Summary: The complainant says the Council failed to consistently enforce market trading rules leading to some traders trading from areas they do not rent damaging the complainant’s custom. The Council says it investigated concerns and followed its enforcement policy and practice resulting in increased compliance with the rules. The Ombudsman finds the Council acted without fault in its response to the concerns raised.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains that despite promises the Council would ensure all fellow market traders complied with the rules delineating trading spaces the Council has allowed others to ‘build-out’ from their stalls. Mr X says the ‘build-outs’ damage his trading position. Mr X wants the Council to consistently, in a timely fashion and fairly apply the rules thus reducing disputes among traders.
2. Mr X says the lack of consistent enforcement leads to confrontation, bullying, harassment and loss of sales.

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The Ombudsman’s role and powers

3. 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)
4. If 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

5. In considering this complaint I have:
• Contacted Mr X and read through the information presented with his complaint;
• Put enquiries to the Council and reviewed its responses;
• Researched the relevant law and Council policy;
• Shared with Mr X and the Council my draft decision and reflected on any comments received.

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What I found

6. The Council manages a market in which Mr X leases a shop unit. The lease sets out the rules for conducting trading and specifies the area the tenant can use. The lease forbids trading from areas outside the area let to the tenant.
7. The Council allows market tenants to apply for permission to trade in extra spaces at the front or side of their unit. The Council considers each application on its own merits. The ‘build-out’ must not create a health and safety risk or cause significant narrowing of the walkways between units. The Council charges for the extra space which it delineates by a yellow line on the floor. Any misuse can lead to the Council ending the agreement to use the area defined by the yellow line.
8. The Council’s enforcement policy encourages officers to first talk to and liaise with tenants in the hope of resolving disputes. If unsuccessful the Council may issue a first written warning, and a second. Any further encroachment or breach of the rules may then result in a final written warning. This tells the tenant that if any further infringement occurs in the next six months the Council may refer the matter for legal proceedings to revoke the trader’s trading agreement. A tenant who also holds an agreement for extra space within a yellow line will have that agreement revoked when served a final written warning.
9. The Council will only take legal action if that is a proportionate response, subject to the advice of its legal department and after considering prosecuting guidelines.
10. Mr X says in Spring 2018 he complained about build out near his store because it has a harmful impact on customers seeing and reaching his store. Mr X complained generally about neighbouring stall holders using one as a specific example. The Council says its officers spoke to the stallholder in August 2018. The officers gave the stallholder three days to comply with their instructions and told him if he wished to use the space in front of his stall he must apply for a ‘yellow line’ permission. The stallholder complied with the officer’s directions and applied for a yellow line permission to use extra space. The Council approved the application and granted this permission.
11. The Council says encroachment is a continuing and frequent problem within the market. Following complaints by tenants about encroachment the Council wrote to all tenants in October 2018 reminding tenants of the rules on encroachment. The letter reminds tenants if they wish to use more space, they must apply for a yellow line agreement and pay the increased charges. The letter set out the possible sanctions the Council may apply if they do not comply.
12. Following this letter, the Council’s market service identified the 36 traders most commonly encroaching beyond their tenancy area. The Council’s officers visited all 36 twice reminding them of the rules. Several applied for extra space which the Council granted and others responded by ending their encroaching beyond their tenancy area.
13. The Council says it only received one complaint from Mr X about a stall holder trading near him. It dealt with that resulting in the stall holder applying for an agreement for extra space.
14. Mr X complained the Council only considered this one trader when he clearly said other traders near him had acted in the same way. Mr X told the Council other traders still displayed items for sale within the walkways restricting views and access to his business. In response the Council directed officers to check other businesses close to Mr X’s stall traded within their defined areas. The Council also said by September 2018 it would consider what enforcement it should undertake. It followed this up by the action taken in October 2018 which led to in its view, an improvement in compliance.
15. In commenting on my draft decision Mr X says the Council is failing to properly enforce byelaws which may lead to infringement of fire safety and health and safety regulations. Market traders, Mr X says, recently passed a motion of no confidence in the Council’s management of the market.

Analysis – was their fault leading to injustice?

16. My role is to consider how the Council responded to Mr X’s concerns and followed its enforcement policy and procedure.
17. The Council recognises the concerns expressed by several traders about encroachment and the use of space without agreement or payment. It undertook a survey, identified the people most likely to encroach beyond their space and followed that up with action. It will not always follow that contravention of the tenancy agreement will lead to formal legal action. The Council must consider each case on its merits. The Council should regularly review compliance to ensure any measures taken continue to result in improvements.
18. Mr X complained about several stallholders but named one as an example. The Council acted in line with its policy and practice by visiting the stall holder, reminding him of the rules and inviting an application for extra space. The stallholder complied with the instructions and the Council granted permission to use the extra space. In the Council’s response to Mr X’s complaint it also checked compliance by other nearby traders and wrote to all tenants with a reminder.
19. The Council must avoid appearing to tolerate encroachment and show it will follow its enforcement policy consistently otherwise traders who comply with all the rules will feel unfairly treated. Rule abiding traders may feel it unfair if they keep their trading within the area they rent, whereas others trade from an area they do not rent. That does not mean however, the Council must consider formal action after every contravention. It should investigate as it has by visiting the trader concerned and finding out what is happening.
20. In response to the Council’s research which found a high number of traders infringed the rules the Council acted in each case to rectify the contraventions. It is a matter of judgement how far any action should go and whether more formal action such as legal proceedings is proportionate to the harm caused.
21. I find the Council acted without fault in its response to Mr X’s concerns about his neighbouring traders. It considered his concerns and ensured the trader he gave as an example applied for a yellow line area. This meant the Council could properly consider the implications of the increased trading area and the impact it may have on those using the path through the market. It then followed up concerns about other nearby traders and conducted the wider survey and issued the letter reminding traders of the rules and likely sanctions.

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Final decision

22. I find the Council acted without fault and in line with its policy and practice.

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Investigator's decision on behalf of the Ombudsman