Summary: Mr B complains that officers repeatedly assured him that the process was in place to redesignate the area from which he had long operated a trailer selling food, so that it would no longer be prohibited for street trading. He says without these assurances, he would not have incurred significant costs applying for a late-night premises licence which he then could not use when the street was not redesignated. The Ombudsman considers that Mr B was led to believe that the redesignation of the street was in hand, and it was likely that this that led him to apply for and incur the cost of a late-night premises licence. However, the Ombudsman does not consider that this has caused Mr B injustice which would warrant a financial remedy, because the cost of applying for a late-night licence was more than outweighed by the Council having allowed him to trade unlawfully from the site for 18 months while in discussions with him.

The complaint

1. Mr B complains that the Council repeatedly assured him that the process was in hand to redesignate the area from which he has long operated a trailer selling food, such that he would then be able to apply for a street-trading licence.
2. He says he was encouraged by these assurances to apply for a premises licence which would allow him to provide late night refreshment. But, although the Council granted him a premises licence, it then did not redesignate the area to allow street-trading. As a result, he incurred considerable costs applying for a premises license which he cannot use.
3. He says that, had he been made aware that there was no intention to begin the process (or no reasonable prospect of redesignation), his decisions would have been different and he would not have incurred many of these costs.

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The Ombudsman’s role and powers

4. We investigate complaints about “maladministration” and “service failure”. In this statement, I have used the word “fault” to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as “injustice”. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened

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How I considered this complaint

7. I have considered Mr B’s written complaint and spoken with him. I have considered comments and supporting papers provided by Mr B’s solicitor. I have made enquiries of the Council and considered its response. I have also sent Mr B and the Council a draft decision and considered their comments.

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What I found

8. In England and Wales street trading is regulated under the Local Government (Miscellaneous Provisions) Act 1982. The Council has resolved to adopt the provisions of schedule 4 of the Act and thereby regulate street trading. A street may be designated a prohibited street, a licence street or a consent street. If the Council wishes to change the designation of streets, it must undertake notifications required by the Act and consider any representations before a resolution may come into effect.
9. It is an offence to engage in street trading in a prohibited street, or in a licence street or consent street without the required licence or consent.

Licensing

10. Under the Licensing Act 2003, a premises licence is required for a range of activities, including the supply of hot food or drink between 11.00pm and 5.00am.
11. When considering applications, the Council must determine whether an application promotes the four licensing objectives: the prevention of crime and disorder; public safety; the prevention of public nuisance; and the protection of children from harm. It must also have regard to its licensing policy.
12. Responsible authorities (such as the police, and health and safety authorities), residents and businesses may raise representations or objections as to the likely effect on the licensing objectives within 28 days of making the application.
13. If a representation is received, members of the Council’s Licensing Committee will consider the application. They listen to evidence from all parties and then decide whether to grant the licence, either as applied for or with additional conditions, or to refuse the licence. An applicant has a right of appeal to the Magistrates Court if the application is refused or if they disagree with any conditions.

What happened

14. Mr B operates takeaway trailers selling food on several pitches around the city centre. He has traded in the city for many years, including from a designated pitch at location 1 where he had a street trading licence.
15. Due to changes in the bus lane and the installation of traffic lights in 2008 or 2009, a licensing officer asked Mr B to move his takeaway trailer to a new pitch (location 2). He continued to pay an annual fee of £280 for his street trading licence at location 1. He says the Council did not formalise the use of the pitch at location 2, but it had asked him to move there and was fully aware that he was trading from that location.
16. In July 2014, the Council wrote to Mr B and advised him that he could not trade from location 2. It followed up this letter in November 2014. However, Mr B continued to trade from location 2 until there was reworking of the Taxi Rank. In December 2014, following the intervention of the Licensing Manager who was trying to assist Mr B, the Estates Manager of a nearby privately-owned site (location 3) emailed Mr B stating that his trailer could occupy the site for a six-week period.
17. The Director of Communities emailed the site’s Estates Manager and the Assistant Director to say that this did not fit with the Council’s vision for the area. Mr B then moved his trailer around 20 to 30 metres to location 3. Mr B renewed the street trading licence (for location 1) in January 2015.
18. in June 2015, after consultation with members and the Cabinet member with the licensing portfolio, officers took a delegated decision to redesignate location 3 and many other streets as "prohibited streets" for street trading purposes. This was done through a legal order and advertised in the local press for the statutory period of two weeks. The Council says there was an opportunity for Mr B and his advisers to make representations at this point, but none were received.
19. In July 2015, the Licensing Manager emailed Mr B’s previous solicitor and explained that Mr B could no longer trade at location 3. He said that, although Mr B had been relocated by previous officers, the late-night premises licence was for location 1 and did not correspond to the current location, location 3. Were he to apply for a premises licence at the new location, this would be in a Special Stress Area.
20. The Licensing Manager explained that neither the landowner nor the Council wanted street trading at location 3, and there was no licence street or site at this location. He said that continued trading would result in escalated action. Mr B said he was still paying fees, but confirmed that he understood the situation. Mr B continued to trade at location 3. He engaged another solicitor in February 2016.
21. Mr B contacted his solicitor in May 2016 after the Licensing Manager contacted him to say that a complaint had been received and the police might close him down. He told his solicitor that, some weeks before, he had spoken with the Licensing Manager who had told him it was his intention to disapply the prohibition against street trading at location 3, together with five or six other locations. He understood that this would happen over June and July. Mr B said the site’s Estates Manager was happy for him to trade there, but he was not getting assurances from the Assistant Director.
22. Mr B and his solicitor called the Licensing Manager. The solicitor’s note of the call records that the Licensing Manager said the Assistant Director was seeking to help and that they would meet the site’s Estates Manager the next day. A few days later, the solicitor emailed the Licensing Manager asking to meet to discuss matters and to clarify on what basis the police might close Mr B down.
23. In early June, Mr B’s solicitor spoke with the Licensing Manager. His note of the call records that the Licensing Manager confirmed that they had orders ready to amend the street-trading prohibition and accommodate Mr B, but this had been held up due to complications in respect of the landowner’s position. Ultimately, it would depend on whether the site owner wanted Mr B to trade there.
24. In June 2016, the Licensing Manager emailed Mr B’s solicitor essentially repeating his email of July 2015. He stated “I am advised that Mr [B] continues to trade from this site despite previous instruction. Continued trading will result in escalated action”. He also explained that any trading within 100 metres of the street adjacent to location 3 would be covered by the Council’s designation to prohibit street trading.
25. Mr B’s solicitor questioned whether the Council had undertaken the correct consultation when the street had been redesignated. The Council responded that it had and that the area was covered by the redesignation.
26. Mr B’s solicitor recorded in a note in August 2016 that the Licensing Manager said he could give them “a modicum of encouragement”. He said the Licensing Manager had told him that the site’s Estates Manager said they would apply for a markets licence and late-night licence for a food court in location 3. If that was resolved, then the Assistant Director would look into redesignating the street.
27. The Licensing Manager met Mr B in November 2016. He then emailed Mr B’s solicitor to say that Mr B had met the site’s Estate Manager who had indicated that they were happy for Mr B to trade from location 3, subject to an agreed fee, though nothing was formally agreed. Mr B had told him that he had recently paid to renew his premises licence (which still applied to location 1). The Licensing Manager also explained that he had reiterated to Mr B that the street-trading permissions were not transferable and that continued trading could not be permitted without both the requisite street-trading and premises licences.
28. Mr B’s solicitor and Mr B then had an ad-hoc meeting with the Licensing Manager. The meeting notes records that the Licensing Manager said he would draft a "Legal Order" the following week to make provision for street-trading at location 3 and several other streets. There would be a two-month period in which he could continue to trade. This was on the basis that Mr B had been relocated to that area seven years ago and had traded without difficulty. The note records that Mr B’s solicitor responded that, once they knew the order was underway and was unlikely to be resisted, they would apply for a premises licence.
29. Mr B’s solicitor recorded in a further note that he met the Licensing Manager in January 2017 and was again assured that the order was in hand and being advertised. He says the Licensing Manager told him he could not confirm how long the process would take but added that "we're getting there" but it might take a few weeks at least.
30. Mr B’s solicitor then recorded in a telephone note that the Licensing Manager confirmed to him in February that an order "has gone in", that it would take two months and he would also need a premises licence. The note records that the Licensing Manager told him that Mr B should stay off the pitch for the next two months or face prosecution. Mr B stopped trading at location 3 in February 2017.
31. Mr B and his solicitor met the Licensing Manager again that month. The solicitor has recorded that the Licensing Manager was under a lot of pressure from the landowner to free up the area to hold events and that Mr B would benefit from this. The note records that the Licensing Manager said that “the order is in" and would be advertised soon. The solicitor also records that he left it with the Licensing Manager to let him know when they ought to put the application in.
32. In April 2017, Mr B’s solicitor emailed Mr B to say that “Don’t be overcome with emotion but… I have spoken with [the Licensing Manager] and we can get on with your Premises Licence application…”. Mr B then applied for a premises licence to permit late-night refreshment from 9.00pm to 4.00am Thursday to Sunday.
33. Mr B’s solicitor spoke with the Licensing Manager twice in May. He recorded that he was told that there were no objections to Mr B in respect of the premises licence and that the order to redesignate the street was progressing. He spoke with the Licencing Manager in June and recorded that the premises licence application might have to go to Committee.
34. Due to a conflict of interest, another solicitor, solicitor 2 represented Mr B at the Licensing sub-committee hearings. Before the first meeting, a colleague of solicitor 2 emailed the Licensing Manager saying that “You mentioned on the phone that an order has been drafted and that it requires sign-off which might take at least one month”, and asking if there was anything further that needed to be done to smooth the process.
35. The Licensing sub-committee heard Mr B's premises licence application at two hearings. Between the hearings, the landowner sent Mr B an email confirming that it was happy for him to continue to trade at location 3 subject to a suitable agreement.
36. At the hearings, a local business, the police and the Council’s Environmental Health Division objected to the application, because the premises might result in people lingering and contributing to noise and public nuisance. The Licensing Manager explained that, although Mr B had been operating without a licence at this location, the Council had not sought to prosecute him because the two parties had been in discussions.
37. The meeting notes record that the Licensing Manager stated that both a street trading licence and premises licence were needed to trade legally and that the Council wished to work with the landowner and would be considering whether they could licence that area.
38. The committee found that Mr B had operated in and around this location for several years on a Friday and Saturday night until around 2.30am without any issue or complaint. Although the premises were in in the City Centre Cumulative Impact Special Policy Area, the Committee felt that Mr B had demonstrated that granting a premises licence would not add to the negative cumulative impact. It therefore granted a premises licence from 11.00pm to 2.30am, with the condition that it could not be used until a street trading licence was in place.
39. Solicitor 2 emailed Mr B the day after the hearing to confirm that the premises licence had been granted subject to conditions. He also noted that the Licensing Manager had given evidence that the order had been drafted and that the site owner wanted this to proceed. The notes of the meeting do not record that the order had been drafted and the Council says the email is inaccurate in this regard, though the meeting notes are not a verbatim record of proceedings. Solicitor 2 emailed the Licensing Manager to thank him for his assistance and to ask him to do all he could to push forward the street trading licence.
40. In September 2017, Mr B contacted the Director of Investment and Development. He said he had gone to considerable expense in obtaining a late-night premises licence and had signed a rolling contract to use the location, but could not trade from the area. He understood that the decision on designation of the area rested with him and the Assistant Director. He also said he would be happy to modify the appearance of the kiosk and products sold to suit the Council’s vision for the area.
41. In response, Mr B received an email from the Assistant Director informing him that discussions were ongoing with the landowner and other interested parties, “however at this time we do not deem it appropriate to commence the legal process. As and when the overall strategy is agreed for this area with all parties the City will give this matter further consideration".
42. Mr B’s solicitor met the Licensing Manager in October 2017 and, at his suggestion, provided a list of alternative sites which Mr B felt to be suitable. After several calls and emails, the Assistant Director responded in January 2018. He said the situation was unchanged and the Council had no intention to create additional permanent street-trading sites.
43. In March 2018, Mr B’s solicitor complained to the Council that Mr B had been treated unfairly and misled about the redesignation of location 3. The Council replied that this was a legal dispute about licensing and not a matter to be dealt with through its corporate complaints procedures. Instead its legal team would respond.
44. The Council’s solicitor responded to Mr B in April 2018. She said that location 3, where Mr B had been trading, had been redesignated in 2015 after a review of street-trading sites. She said the process had been correctly carried out and Mr B had been aware of the right to make representations. She said that since then any trading at that location had been unauthorised, despite the grant of a premises licence in 2017, because the location remained prohibited.
45. She said she had received no documentary evidence to substantiate Mr B’s assertion that a formal process would be undertaken to redesignate the area. There was currently no intention to redesignate the area and she could only apologise if Mr B believed that he has been misled as to the Council’s intentions.

My assessment

Assurances about redesignation

46. The Council has explained that the area was subject to major investment in 2014 and 2015. Introducing a new late-night hot food vendor would have required the approval of members, portfolio holders and senior managers because the area’s regeneration was a major investment for the Council and its partners. It says that a takeaway food trailer such as Mr B’s did not fit with the Council’s vision for the area.
47. The Council accepts that there were discussions with Mr B and his solicitors to try to persuade the Council to change the street designation. It says that significant pressure was put on individual officers. However, it says there was also a consistent message that the trailer did not fit into the Council’s vision for the area.
48. The Council denies that Mr B was repeatedly assured that a process was in-hand to redesignate the area so that he could apply for a street-trading licence, or that there was ever an agreement that the Council would change the street-trading order to assist Mr B personally. It also refutes any suggestion that Mr B was encouraged by such assurances to apply for a late-night premises licence.
49. The Council says that Mr B has traded unlawfully for many years from location 3 without the relevant street-trading and late-night premises licences. It says he knew he was trading unlawfully from a prohibited street and benefited financially from doing so.
50. It is clear that officers warned Mr B that he was trading unlawfully from the area. However, the evidence suggests that officers also allowed him to continue trading while discussions were ongoing with him and the site owner.
51. I note that the Council denies having given assurances to Mr B regarding the redesignation of the street. But officers have not kept notes of any of the ad-hoc meetings or telephone conversations, so the only contemporaneous evidence is from emails and from the solicitor’s own records.
52. I appreciate that both Mr B and solicitor were keen to have a positive response from the Council on the street-trading licence, but I see no reason to believe that the solicitor’s contemporaneous notes do not represent a fairly accurate record of the discussions. On that basis, I must conclude that officers advised Mr B and his solicitor on several occasions that the preparation of the order was in hand. I do not agree with the Council’s position here.
53. As to the Council’s suggestion that an order would not have been prepared just for the benefit of Mr B, I note that there were also discussions between the Council, Mr B and the site’s Estates Manager about changing the order at this location. The evidence suggests that the site owners had shown interest in redesignating the area so that it could be used for events. Were the order to have been amended at the request of the site owners, Mr B would likely also have been the beneficiary of this as he was already renting the privately-owned site.
54. On balance, therefore, I am minded to accept Mr B’s assertion that he applied for a late-night premises licence as a result of advice from officers that discussions about redesignating the area were advanced.
55. If, as the Council suggests, Mr B’s takeaway trailer did not fit with the Council’s vision for the area, and there was no intention to redesignate the area, then it seems to me that his expectations were wrongly raised. However, it may also be that officers felt there was a real prospect of the area being redesignated, but ultimately this was not approved. In any event, it would still appear that Mr B incurred costs as a result of assurances provided which proved inaccurate.

Remedy

56. The Ombudsman may recommend a financial remedy where there is fault causing injustice.
57. Mr B has incurred ongoing licensing costs, but these are only the same as he would have been incurred had he had a licence to trade at that location.
58. He has incurred substantial rental costs for the site, which he was unable to use after February 2017. However, this was a cost that he chose to incur in order to trade from that privately-owned location. The Council had informed him that he was trading illegally, so there was always the risk that he would be asked to stop.
59. Mr B has incurred the costs of engaging a solicitor prior to the application for the late-night premises licence. He says that, had the Council been clear with him, he would likely have abandoned the fight at the outset and not incurred the costs that he did. Instead, and as a result of the assurances provided, he continued to incur costs unnecessarily.
60. It is clear that Mr B wished to continue to trade from the site after the street designation was changed. It is understandable that he therefore might wish to have legal representation to assist him. It also appears clear that Mr B was given to understand that discussions were ongoing in respect of redesignating certain streets, and that this provided some encouragement to Mr B.
61. However, I am mindful that officers gave advice at the request of Mr B and his solicitor and with a view to try and help Mr B continue trading, albeit that he was also told that this was illegal. I am not persuaded that Mr B chose to appoint and continue to engage a legal adviser purely because of the encouragement given by officers. Rather it seems to me that he did so because he wished to continue to trade at the site, despite not being authorised to do so, and to protect his financial and business interests. I do not therefore consider that these legal costs were incurred due to fault on the part of the Council.
62. There were also legal and other costs involved in preparing and applying for the late-night premises licence application. I consider that Mr B would likely not have incurred these costs without the assurances and comments provided by officers.
63. I have therefore considered whether it would be appropriate to ask the Council to reimburse the costs associated with the licence application. However, I note that, after the site became a prohibited street in July 2015 and while discussions were ongoing until February 2017, officers allowed Mr B to continue to trade.
64. It appears therefore that Mr B has benefited more from the Council’s decision not to prevent him trading without the required licences than it has cost him to obtain a premises licence. So, even though I consider that there has been fault, I do not consider that this has caused Mr B injustice which would warrant a financial remedy, and that it would be appropriate to ask the Council to reimburse his costs out of public funds.
65. Mr B has explained that he has also experienced considerable frustration and distress as a result of his expectations having been raised unreasonably.
66. I appreciate that these events have caused Mr B some distress, and this is a matter where the Ombudsman might recommend a financial remedy. I am afraid, however, that I also do not consider that such a remedy would be appropriate in this case where Mr B has benefited financially from continuing to trade without the required licence.

Record-keeping

67. The Council has explained that some of the conversations that took place in this case were due to Mr B and / or his representative arriving with no appointment. It says it does not record informal contacts such as ad-hoc meetings, and this should be taken into consideration when referring to lack of officer notes. 
68. It says that officers keep notes of business meetings but these are only held for a short period in their own formal note books. Officers use emails to confirm with customers records of meetings and discussions.
69. I consider that it would be good practice for officers to keep records of ad-hoc meetings and telephone calls.

Complaint handling

70. The Council responded to Mr B’s complaint by saying that it could not put it through its corporate complaints procedure because it was a legal dispute about a decision made by councillors.
71. The Council was wrong to have its legal department respond to Mr B’s complaint rather than put the complaint through its corporate complaints procedures. This was not a complaint about the decision to implement the street-trading order. Rather, it was a complaint was about misleading advice which resulted in Mr B incurring costs which he might not have otherwise incurred. This seems to me quite properly a matter for the corporate complaints process.

Agreed action

72. The Council has agreed that:
• The Licensing Team will record significant conversations and is now using an evidence-based notebook recording system to record documents, conversations and information in accordance with General Data Protection Regulation guidance and legislation.
• The Service Manager will raise the learning from this case in the next team meeting and with his Senior Management Team, and issue a procedure note.

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Final decision

73. I have closed my investigation into Mr B’s complaint because, although there was fault on the part of the Council, I do not consider that this has caused him injustice which would warrant a financial remedy.

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Investigator's decision on behalf of the Ombudsman