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Street trading, markets and fairs, pedlars

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Introduction


Markets and fairs

  England and Wales

  Northern Ireland

  Scotland


Pedlars (UK)


Street trading

  England and Wales

  Northern Ireland

  Scotland

 

Introduction

Markets and fairs are concourses of sellers and buyers of goods (as distinct from pleasure or fun fairs). The right or franchise to hold a market or fair was historically given by the Royal Prerogative, for example Barnet Fair. Some markets and fairs became established by "prescription" or ancient custom, such as Petticoat Lane.

Markets and fairs in England and Wales, and probably in Northern Ireland, are subject to the common law as modified and supplemented by general and local legislation. In Scotland the operation of a private market is subject to a licence from the local authority.

Street trading is regulated throughout the UK but under separate legislation in England Wales, Scotland and Northern Ireland. Generally a licence to conduct street trading must be obtained from the local council.

Acting as a pedlar (see below) however is distinct from street trading. A pedlar broadly is an itinerant trader who trades in goods on foot. The law on pedlars is the same throughout the UK.


Markets and fairs, pedlars and street trading are considered separately below.

Markets and fairs

England and Wales

The owner of a market or fair is entitled at common law to protection from disturbance, and disturbance may consist of any unjustifiable interference with the owner's exclusive right to hold his market or fair and take profits. Interference with the owner’s exclusive rights may arise from the holding of a rival market, selling outside the market or obstructing the market within the common law distance of protection, i.e 6 and 2/3 miles.

Most markets and fairs are now regulated under general legislation giving enabling powers to local authorities or by local legislation relating to a particular market or fair. A local authority may establish a market under the Animal Health Act 1981 and the Food Act 1984.
In London, some traditional markets are regulated under special Acts including the Billingsgate Market Acts 1846 and 1871; Leadenhall Market Act 1879 and City of London (Spitalfields Market) Act 1902. The Corporation of the City of London also has powers under the Metropolitan Meat and Poultry Market Act 1860, London Central Markets Act 1875 and the City of London (Various Powers) Acts 1920-1987.

Temporary markets


A local authority (including a London borough) may exercise the right to require at least one month’s notice of the holding of a temporary market, under the provisions of Section 37 of Local Government (Miscellaneous Provisions) Act 1982.
If the local authority does exercise this right, the following regulations apply, a person intending to hold a market or any person intending to allow land to be used for a market is required to give the Council at least one months notice.

What is a temporary market?


A “temporary market” means a concourse of buyers and sellers of articles held otherwise than in a building or on a highway, and comprising not less than five stalls, stands, vehicles (whether movable or not) or pitches from which articles are sold.

The following types of market are excepted from this definition:
* a market or fair the right to hold which was established by virtue of a legal grant or by statute law
* a sale by auction of farm livestock or deadstock (regulated by separate legislation)
* a market held on any land in accordance with planning permission granted under Part III of the Town and Country Planning Act 1990.

What activities are deemed to constitute the market?
A person holds a temporary market for the purposes of this section if he is entitled:
* to payment for any space or pitch hired or let on the site of the market to persons wishing to trade in the market; or
* as a person promoting the market, or as the agent, licensee or assignee of a person promoting the market, to payment for goods sold or services rendered to persons attending the market.
This will normally include a car boot sale.
Charitable, social, sporting or political purposes: a market held for such purposes may be within the definition of a temporary market but in this case no notice need be given to the local authority.

Case law: relevant decisions of the courts include:


* A city council held a market under common law rights but also had statutory powers to regulate local markets. A trader operated privately organised car boot sales within the city. The Council took out a civil action against the trader. The High Court held that the Council was entitled to use its common law rights to prevent disturbance of its market by the trader. The court also rejected arguments by the trader that the actions of the council were unlawful under competition law (Leeds City Council v Watkins & Anor [2003] EWHC 598 (Ch)).

Who must give notice?
A notice must be given by:
* the person intending to hold a temporary market in the district; and
* by the occupier of land who intends to permit the land to be used as the site of a temporary market or for purposes of that market.

How and when to give notice
The notice must be given to the council of the district or the borough not less than one month before the date on which it is proposed to hold the market.

No notice is required if the proceeds of the temporary market are to be applied solely or principally for charitable, social, sporting or political purposes.

Enforcement


Civil enforcement: a local authority or other person who has the rights to a market under common law may take action to prevent disturbance and/or recover damages arising from any rival market (permanent or temporary) within the common law distance. Such rights may also arise under any special legislation establishing a local market.
Probably under general principles, a local authority may take out civil injunction against any person who persistently breaks the law.


Criminal enforcement: a person who without giving the required notice above holds a temporary market or permits land occupied by him to be used as the site of a temporary market is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.

Planning control of markets
A market may require planning permission unless it does not last more than 14 days in any calendar year on a particular piece of land. The exception does not apply if the market is within  a building or the curtilage of a building (see the Town and Country Planning (General Permitted Development) Act 1995).

Further information


For further information, enquire of the local or market authority.

Northern Ireland

Common law as in England and Wales is probably applicable to markets and fairs.

Scotland

A market operator’s licence from the local authority is required for carrying on a private market (Civic Government (Scotland) Act 1982).

A market operator’s licence is not required for carrying on:

* functions held by charitable, religious, youth, recreational, community, political or similar organisations
* markets held only for the sale of livestock, fodder or grain.

A licence must be subject to conditions as to days and hours of opening, adequate toilet facilities, the layout of the site or premises and the maintenance of order and public safety.

 

Pedlars


A pedlar must have a certificate issued under the Pedlars Act 1871. This applies to the whole of the UK. However in some areas, local legislation (e.g. Medway Council Act 2004) applies which restricts the activities of a pedlar, e.g. by forbidding selling in the street rather than door to door.

Pedlar’s rights at a market: a pedlar with a certificate is treated as a licensed “hawker” for the purposes of the Markets and Fairs Clauses Act 1847 and in principle may therefore sell at a market. However this rule may be displaced by the local legislation or bye-law relating to a particular market.

What is a pedlar?


“Pedlar”: means any hawker, pedlar, petty chapman, tinker, caster of metals, or other person who, without any horse or other beast bearing or drawing burden, travels and trades on foot and goes from town to town or to other men's houses, carrying to sell or exposing for sale any goods, wares, or merchandise, or procuring orders for goods, wares, or merchandise immediately to be delivered”.

Case law:


* Sample v Hulme [1956] 3 All ER 447: a salesman travelled by van to a town, parked in a street and then went from house to house in that street on foot offering goods for sale. The salesman did not hold a pedlar's certificate. He was convicted for the offence of acting as a pedlar without a certificate under s 4 of the Pedlars Act, 1871. On appeal the salesman argued that he was not travelling and trading on foot as defined in the Act. The High Court held that in going from house to house after leaving the van the salesman had been travelling and trading on foot and therefore had committed the offence.


* Watson v Malloy; Watson v Oldrey [1988] 3 All ER 459: a person who travels from place to place in order to trade by selling goods from a portable stand is not a “pedlar” within the meaning of the Pedlars Act 1871 because he is not an itinerant seller who trades as he travels and goes to his customers rather than his customers coming to him. He may therefore be subject to the restrictions against street trading and cannot claim exemption on the ground that he is a pedlar.


* Tunbridge Wells Borough Council v Dunn [1996] 95 LGR 775: a trader who was stationary for no longer than 20 minutes was acting as a pedlar.

Entitlement to a certificate: a pedlar's certificate must be granted to any person by the chief officer of police for the police area in which the person applying for a certificate has, during one month previous to such application, resided, on such officer being satisfied that the applicant is above seventeen years of age, is a person of good character, and in good faith intends to carry on the trade of a pedlar.

Tacit consent: it is not clear whether police authorities have applied a tacit consent policy to applications for a certificate but it is believed not. It appears that the Government takes the view that tacit consent does apply (see below - "Proposed Reform).

If a certificate is refused, there is a right of appeal to the magistrates’ court which must be made within one week of the refusal.

A court may revoke a pedlar’s certificate if the holder is convicted of begging or of any other offence.

Criminal enforcement: a person who acts as a pedlar without having obtained a certificate is liable to a penalty not exceeding level 1 on the standard scale.

For further information about how to apply for a certificate etc., visit GOV.UK and the website of the police for the place of residence of the pedlar. For example the Metropolitan Police. There is information and a forum about pedlars and pedlary on the unofficial site http://pedlars.info

Proposed reform


What's new item:

23/12/2014: Government will retain Pedlar law

The UK Government has responded to the consultation in November 2012 seeking views on reform of the Pedlars Acts 1871 and 1881 and UK street trading legislation in order to ensure compliance with the EU Services Directive.

The need to make these changes followed the consensus reached by EU Member States in 2010 that the retail sale of goods is generally a ‘service activity’ which should fall within the scope of the Services Directive.

The Government’s response is concerned with the repeal of the Pedlars Acts which apply to the whole of the UK, and the proposals for the street trading regime in England and Wales. The governments of Northern Ireland and Scotland will respond separately to reform of street trading regulation in those countries.

https://www.gov.uk/government/consultations/street-trading-and-pedlary-laws-a-joint-consultation-on-draft-regulations-to-repeal-the-pedlars-acts-uk-wide-and-make-changes-to-the-street-trading-legislation-in-england-wales-and-northern-ireland

In summary, the Government has decided that:

* the Pedlars Acts will be retained and the certification process amended to make it compliant with the Services Directive;

* the definition of pedlary will remain unchanged; and

* the proposed amendments to the Local Government Miscellaneous Provisions Act (LGMPA) to make it compliant with the Services Directive will go ahead.

Pedlary law

The requirement for residency in the local area (one month) will be removed as it discriminates against traders from other EU Member States. While the minimum age for a pedlar’s licence (17) limit duplicates child protection legislation to some extent, that legislation does not cover all modes of pedlary and so the Government believes the age limit can be justified for reasons of public policy.

The current requirement for good character is not specific enough to be objective and is inconsistently applied across the country. The Government e will therefore work with the police to develop a new good character check to be applied across the UK.

Street trading

Street trading is regulated under separate legislation in England and Wales, Scotland and Northern Ireland. As an activity it should be distinguished from acting as a pedlar (see above).

England and Wales

In England and Wales street trading is regulated under the Local Government (Miscellaneous Provisions) Act 1982 s.3/sched.4. A district council may resolve to adopt the provisions of Schedule 4 of the Act and thereby to regulate street trading. Licences may be refused only on certain grounds.

However local legislation may apply in some areas, in particular in London.

Street trading definition


“Street trading” under the 1982 Act means the selling or exposing or offering for sale of any article (including a living thing) in a street.

Exemptions


The following are not street trading for the purposes of the 1982 Act:
* trading by a person acting as a pedlar under the authority of a pedlar’s certificate under the Pedlars Act 1871
* anything done in a lawful market or fair
* trading in a trunk road picnic area provided under the Highways Act 1980
* trading as a news vendor if the only articles sold are newspapers or periodicals; and they are sold without a stall or receptacle for them or with a stall or receptacle for them which does not exceed specified dimensions
* trading which is carried on at a petrol filling station or a shop or in a street adjoining premises so used and as part of the business of the shop
* selling things as a roundsman
* use for trading for certain purposes under the Highways Act 1980 or doing of anything authorised the Police, Factories, etc. (Miscellaneous Provisions) Act 1916.

Applications may be possible online, depending on the local authority; see GOV.UK

Tacit consent: it appears that some authorities consider that tacit consent does apply and some do not.

There is a right of appeal to the magistrates court arising from a refusal to grant, to vary or revoke or to impose conditions on a licence.

Local legislation


Local legislation may apply in some areas. In London, the legislation is now contained in the London Local Authorities Act 1990 which contains provisions similar but not identical to those in the 1982 Act (which applies outside London). Special legislation applies in the City of Westminster under the City of Westminster Act 1999 and in the City of London.


For further information, visit GOV.UK and enquire of the relevant local authority.

What’s new item on this topic [see What’s new page or archive for full item]:


02/03/2016: transfer of certain London street trading appeals to magistrates' courts

SI 2016/206: A provision of the Deregulation Act 2015 transferring the function of determining certain London street trading appeals from the Secretary of State to the magistrates’ courts is coming into force on 2 March 2016.

The function of determining certain London street trading appeals was previously reserved for the Secretary of State under the London Local Authorities Act 1990 and the City of Westminster Act 1999.

03/03/2014: City of London (Various Powers) Act 1987 amended


The City of London (Various Powers) Act 2013 amends the City of London (Various Powers) Act 1987. The City of London (Various Powers) Act 1987 consolidated the regime established for the City at the beginning of the twentieth century, with street trading being prohibited other than at the Sunday market in part of Middlesex Street (known as Petticoat Lane) on the eastern fringe of the City. Part 3 contains the current street trading code for the City.

Enforcement


Criminal enforcement: under the 1982 Act, a person who engages in street trading in a prohibited street; or without a street trading licence street, or who contravenes any of the principal terms of a street trading licence is guilty of an offence. There is a defence if the person proves that he took all reasonable precautions and exercised all due diligence to avoid commission of the offence.


A person guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Different penal provisions apply under the various local acts mentioned above.

Northern Ireland

The Street Trading Act (Northern Ireland) 2001 regulates street trading in Northern Ireland. A person engaging in street trading in any street within a district must hold a street trading licence or a temporary licence granted by the council for the district.

Street trading definition


“Street trading” means selling any article or thing or supplying a service in a street whether or not in or from a stationary position


Excluded activities: the following activities are not street trading:


* trading by selling articles or things or supplying a service to the occupiers of premises adjoining any street;


* selling articles or things from a vehicle used only for the regular delivery to the occupiers of premises adjoining any street;


* anything done in a lawful market or fair ;


* doing anything authorised under certain legislation e.g. the House to House Charitable Collections Act (Northern Ireland) 1952;


* trading by a person acting as a pedlar under the authority of a pedlar's certificate granted under the Pedlars Act 1871 if the trading is carried out only by means of visits from house to house;


* trading at or adjoining a petrol filling station or a shop if it forms part of the business of the owner or the occupier of the premises and takes place during the period when the premises are open to the public for business;


* trading as a news vendor if only newspapers or periodicals are sold without a receptacle or from a receptacle which is carried by the vendor.

For further information, visit nibusinessinfo.co.uk and GOV.UK and/or the website of the local council.

Scotland

Street traders’ licences are required under the Civic Government (Scotland) Act 1982 s.39 for street trading by a person, whether on his own account or as an employee.

Street trading definition


“Street trading” means doing any of the following things in a public place:
* hawking, selling or offering or exposing for sale any article
* offering to carry out or carrying out for money or money’s worth any service
to any person in the public place.

Exemptions


A street trader’s licence is not be required for:
* the sale of newspapers only
* the sale of milk by or on behalf of a person registered under the Food Safety Act 1990
* the sale of coal, coke or any solid fuel derived from coal
* any activity covered by a certificate under the Pedlars Act 1871
* any activity in respect of which a licence is required under the Civic Government (Scotland) Act 1982
* participating in a public charitable collection with permission granted under the Act.

For further information, visit Scottish Business Gateway and the local authority’s website.

[Page updated: 29/02/2016]

 

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