Street Trading Policy

Introduction

Overview

Pembrokeshire County Council’s [the council] objective is to create a street trading experience that is diverse and vibrant; adds to the social and cultural fabric of Pembrokeshire; protects and enhances our environment; and promotes the County.
Street Trading can cover a wide range of retail and catering activities undertaken in public streets. The content of this document sets out the policy in relation to street trading in Pembrokeshire. It is not a full and authoritative statement of the law and does not constitute legal advice.
This policy is designed to ensure that the street trading function is delivered in accordance with legislative requirements, the Council’s strategic aims and objectives and to provide a context for operational decision-making
The policy also aims to ensure that we meet the needs of residents, businesses and visitors to assist with the regeneration of our county. This policy should also be reviewed in conjunction with other key policies:

The Economic development strategy.
Food Enforcement Section business plan.

This document will guide the Council when it considers applications for street trading consents and will inform applicants of the criteria against which applications will be considered.

It is the intention that this Policy will be reviewed every five years or more frequently should legislative changes deem necessary.

Street Trading in Pembrokeshire

The Local Government (Miscellaneous Provisions) Act 1982 [the 1982 Act] sets out legislative provisions concerning street trading.

On 29th November 2010, it was resolved that Schedule 4 of the 1982 Act shall apply for the purposes of street trading in Pembrokeshire. This came into force in Pembrokeshire on 6th December 2010.

On 7th February 2011, it was resolved that all streets within Pembrokeshire which are publicly adopted highways (including trunk roads) are designated as consent streets for street trading purposes. The designation took effect on 1st April 2011. This means that the County Council’s consent is required for street trading to take place on those streets.

Subject to the exemptions which are set out in the legislation (referred to in paragraph 1.5 below for which other permissions may still be required), ‘street trading’ means the selling or exposing or offering for sale of any article (including a living thing) in a street. The term ‘street’ can include any road, footway, beach or other area to which the public have access without payment, a service area as defined in section 329 of the Highways Act 1980 and can also include part of a street.

The Aims of the Policy

This Policy aims to ensure that street trading does not undermine safe and efficient passage along public highways.

This Policy aims to provide a consistent and transparent approach in the way in which the Council deals with street trading. In developing this policy, the Council had regard to:

the legal requirements of the 1982 Act;
the Council’s duties under Section 17 of the Crime and Disorder Act 1998 which include having due regard to the likely effect on, and the need to do all that it reasonably can to prevent crime and disorder in Pembrokeshire;
the Regulators’ Code under the Legislative and Regulatory Reform Act 2006; and
the Provision of Services Regulations 2009 which includes ensuring conditions are non-discriminatory, justified by an overriding reason relating to the public interest, proportionate to that public interest objective, clear and unambiguous, made public in advance and transparent and accessible.

Consultation

There is no statutory requirement to consult before determining the Street Trading Policy, however, to ensure openness and transparency the Council has chosen to carry out a public consultation in relation to the street trading policy.

Exemptions

For the purpose of Schedule 4 of the1982 Act, the following are not street trading:

Pedlars – trading by a person acting as a pedlar under the authority of a pedlar’s certificate granted under the Pedlars Act 1871;
Anything done in a market or fair where the right to hold was acquired by virtue of a grant (including a presumed grant), or acquired or established by virtue of an enactment or order;
Trading in a trunk road picnic area provided by the Secretary of State under Section 112 of the Highways Act 1980;
Trading as a News vendor where:

the only articles sold or exposed for sale are newspapers or periodicals; and
they are sold or exposed or offered for sale without a stall or receptacle for them, or with a stall or receptacle for them which does not:

exceed 1 metre in length or width or 2 metres in height
occupy a ground area exceeding 0.25 square metres; or
stand on the carriageway of a street;

Trading which is carried on at premises used as a petrol filling station; or is carried on at premises used as a shop or in a street adjoining premises so used and as part of the business of the shop;
Selling things, or offering or exposing them for sale, as a roundsman (e.g. a milkman). A roundsman is one who goes the round of his customers for orders and delivery of goods
Use for trading under Part VIIA of the Highways Act 1980 of an object or structure placed on, in or over a highway;
Operation of facilities for recreation or refreshment under Part VIIA of the Highways Act 1980;
The doing of anything authorised by regulations made under section 5 of the Police, Factories, etc. (Miscellaneous Provisions) Act 1916.

Licensing Requirements

It should be noted that a street trader wishing to sell alcohol or provide late night refreshment requires additional authorisation under the terms of the Licensing Act 2003. Late Night Refreshment is the supply of hot food or drink between the hours of 11.00pm and 5.00am on any day of the week.

Licensing Officers will be able to provide further information on the requirements of the Licensing Act 2003. Contact - licencing@pembrokeshire.gov.uk

The Children and Young Persons Act 1933 as amended by the Children and Young Persons Act 1963, and the Council’s Byelaws on the Employment of Children control the employment of children in street trading. The Council’s Education Department will be able to provide further information on this.

Fees

The Council may charge such fees as it considers reasonable for the grant or renewal of a street trading consent. The Council may determine different fees for different types of consent and in particular may determine different fees having regard to the duration of the consent, the location, and the description of articles in which the holder is authorised to trade.

Fees will be reviewed annually on a cost recovery basis and any variation will be approved by Council. Details of the current fees and application forms can be found on the Council’s website via Licensing or by contacting the Streetcare section either by email streetcare@pembrokeshire.gov.uk or in writing to Pembrokeshire County Council, Streetcare section, County Hall, Haverfordwest, SA61 1TP or telephoning 01437 764551.
Application fees must accompany the application for grant or renewal of the consent. If the application is refused, a deposit will be repaid by the Council to the applicant.

Consent fees are payable once the application is successful. 30% of the consent fees must be paid in advance and the remainder paid in equal instalments within 6 months of the consent start date. Failure to maintain payments may result in the consent not being renewed. If an Applicant does surrender their consent or the consent is revoked, the Council shall refund part of the fee paid for the grant or renewal of the consent as the Council considers appropriate for the unexpired period of the consent.

Applications

Advice for New Applicants

New applicants are advised to contact the Council at their earliest opportunity, preferably before an application is made. This allows Officers to provide advice as well as clarifying any areas of uncertainty.
It is the responsibility of the applicant, in the first instance, to identify the location(s) they wish to trade as there is no designated list of street trading ‘pitches’ that can be traded from.

The Council can also provide advice in relation to other requirements, which may be relevant to a new applicant for example, planning permission or food safety requirements.

Disclosure & Barring Service (DBS)

Applicants applying for a new street trading consent will be expected to obtain a basic DBS certificate (formerly known as CRB) from Disclosure and barring services (opens in a new tab) which must be no more than one calendar month old when submitted to the Council.

The DBS certificate must be in the name and address of the applicant as detailed on the application form.
The original certificate must accompany the application form.
The Council will ask for a new DBS certificate from an applicant every third year beginning with the year after the issue of a new consent.

The DBS certificate will be expected to accompany a renewal application every three years and the Council will make it clear to applicants when this is required.

Suitability of Applicant

When determining an application for the grant or renewal of a street trading consent the Council will consider all relevant information relating to the suitability of the applicant to hold such a consent. Street Traders and their commercial activities are often subject to minimum levels of supervision. They interact closely with members of the public and it is important that the public, especially vulnerable people are protected from harm, and from those who may harm them, wherever possible.

The Council will determine whether the applicant is a suitable person to carry on business as a street trader and may not issue a consent unless satisfied that the applicant is suitable. In determining this, the Council may have regard to any information, which it considers relevant including:

Whether the applicant has been convicted of a relevant offence;
Applicants are required to obtain a DBS certificate before making application, see paragraph 2.2 above (this will also be required for any assistance associated with the application)
Refusal or neglect in paying fees due to the Council for a street trading consent, or for any other charges due for services rendered by the Council to the applicant in his capacity as the holder of a street trading consent; Any previous enforcement action;
Any previous refusal of an application for the grant or renewal of a Street Trading Consent;
Any previous revocation of a Street Trading Consent.

Submitting an Application for the Grant of a Street Trading Consent

All applications for the grant of a Street Trading Consent must be made on the Council’s prescribed application form. The application form is available from the Council’s Street Care Team contactable on 01437 764551 or email streetcare@pembrokeshire.gov.uk or in writing to Pembrokeshire County Council, Streetcare section, County Hall, Haverfordwest, Pembrokeshire, SA61 1TP or by clicking the attached link to the Council’s website at Licensing

Each application must be accompanied by the prescribed application fee. An application will not be considered as complete until the prescribed fee and all supporting documentation has been received.
The following documents will be required to be submitted with the application for Short, Medium, Long, Occasional, Market AND Mobile Vendors -

Proof of eligibility to work in the UK
Proof of a basic DBS certificate (formerly known as CRB) from Disclosure and barring Services (opens in a new tab)
A location plan which clearly shows the proposed location for the street trading;
A photograph or brochure detailing the unit/vehicle to be used including its dimensions;
A copy of Public Liability Insurance for a minimum of £5 million in respect of any one incident;
Two passport sized photographs of the applicant and any person who will be assisting with the trading on a regular basis.
Full details of any assistant associated with this application must be submitted at the time of application.
With regards to Mobile vendors the following will also be required

Copy of Valid MOT Certificate for the vehicle
Insurance documentation for the vehicle

(Note If the application includes any assistances then points 1, 2, 6 will also need to be submitted with the application)

The following documents will be required to be submitted with the application for Café Culture Consent

Please supply a map highlighting the location you wish to place your tables and chairs
Please supply photographs of the tables and chairs you wish to use before consent can be granted
Please also confirm storage facilities for tables and chairs outside of the Café Culture Hours

Applications cannot be considered from anyone under the age of 17; or for any trading in a highway to which a control order under section 7 of the Local Government (Miscellaneous Provisions) Act 1976 is in force, other than trading to which the control order does not apply.

Applications can be submitted electronically to streetcare@pembrokeshire.gov.uk or by post to The Streetcare and Parking Manger, County Hall, Haverfordwest, Pembrokeshire, SA61 1TP.The Council will inform the applicant as soon as possible if the application is incomplete and if any additional information/documentation is required, as well as the effect of this on the time period for processing the application (referred to below).

Processing an Application

Following receipt of your completed application, the Council will acknowledge receipt and specify the end date of the 28-day period for processing your application. This document will include details of any available means of redress and will confirm that tacit consent does not apply as indicated below.

Your application will be processed as quickly as possible and the Council will endeavour to reach a decision within the 28-day period mentioned above. When justified by the complexity of the issue, the Council reserves the right to notify you of an extension of this period, also confirming the duration of and reasons for this extension, prior to the expiration of the aforementioned 28 day period.

As indicated above, tacit consent does not apply as it is in the public interest that applications are processed before they can be granted. If you have not heard from the Council within the specified 28-day period or any extension period thereafter, please contact the Council to check the status of your application.

Applications for the grant of a Long Term Street Trading Consent will be notified by the Council to the following people or bodies: -

Council departments :

Licensing
Food Safety
Health & Safety
Commercial Pollution
Trading Standards
Highways sections
Planning
Regeneration & Tourism;

Also:

Dyfed Powys Police
Town/Community Council relevant to the location applied for
County Councillor for the ward relevant to the location applied for
Businesses and Residents in the immediate vicinity
Welsh Government in relation to all consent on Trunk Road network

Other consent applications (e.g. for short or medium term consents) may be referred to some or all the above dependant on impact and nature of the application. For example, items such as food sales may be referred to food safety team.
Written representations concerning an application will be accepted if received by the Council within the 21-day period of the date of the Council’s notification of the application.

Determining an Application

The Council’s Streetcare and Parking Manger has delegated powers to issue or reject an application following a period in which representations can be made (as referred to in 2.5 above). In making that determination, the application and any representations will be considered alongside the 1982 Act and a list of set criteria to determine street trading applications before any decision is made. The criteria can be found in Annex 1 of this document.

Where a written representation is received by the Council in respect of an application within the 21 day period mentioned in 2.5 above, the Streetcare and Parking Manager has discretion to attempt to mediate between the relevant parties.

For example, it may be possible to find a compromise by-

Amending the times during which trading will take place;
Amending the days on which trading will take place;
Amending the list of articles to be sold

Where all relevant parties agree to a compromise and the Streetcare and Parking Manager is satisfied that the application should be granted on those terms, the Consent will be granted by the Streetcare and Parking Manager, subject to the agreed amendments.

Each application will be determined on its own merits and reasons will be provided for the decision.

If the County Council decides to grant or renew a street trading consent, the Council may attach such conditions to it, as it considers reasonably necessary. The County Council may at any time vary the conditions of a street trading consent.

The Council may grant a street trading consent for any period not exceeding 12 months. This period is justified by an overriding reason relating to public interest in light of public policy.

The Council may revoke a street trading consent at any time. Should you be granted a consent you will be required to comply with the conditions attached to the consent, if the conditions of your consent are breached then it may be revoked.

There are no statutory rights of appeal against the Council’s decision to grant, refuse to grant, renew, and refuse to renew, vary consent or revoke consent.

If, however an applicant or a person/body who has made written representations within the specified period is not satisfied with the decision in relation to the application, or a consent holder is not satisfied
with a decision to vary the terms of consent or revoke the consent, that person/body can submit an appeal in writing to the Council’s Head of Infrastructure within 14 days of the date of the Council’s letter notifying them of the decision.

Such an appeal can be made by post to Head of Infrastructure, County Hall, Haverfordwest, SA61 1TP or via e-mail to streetcare@pembrokeshire.gov.uk. The outcome of the appeal will be notified to the appellant in writing within 21 days of receipt of the appeal.

The Council’s decision can also be challenged by way of judicial review to the High Court.

In addition, the Council’s complaints process is also open to you, details of which can be obtained via Complaints or by phoning our contact centre on 01437 764551.

If a street trading consent is granted, the holder of that consent may at any time surrender his consent to the Council and it shall then cease to be valid.

Applications to renew a Street Trading Consent

Consents can be issued for a period not exceeding twelve months but may be issued for a shorter period. Renewal reminder notices will be sent to consent holders 6 weeks before expiry of their consent.
An application to renew an existing street trading consent should be made at least one calendar month before it is due to expire. Once the complete renewal application has been received, the Council may notify people/bodies further depending on the term of the consent which is the subject of the application (please see 2.4 and 2.5 above). Please see 2.6 above in relation to the determination of applications.
If a renewal application is not made before the expiry date of the current consent, a new application will be required. The effect of this will be that no street trading will be permitted until the new application has been determined.

Transfer of a Street Trading Consent

A street trading consent cannot be transferred or sold to another person.

The sub-letting of a pitch is prohibited.

Conditions

If the Council decides to grant or renew a street trading consent, the Council may attach such conditions to it as it considers reasonably necessary, and the standard conditions will apply to the consent unless the Council confirms otherwise. The standard conditions are not exhaustive and other conditions may be attached to individual consents where appropriate. A copy of the standard conditions can be found at Annex 2 of this Policy.
The County Council may include permission for the holder of a street trading consent to trade in a consent street from a stationary van, car, barrow or other vehicle; or from a portable stall. In doing so, the Council can make the consent subject to conditions: - as to where the street trading consent holder may trade; and the times between which or periods for which the street trading consent holder may trade.

Enforcement

All enforcement actions taken by the Council will be dealt with in accordance with the Council’s Public Protection Division Enforcement Policy and the principles of consistency, transparency and proportionality set out in the Regulator’s Code.

Offences

Offences under Schedule 4 to the 1982 Act include-

engaging in street trading in a consent street without being authorised to do so under the said Schedule 4;
being authorised by a street trading consent to trade in a consent street, trading in that street- from a stationary van, cart, barrow or other vehicle; or from a portable stall; without first having been granted consent to do so, or contravening a condition imposed thereunder; or
any person making a false statement which he/she knows to be false in any material respect, or which he/she does not believe to be true, in connection with an application for a street trading consent.

Annex 1

Criteria for Determining Street Trading Consent Applications

Each application will be judged on its own merits
The number of street traders in any one street will be limited so as not to cause undue concentration.
The siting and operation of any street trader shall be such that it does not cause any problems of highway safety, obstruction of the street or danger to persons using it, obstruction to important sight lines for CCTV cameras, conflict with the requirements of emergency vehicles or create unacceptable parking issues.
Locations for uses with particular needs (such as water or electricity supply) will only be considered where these supplies can be safely and conveniently provided.
The use shall be compatible with the character of the area in which it is proposed to be situated. The design of the unit shall not have a significant adverse impact on the visual amenity of the area.
The appearance and use of the Street Trading Unit including associated equipment or structures shall be of a good quality and complementary to the ambience of the locality. The precise appearance of the unit will need to be identified before consent is granted. (For the sake of clarity, it is acknowledged that ‘good quality’ is a subjective judgement, but it will include reference to quality and condition of the unit, product and staff, both in their attire and demeanour, and will be applied at both the inception of the consent and continue during operation.)
Uses that are likely to cause problems of noise, nuisance or annoyance, traffic disturbance, odour, litter or late night disturbance especially in residential areas will not be given consent.
Consideration may be given to any positive health impacts provided by the range of food and drink available to customers.
Applications for Consent/renewals will not be considered for any street trader in arrears with street trading fees until such arrears are paid in full.
The council encourages street traders to provide services and signage in Welsh and English where possible, but this is not a condition of an application. However, the council would welcome all applications to outline any Welsh Language services or signage that will apply to their street trading – this information will be held for the Council’s information as to approaches to and trends of welsh language services only and will not be considered as part of the application and consents process.

Annex 2

Street Trading Standard Terms and Conditions

Any Street Trading Consents which are issued by the Council will be subject to the following conditions, in so far as they do not conflict with or are amended by any specific conditions imposed on the grant of the Street Trading Consent:

The Street Trading Consent is valid for the period specified in the Consent. If no period is specified in the Consent, it will be granted for a period of 12 months from the date of issue of the consent.
The Consent Holder shall pay a fee to the Council in accordance with the approved list of fees.
The Consent Holder may surrender the Street Trading Consent at any time, and the Council shall repay to the Street Trading Consent Holder that part of the fee considered by the Council appropriate for the unexpired period of the Street Trading Consent.
The Consent Holder must at all times, whilst trading, clearly display the Street Trading Consent issued by the Council.
The Consent Holder shall at all times whilst trading, clearly and visibly display a valid identification badge issued by the Council.
The Consent Holder shall not carry on their trade in such a way as to cause obstruction of any part of the Street in which they are trading, or create a danger to persons in the street.
The Consent Holder shall not carry on their trade in such a way as to cause a nuisance or annoyance to persons using the street or to occupiers in the vicinity.
The Consent Holder shall not sell any type of food, goods or merchandise other than that specified in the Street Trading Consent.
The Consent Holder shall provide and maintain, where appropriate, adequate facilities for the collection of litter resulting from their trade and at the close of each trading day shall remove that litter from the street.
The Consent Holder shall be responsible for any damage to the Street or otherwise resulting from the Street Trading activity.
The Consent Holder shall make such provision as is necessary to prevent the deposit in any street of solid or liquid refuse occurring from their Street Trading activity and shall not discharge any waste water to the Street surface or to the surface water drains.
The Consent Holder shall not use any television, tape recorder or other device for the reproduction of sound while Street Trading without the express permission of the Council.
The Consent Holder shall not carry out Street Trading outside the times and days permitted by the Street Trading Consent.
The Consent Holder shall not trade in any location other than the location permitted by the Street Trading Consent.
The use and storage of liquid petroleum gas shall comply with any requirements specified by Mid and West Wales Fire and Rescue Service.
The Street Trading Consent shall not operate for any other purpose than to permit the Consent Holder or a person engaged by the Consent Holder to assist in their trading to trade in a Consent Street in accordance with the conditions imposed under the street trading consent. The Consent Holder must ensure that he/she has obtained any other approval or registration required under any other statutory provisions related to their trade.
The Consent Holder shall be responsible at all times for control of the Street Trading Unit. Any persons assisting on the unit shall be 17 years of age or over.
The Street Trading Consent is personal to the Consent Holder named within it and shall not be assigned, sub-let or transferred to any other person, firm or company.
The Consent Holder or their employee must move the Street Trading unit or vacate the site immediately upon the instruction of a Police Officer or Authorised Officer of the Council.
Nothing herein contained shall prejudice the rights, powers, duties and obligations of the Council or any other enforcing authority under any public or private statutes, orders, regulations or byelaws. The Consent Holder shall at all times maintain a valid Third Party Public Liability Insurance policy to the satisfaction of the Council and shall produce evidence of such insurance any time upon request. Nothing contained in these conditions shall relieve or excuse the Consent Holder or their employee or agent from any legal duty or liability and the Consent Holder shall indemnify the Council in respect of all claims, actions, demands or costs arising from their Street Trading.
Consent Holders and/or any person engaged by the Consent Holder to assist in trading should wear clean and appropriate clothing.
The Consent Holder must notify the Council within 7 days if any of the information provided when applying for the consent changes.
The Council may vary the conditions attached to the Street Trading Consent at any time.
Any breach of the conditions may lead to the Street Trading Consent being revoked.

Annex 3

Guidelines on the suitability of applicants

General Principles

The primary aim of this policy is public protection. To help in achieving that aim, the council will consider the suitability of applicants to be authorised as street traders. Street traders and their commercial activities are often subject to minimum levels of supervision. They interact closely with members of the public and it is important that the public, especially vulnerable people be protected from harm and from those who may harm them, wherever possible.

The Council will determine whether the applicant is a suitable person to carry on business as a street trader and may not issue a street trading consent unless it is satisfied that the applicant is suitable. In determining this, the authority may have regard to any information, which it considers to be relevant, in particular:

Whether the applicant has been convicted of any relevant offence;
Whether the applicant has been the subject of any relevant enforcement action;
Any previous refusal of an application for the issue or renewal of a street trading consent (and the reasons for the refusal);
Any previous revocation of a street trading consent (and the reasons for the revocation)

For the purposes of this policy, relevant offences include unspent convictions for offences involving dishonesty, the use and supply of controlled drugs, violence and offences of a sexual nature, which are less than 3 years old from the date of receipt of the street trading application, and will be included in the consideration of whether the applicant is a suitable person to hold a street trading consent.

A person with a conviction for a relevant offence will be expected to have remained free of conviction for a period of time, before an application is granted. Some discretion may be exercised if the offence is isolated, minor in nature and there are mitigating circumstances. However, the overriding consideration will always be the protection of the public.

Notwithstanding the above, the Council is aware of its duty not to restrict its discretion and it shall permit representations from the applicant explaining why it may nevertheless, be appropriate for street trading consent to be granted.

Guidelines on the relevance of convictions

Each case will be decided on its own merits.

The Council will assess whether:

an applicant for the grant or renewal of a street trading consent is a suitable person to hold or to continue to hold a street trading consent,
In making that assessment, the Council considers the previous convictions of such persons.

In considering the previous convictions of those persons mentioned above the Council will consider the following:

whether the conviction is relevant;
the seriousness of the offence;
the length of time since the offence occurred;
whether there is a pattern of offending behaviour;
whether that person’s circumstances have changed since the offence occurred;
the circumstances surrounding the offence and the explanation offered by that person.

The following examples provide a general guide on the action to be taken where relevant convictions and cautions are evident:

Offences involving Violence

Applicant with convictions for offences involving violence will be considered carefully. Depending on the nature and seriousness of the offence, when applicants have convictions for causing grievous bodily harm, wounding, assault, or even more serious offences involving violence in general, a period of three to ten years free of convictions should elapse before an application will be granted.

Drug related offences

An isolated conviction for a drug offence, whether for unlawful possession only or involving the supply of controlled drugs, will not necessarily prevent an applicant from obtaining a street trading consent, provided the applicant has at least three years free of convictions.

An application will normally be refused where an applicant has more than one conviction for offences related to the possession of drugs and the last conviction or the date of release from jail, where a custodial sentence has been imposed, is less than 5 years before the date of the application.

Sexual offences

Applicants with any unspent sexual related offences will not normally be granted a street trading consent.

Dishonesty

The holders of a street trading consent have to be persons who can be trusted. It is easy for a dishonest trader to take advantage of the public. Members of the public using a street trading outlet expect the holder to be honest and trustworthy. For these reasons a serious view will be taken of any conviction involving dishonesty.

Convictions for isolated minor offences will not necessarily prevent an applicant from obtaining a street trading consent but in cases involving serious theft or fraud, at least three years should elapse before an application is granted. When offences of dishonesty have been accompanied by violence, at least five years free of conviction should elapse before an application will be granted.

Motoring Convictions

In most cases, motoring offences are unlikely to be relevant when deciding if an applicant for a street trading consent is a suitable person. However, there may be instances where the offences are of a very serious nature. In those cases, an applicant would be expected to show a period of at least 3 years free of any such convictions from the date of conviction or the date of release from jail, where a custodial sentence has been imposed.
In all cases, each individual application will be decided on its own merits