London Borough of Southwark (19 019 659)

Category : Environment and regulation > Licensing

Decision : Not upheld

Decision date : 09 Feb 2021

The Ombudsman's final decision:

Summary: Mr B complained about the Council’s handling of his street trading licence applications. He also complained that the Council failed to respond to his complaint in accordance with its complaints procedure. We do not uphold Mr B’s complaint.

The complaint

  1. Mr B complains about the Council’s handling of his street trading licence applications. He says the Council retracted its decision to grant him a street trading licence and then failed to consider the application further. He says it refused his second application for reasons which are not valid under Section 25 of the London Local Authorities Act 1990 and then failed to determine his third licence application.
  2. Mr B also complains that the Council failed to respond to his complaint at stage 1, meaning he did not have an opportunity to challenge the response at stage 2 of the process.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. 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)

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How I considered this complaint

  1. I have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
  2. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

  1. In March 2008 the Council’s licensing committee agreed to carry out a consultation on a proposal for: the designation for street trading of certain locations including the Bankside area; the prohibition of ice cream trading in the area; and the licensing of busking in the area. This resulted from the growing popularity of Bankside which had attracted an increasing number of illegal street trading including ice cream vans, hotdog sellers and unlicensed street entertainers. This had led to complaints from residents and users of the area about noise nuisance, littering and unpleasant smells. Illegal street trading was also causing obstructions to traffic flow in the area.
  2. Extensive consultation was carried out in October and November 2008 and a further consultation was carried out in April 2010 specifically on the prohibition of ice cream vans. Following the consultation, the Strategic Director of Environment and Housing prepared a report which was considered by the licensing committee in July 2010. The committee decided to prohibit itinerant ice cream trading in the area and to designate two sites in the area for the purposes of street trading.

The Council’s handling of Mr B’s street trading licence applications

First application

  1. In July 2019 Mr B contacted the Council wishing to apply for a temporary licence at one of the designated sites for a coffee stall. The Council explained the sites were not available for licensing because they had not been advertised. It invited Mr B to apply for a temporary licence at another (non-designated) site along the same stretch of the river which he did in July 2019.
  2. On 31 July 2019 the Council sent an email to Mr B informing him that his application had been successful and that he would be invited to a registration meeting. The Council has explained that this email was sent in error by a very junior officer. It sent an email to Mr B the following day retracting the confirmation that his application had been successful and apologising for the error.
  3. Although the Council was at fault in sending the first email, I do not consider this caused Mr B a significant injustice because it corrected the error the following day.
  4. Mr B says he received no formal decision in response to his application. But, on 14 August 2019, a manager telephoned him and explained that the site in question was not suitable because of “obstruction” and the number of existing coffee shops in the area. Mr B says the manager referred to two establishments neither of which were coffee shops: one was a pub and the other was a restaurant. She also referred to the area being a ‘prohibition area’ which Mr B says is not correct.
  5. The Council says Mr B identified two sites, neither of which were designated sites. The first was near a cobbled pathway which acts as a thoroughfare and connection between several local attractions. It says there are several establishments in the immediate vicinity selling coffee, including Pret a Manger and Café Nero together with other independent establishments.
  6. The Council says the second site proposed by Mr B was near the Globe Theatre. This area also has establishments selling coffee including Eat and Starbucks. The area also has a prohibition order surrounding it which prevents the sale of ice cream by street traders. The Council says this information was given to Mr B when he enquired about ice cream sales there.
  7. The Council says this site was also identified as a pinch point and so not suitable for a trading pitch by the previous manager of the Markets and Street Trading service. He had already consulted for trading in that area with the Council’s Highways service who deemed it to be un-safe and likely to cause obstruction.
  8. I am satisfied the Council properly considered Mr B’s application and explained the reasons for its decision not to grant a temporary licence at either of the proposed sites. In these circumstances, there are no grounds to question the decision.

Second application

  1. Mr B visited the area with two officers to identify a possible alternative location. He submitted a second temporary licence application in August 2019 for a site further along the embankment from the one he had previously identified near the Globe Theatre. The Council said a consultation would have to take place before it could reach a decision on the application.
  2. Mr B says there was no requirement for the Council to carry out consultation to issue a temporary licence. He also says there was no genuine need to for it to do so because extensive research had already been conducted in 2010 which identified the benefits of having a licensed street trader in the Bankside area.
  3. I find the Council was entitled to carry out a consultation exercise before reaching a decision on Mr B’s application. The research referred to by Mr B took place some 10 years previously and the Council was entitled to obtain up-to-date information. In addition, it was a matter for officers’ professional judgement whether or not it was appropriate to seek the views of residents and businesses adjacent to the proposed pitch.
  4. The Council wrote to 15 local residents and businesses regarding the proposed temporary licence. The responses indicated residents were opposed to the proposal on the grounds of noise, littering and obstruction to the highway.
  5. Mr B says the consultation letter issued by the Council was designed to elicit only negative responses because it asked recipients to respond if they had “queries or concerns about this proposal or wish to object to this application”.
  6. I consider the wording of the consultation letter could have been better. However, Mr B was given the opportunity to submit evidence of positive support for his application. The Markets and Street Trading manager wrote to his representative asking for letters to support Mr B’s assertion that he had support from the church and local residents regarding an electricity supply. Mr B’s representative later confirmed Mr B had emails from people who were supportive of his application but did not provide these. Mr B’s representative says this is inaccurate but has provided no evidence to support this.
  7. Another officer wrote to Mr B’s representative saying, “it would be good for [Mr B] to provide any testimonials as he said several local establishments were supportive of his proposal when we met on the South Bank. It would be best to have these prior to us making a decision as there has been opposition to the placing of a commercial business on the walkway and surrounding area”. She went on to say, “if they are written testimonials that would be great, if they are verbal ones then we would need the name of the person who supported him and their business/organisation and location”.
  8. In November 2019 the Council refused Mr B’s application for a temporary licence. In reaching this decision, the Council took into account the concerns raised in response to the consultation and a health and safety survey conducted by the previous Markets and Street Trading service manager in 2010 which strongly advised against additional “stopping/gathering points” being installed in that location. The Council says the Markets and Street Trading service also consulted again with the Council’s Highways service who visited the Globe Theatre site. They decided it was not safe or compliant with equalities legislation and there was not enough space to make it suitable for trading purposes.
  9. Mr B says the reasons given by the Council for refusing the application are not valid under Section 25 of the London Local Authorities Act 1990 because it has not specified one of the specific grounds for refusal set out in the Act.
  10. The Council considers Section 25 of the 1990 Act is not the applicable or relevant section of the legislation. It says Mr B’s application was for a temporary licence and was clearly marked as such. It related to a self-identified site which the Council had not designated as a street-trading location. It argues that Section 25 applies only to ‘street trading licences’ whereas temporary licences are dealt with in Section 31 of the Act. This section is referred to as concerning ‘temporary licences’ and states:
  1. a borough council may if they think fit on the receipt from any person of an application for that purpose and accompanied by the appropriate fee grant to that person a temporary licence’.
  1. The Council says Section 31 indicates that decisions on temporary licences are made entirely at the discretion of the local authority. It does not require a council to provide any reasons as to why an application is refused, nor are there specific grounds that any refusal must satisfy.
  2. I am satisfied with the Council’s explanation. I find no grounds to question its decision to refuse Mr B’s application. It properly considered the application and took account of relevant information including the views of local residents and businesses and of the Highways service which concluded the site was not suitable for trading purposes. The Council has explained the reasons for its decision, and in the absence of administrative fault, there are no grounds to question that decision.

Third application

  1. On 9 December 2019 Mr B submitted two applications for a licence at either of the designated sites. The Council confirmed his applications would be considered when the pitches were advertised to the public. It intended to begin the process of advertising and allocating pitches in April 2020 but, because of COVID-19, this has not yet happened and is currently on hold. However, the Council is still intending to pursue this.
  2. The Council has suggested a weekly licence fee of £1000 for a pitch. Mr B says the fee does not comply with section 32 of the London Local Authorities Act 1990 because the Council has not explained how it is justified by reference to “reasonable administration or other costs”. The licence fee should be determined by reference to these costs and not the potential turnover to be generated.
  3. The Council has explained that the fee was set applying benchmarking with other local authorities which have similar prime location sites. It says the fee is charged with the intention of making the entire site self-sustaining and it intends to provide a stationary power supply, the costs of which would be included in the fee. The Council says the main use of the fee will be to fund the enforcement officers and framework which are an essential aspect of the site being allowed into use in this way. The site will be operational seven days a week and the Council expects to provide four enforcement officers to discourage illegal traders and buskers. The fee would also cover expenses related to secondary enforcement action and court costs which the Council would incur in the enforcement process.
  4. If Mr B disagrees with the amount of the licence fee, he has a right of appeal to the Magistrates’ court under part III of the Act.
  5. I find no grounds to criticise the Council’s handling of Mr B’s third application.

The Council’s handling of Mr B’s complaint

  1. Mr B’s representative submitted a formal complaint on his behalf in December 2019. The Council’s complaints procedure states that a complainant will receive a full written response at stage 1 within 15 working days. The Council did not issue a stage 1 response but, instead, escalated the complaint directly to stage 2 and notified Mr B.
  2. Mr B sent emails to the stage 2 investigator referring to the Council’s two-stage complaints procedure and complained that it had escalated his complaint directly to stage 2 which, effectively, deprived him of the opportunity of an informal appeal. The stage 2 investigator explained the reasons for the Council’s decision to proceed directly to Stage 2. He issued a stage 2 response on 20 January 2020.
  3. Mr B says the Council’s approach was unfair and, effectively, denied him the right of appeal against its decision on his complaint.
  4. The Council says it often takes this approach where there has already been extended dialogue between the complainant and the service about a decision which the complainant does not accept. Stage 1 complaints are usually considered and responded to by the service to give them an opportunity to correct any errors or misunderstandings. But, if it is clear the position is unlikely to change, further correspondence is unlikely to assist and the Council considers it is in the best interests of all parties for the complaint to be escalated. In such circumstances, the responses already issued by the service effectively form the stage 1 response. If the Customer Resolutions Team considers the service has not properly considered the issue, it will not accept the complaint and will refer it back to the service for a further response.
  5. There are no grounds to criticise this approach which is one many councils take. The service was entitled to conclude that it could add nothing further and pass the matter to the Customer Resolutions team for review at stage 2.

Final decision

  1. I do not uphold Mr B’s complaint.
  2. I have completed my investigation on the basis I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman

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