Memorandum by the Minister for Housing,
Planning and Construction, Department of the Environment, Transport
and the Regions (TF 36)
1. The Government welcomes the opportunity
to make an input to this inquiry and offers the following contribution
for the sub-committee's consideration. This covers the interests
of a number of Government departments.
INTRODUCTION
2. Many markets and fairs have been held
for many years, operating either by virtue of a specific royal
grant, usually enshrined in a charter, or as a right based on
custom. Early rights have been much affected by modifications
to these ancient charters, by changes to old jurisdictions and
by local government reorganisation and boundary changes. There
is no simple register of persons now entitled to hold markets
or fairs. The Showmen's Guild of Great Britain exists to protect
the interests of its members, in particular to challenge any encroachment
of ancient fair rights granted by charters.
THE PROVISION
OF SITES
FOR TRAVELLING
FAIRSAND
RELATED CONSIDERATIONS
Planning
3. For planning purposes fairs are treated
as a temporary land use. Temporary use of land for less than
28 days per year is regarded as "permitted development"
under Part 4 of the Town and Country Planning (General Permitted
Development) Order 1995 and is thus deemed to have planning permission.
However, a planning application would need to be submitted for
more permanent use of land for fairs. Local authorities must determine
applications in accordance with the development plan unless material
considerations indicate otherwise.
4. Fairs require open sites upon which they
can be held. Although Planning Policy Guidance note 17 (PPG
17) on Sport and Recreation does not specifically mention fairs,
it does require that policies and proposals in local plans cover
"the protection of public and private open space and other
land of recreational, conservation, wildlife, historical and amenity
value". Open land that is so protected has the potential
to be used temporarily for fairs. Also, where authorities are
determining which sites should be protected, it will be open to
them to take into account the historic use, or indeed the site's
potential use, as a funfair as a reason for affording it protection.
5. PPG 17 also suggests that local planning
authorities take into account the community's long term requirements
for open space. Again, suitable sites for holding fairs could
be regarded as one such requirement.
Byelaws
6. The Home Office has made available to
local authorities a model set of byelaws for pleasure fairs. This
is attached at Annex A[1].
The making of such byelaws, under section 75 of the Public Health
Act 1961, is a matter for local authority discretion. The byelaws
cover technical matters such as the regulation of opening hours,
fire prevention, safe access, sanitary conditions, cleanliness,
order and public safety. They are currently being reviewed by
the Home Office and the Health and Safety Executive. The revised
version should be available later this year.
Environmental Considerations
7. To help reduce complaints about noise
nuisance and litter local authorities should have a clear letting
policy where local authority land is used, to limit the size of
fairs, the number of visits each season and the duration of occupation.
Litter
8. A key consideration with regard to litter
is whether the fair is to be held on local authority, common or
private land.
9. If a travelling fair is to be set up
on local authority land, such as a public park, it would, under
section 89 of the Environmental Protection Act 1990, be the responsibility
of the local authority to clean the land unless the authority
has secured the fair's agreement to clean up when they leave.
Temporary litter bins may be provided by the authority but they
are not under any obligation to do so. If bins are provided local
authorities are required under the Litter Act 1983 to empty them
on a regular basis. Under section 88 of the 1990 Act authorities
may employ litter wardens who can issue a £25 fixed penalty
to anyone who drops litter and refuses to dispose of it properly.
10. Where a fair is held on privately owned
or common land it will be for the organisers, as part of the owners'
permission, to clear the site. Section 34 of the Public Health
Act 1936 allows local authorities to remove rubbish from private
land if it is seriously detrimental to the amenities of a neighbourhood.
11. The Code of Practice on Litter and Refuse,
published by DETR, sets out standards of cleanliness for public
open spaces and gives practical guidance to local authorities
and other landowners and occupiers on keeping their land clear
of litter and refuse. The Code states that land attracting
large numbers of people for specific events but otherwise not
busy, such as land used for fairs or circuses, should be restored
to Grade A land (ie free of litter) within 24 hours of the event.
Noise
12. Fairs are a regular cause of complaints
to local authorities on noise grounds. Under Section 80 of the
Environmental Protection Act 1990 local authorities can issue
pre-emptive notices which set out "best practice" actions
in respect of all the noise sources associated with the fair including
hours of operation and, if necessary, noise limits. In addition,
and as noted in paragraph 6 above, authorities may make byelaws
under Section 75 of the Public Health Act 1961 to regulate the
opening hours of fairs. They can also add specific conditions
associated with the hire agreements, for example, to limit the
number of generators or sound systems to be used.
Light Pollution
13. The Courts have ruled that light itself
is not "development" as understood in planning legislation,
so the creation or use of light in itself does not require planning
permission.
14. In addition, as there is generally no
requirement for a planning application to be made for a travelling
fair (paragraph 3 above), the local planning authority is unable
to impose planning conditions to control light pollution of the
night sky or nuisance to nearby dwellings. Even in those cases
where a planning application is required, conditions can only
be imposed where the installation itself amounts to development.
For example, a 1963 court case confirmed that the erection of
a battery of fairground swing boats did not constitute development.
Any conditions relating to lighting must be enforceable and local
planning authorities need to consider the practicality of enforcement
action bearing in mind the temporary nature of the use of the
land.
THE PARTICULAR
NEEDS OF
TRAVELLING SHOWPEOPLE
IN CARRYING
OUT THEIR
TRADEAND
RELATED REQUIREMENTS
Health and Safety
15. The Health and Safety at Work etc. Act
1974 applies to travelling fairs in the same way as it does to
fixed amusement parks. For more than 20 years, the fairgrounds
and amusement parks industry has been in close liaison with the
Health and Safety Executive (HSE) through the Fairgrounds and
Amusement Parks Joint Advisory Committee (FJAC).
16. In 1997 the FJAC agreed a fundamental
revision of the previous health and safety guidance for fairgrounds
and amusement parks. This was published by HSE as "Fairground
& Amusement ParksGuidance on Safe Practice" series
number HSG 175. A copy of a free HSE Information Sheet which gives
the main contents (Entertainment Sheet number 5: Fairgrounds and
Amusement Parks) is at Annex B[2]
The guidance sets out an agreed system of steps and checks which
ensure the health and safety of fairground attractions from design
to disposal, and addresses the responsibilities of the various
dutyholders ranging from manufacturer through to controller, operator
and attendants. The guidance helps all those involved in the industry
to comply with their legal duties under Section 3 of the 1974
Act. Section 3 places duties on those whose work activities might
affect others (for example, members of the public) to ensure,
so far as is reasonably practicable, their safety.
17. Health and safety in the amusement industry
has been strongly supported by the Showmen's Guild of Great Britain,
the Society of Independent Roundabout Proprietors, the Amusement
Catering Equipment Society and the Association of Independent
Showmen. These are the main societies which cover travelling
Showmen.
18. The number of fairground and amusement
park safety incidents remains very low despite the increased length
of the travelling season, the increase in the number of rides
and the large increase in the number of amusement parks.
Education
19. Government policy is that the children
of Showmen and other Travellers should be given the same opportunities
as all other pupils to benefit from what schools can offer them.
Local Education Authorities (LEAs) have a duty under section 13
of the Education Act 1996 to secure that efficient primary, secondary
and further education is available to meet the needs of all the
children in their area; Section 14 of the Act places LEAs under
a duty to secure that education is available for all children
in their area of compulsory school-age, appropriate to their age,
abilities and aptitudes and any special educational needs they
may have. This duty applies whether families are residing in the
area permanently or temporarily and therefore includes Traveller
children.
20. Special funding is available through
the Standards Fund Grant for the Education of Travellers and of
Displaced Persons under Section 488 of the Education Act 1996.
In the current financial year, 1999-2000, this grant is supporting
expenditure of around £13.7 million across about 3,400 schools
in England through the Traveller Education Service network. This
Grant will be merged from April 2000 with the Ethnic Minority
Achievement Grant to become the Ethnic Minority and Traveller
Achievement Grant.
21. This Standards Fund grant programme
aims to improve levels of school attendance, achievement and access
to the curriculum among all Traveller children including their
full integration alongside other children in mainstream education.
Specialist peripatetic teaching staff, classroom support staff,
educational welfare officers and additional classroom resources
are examples of the types of support funded by the grant.
22. Traveller children are allowed dual
registration in schools. The purpose of this is to protect the
continuity of learning of Traveller children. This means that
the school that Traveller children normally attend when not travelling
will be regarded as their base school. They can register at other
schools temporarily while away from their base school. Base schools
must keep a place open for Traveller pupils who are travelling,
and record their absence as authorised while away travelling.
23. A number of LEAs and individual educational
institutions have developed distance learning materials suitable
for use with many Travellers, as a means of maintaining continuity
of learning during their travelling season. This has proved particularly
effective among Fairground, Showmen and other Traveller families
with a distinct winter-base but, with careful management, may
also be appropriate for more mobile groups. Fax machines, mobile
phones, the internet and the postal system have all been used
to keep in touch; and Traveller Education Service Staff may also
choose to make home visits, particularly for short-stay Travellers
where parents have good reason for not regarding temporary enrolment
in a local school as a practical possibility. It is however important
that distance learning should be used as a support and not an
alternative to regular school attendance.
Street Trading
24. Where a fair includes selling of goods
from stalls situated on a street it may be subject to street trading
control under the Local Government (Miscellaneous Provisions)
Act 1982 or the London Local Authorities Act 1990. It is a matter
for legal interpretation whether a fair is subject to street trading
controls.
25. Where a fair includes the selling of
goods it may count as a market, and therefore be subject to the
Charter Market Restrictions which enable a local authority to
prevent a rival market from being established within two to three
miles of its own.
Transport
26. Vehicles transporting circus and fun
fair equipment are specifically exempted from the EU drivers'
hours and tachograph regulations (by virtue of the provisions
of Article 4.9 of Council Regulation (EEC) No 3820/85). Any changes
to these regulations (and none is planned in the foreseeable future)
would require the agreement of a qualified majority of Member
States.
Food Safety
Legal requirements
27. Retail and catering activities are likely
to be the most common forms of commercial food activities undertaken
at travelling fairs. The same food hygiene and safety laws apply
to these activities as to other retail and catering food businesses,
such as shops and restaurants. Food hygiene and safety in these
types of activities are regulated by The Food Safety (General
Food Hygiene) Regulations 1995 and The Food Safety (Temperature
Control) Regulations 1995, both of which are enforced by local
authority Environmental Health Services. The Food Safety Act 1990
also applies to any commercial food activities.
28. The 1995 Regulations provide a risk-related
framework to food safety enabling their requirements to be applied
in a proportionate and flexible manner. This is particularly useful
for the type of small businesses likely to be operating at travelling
fairs, eg market stalls and mobile catering vans, in that they
require controls to be put in place which are commensurate with
the nature of the individual business and the risks involved.
These Regulations would also cover the preparation at home of
food intended for sale or supply at a travelling fair and the
transportation of the food to the fair. The Temperature Control
Regulations set specific chill and hot holding requirements for
certain foods likely to support the growth of harmful bacteria.
Advice and Enforcement
29. The main source of food hygiene and
safety advice to both traders and enforcers is contained in the
Industry Guide to Good Hygiene Practice: Markets and Fairs Guide,
published in 1998. This was developed in consultation with the
industry including representatives from the Showmen's Guild of
Great Britain, the National Market Traders' Federation and the
Association of Private Market Operators.
30. Individual local authorities may have
specific approaches for dealing with travelling fairs operating
in their areas. In recent years, this has involved notifying managers
or organisers of the fair of any local arrangements applying to
fairs and issues or facilities that may be inspected when the
fair is in the area. These issues are likely to include food safety
and hygiene arrangements as well as noise, litter and animal welfare.
Generally, dates of fairs are known well in advance, and planned
arrangements are usually in place to pre-inspect facilities during
set-up. Where a local authority is unfamiliar with a particular
travelling fair, it may contact the fair's Home Authority for
information on the measures taken by the fair operators to ensure
the safety of food sold. The Home Authority is normally the authority
in whose area the headquarters of the fair organisers are located.
Levels of food-borne illness
31. The Government is not aware of any epidemiological
evidence directly implicating travelling fairs in the outbreak
of food-borne illness due to poor food hygiene practices. Such
information would be difficult to collect because of the peripatetic
nature of travelling fairs and their wide catchment areas. However,
food hygiene may be harder to maintain in this environment compared
with fixed food premises, and some studies have shown that take-away
food, including food from mobile vans, to be a risk factor for
infection with food poisoning bacteria.
THE EFFECTIVENESS
OF EXISTING
PLANNING GUIDANCE
ON THE
PROVISION OF
QUARTERS FOR
TRAVELLING SHOWPEOPLE
32. The Government has long recognised the
special circumstances of travelling showpeople, ie self-employed
business people who travel the country holding fairs, chiefly
during the summer months. A copy of DoE Circular 22/91 is at Annex
C[3].
It gives advice to local planning authorities about how travelling
showpeople's special needs should be taken into account in planning
matters associated with their "winter quarters".
33. The Circular stresses that local planning
authorities should consider the needs of travelling showpeople
when preparing their local plans and unitary development plans.
They should identify existing sites in their area which have planning
permission and make assessments of the amount of accommodation
likely to be needed. Where there has been a tradition of sites
occupied by travelling showpeople, they are encouraged to include
specific proposals for sites in suitable locations.
WHETHER ANY
ACTION IS
NECESSARY TO
ENSURE THAT
APPROPRIATE REGARD
IS HAD
TO THE
NEEDS OF
TRAVELLING SHOWPEOPLE
WITHIN THE
PLANNING SYSTEM
34. Applications for sites for travelling
showpeople are subject to the relevant local development plan
policies as would a proposal for any other use. Proposals for
sites in specially protected areas would not normally be acceptable.
35. Where Green Belt land is involved there
would be a need to comply with the guidance in Planning Policy
Guidance Note 2 (PPG 2) on Green Belts. The fundamental aim of
Green Belt policy is to prevent urban sprawl by keeping land permanently
open. Most development (including making any change in the use
of the land) is inappropriate unless it maintains the openness
and does not conflict with the purposes of including land in the
Green Belt.
36. Use of land in the Green Belt for travelling
showmen's quarters is inappropriate and very special circumstances
(which outweigh the harm to the Green Belt) would have to be shown
for permission to be granted. These might include lack of alternative
sites outside the Green Belt and personal circumstances. Each
case must be considered on its individual merits.
37. Potential sites within Greater London
and its neighbouring counties are inevitably scarce and those
that do exist are likely to be the subject of legal constraints
or demands from competing uses.
38. In areas which have been designated
for their landscape value (such as National Parks or Areas of
Outstanding Natural Beauty), conservation of the natural beauty
of the landscape should be given priority. This is over and above
the usual presumption against development (which would include
travelling showmen's quarters) in the open countryside away from
existing development or areas allocated for development in plans.
39. Circular 22/91 stresses in paragraph
14 that in all cases it is essential for the local planning authority
to discuss the showpeople's needs with them at an early stage.
This includes when the local plans are being prepared and before
any planning application is submitted. Local authorities are also
advised to contact the Showmen's Guild of Great Britain. This
should allow showpeople to secure the kind of sites they require
and help to avoid the use of sites in breach of planning control.
40. If there is a breach of planning control,
local authorities are encouraged to treat showpeople in the same
manner as other small businesses and self-employed people when
they consider taking possible enforcement action. Planning Policy
Guidance Note 18 (PPG 18) on Enforcing Planning Control offers
guidance in paragraphs 14 to 17. The same considerations apply
to discontinuance action under sections 102 and 103 of the Town
and Country Planning Act 1990.
41. As an alternative to refusing planning
permission, local authorities are asked to consider whether attaching
conditions to planning permission would provide sufficient control
over showpeople's sites. When conditions may not be adequate it
is open to local authorities to enter into an agreement under
section 106 of the Town and Country Planning Act to limit the
future occupation and use of the site.
42. Where sites have been provided for showpeople,
and a continuing need for them can be demonstrated, local planning
authorities are advised to take full account of this when considering
planning applications for alternative forms of development which
would deprive showpeople of accommodation.
DETR
February 2000
1 Evidence not printed. Back
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