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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> West End Street Traders' Association & Anor, R (on the application of) v City Of Westminster [2004] EWHC 1167 (Admin) (21 May 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/1167.html Cite as: [2005] BLGR 143, [2004] EWHC 1167 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE QUEEN (on the application of WEST END STREET TRADERS' ASSOCIATION and another) |
Claimant |
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- and - |
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THE LORD MAYOR AND THE CITIZENS OF THE CITY OF WESTMINSTER |
Defendant |
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Miss Marina Wheeler (instructed by C. T. Wilson, Director of Legal and Administrative Services, City of Westminster) for the Defendant
Hearing dates: 6-7 May 2004
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Crown Copyright ©
Mr JUSTICE LEVESON:
The Facts
"8.1.3 Through phased increases above inflation, it is proposed to gradually bring the charges for all isolated pitches into line with the charges for markets generally, except where there is a sound basis for maintaining a differential (e.g. for 'non refuse' isolated pitches) [T]he Licensing Court Manager has undertaken to carry out a comprehensive review of current charging policy to ensure that traders at all locations pay their proper costs and that no one trader is subsidising another.
8.1.5. For isolated pitches known not to leave refuse it is considered that the current differential is too generous. The size of the differential for non-refuse pitches will form an integral part of the Licensing Manager's review of current charging policy for street trading pitches."
"2.2 Market locations and isolated pitches will now have different charges, reflecting the differences in cost involved in administering and enforcing the licence conditions.
2.3 The distinctions between different levels of refuse provision for isolated pitches have been discontinued to bring them into line with pitches at market locations
2.4 Isolated pitches in the W1 and WC2 postal areas (including Oxford Street) will now be paying a greater contribution towards the cost of enforcement action against unlicensed street trading, as there is evidence that it is overwhelmingly people in those areas that benefit from such action.
2.10 The new structure of charges has a number of advantages:
The charge paid by all stall-holders will reflect as closely as possible the actual cost incurred by the Council in issuing licences (and associated administrative charges) and enforcing compliance with licence conditions.
The greatest percentage rises occur at those pitches which reflect their prime location. "
"Licensing Client and Administration A proportion of street administration time is charged to licensed street trading based on time recording information as detailed on the monthly redistribution journals. A proportion of the Licensing Client Group time is also charged to licensed street trading, apportioned to the overall activity of the service.
Cashiers and other Capita maintain the street traders database for each pitch and recording traders and also produce weekly status reports showing the balance on each pitch for both current and former traders. The level of charge is based on a figure in line with the charge that was levied when the work was done in-house, but Capital do not give a separate costing for the work. Other corporate charges are based on estimated time spent supporting street trading from various sections of the Council, including Finance and Business Services, One Stop Services, Committee Services, support costs etc."
"No proper justification for the change is given but the principle seems to be the non-polluter should subsidise the polluter. Please supply detailed reasons why it is consider (sic) equitable that a trader leaving no refuse should pay the same as a trader who puts the Council to the expense of removing refuse. In particular, given the wording of section 22(2)(a) of [the Act] how can it be right to charge for "the collection removal and disposal of refuse" when it has not in fact taken place. Furthermore, can you please explain why you have used one principle to justify two changes and a completely contrary principle for other?"
The actual figures in relation to cleansing costs (consisting of the cost of the contract set out above, transport, depot and disposal less an allowance) were not the subject of a request for breakdown or further information.
"Inspections by enforcement officers have demonstrated that additional refuse is generated at isolated pitches, even at those which currently receive a 'non-refuse' discount and do not pay the Council for its removal. The presence of a street trading stall can result in increased overall litter generated by customers who may discard packaging nearby. Pitches at market locations are required to pay for cleaning irrespective of the amount of refuse that they may generate."
"Only 46% of unlicensed street trading reports in 2002/3 related to hot dogs or perfume. The remainder related to other forms of trade, such as jewellery, Christmas items, decorations, flowers, newspapers, clothing, posters, music videos, souvenirs and toys. It would seem to be in the interests of licensed street traders that enforcement action is taken against these people and therefore fair for them to pay a proportion of these charges. Overall, 85% of the 25% charged to the street traders (ie 21.25%) is charged to isolated pitches in W1 and WC2 as it in these postal districts that most unlicensed trading takes place. Indeed, figures over the last two years have shown the proportion as being consistently between 85% and 90%."
" [E]very year there is a debate between us and the Associations about whether the information we provided them with is sufficient to comply with the Act and in the end that is a matter of judgement rather than fact. I am advised that we have given the Associations all the information that we have give them (sic) in response to their queries and my view is that we have complied with the Act in that respect.
Mr Chambers said that the Act is essentially about cost recovery and that is absolutely correct and it would indeed be wrong to charge pitches more or less according to their location, whether it's a prime location or not and I don't think the report is suggesting that we should do that. [W]hat the Act says is that we must do is recover charges as are sufficient in the aggregate to cover the costs of, amongst other things, collecting, removing and disposing of refuse and it's not required or us and nor do I think it's feasible for us to make charges to each individual street trader based on the exact costs that he personally is causing the Council to incur. We do have to strike a balance and set fees which are as fair as we can make them and which overall will cover our costs "
"As far as isolated pitches and refuse are concerned, I have to say by complete coincidence I met with the Cabinet Member for Environment yesterday in order for her to, on the agenda was to complain about the amount of refuse being left unattended by isolated pitches and I won't go into detail but W1 pitches were particularly on her agenda so there is a conscious knowledge of a problem on isolated pitches and refuse handling which she's asked for advice or enforcement on. So that is an issue which I don't entirely accept that there is no problem . "
Mr Doyle said that he had photographic evidence of isolated pitches who get a fee waiver but leave refuse: that does not appear previously to have been mentioned and there is no suggestion that prior to the meeting, WESTA had been told about photographs let alone seen any.
Requests for Further Information
"Within 21 days of the giving of the notice any body representative of licence holders may ask the council for such further information or explanations with regard to the proposed charges as the body concerned may reasonable require to ascertain whether the proposed charges are reasonable and in accordance with the provisions of this section and as soon as reasonably practicable the council shall comply with the request."
The Challenge to the Charges
The Law
"(1) The Council may charge to applicants for the grant or variation of street trading licences such fees as are sufficient in the aggregate, taking one year with another, to recover the reasonable costs of dealing with such applications.
(2) The 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 of
(a) the collection, removal and disposal of refuse or other services rendered by them to such licence 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 costs or other costs not otherwise recovered under this Act incurred in connection with the provisions of this Act; and
(d) the cost of enforcing the provisions of this Act;
(5)(a) The Council may at the request of a majority of licence holders in a particular market or area provide other services to licence holders in that market or area;
(b) The cost of those services may be included in the charge referred to in subsection (2) above provided that those costs are only included in the charges made to the licence holders in that particular market or area;
(c) At any time a majority of licence holders in a particular market or area may request the council to cease to provide such services and the council shall, subject to any contractual arrangements, accede to such a request within three months of the request."
"[T]he budgetary exercise required of a local authority under section 32 is a part of its larger duty to administer its funds so as to protect the interests of what is now the body of council tax payers. The broad object of section 32 is to enable the council to break even over time on its market trading account so that no special burden is transferred to the general fund. [T]he council remains under an obligation to balance the market trading books."
Specific Challenges
Concluding Remarks