to prevent traffic (other than vehicular traffic) entering or passing along a highway to which Part VIIA applies. But, by necessary inference, the power can be used notwithstanding that the structure will obstruct traffic on such a highway.

  21. Obstruction of the highway by permanent structures is not, it is said, a feature of street trading; and the street trading legislation was never intended to be used to authorise or permit obstruction by permanent structures. Nor was it intended to regulate trading from such structures. There were and are ample powers in a highway authority to prevent the use for trading of permanent structures erected in, on or over the highway. The highway authority is under a duty to assert and protect the rights of the public to the use and enjoyment of the highway – see, now, section 130 of the 1980 Act. It is an offence to erect a building in a highway which consists of or comprises a carriageway – see, now, section 138 of that Act. Where a structure has been erected on a highway otherwise than under a provision of the Act, the highway authority can require it to be removed – see, now, section 143 of the Act. The street trading legislation, now found in Part III of the 1990 Act, was never required – and was not enacted – in order to control trading from permanent structures. On a proper understanding of that legislation, trading from permanent structures is, and always has been, outside the concept of “street trading”.

    THE LEGISLATIVE HISTORY

  22. In order to make good these submissions Mr. Knox, counsel for the appellants, took us through the legislative history of the street trading provisions now found in Part III of the London Local Authorities Act 1990.

  23. Before examining that history, however, it is pertinent to have in mind that it has long been an actionable nuisance at common law to obstruct a highway; but that not every obstruction of the highway constitutes an actionable nuisance – see R v United Kingdom Telegraph Co Ltd (1862) 31 LJMC (NS) 166 and the earlier cases cited at pages 168 and 169, Attorney General v Wilcox [1938] Ch 934, at pages 939-940 and Trevett v Lee [1955] 1 WLR 113 (CA), at pages 116-117. The principle was stated by Mr. Justice Farwell in the Wilcox case in these terms:

    Where there is a public right of way, whether a public footpath or a public right of way of a wider nature over a defined area of land, the public have a right to use that defined area for the purpose of passing and re-passing, and they are entitled, prima facie, to use any part of it between the hedge or fence or other boundaries of the land, whether it be the grass verge or a portion of the way which is metalled or made up. Their right, prima facie, is to use any part of the way for the purpose of passing and re-passing. Therefore, anything which is placed on the defined area in question which prevents to the smallest degree any member of the public using the whole of the way is an obstruction, but it does not follow that because some person has placed in the way something which is an obstruction in the sense that thereby a member of the public cannot put his foot on some particular portion of the highway that that person has thereby committed an actionable nuisance. As I have said, prima facie, it is an unlawful act to put anything on a public way which obstructs in the smallest degree the exercise by the public of their rights; but the Court will not interfere where what has been done is something which is of so trivial a nature as not to constitute a substantial interference, as, for instance, in a case where the alleged obstruction is only of temporary nature.

  24. The history of legislative control of street trading in London can be traced from an Act of 1817 (57 Geo III, cap.xxix) for “better paving, improving and regulating the Streets of the Metropolis, and removing and preventing Nuisances and Obstructions therein”, sometimes known as the Metropolitan Paving Act 1817 but more commonly as Michael Angelo Taylor’s Act. The preamble to the Act explained its purpose:

    Whereas many of the Streets and public Places within that part of the Metropolis which is situate within the Weekly Bills of Mortality, and the Parishes of Saint Pancras and Saint Mary le bone, ..., and are paved and repaired and regulated, and Obstructions and Nuisances therein are removed, under the Direction of certain Commissioners ....; and the Pavements of many of such Streets and public Places .... frequently contain Nuisances or Obstructions which are offensive and injurious: And Whereas it would materially tend to the remedying of .... such Nuisances, if more summary means of compelling the speedy Reparation of the Pavements of such Streets and public Places .... were given to the said several commissioners ....

    Section 65 of the 1817 Act made it an offence, punishable summarily, to set or place “in or upon or over any Part of the Carriage or Footways in any Streets or public Places” in any district to which the Act extended:

    any Stall Board, Chopping Block, Shew Board, on Hinges or otherwise, Basket, Wares, Merchandize, Casks or Goods of any Kind whatsoever

    or to set out, lay or place on any carriageway, save for the time necessary for loading or unloading:

    any Coach, Cart, Wain, Waggon, Dray, Wheelbarrow, Handbarrow, Sledge, Truck or other Carriage.

  25. Some fifty years later control over street trading was extended to the whole of the metropolis by section 6 of the Metropolitan Streets Act 1867 (30&31 Vict, cap. cxxxiv) as amended by section 1 of the Metropolitan Streets Amendment Act 1867 (31&32 Vict, cap. v). Section 6 of the principal Act provided that it was unlawful to allow any goods or other articles to rest on any footway or other part of a street, or otherwise to allow goods or other articles to cause obstruction or inconvenience to the passage of the public for a longer time than was absolutely necessary for loading and unloading. But that section was amended, within the same year, to exclude from its provisions: “Costermongers, Street Hawkers, or itinerant Traders so long as they carry on their Business in accordance with Regulations from Time to Time made by the Commissioner of Police, with the Approval of the Secretary of State”.

  26. The position, therefore, following the 1867 legislation, was that (within the metropolis) a code regulating street trading had been superimposed on the common law of nuisance. Whether or not the exposure of goods for sale on temporary stalls or handbarrows constituted a sufficient interference with the right of the public to pass and re-pass over the footway or carriageway in a street to constitute a public nuisance, there was a general prohibition against such street trading unless it was carried on in accordance with prescribed regulations. But there was nothing in that legislation, or in the earlier legislation, to suggest that trading from permanent structures was intended to be within its scope. The reason, as it seems, to me, is obvious. The mischief at which that legislation was aimed was not obstruction by permanent structures – for which the common law was thought to provide a sufficient remedy – but temporary obstruction from stalls or handbarrows which could be removed at the end of the day’s trading and which required a summary remedy. It could not have been contemplated that the “Costermongers, Street Hawkers and itinerant Traders”, who were to be permitted to trade in accordance with prescribed regulations would do so from permanent structures; or, to put the point another way, it could not have been intended that the Commissioner of Police, with the approval of the Secretary of State, was to have power to override the common law by regulations which permitted the erection of permanent structures which obstructed the highway.

  27. A more formal regulatory code was introduced as Part VI of the London County Council (General Powers) Act 1927. Section 30 provided that it was unlawful for any person “to sell or expose for sale any article or thing from or upon any barrow cart stall or other receptacle occupying a stationary position at a place in the carriageway or footway of any street in any metropolitan borough without a licence from the borough council authorising him to do so”. Licences were granted for a period of one year – see section 34. Section 36(1) provided for local byelaws relating (amongst other matters) to “the allocation maximum dimensions and arrangement of barrows carts stalls and other receptacles.”

  28. Part VI of the 1927 Act was repealed and replaced by Part IV of the London County Council (General Powers) Act 1947 – see section 35 of the later Act. Section 15 of the 1947 Act contained a definition of “street trading” in substantially the same terms as those now contained in section 21(1) of the 1990 Act – that is to say “....  the selling or exposing or offering for sale of any article or thing in a street”. That section did not contain any provisions comparable to those now contained in section 21(2) of the 1990 Act. But the mischief at which Part IV of the 1947 Act was directed can be seen from the provisions of section 17:

    (1)

    Subject to the provisions of this Part of this Act it shall be unlawful for any person –

    (a)

    to engage in street trading in or from a stationary position in any street within a borough; or

    (b)

    to engage in street trading in any designated street whether or not in or from a stationary position;

    unless that person is authorised to do so by a street trading licence.

    (2)

    For the purposes of this Part of this Act a person shall be deemed to engage in street trading on any occasion on which he sells or exposes or offers for sale any article or thing in a street whether or not he regularly carries on the business of street trading and a person shall be deemed to engage in street trading in or from a stationary position if while he is engaged in street trading he or any article or thing exposed or offered for sale by him or any receptacle used by him in connection with the street trading occupies a stationary position in the street.

    The 1947 Act provided for regulation through a system of annual licences (and temporary licences) which, again, is substantially the same as that now found in Part III of the 1990 Act. In Newman v Lipman [1951] 1 KB 333, Lord Goddard, Chief Justice, described the purpose of Part IV of the 1947 Act in these terms, at page 337:

    It is an Act to prevent obstruction, and I think that its whole scheme shows that it is aimed at barrow-boys, costermongers, hawkers or others who expose goods in the street for sale and offer them for sale at that time.

  29. In my view Mr. Knox is correct to submit, as he does in paragraph 18 of his skeleton argument, that there is nothing in any of the street trading legislation (prior to 1982) to suggest that it was intended to apply to trading from permanent structures. It is important to keep in mind that that legislation (at least from 1867) was permissive as well as restrictive. It supplemented the common law by providing a summary remedy in cases where, applying the substantial interference test identified by Mr. Justice Farwell in Attorney General v Wilcox [1938] Ch 934, it might have been difficult to invoke the common law of nuisance; but it provided a clear indication that trading under a licence would not be regarded as unlawful. It is difficult to believe that Parliament could have intended that a person trading from a temporary stall or handbarrow under a licence should be at risk of prosecution and conviction on an indictment for public nuisance. But it is equally difficult to believe that Parliament intended that London boroughs were to have powers, under a regulatory system which provided for annual licences, to authorise the erection of permanent structures on the highway.

  30. Part IV of the 1947 Act continued in force in respect of boroughs in Greater London (with some amendment, not here material, by Part VII of the London County Council (General Powers) Act 1957 and the Greater London Council (General Powers) Act 1974) until it was repealed by section 40 of, and schedule 2 to, the London Local Authorities Act 1990. In particular, it was in force in 1982 when the provisions now contained in Part VIIA of the Highways Act 1980 were enacted by the Local Government (Miscellaneous Provisions) Act 1982.

    THE INTER-RELATION BETWEEN THE STREET TRADING LEGISLATION AND PART VIIA OF THE HIGHWAYS ACT 1980

  31. In my view Mr. Knox is right, also, to submit that the obvious purpose of Part VIIA of the 1980 Act was to enable a council to do what it could not otherwise do – that is to say, to obstruct the highway by erecting, or authorising the erection of, permanent structures on, in or over the highway for the provision of amenities to pedestrians. In particular, Part VIIA of the 1980 Act enabled a council to do what it could not do under the street trading legislation (then contained in Part IV of the London County Council (General Powers) Act 1947).

  32. The provisions which became Part VIIA of the 1980 Act are set out in Part I of schedule 5 to the 1982 Act. But it is important to note that the 1982 Act also contained provisions relating to street trading in local government districts outside London. Section 3 of the 1982 Act gave power to a district council to adopt the street trading provisions set out in schedule 4. In that context “district council” excludes the council of a London borough –see section 1(1) of the Local Government Act 1972. No doubt it was thought unnecessary to extend the power in section 3 of the 1982 Act to London borough councils in the circumstances that street trading in London was already regulated under the 1947 Act.

  33. The definition of street trading in schedule 4 to the 1982 Act is in substantially the same terms as that subsequently enacted in Part III of the 1990 Act. In particular, the definition in paragraph 1(1) is subject to the provisions contained in paragraph 1(2). Paragraph 1(2) contains provisions subsequently enacted (in respect of street trading in London) as section 21(2) of the 1990 Act. Sub-paragraph (g) of paragraph 1(2) in schedule 4 of the 1982 Act provided, in terms, that the use for trading under Part VIIA of the 1980 Act of an object or structure placed on, in or over a highway was not street trading. It is plain that the provisions contained in schedule 5 to the 1982 Act and inserted as Part VIIA of the Highways Act 1980 were to be read as complementary to the street trading provisions contained in schedule 4 to the same Act.

  34. Following the enactment of the 1982 Act the position in a local authority district outside London, where the district council had adopted the street trading provisions in schedule 4 of that Act, was reasonably clear. Trading from temporary stalls and handbarrows was regulated by schedule 4. Such trading was unlawful unless authorised by a street trading (or temporary) licence granted under the regulatory code contained in that schedule. The placing of a permanent structure in, on or over the highway, save under the provisions introduced by schedule 5 (and inserted as Part VIIA of the 1980 Act) was – prima facie, at least – unlawful at common law. It was also unlawful under section 138 of the 1980 Act; and the highway authority could have the structure removed under section 143 of that Act. There was no need for specific provisions regulating trading from a permanent structure placed in, on or over the highway without authority. The remedy was either to remove the structure or to grant permission for its use under Part VIIA and (in the latter case) to regulate its use through conditions imposed under section 115F of the 1980 Act. And, for the avoidance of doubt, it was provided that the use for trading under Part VIIA of an object or structure placed on, in or over a highway was not street trading – see paragraph 1(2)(g) of schedule 4.

  35. In describing the effect of paragraph 1(2)(g) of schedule 4 to the 1982 Act, I have used the phrase “for the avoidance of doubt”. That reflects my view that, even without paragraph 1(2)(g) of schedule 4, the use for trading under Part VIIA of the 1980 Act of a permanent structure erected on the highway would not be street trading. In that context it is important to keep in mind that, following the 1982 Act,

    1. the street trading provisions in schedule 4 of the 1982 Act did not apply in local authority districts outside London unless they had been adopted by the district council; and

    2. the street trading provisions applicable in London boroughs did not contain any provision comparable to that in paragraph 1(2)(g) of schedule 4 until the 1947 Act was replaced by the London Local Authorities Act 1990.

    Parliament must be taken to have appreciated those matters when it enacted the 1982 Act. It seems to me impossible to attribute to Parliament an intention that trading with the permission of a London borough council granted under Part VIIA of the 1980 Act, from within a permanent structure erected with permission granted under that Act, could, nevertheless, be unlawful street trading if the trader had not also obtained an annual licence from the council under section 21 of the 1947 Act.

  36. It is, I think, much more likely that Parliament took the view that, for the reasons which I have already set out, trading from within a permanent structure erected in a street was outside the scope of the street trading legislation; so that the position in relation to trading from a permanent structure was the same whether the street was or was not in a London borough, and (if in a local authority district outside London) whether or not the district council had adopted the street trading code set out in schedule 4 to the 1982 Act. In each case, trading from a permanent structure erected in the street under, or with permission granted under, the powers in Part VIIA was not unlawful; trading from a permanent structure which had been erected without permission was, prima facie, unlawful under the general law.

  37. The position under the general law, and the difficulties to which the common law test of “substantial interference” could give rise in a trial on indictment before a jury, are illustrated by the facts in R v Bartholomew [1908] 1 KB 554. The obstruction was caused by a coffee stall of a permanent character, to which gas and water were laid from the mains supply, erected with the consent of the corporation of the borough, in a street in Reading. It was held, on an appeal by way of case stated to the Court of Crown Cases Reserved, that the jury’s verdict that “the coffee stall was an obstruction, but that it did not appreciably interfere with the traffic in the street” was too ambiguous to support a conviction. It is plain that, following the enactment of Part VIIA of the Highways Act 1980 – as schedule 5 to the 1982 Act – permission to erect and trade from such a stall could have been given by the local authority under those provisions. But, more pertinently in the present context, it would have been open to Parliament to bring such a case within the street trading code when it enacted the 1982 Act. But Parliament did not choose to take that course.

  38. If that were the position between the introduction of the Part VIIA powers by the enactment of schedule 5 to the 1982 Act and the application of the schedule 4 code to London boroughs by the enactment of the 1990 Act – as I think it was – then I can see no reason to hold that that position was changed by the enactment of the 1990 Act or by the subsequent changes made to Part III of that Act by the London Local Authorities Act 1994. In particular, the incorporation, as paragraph (f) of section 21(2) of the 1990 Act, of the provision already contained in paragraph (g) of schedule 4 to the 1982 Act did not alter the position.

    THE JUDGMENT BELOW

  39. The judge accepted that the object of Part VIIA of the 1980 Act was to enable a council to obstruct the highway – more precisely, a highway to which Part VIIA applies – by erecting, or permitting the erection of, permanent structures for the purpose of providing amenities to pedestrians. She rejected the submission that permission to erect the kiosks in the present case must be deemed to have been given under Part VIIA. As she pointed out, the statutory procedure as to the giving of notices and the obtaining of consents had not been followed by the Council. The Council could not be said to have exercised a power which (absent compliance with the statutory procedure) it did not have. That is, I think, now accepted by the appellants. They rely on the provisions of Part VIIA for a different purpose, as I have sought to explain.

  40. The judge addressed the question whether trading from a permanent structure in a street was street trading for the purposes of Part III of the 1990 Act in the following passage of her judgment:

    The defendants trade through an open hatch in the kiosk; although the defendants are within the kiosk, the customers remain in the street at all times. Accordingly, while “the exposing .... for sale” (i.e. the display) takes place in the structure, the actual “selling” takes place, at any rate on the buyer’s side, in the street.

    It seems to me doubtful whether that is correct as a matter of contractual analysis. The better view, I think, is that the sale takes place when the seller accepts the buyer’s offer to purchase; but it may depend on whether the price of each article for sale is displayed. Nevertheless, to treat the display of the articles as a standing offer for sale which the buyer can accept – so that the buyer’s request for the article creates a binding contract without more – has, to me at least, the flavour of unreality.

  41. But I do not think it necessary to resolve the point. I cannot believe that Parliament intended that the question whether or not an offence of street trading had been committed turned on a minute analysis of the moment at which a contract was created – or on which side of the counter the contract for sale was made. As Lord Goddard, Chief Justice, pointed out in Newman v Lipman [1951] 1 KB 333, at pages 336-337:

    .... looking at the whole scope of this Act, and the expressions used in it, that it is meant to cover only the case of a man who is actually offering for sale goods which are in the street. It is not meant to apply to a contract or agreement made between two people in the street but who are not at the time dealing in goods which are there physically present. If we read the definition of “street trading” in s. 15 sub-s.1, in this way: “‘street trading’ means the selling or exposing or offering any article in a street for sale” the matter, I think, becomes reasonably clear. I think that that is clearly what is aimed at by the Act .... The Act contemplates the sale of goods which are in the street, and not merely a contract entered into in the street.

    If trading from within a permanent structure erected in the street is within the street trading legislation, the question whether the sale takes place within or immediately outside the structure is immaterial. But if, as I would hold, the street trading legislation is not intended to apply to trading from within a permanent structure erected in a street, then it would be bizarre to reach the conclusion that the legislation did apply because the buyer (but not the seller nor the goods offered for sale) was outside that structure when the sale took place.

    THE CLAIM IN THIS ACTION

  42. It follows that I think that the judge was wrong to reach the conclusion that the appellants were subject to the regulatory code contained in Part III of the 1990 Act – that is to say, that the appellants were engaged in street trading.

  43. In those circumstances it is unnecessary to consider the separate defence under paragraph (j) of section 21(2) of the 1990 Act. If the kiosk has been erected on, in or over a highway to which Part VIIA of the 1980 Act applies, as the respondents contend and the judge held, paragraph (j) has no application. If, on the other hand, the kiosk has been erected on a part of the street which is not part of the highway, as the appellants contend, then paragraph (j) takes trading from the kiosk out of the definition of street trading, for the reason that “the sale, exposure or offer for sale” takes place within the kiosk – that is to say, on land occupied by the seller.

  44. Nor is it necessary to consider the appellants’ contention that, because the kiosks are not “receptacles” within the meaning of Part III, no order can be made for their removal. But it is convenient to note that the definition of “receptacle” in section 21(1) of the 1990 Act, and the power to remove receptacles contained in section 35 of the Act, lend support to the view that a permanent structure was not intended to fall within that definition.

  45. As I have said, it is (I think) common ground that if the appellants were not subject to the regulatory code in Part III of the 1990 Act, then the claim made against them in this action fails. The claim is put on the sole basis that licences granted to them under that code have determined.

  46. In fairness to the judge I should add that the submission that trading from within a permanent structure erected in a street was outside the scope of the street legislation does not seem to have been developed before her (if at all) to the extent and in the detail that it was developed in this Court.

    THE COUNTERCLAIM

  47. As I have said, the appellants claim by way of a counterclaim 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. It is necessary, therefore, to examine the circumstances in which the kiosks were erected. But, before doing so, it is convenient to mention a feature of street trading licences to which it has not yet been necessary to refer – that is to say, the expectation of continuity and the right of family members to succeed to a licence on the death or infirmity of an existing licence holder.

    THE EXPECTATION OF CONTINUITY AND THE RIGHT OF SUCCESSION

  48. An application for a street trading licence is made in writing under section 25 of the Act. The licence cannot be granted unless the street in which the applicant desires to trade is a licence street and the borough council are satisfied that there is enough space in the street for the applicant to engage in the trading in which he desires to engage without causing undue interference or inconvenience to persons or vehicular traffic using the street – see section 25(4). Subject to that, and to certain other prohibitions in section 25(4) to which it is unnecessary to refer, the application must be granted unless the borough council are satisfied that it ought to be refused on one or other of the grounds specified in section 25(6) – see section 25(6). The grounds in subsection (6) include:

    (a)

    that there are enough traders trading in the street or in any street adjoining the street in respect of which the application is made in the goods in which the applicant desires to trade.

  49. The effect of section 25(6)(a) of the Act is likely to be that a person applying to renew an existing licence in respect of an established site will be at an advantage over new applicants. Unless there has been some change of circumstances – or, for example, he has proved unsuitable to hold the licence – the holder of an existing licence can expect that the licence will be renewed periodically (usually at three yearly intervals). Further, he can expect to be able to pass that advantage on to a nominated relative as his successor on his death or when the time comes for him to retire – see section 26 of the Act which requires, at sub-section (1)(b), that:

    If during the said period of 28 days [from the death or retirement of the licensee, or from receipt of notice that he is unable to continue on the grounds of ill-health] the person specified by the holder of the licence, when making application for the licence, as the relative to whom he desired the licence to be granted in any of the events mentioned in paragraph (a) above makes application for the grant of a licence in respect of the position or place available in the street the borough council shall, save as provided by paragraphs (b) to (e) of subsection (6) of section 25 (application for street trading licences) of this Act grant a licence to that person.

  50. The expectation that a licence will be renewed – and can be passed on to another member of the licensee’s family – gives a street trading licence in respect of a popular site or “pitch” some of the characteristics of a family asset. Although, in law, precarious, the licence is, in practice, likely to endure as a source of income for many years; provided, of course, that the holder does nothing which would lead to it being revoked.

    THE FACTUAL BACKGROUND

  51. I turn, now, to the circumstances in which the present kiosks were erected. Mrs. Ann Miller is the widow of Mr. Miles Miller, who died in February 1997. For very many years Mr. Miller’s family had operated a refreshment stall – known as the “Cicely” stall – on Tower Hill. We were shown a copy of a licence, dated 21 August 1914, granted by the Commissioners of Works and Public Buildings to Mr. Miller’s great great grandfather, Mr. George Davis, for the operation of a coffee stall on Tower Hill within the Liberties of the Tower of London; but there was evidence that trading had begun some 25 years before that date. The stall was not fixed to the ground and it was renewed from time to time. It seems that Mr. Miller took over the street trading licence on the death of his grandmother in 1989; although he had been involved in running the stall for some years before that.

  52. Mrs. Marion Sherwood was married to the late Mr. Ted Hall. He took over his mother’s stall on Tower Hill in or about 1970. Mr. Hall died in March 1989, and Mrs. Hall (as she then was) took over the stall, naming it “Ted’s” in memory of her late husband. As in the case of Mr. Miller’s stall “Cicely”, “Teds” was not fixed to the ground. It could be moved on its own wheels. Mrs. Hall applied for a street trading licence in her own name in or about April 1989. Thereafter, negotiations with the Council were carried out on her behalf, as well as on his own behalf, by Mr. Miller.

  53. On 25 May 1989 the Council wrote to Mr. Miller in connection with the grant to him of a street trading licence. The letter contains the sentence:

    It is further made a condition of the licence that a new stall, of a design approved by English Heritage, the Planning Authorities and Environmental Health, be in place by 1st April 1990.

    Matters did not proceed as quickly as had been envisaged in that letter. But Mr. Miller and Mrs. Sherwood (who had remarried in 1991) instructed architects, who prepared plans and drawings for a new structure. On 18 December 1991 Mr. Miller wrote to the Council, enclosing copies of the planned layout for both his and Mrs. Sherwood’s kiosks. The letter continued:

    I understand that the current street trading licence will be replaced by a more permanent lease/licence arrangement. The current stall holders will be responsible for the cost involved in design, planning and building these new kiosk[s] which currently is estimated at £30,000 each before internal fittings, therefore would request that this new arrangement be for as long a term as possible.

    Conditional planning permission was granted on 12 March 1992. On 25 May 1992 Mr. Miller wrote again to the Council:

    Planning permission has been granted, but we are unable to proceed any further until the lease terms are agreed. Would you please initiate some form of agreement or would you like me to instruct our solicitors to forward a draft agreement for your approval.

    He followed that letter with a number of telephone calls and, eventually, with a letter of 17 September 1993:

    As you know, planning permission for two permanent kiosks has been received from the London Borough of Tower Hamlets. This was given on the 12th March 1992.

    Since then we have been endeavouring to make arrangements such that it would be possible to build these kiosks and whist we have been attempting to resolve matters through the Borough Street Trading Office, we have been informed that the matter should be addressed to the Valuation Department, as some form of lease or licence to build will be required, as the land on which the kiosks will be constructed is the property of the Borough.

    We also understand that for the erection of the kiosks, it may be necessary either for the current stall holders or the Borough to apply for a highways closure order. This is a matter which the Planning Department are unclear at the moment. We would be grateful if you could inform us as to whether or not this is the case when proposing terms for the lease or building licence.

    We are anxious to move this matter forward without further delay as the optimum time for the construction of these kiosks is January-March 1994.

    I will call at your office within the next fortnight to arrange a meeting of all interested parties so that we may progress to a mutually acceptable conclusion.

    There was no response to that letter from the Council. The judge found that:

    .... both the Council and the Tower knew of the precise type of structure proposed for the kiosks and that the building of them would involve Mr. Miller and Mrs. Sherwood in significant expenditure

    but that:

    No one at the Council or the Tower, however, took overall responsibility for, or an overview of, the question of the kiosks. The Tower (once satisfied that the designs were suitable) left practicalities and negotiations to the Council; no one focussed on, let alone addressed, the particular matters of concern to Mr. Miller and Mrs. Sherwood because those matters fell between the stools of the various departments of the Council.

  54. The meeting which Mr. Miller had requested in his letter of 17 September 1993 took place on 19 November 1993. It was attended by Mr. Farrell, the Head of the Neighbourhood Health and Consumer Services Department, on behalf of the Council, by Mr. Miller, and by Mr. and Mrs. Sherwood. The judge described that meeting as crucial to the appellants’ case. By that she meant that she was satisfied that it was as a result of what was said to them by Mr. Farrell at that meeting that Mr. Miller and Mrs. Sherwood went ahead with the construction of the new kiosks. She found that they went to that meeting in order to find out, before committing themselves to building new kiosks at significant expense, how secure their occupation was to be.

  55. The judge accepted that the question of tenure was raised at that meeting on 19 November 1993; and that a term of 20-25 years was mentioned. She found that, as a result of the meeting, Mr. Miller and Mrs. Sherwood knew that no lease was on offer, but only a street trading licence; but that “a general reassurance was given to them that, if they conducted themselves properly, the licence would continue to be renewed in the usual way for at least 20 odd years.” She summarised her conclusions as to that meeting in the following passage:

    I attach no personal blame to Mr. Farrell: what he said at the meeting was merely the last piece in a puzzle put together by the Council and the Tower. However, it is my view that his words of reassurance must be construed in the context in which they were uttered, namely:

    (1)

    the condition imposed by the claimants on the grant of a licence that kiosks acceptable to English Heritage, the Historic Buildings Section and others be built,

    (2)

    the intervening history and

    (3)

    the two stallholders’ expressed concerns about spending a substantial sum of money on fixed structures without tenure.

    In that context Mr. Farrell’s reassurance gave rise, in my judgment, to an expectation that the stallholders’ position trading at Tower Hill would in practice be secure for a period that would allay their concerns about the risk of wasted expenditure on building the kiosks. Further, it is significant that the meeting was held on 19th November, a Friday, and that Mr. Miller gave notice of intention to proceed to his architects the following Tuesday, 24 November. It can in my judgment be inferred that the concerns of Mr. Miller and Mrs. Sherwood had been allayed by what Mr. Farrell said at the meeting, reinforcing the conclusion that I draw that the above expectation was raised, encouraged and relied upon.

    Although the judge’s findings of fact in relation to the meeting of 19 November 1993 have been challenged by a respondents’ notice, I am satisfied that they are supported by evidence. In my view the inference that the concerns of Mr. Miller and Mrs. Sherwood were allayed by what Mr. Farrell said to them at that meeting is inescapable; and the judge’s conclusion that Mr. Farrell had given them “the general reassurance” to which she referred cannot be disturbed.

  56. On 1 December 1993 Mr. Farrell submitted to the Wapping Standing Neighbourhood Committee a report on arrangements for implementing a joint licensing system with the Tower for street trading in the Tower Hill area. Item 6.2 referred to the refreshment stalls to be operated by Mr. Miller and Mrs. Sherwood:

    Members previously agreed planning permission for the stall holders to erect kiosks to replace the current dilapidated structures. This followed lengthy consideration by all parties involved. The standard conditions regarding construction and to remove the trading receptacle from the pitch at the end of each day would be inappropriate because the kiosks could not be removed without demolition.

    On 6 December 1993 the Council wrote to both Mr. Miller and Mrs. Sherwood, enclosing a copy of the report submitted to the Neighbourhood Committee. The letter continued:

    As indicated in the report an application for a full licence to trade at Tower Hill will be sent to you for completion. This will be considered by H.M. Tower of London and myself with the intention of offering you a three year renewable licence from the 1st April 1994. This would be subject to the satisfactory construction of the new Kiosk approved .... on 12th March 1992 and non standard conditions mentioned in the above report.

  57. Mr. Miller and Mrs. Sherwood went ahead with the construction of their new kiosks. The judge found that Mrs. Sherwood’s kiosk was completed in October 1994 at a cost of more than £91,000, including fixtures and fittings. She began trading from the new kiosk on 19 November 1994. She was granted a full street trading licence by the Council (with the consent and at the direction of the Tower) for the period from 21 November 1994 to 31 March 1997. For various reasons Mr. Miller’s kiosk was not completed until March 1996. The cost was over £96,000, again including fixtures and fittings. He, too, was granted a street trading licence to 31 March 1997. The judge noted that, notwithstanding the recognition in the report of 1 December 1993 that “the standard conditions regarding construction and to remove the trading receptacle from the pitch at the end of each day would be inappropriate because the kiosks could not be removed without demolition”, the licences actually granted to Mr. Miller and Mrs. Sherwood did contain the standard conditions requiring the trading receptacles to be constructed as to be easily and immediately removable and as to removal at the cessation of trading.

  58. Mr. Miller died in February 1997. Mrs. Miller succeeded to her late husband’s licence under the provisions in section 26 of the 1990 Act. Both licences were renewed for three years to 31 March 2000. In the meantime, however, proposals emerged for the development of Tower Hill; and, in that context, the Policy and Implementation Committee of the Council resolved, on 23 February 2000, to “de-designate” the pitches occupied by the new kiosks. That resolution has been treated as a resolution under section 24(1) of the 1990 Act rescinding or varying the earlier designating resolution in respect of Tower Hill. The appellants were informed of that decision by letters dated 3 April 2000; and were invited to renew their street trading licences on a temporary basis for a period ending 10 July 2000. The letters informed them that “the resolution .... will come into effect on 11th July 2000, from which date the designation of the area from which you currently trade will be rescinded so that street trading will no longer be permitted from the said date.”

  59. The appellants appealed against the resolution of 23 February 2000 to the Secretary of State, as they were entitled to do under section 30(11)(a) of the 1990 Act. The Secretary of State decided that the appeal should not be allowed. The letter communicating that decision to the appellants’ solicitors contains the following paragraph:

    The Secretary of State also considers that Tower Hamlets has acted reasonably in reaching its decision. In considering the proposed de-designation care was taken to hear the views of all interested parties including the appellants, other street traders on Tower Hill and those on the waiting list for licenses. The Secretary of State recognises that there is a history of street trading on Tower Hill and has noted the capital investment your clients made in 1995 and 1996 in erecting permanent structures. However the provisions of the 1990 Act mean that indefinite street trading from any particular site cannot be assumed. The decision to make the investment was essentially a commercial one made by the appellants. Moreover the Secretary of State has noted that the council has offered your clients alternative locations on which they could trade to ensure that their livelihoods are not removed.

    It is, perhaps, not surprising that the appellants had not found the offer of an alternative location an attractive or acceptable solution to the predicament in which they found themselves. They had, after all, each laid out substantial monies in the erection of permanent structures upon the assurance that they would, in practice, be allowed to trade from those structures for some twenty years or more.

    DO THE APPELLANTS HAVE SECURITY OF TENURE?

  60. The judge directed herself, correctly in my view, that Part III of the 1990 Act was concerned only with the right to engage in street trading and “does not address the question of the nature of any right that may have been granted by the Council in respect of occupation of the land itself.” She referred to the contention advanced on behalf of the appellants that “where permission is given to erect a fixed structure in consideration of a periodic money payment .... the permission to occupy, whatever name is given to it, is in law the grant of a tenancy”. But she rejected that contention. She said this:

    It seems to me that there are on the facts of this case two answers to this submission. First, the relationship between the parties (which was understood on both sides would not create the relationship of landlord and tenant) and the money that was paid were both explicable by reference to the statutory licence conferred under the 1990 Act: compare Gray v Taylor [1998] 1 WLR 1093. Secondly, despite the valiant efforts of Mr. Knox to persuade me that the Council’s ancillary powers of disposal of property under section 111 of the Local Government Act 1972 enabled it to create a tenancy of highway, it is my firm conclusion that it would be outside the Council’s powers to grant a tenancy over the highway as an incident of user of a structure for amenity purposes. The surface of the highway is statutorily vested in the Council and it cannot divest itself of such ownership, wholly or in part. To do so would frustrate the whole purpose of the Council’s statutory functions.

  61. In my view the judge was right to hold that no tenancies were created in the present case. I agree that the grant of a tenancy over the surface of a highway cannot be regarded as calculated to facilitate, or as conducive or incidental to, the discharge of a local authority’s functions as highway authority; so as to come within the subsidiary powers conferred by section 111 of the 1972 Act. But, even if there were power in the Council to grant a tenancy over land which (as the judge found) was comprised in the highway, I would hold that no tenancy arose. It is plain from the findings made by the judge in respect of the meeting on 19 November 1993 that Mr. Miller and Mrs. Sherwood went into occupation of their respective sites or pitches, and erected their kiosks, on the basis that there was no tenancy on offer. It was the common understanding of the Council and the Tower, on the one hand, and Mr. Miller and Mrs. Sherwood, on the other hand, that the occupation was referable to a licence. The parties thought, mistakenly in my view, that that was a licence which could be granted under Part III of the 1990 Act; but that mistake is not material in this context. The mistake does not lead to the conclusion that what was intended to be a licence must be treated as a tenancy.

  62. I would reject, also, the appellants’ claim to a licence for a fixed term of 25 years, or for any fixed term. It is clear from the findings of fact made by the judge that no promise was given by Mr. Farrell on 19 November 1993 (or by any one else on behalf of the Council or the Tower) that Mr. Miller or Mrs. Sherwood would be allowed to remain in occupation of their respective sites or pitches for a period of 25 years, or for any other fixed period beyond the term of a three year street trading licence. The assurance given to them, as the judge found, was that “if they conducted themselves properly, the licence would continue to be renewed in the usual way for at least 20 odd years”.

  63. It follows that I would uphold the judge’s decision to refuse the declarations sought under paragraph 1 of the relief claimed by way of counterclaim.

  64. Nevertheless, it is impossible to take the view that Mr. Miller and Mrs. Sherwood were trespassers as against the Council or the Tower. There is no dispute that they went into occupation of their respective sites or pitches with the express permission of both the Council and the Tower; and upon terms that they would erect permanent structures at their own expense. The true position, in my view, is that Mr. Miller and Mrs. Sherwood went into occupation of their respective sites or pitches under revocable licences. The real question is whether, and upon what terms, those licences can be revoked.

    REVOCATION OF THE LICENCES

  65. Although, as I would hold, the street trading legislation, now contained in Part III of the 1990 Act, does not apply to trading from the kiosks erected by Mr. Miller and Mrs. Sherwood – because those kiosks are permanent structures – it is relevant to have regard to that legislation in order to appreciate what they, and Mr. Farrell, would have understood by the assurance given at the meeting of 19 November 1993.

  66. A street trading licence may be revoked or varied in the circumstances set out in section 28 of the 1990 Act. The borough council must be satisfied of one or more of the matters described in paragraphs (a) to (h) of section 28(1) of the Act. Those include the licence holder’s failure fully to avail himself of the licence, failure to pay fees and charges, and failure to comply with the conditions of the licence. It seems to me that Mr. Miller and Mrs. Sherwood may be taken to have understood, from the assurance that they could expect to remain “if they conducted themselves properly”, that the licences under which they were to occupy their respective kiosks would be revocable in those circumstances – subject to the obvious qualification that no one could have contemplated that the condition requiring the licensees to remove the “receptacles” from which they were trading at the end of each day would be enforced in respect of the kiosks. Those requirements are reflected in grounds, set out in section 25(6) of the Act upon which an application to renew a street trading licence can be refused. So the assurance that “the licence would be renewed in the usual way” includes the qualification that the licence will come to an end if those requirements are not met.

  67. The grounds upon which a street trading licence can be revoked or varied under section 28(1) of the 1990 Act include, also, the fact that “owing to circumstances which have arisen since the grant or renewal of the licence, there is not enough space in the street in which the licence holder trades for him to engage in the trading permitted by the licence without causing undue interference or inconvenience to the persons or vehicular traffic using the street.” But revocation on that ground cannot have been within the contemplation of licensees who were told that their licences would be renewed in the usual way “if they conducted themselves properly”. Nor could an assurance that the licences would be renewed in the usual way be understood as justifying a refusal to renew on ground (a) of section 25(6)(a) of the Act (that there are enough traders trading in the street in the goods in which the applicant desires to trade) for reasons which I have already explained.

  68. Equally, as it seems to me, in a private law context it would not be open to a person who has encouraged another to go onto his land and expend money in the expectation that he would be allowed to remain for an indefinite but lengthy period – in this case, for the expected life of the structure or while he or his family members continued to trade there – to revoke that permission for no reason other than that he has had a change of mind. If authority be required to support that proposition it can be found in the cases to which the judge was referred – Ramsden v Dyson (1866) LR 1 HL 129, and Crabb v Arun District Council [1976] Ch 179. The judge recognised that as a proposition applicable in a private law context; but she held that it could have no application in the present case. She said this:

    An estoppel will not lie to oblige a public authority to do something which is beyond its powers or to fetter or prevent it from carrying out its statutory duties or powers: Western Fish Products v Penwith District Council [[1981] 2 All ER 204]. If the defendants are street trading, I do not see how any irrevocable long licence to use the land for trading purposes could have been granted so as to prevent the Council from de-designating.

  69. I agree that, if the appellants were engaged in street trading, the expectation encouraged by the assurance given on 19 November 1993 could not have had the effect of preventing the Council from exercising its powers under Part III of the 1990 Act to bring that trading to an end by a resolution rescinding the designation of Tower Hill as a licence street. But, if I am correct in my view that trading from permanent structures is outside the street trading code, then that point falls away. The Council cannot bring the appellants’ trading to an end by the exercise of powers under Part III of the 1990 Act; and to hold that they are prevented by the assurance given on 19 November 1993 from doing so by revoking the licences under which the appellants went into occupation of their sites or pitches and erected the kiosks is not inconsistent with a proper exercise of those powers.

  70. It may well be that there are other statutory powers which the Council could invoke in order to have the kiosks removed. Section 143 of the Highways Act 1980 provides, at first sight, an obvious example. But the Council has not – or not yet, or not as far as we know – invoked any powers other than those under Part III of the 1990 Act. And, if they sought to do so, the exercise of those powers might well – in the circumstances of this case – be the subject of challenge at public law. But those are not questions for decision on this appeal.

  71. I would hold that the purported exercise by the Council of powers under Part III of the 1990 Act has not been effective in law to revoke the licences under which the appellants went into occupation of their sites or pitches; that there has been no other effective revocation of those licences; and that, accordingly and as matters now stand, the Council is not entitled to interfere with the appellants’ continued occupation of the kiosks.

    CONCLUSION

  72. I would allow the appeal against so much of the judge’s order as declared that the appellants have no right to trade in the areas formerly known as pitches 6 and 7 Tower Hill; and ordered them to cease trading and remove the kiosks. I would dismiss the appeal against the judge’s refusal to make an order on the counterclaim declaring that the appellants are entitled to a lease, or to a licence for a fixed term. Subject to any further representations which the appellants may wish to make, I would not think it necessary to grant an injunction against the Council, as a responsible public authority, or against the Tower, restraining them from doing what I have held they are not entitled to do – that is to say, restraining interference with the kiosks, or with the appellants’ continued trading at the kiosks.

  73. I should make it clear that I have not found it necessary to decide whether or not the Council would be entitled to revoke the licences under which the appellants occupy their sites on payment of compensation. No payment has been proposed; and the Council cannot be required to make such a proposal. Whether, if such a proposal were made, it would be right to treat the licences as revocable upon payment is not a question which arises on this appeal.

    Lord Justice Longmore

  74. I agree.

    Lord Justice Peter Gibson

  75. I also agree


Cases

R v United Kingdom Telegraph Co Ltd (1862) 31 LJMC (NS) 166; Attorney General v Wilcox [1938] Ch 934; Trevett v Lee [1955] 1 WLR 113 (CA); Newman v Lipman [1951] 1 KB 333; R v Bartholomew [1908] 1 KB 554; Ramsden v Dyson (1866) LR 1 HL 129; Crabb v Arun District Council [1976] Ch 179

Legislations

London Local Authorities Act 1990: s.21, s.23, s.24, s.25, s.30, s.35, s.38

London Local Authorities Act 1994: s.6

Highways Act 1980: s.115A to 115K, s.130, s.138, s.143

Local Government (Miscellaneous Provisions) Act 1982: s.3, s.5, s.20, schedule 4, schedule 5

Metropolitan Paving Act 1817 57, Geo III, cap.xxix (Michael Angelo Taylor’s Act): s.65

Metropolitan Streets Act 1867, 30&31 Vict, cap. cxxxiv: s.6

London County Council (General Powers) Act 1927: s.30

London County Council (General Powers) Act 1947: s.15, s.35

Representations

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

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


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