|London Local Authorities Bill|
Clause 1 deals with citation and commencement. It provides that the majority of the operative provisions of the Bill will come into operation two months after Royal Assent. Other clauses will come into force on a day or on days to be appointed by the London borough councils. The detailed procedure which must be followed by the councils when appointing a day for the commencement of the provisions of the Bill are contained in Clause 3. Clause 2 sets out definitions of certain expressions used in the Bill.
Part 4 of the London Local Authorities Act 2007 sets out a regime, applicable throughout Greater London, which enables London borough councils to use a civil penalty charge procedure for the enforcement of a number of offences, which themselves were decriminalised by the 2007 Act. Part 4 of the 2007 Act was drafted in such a way that future enactments could decriminalise other offences and make them subject to the detailed procedures set out in Part 4.
Part 2 of the Bill has the effect of partially decriminalising certain existing offences and applying the provisions of Part 4 of the 2007 Act to them.
Clause 4 deals with interpretation of Part 2.
Clause 5 provides that Schedule 1 to the Bill shall have effect and that the provisions of Schedule 1 are penalty charge provisions for the purposes of section 61 of the 2007 Act, meaning that the detailed penalty charge procedures set out in Part 4 of the 2007 Act will apply to the offences mentioned in Part 1 of Schedule 1.
Part 1 of Schedule 1 has the effect of partially decriminalising littering offences in Greater London. The offence of littering is contained in Section 87 of the Environmental Protection Act 1990. Local authorities are already able to serve fixed penalty notices in respect of these offences, and are able to keep the receipts from such fixed penalties. If a person is offered the opportunity to pay a fixed penalty under the existing procedure, he can discharge any criminal liability by paying the penalty, or otherwise he can contest the proceedings in the magistrates' courts.
The effect of partially decriminalising the offence under Schedule 1 and making it subject to Part 4 of the 2007 Act will be that councils will also be able to serve a penalty charge notice on the person who is suspected of dropping the litter. He then has a period of 28 days in which to pay the penalty charge (the amount of which will be reduced if he pays within 14 days). The recipient is also able to make representations to the council in respect of the penalty charge and if those representations are rejected, there is a right of appeal to an independent adjudicator. All of these general provisions are set out in Part 4 of the 2007 Act. If after the appeals process is exhausted, or if no appeal is made at all and payment is still not received by the council, then provision is made in the 2007 Act enabling the council to take enforcement action through the County Court.
The grounds on which representations can be made against a penalty charge notice are specified in Schedule 1 to the Bill in relation to each individual offence which is partially decriminalised. In the case of littering, the grounds for representations reflect the defences that are available in relation to the existing littering offence, namely that the littering was authorised by law or was done with the consent of the owner, occupier or other person having control of the land where the litter was deposited.
The provisions of Schedule 1 do not have the effect of removing potential criminal liability for the various offences dealt with. The issue of "double jeopardy" is met in each case by providing that a penalty charge is not payable if criminal proceedings have instituted and that if a penalty charge is paid, no criminal liability can arise.
Part 2 of Schedule 1 partially decriminalises offences under the Dogs (Fouling of Land) Act 1996. Although the whole of that Act was repealed by section 65 of and Part 5 of Schedule 2 to the Clean Neighbourhoods and Environment Act 2005, there were saving provisions in the relevant commencement order which meant that the 1996 Act could remain in force under certain circumstances. Under the 1996 Act, it is an offence for a person in charge of a dog to fail to remove faeces from designated land if the dog defecates on the land. Clause 6 would partially decriminalise the offence and make it subject to the provisions of Part 4 of the London Local Authorities Act 2007. The grounds on which representations could be made against a penalty charge notice reflect the defences available under the 1996 Act, thus the provisions do not apply to registered blind persons and persons with other disabilities who require the assistance of trained dogs.
Part 3 of Schedule 1 makes similar provision about failing to remove dog faeces, but this time in the context of the regime that replaces the Dogs (Fouling of Land) Act 1996, namely the dog control order provisions of the Clean Neighbourhoods and Environment Act 2005.
Part 4 of Schedule 1 has the effect of partially decriminalising offences in relation to Dogs on Leads Orders made under the Dog Control Orders (Prescribed Offences and Penalties, etc.) Regulations 2006. Dogs on Leads Orders make provision about the keeping of dogs on leads or on leads of maximum lengths prescribed in the order, during such times or periods as may be prescribed in the order.
Part 5 of Schedule 1 partially decriminalises offences in relation to Dogs on Leads by Direction Orders. This type of dog control order may make provision about keeping a dog on a lead when directed to do so by an authorised officer of a borough council.
Part 6 of Schedule 1 partially decriminalises offences in relation to Dogs Exclusion Orders. This type of order can make provision excluding dogs from land during times or periods as may be specified in the order.
Part 7 of Schedule 1 partially decriminalises offences under Dogs (Specified Maximum) Orders. This type of order can make provision prescribing how many dogs may be taken on to certain land at one time by one person.
Part 8 of Schedule 1 provides for the civil enforcement of contraventions of section 27 of the Road Traffic Act 1988, which enables Councils to designate roads in their area on which dogs must be kept on leads.
Clauses 5 and 6 make general provision about the procedure for penalty charge notices under Part 4 of the London Local Authorities Act 2007.
Clause 5 extends the powers of police community support officers and accredited persons under Schedule 4 and Schedule 5 to the Police Reform Act 2002. That Act has the effect of enabling them to serve penalty charge notices and fixed penalty notices in relation to a number of offences. Clause 5 would have the effect of enabling them to serve penalty charge notices in respect of penalty charges which become payable under Part 4 of the London Local Authorities Act 2007 (therefore including penalty charges in relation to the various litter and dog related matters described in Schedule 1).
Clause 6 provides London borough councils, authorised officers of London borough councils, community support officers and accredited persons with powers to require a person on whom they intend to serve a penalty charge notice to give them his name and address, in cases where a penalty charge notice is to be served under section 61 of the London Local Authorities Act 2007. If the requirement is made in person by an authorised officer of a council, then he must show proof of his authorisation. It is an offence to fail to give a name and address or to give a false or inaccurate name or address in response to a requirement under Clause 6.
PUBLIC HEALTH, ENVIRONMENTAL PROTECTION AND HIGHWAYS
Part 3 contains a number of miscellaneous provisions relating to public health, environmental protection and highways.
Clause 7 makes provision about street litter control notices. Street litter control notices are notices served under section 93 of the Environmental Protection Act 1990. They can be served by the principal litter authority (in London, the borough council) imposing requirements on occupiers of premises with a view to the prevention of accumulations of litter or refuse in and around any street or open land adjacent to any street. Under section 94 of the 1990 Act, the Secretary of State is given power to prescribe the descriptions of commercial or retail premises in respect of which a street litter control notice may be issued, amongst other things. The effect of Clause 7 would be to extend the type of premises which the Secretary of State can prescribe under section 94 so that it includes all premises in Greater London except for dwellings. This will bring into the scope of the street litter control notice procedures public buildings and other buildings which are not commercial or retail premises. The amount of litter generated by smokers who are no longer able to smoke inside places of work is one of the reasons for this proposed alteration in the legislation in London.
Clause 8 makes provision about charges for public toilets. Clause 8 has the effect of enabling London borough councils to make a charge for the use of urinals in public toilets. Under section 87 of the Public Health Act 1936, local authorities are given powers to provide sanitary conveniences in proper and convenient situations. Subsection (3)(c) of that section provides that the local authority may charge such fees for the use of any such conveniences, other than urinals, as they think fit. Subsection
Subsection (2) of Clause 8 amends the application of the Public Lavatories (Turnstiles) Act 1963 in Greater London. Section 1(1) of that Act provides that every turnstile in any part of a public lavatory or public sanitary convenience controlled or managed by a local authority or in any entrance or exit of such lavatory or convenience had to be removed six months after the 1963 Act obtained Royal Assent. It also provided that no turnstile should be provided in the future. Subsection (2) of Clause 8 disapplies those provisions in Greater London.
Clause 9 alters provisions in the Highways Act 1980 which enable local authorities to give permissions for the use of objects, etc. on the highway. Part VIIA of the 1980 Act was inserted by the Local Government Miscellaneous Provisions Act 1982 and it enables the councils themselves to place objects or structures on, in or over a highway and also give permission to others to do so. Section 115E of the 1980 Act is the provision which enables the councils to give such permissions to others and section 115F enables the councils to place conditions on any permission given under section 115E. It provides that the councils can require the payment of such reasonable charges as they may determine. Subsection (2) of section 115F provides that except where the council are the owners of the sub-soil beneath the part of the highway in relation to which the permission is granted, the charges may not exceed the standard amount and the "standard amount" is defined in subsection (3) of section 115F. In turn that provides that in relation to permissions given to others to place objects on the highway, the charges that the council may make must not exceed their reasonable expenses in connection with granting the permission (in other words their administrative charges).
Clause 9 would allow London borough councils to take into account additional considerations when setting the level of charges in relation to cases where they have given their permission under section 115E(1)(b)(i), namely where they have given permission for the placing of objects on the highway where doing so will result in the production of income. A typical example of when this might happen is where the Council has given permission for a restaurant to place tables and chairs on the highway. Clause 9 would enable the council, when setting the charges, to include in their calculations reasonable costs in the aggregate incurred in relation to the granting of permissions in the collection, removal and disposal of refuse or other services rendered to the holders of permissions, additional maintenance and repair of the highway, the cleansing of streets and reasonable administrative or other costs incurred in granting permissions.
Clause 10 puts on a statutory footing an existing scheme in London which is known as "Scores on the Doors". The scheme makes provision about the display of food hygiene documentation at premises which are subject to food hygiene inspections by the borough council. London borough councils are under a duty to inspect food business establishments for food hygiene and safety standards in pursuance of European regulations (Community Regulation 852/2004) and the Food Hygiene (England) Regulations 2006. Clause 10 would apply to all food business establishments in London except those which are located in dwellings. Subsection (3) of Clause 10 would provide a duty on the relevant food business operator who controls the establishment to make sure that the relevant food hygiene documents are displayed at the establishment in accordance with the requirements of Clause 10. "Food hygiene documents" is a term defined in subsection (19) and in summary means a certificate provided by the London borough council, together with a sticker representing the rating given by the council to the premises in question. Under the voluntary scheme which is currently in operation, the sticker consists of a star rating, with the highest rating being five stars.
Subsections (4) to (10) of Clause 10 make detailed provision about how and where the documentation should be displayed. The main thrust of the subsections is that where the premises are open for customers, then the documentation must be readable by customers outside the entrance to the premises. There are also provisions to cater for cases where the premises are not open at any time to customers and also for cases where the preparation or distribution of food is carried on in a smaller part of larger premises (for example, a delicatessen counter in a supermarket or a staff canteen in an office). Provision is also made for cases where there is no entrance to the premises, for example, a market stall or a hot dog van.
Subsection (11) of Clause 10 provides for cases where the duty to display the food hygiene documents shall not apply and they include cases where there has been no relevant inspection of the premises since 1 January 2006, where there has not been an inspection in the last six years or the council has determined that the premises need not be the subject of a relevant inspection. In the latter case that might be because the premises are of such low risk that no inspections need to be carried out.
Subsection (13) of Clause 10 provides that it is an offence for the food business operator to fail to comply with his duty to display the inspection documents and subsection (14) provides for defences against the offence. These include him not knowing and not reasonably being expected to know that the documents were not being displayed or that it was reasonable for him not to comply with the duty. Subsection (15) contains offences relating to matters such as the display of false documentation. All of the offences under subsections (13) and (15) will be, by virtue of subsection (18) fixed penalty offences under the London Local Authorities Act 2004. This will mean that the offender may be given the opportunity to discharge his criminal liability by the payment of a fixed penalty to the borough council.
HOUSES IN MULTIPLE OCCUPATION: MANAGEMENT NOTICES
The Housing Act 2004 made comprehensive provision about a wide range of social housing matters, ensuring that local housing authorities retained some control over houses in multiple occupation ("HMOs") and in particular the standards to which HMOs were kept and their safety. However, the 2004 Act also removed pre-existing powers of local housing authorities to take action in cases where the management of HMOs fell below required standards. The effect of Part 4 is to reinstate those powers in Greater London.
Section 234 of the 2004 Act enables the Secretary of State to make regulations that impose duties on persons who manage HMOs. The Management of Houses in Multiple Occupation (England) Regulations 2006 have been made and those regulations make provisions requiring managers of HMOs to provide information about himself to occupiers of the HMO, to take safety measures, to maintain water supply and drainage, to supply and maintain gas and electricity, to maintain common parts, fixtures, fittings and appliances, to maintain living accommodation and to provide waste disposal facilities. Failure to comply with the duties is an offence under section 234(3) of the 2004 Act.
Clause 11 makes provision about the interpretation of Part 4 and includes definitions of "HMO" (a house in multiple occupation as defined by sections 254-259 of the 2004 Act), "management notice" (i.e. a notice under Clause 12(1)) and "specified premises" (i.e. premises specified in a management notice).
Clause 12 provides local housing authorities (which in Greater London, means the London borough councils) with a power to serve on the manager of an HMO a management notice, if the authority are of the opinion that the condition of the HMO is defective in consequence of a failure to comply with a duty imposed under the management regulations. A management notice is a notice requiring the person on whom it is served to take such remedial action as is specified in the notice. Subsection 12(3) provides that the local housing authority must serve a copy of the notice on every other person who to their knowledge has a relevant interest in the specified premises (i.e. a freeholder, lessee or mortgagee) or is an occupier of the specified premises.
Clause 13 sets out the information that must be contained in a management notice. It must specify the nature of the failure of management and the HMO in respect of which it arose, the nature of the remedial action required, the date when the remedial action is to be started and the period within which it is to be completed (or the periods within which each part of it is to be completed). It may not require that remedial action should be started any earlier than 28 days after the date of service of the notice. The notice must also contain information about the right of appeal against the notice (see Schedule 2).
Clause 14 deals with the time when a management notice becomes operative and provides a general rule that a management notice will become operative at the end of the period of 21 days beginning on the day on which it is served (which is also the period for appealing against the notice under Schedule 2). If such an appeal is made, then the notice will not become operative until the appeal has been determined and the notice is confirmed.
Clause 15 introduces Schedule 2 which makes detailed provision about appeals against management notices. The person on whom the management notice is served, or the freeholder, lessee or mortgagee of the premises may appeal to a residential property tribunal against the notice. General provisions about residential property tribunals can be found in Part 7 of the Housing Act 2004. Section 229(1) of that Act provides that any jurisdiction conferred on a residential property tribunal by any enactment is exercisable by a rent assessment committee constituted in accordance with Schedule 10 to the Rent Act 1977.
Paragraph 1(2) of Schedule 2 sets out the grounds on which an appeal may be made and they include that the condition of the premises did not justify the making of the requirement in the notice, that the local housing authority refused unreasonably to approve the taking of alternative remedial action, that the remedial action required is unreasonable in character or extent or is unnecessary, that the date specified for the beginning of the remedial action or the time within which it must be taken is not reasonable or sufficient or that some other person is responsible for the state of affairs calling for the taking of the remedial action.
Paragraph 3 of Schedule 2 sets out the time limits for making an appeal, namely 21 days from the date on which the notice or the copy of the notice was served under Clause 12. The tribunal can allow for later appeals if there is a good reason.
Paragraph 4 of Schedule 2 provides that an appeal shall be by way of a re-hearing and sets out the powers of the tribunal, namely that they can confirm, quash or vary the management notice.
Paragraph 5 of Schedule 2 makes provision about cases where the grounds of the appeal were that some other person was responsible for the state of affairs calling for the taking of the remedial action specified in the management notice. It provides that the tribunal can vary the notice so as to require the action to be taken by any owner of the premises.
Paragraph 6 of Schedule 2 makes further provision about the "operative time" for the notice, already dealt with in Clause 14. It has the effect of extending the operative time in cases where a further appeal is made from the residential property tribunal to the lands tribunal. Such appeals can be made under Section 231 of the Housing Act 2004.
Clause 16 introduces Schedule 3 to the Bill. Schedule 3 makes provision about the taking of remedial action by the local housing authority and the recovery of expenses in doing so.
Part 1 of Schedule 3 makes provision about the taking of remedial action by the local housing authority by agreement.
Paragraph 1 of Schedule 3 enables the local housing authority to take any action which is required to be taken under the terms of a management notice, by agreement with the person on whom the management notice has been served. Paragraph 1 also gives the local housing authority all the rights which the recipient of the notice would have against any occupying tenant of and any other person having an interest in, the premises or any part of the premises.
Paragraph 2 of Schedule 3 provides that any action taken by the local housing authority under paragraph 1 is to be taken at the expense of the person on whom the management notice was served.
Part 2 of Schedule 3 makes provision enabling the local housing authority to take action without agreement in cases where either the management notice is not complied with or reasonable progress has not been made towards compliance with the management notice. Sub-paragraph 3(5) enables any person authorised in writing by the local housing authority to enter the premises for the purposes of the taking of the action, so long as the right is exercised at a reasonable time.
Paragraph 4 of Schedule 3 makes further requirements about the serving of notices before the local housing authority can enter premises under paragraph 3. The notice must be served on the person on whom the management notice was originally served and a copy must be served on any other person who is an occupier of the premises.
Paragraph 5 of Schedule 3 makes provision for offences in relation to the obstruction of the local housing authority using their default powers and paragraph 6 makes provision allowing the local housing authority to recover their expenses in taking action in default.
Part 3 of Schedule 3 deals with the recovery of expenses by the local housing authority. Paragraph 8 (1) provides that the expenses are recoverable from the person on whom the management notice was served, but also makes special provision for cases where that person receives the rent of the premises as agent or trustee for another person, in which case the expenses are also recoverable from that person.
Provision is made in paragraphs 9 and 10 about the service of demands for recoverable expenses and in relation to interest.
Paragraph 11 enables appeals to be made to residential property tribunals in respect of demands for the recovery of expenses.
Paragraph 12 enables the local housing authority to serve recovery notices on occupiers of the premises concerned if they are tenants or licensees of the person on whom the demand was served under paragraph 9. A recovery notice has the effect of transferring to the authority the right to recover, receive and give a discharge for the rent until the expenses recoverable by them have been paid.
Paragraph 13 provides that expenses recoverable by the local housing authority, together with interest, are to be a charge on the premises to which the management notice relates.
Finally, paragraph 14 makes provision in relation to cases where the local housing authority have been unable to recover their expenses and a person is making a profit out of the premises which would not have been obtainable if the number of persons living in the premises was limited to that appropriate for the premises in their state before the remedial action had been taken by the authority. In such a case, the local housing authority may make an application to the residential property tribunal for an order that the person making the profit should make such payments to the local housing authority as the tribunal considers to be just.
Clause 17 provides that a management notice that has become operative is a local land charge.
Clause 18 provides savings for rights arising from breaches of covenants or contracts entered into by tenants. It ensures that owners are able to obtain remedies in respect of such breaches in cases where management notices have been served.
Clause 19 makes provision as to what should happen in cases where a management notice has been served and other action has been taken in respect of the HMO under separate provisions of the Housing Act 2004 (namely enforcement action under section 5 or 7 (duty and powers to take enforcement action in relation to hazards)) or management orders under Chapter 1 or 2 of Part 4 of the 2004 Act). In cases where such action has been taken then the management notice, if operative, ceases to have effect and is to be treated as from that time as if it had not been served or made. Furthermore, in cases where under section 308 of the Housing Act 1985 (which relates to cases where the owner has redevelopment proposals for the premises) the local housing authority have approved proposals for the redevelopment of land, no action is to be taken under Part 4 for so long as the redevelopment is being proceeded with in accordance with the proposals and within time limits specified by the local housing authority.
Clause 20 applies a number of miscellaneous provisions contained in the 2004 Act to management notices. These relate to provisions about consultation with fire and rescue authorities, power to charge for enforcement action and recovery of such charges, powers of entry for survey or examination and service of documents.
HOUSING: POWERS OF ENTRY, ETC.
Part 5 makes provision about powers of investigation and enforcement under the Housing Act 2004.
Clause 21 amends section 239 of the Housing Act 2004 in its application to London. Section 239 sets out the powers of local housing authorities to enter premises where they consider that a survey or examination of the premises is necessary. Certain conditions must be met before the powers are exercised. The first is that the survey or examination is necessary in order to carry out an inspection to determine whether a hazard exists on the premises or otherwise to determine whether any functions under Parts 1 to 4 of the 2004 Act should be exercised. The second is that the premises are subject to an improvement notice or prohibition order under the 2004 Act and the third is that a management order is in force in relation to the premises under Part 4 of the 2004 Act. The powers can also be used if there is an "official complaint" from a justice of the peace, that there is a hazard at the premises or that the premises form part of what should be a slum clearance area. Finally, by virtue of Clause 20 of the Bill, the powers would also be available for investigations as to whether a management notice is required to be served under Part 4 of the Bill.
Subsection (5) of section 239 provides that before entering premises under these powers, the person authorised to enter the premises ("the authorised person") must give at least 24 hours notice of his intention to do so on the owner of the premises (if known) and to the occupier (if any) in all cases. A recent case in the residential property tribunal has confirmed that that has to be the case, even if the occupier has invited an authorised person onto the property.
Subsection (2) of Clause 21 would remove the need to serve notice of entry on the owner except in cases where there is no occupier. Subsection (2) would have the effect of removing the need to give notice at all where any delay in entering the premises is likely to give rise to unnecessary and imminent risk to the safety or health of the occupiers of the premises and subsection (4) would enable an authorised person to enter premises to carry out a survey or inspection if invited to do so by the occupier.
Clause 22 amends section 243 of the Housing Act 2004 in its application to London. That section deals with authorisations for enforcement purposes under the 2004 Act. It provides that any authorisation for individual officers to exercise certain powers on a case by case basis (including the powers of entry mentioned above) must be given by an officer of the local housing authority who is at least a deputy chief officer of the authority. The amendment would also enable such authorisation to be given to a person who reports directly to a deputy chief officer.
Part 6 deals with various miscellaneous licensing regimes applicable in Greater London.
Clause 23 makes provision about premises in London which have the benefit of a premises licence under the Licensing Act 2003, which in turn has the effect of permitting regulated entertainment at the premises. Before the coming into force of the 2003 Act, there were special provisions in London for the licensing of public entertainment (including public music and dancing) in Schedule 12 to the London Government Act 1963. Schedule 12 was repealed by the 2003 Act, and replaced by provisions which require a licence (a "premises licence") to be obtained for "regulated entertainment" (which includes public music and dancing).
Under Schedule 12 to the 1963 Act, councils in London had a wide discretion when it came to imposing conditions on entertainment licences. Some London borough councils had standard conditions that would be imposed on all premises, sometimes with exceptions, and in some cases, those standard conditions would have the effect of prohibiting entertainment that involved nudity or partial nudity.
The transitional provisions of the 2003 Act allowed the councils to carry over such conditions onto premises licences that were "grandfathered" over to the new licensing regime. However, during the transitional period and since, premises which did not have the benefit of a 1963 Act licence have been the subject of applications for variations of the conditions of their 2003 Act premises licences, the effect of which would allow them for the first time, to include regulated entertainment. The issue that Clause 23 is intended to address arises from a view, taken early on when the 2003 Act came into force by some councils, that they were unable to impose conditions on premises licences prohibiting nudity. It transpires that the view was wrong, particularly in the light of revised government guidance.
The effect of Clause 23 would be to enable a borough council, as licensing authority, to impose, on notice, a new condition on existing premises licences that authorise regulated entertainment. The new condition could have the effect of prohibiting nudity or partial nudity. The clause would have effect only in relation to those premises that did not have a 1963 Act licence before the transitional period, but have during and since then, had their licences varied so that regulated entertainment can be provided. The clause includes a provision enabling the licence holder to appeal against the notice to the magistrates' court.
Clause 24 amends the City of Westminster Act 1996 which provides Westminster City Council with enhanced enforcement powers in relation to unlicensed sex establishments. The first amendment is a minor typographical amendment and the second amends section 8 of the 1996 Act, which relates to the service of notices. Under section 8, if notices under the Act are to be served by post, then they have to be served by registered post or the recorded delivery service. The amendments would enable notices to be served by ordinary post.
Clause 25 makes provision about the management of street markets in Greater London. There are a number of different ways in which markets can be established in London, including by Royal Charter, by Act of Parliament and under provisions of the Food Act 1984. Clause 23, however, applies to markets consisting of a concourse of pitches and stalls established by the borough council under the existing local street trading legislation by the granting of temporary licences or individual street trading licences to traders on a particular street or streets. A number of markets in London, including large, long established markets and also more recently farmers markets and other speciality markets have been established using this procedure. In every London borough except for the City of Westminster and the City of London, street trading is governed by the London Local Authorities Act 1990 and in the City of Westminster it
Clause 25 will have the effect of enabling a London borough council to enter into contractual arrangements with a person (to be known as the "market manager") enabling the market manager to carry out certain activities over which it is considered that there is doubt as to whether he could without statutory authority.
Subsection (1) provides the general power for the council to make arrangements with any person to manage a market and subsection (3) lists some activities which could be carried out by the market manager including publicity for the market, arranging the making of applications to the council for street trading licences and temporary licences for use at the market and collecting fees and charges on behalf of the Council.
Subsection (4) provides that arrangements may not make provision in relation to "reserved statutory functions" which include granting, renewing, revoking and varying street trading licences, prescribing standard conditions for street trading licences and charging fees. Subsection (5) provides that the council may account for any costs incurred by them in making the arrangements in the fees and charges that may be made in respect of licences granted by them.
Clause 26 makes further provision about street trading, but in relation to the sale of vehicles over the internet. Under the existing street trading legislation in London, "street trading" is defined, broadly speaking, as meaning the selling or the exposure or offer for sale of any article and the supplying of or offering to supply any service in a street for gain or reward (whether or not the gain or reward accrues to the person actually carrying out the trading). Under that definition it is unclear whether the sale of motor vehicles on the internet, where the vehicle is kept on the highway, is included and the effect of Clause 26 will be to ensure that it is.
Clauses 27 to 29 deal with street trading in the City of Westminster. Westminster City Council have their own private legislation, namely the City of Westminster Act 1999 which deals with street trading in the City.
Clause 27 contains a number of amendments to the 1999 Act. The first amendment of substance is in subsection (3) and that replicates in Westminster the effect of the amendments which are made by Clause 26 (internet vehicle trading) in respect of the rest of London (except for the City of London).
Taken together, subsections (4) to (16) introduce a series of amendments which will enable authorised officers of the City Council to seize certain types of street trading equipment in cases where they couldn't do so under the present legislation, and to dispose of it summarily in certain cases.
Westminster City Council officers already have power to seize items used in unlawful street trading where the items are required for evidential purposes, or where the items are subject to forfeiture by the courts. On a street trading prosecution, if there is a conviction, the magistrates' court can order the forfeiture of any goods seized in relation to the offence. Authorised officers cannot exercise their powers of seizure unless they suspect that a street trading offence has been committed. City Council officers use the powers regularly in the West End in relation to unlawful sales of hotdogs and other hot food from portable stands. Each evening portable stands are brought into the West End by van and are unloaded together before being taken off by individual sellers to strategic locations, where the trading takes place. City Council officers are unable to seize the hotdog trolleys until the vending begins. Additional powers are contained in subsection (5) of Clause 27. They would enable City Council officers to seize receptacles which are in a street and which the officers have reasonable cause to suspect are intended to be used in connection with a street trading offence. Officers would also be able to seize any vehicle used to transport the receptacles to the place where they were found in the street.
Subsections (7) onwards introduce a new procedure for dealing with receptacles used in unlawful street trading of refreshments when they have been seized. This would include receptacles seized under the new powers mentioned above introduced by subsection (5). Under the current system, where the council seize items under section 27 of the 1999 Act, they either have to return them to the person from whom they were seized, if certain circumstances arise, or they can be disposed of if there is a conviction and the court orders the items to be forfeited. The council can also apply to the magistrates' court for a disposal order if the court is satisfied that the council has made reasonable efforts to ascertain the identity of the owner of the objects seized but failed.
Westminster City Council seize very large numbers of hot dog trolleys in the West End and because of the procedures that they have to go through, they have to store the trolleys for long periods at considerable expense. In nearly all cases, the trolleys are eventually disposed of by the council because either the person from whom the trolley was seized does not contest the criminal proceedings, or the council is unable to find out who the owner of the trolley is.
The effect of subsections (5) to (16) will be to enable the council to dispose of hot dog trolleys and other receptacles for the sale of refreshments without the need to go to court either to secure a prosecution or obtain a disposal order. Safeguards are included in the clauses to ensure that if the person from whom the receptacle is seized wishes there to be a court hearing, then he can secure it. This is achieved by including a requirement on the officer who seizes the item to give the person from whom it was seized a notice. The notice can be completed by the recipient and returned to the council, and if it is done so within the time stated on the notice and contains all the necessary information (including the name and address of the person from whom the item was seized) and states that the recipient requires the council to seek a disposal order from the magistrates' court, then the council would be under an obligation to seek such an order. At the magistrates' court hearing, the recipient of the notice would have the opportunity to contest the proceedings.
If the notice is not completed and returned to the council in the correct manner and within the specified time, then the council will be able to dispose of the item in question and cover their costs of doing so from the recipient, if they are able to identify and find him. The powers of summary disposal would also be available to the council if when seizing the item they served a fixed penalty notice on the person from whom the item was seized. If the fixed penalty is paid within the required timescale, then the council would be able to dispose of the item.
Clause 28 introduces Schedule 4 which in turn makes minor and consequential amendments to the City of Westminster Act 1999, consequential upon the amendments made in Clause 25.
Clause 29 introduces Schedule 5 to the Bill which is a Keeling Schedule setting out the whole of the City of Westminster Act 1999 as amended by previous enactments and by the Bill.
Clauses 30, 31, 32 and 33 make similar provision in the London Borough of Camden as Clause 27 does in Westminster in relation to the seizure and disposal of receptacles used for the purposes of unlawful street trading of refreshments.
Clause 30 provides for interpretation of the Camden provisions and Clause 31 makes similar provision to Clause 27(7) about the seizure of receptacles before street trading commences. Clauses 32 and 33 make similar provision to Clause 27(5) to (16) about the giving of notices and the disposal of seized items.
MISCELLANEOUS AND SUPPLEMENTAL
Part 7 contains miscellaneous and supplemental provisions.
Clause 34 contains provisions correcting two small errors in the London Local Authorities Act 2007. Subsection (1) corrects a reference in section 25(3) (powers to require a removal of waste unlawfully deposited). The reference to "waste regulation authority" is corrected so that it reads "waste collection authority". The second alteration is in respect of section 24(4) (littering from vehicles). That subsection makes an amendment to section 87 of the Environment and Protection Act 1990. The subsection did not take account of amendments recently made to section 87 by the Clean Neighbourhoods and Environment Act 2005.
Clause 35 provides for an offence of obstructing an authorised officer acting in the exercise of his powers under the Bill, and a maximum punishment for such an offence is a fine not exceeding level 3 on the standard scale, on summary conviction.
Clause 36 makes provision about the requirements for proof, in court proceedings, of the fact that a borough council has passed a resolution under the Bill. The clause provides that it shall be presumed, unless the contrary is proved, that the resolution was duly passed and that any requirements relating to it were properly complied with.
Clause 37 makes provision about the liability of directors and other officers of bodies corporate in relation to offences committed under the Bill.
EUROPEAN CONVENTION ON HUMAN RIGHTS
In the view of the Westminster City Council the provisions of the London Local Authorities Bill are compatible with the Convention Rights.
|© Parliamentary copyright 2007||Prepared 4 December 2007|