London Borough of Tower Hamlets & Anr v Sherwood & Anr

Trading from a permanent structure erected in a street does not fall within the statutory concept of street trading under Part III of the London Local Authorities Act 1990. The regulatory code is directed principally to temporary stalls, barrows and similar receptacles, while permanent structures are governed by the separate powers in Part VIIA of the Highways Act 1980.

A trader who occupies land under permission and spends substantial sums erecting a permanent kiosk may hold a revocable licence, but not necessarily a tenancy or fixed-term lease. Where the owner has encouraged expenditure in the expectation of lengthy occupation, the licence cannot ordinarily be revoked merely because the owner has changed its mind. Statutory street-trading powers cannot be used to terminate that licence where the trading is outside the statutory code.

The Council and Historic Royal Palaces obtained orders in the Chancery Division requiring the appellants to cease trading from, and remove, permanent refreshment kiosks at Tower Hill. The kiosks had been erected with the respondents’ knowledge and consent after assurances that the traders’ licences would ordinarily continue for many years.

The Deputy Judge held that the appellants were engaged in street trading under Part III of the London Local Authorities Act 1990, and rejected their claims to a lease or fixed-term licence. The central issues on appeal were whether trading from permanent kiosks was street trading, whether the appellants had any security of tenure, and whether the respondents had effectively revoked the licences under which the kiosks were occupied.

1. Appeal allowed in part. The appellants were not engaged in street trading within Part III of the London Local Authorities Act 1990. The statutory definition should be understood in the context of legislation aimed at temporary obstruction by stalls, barrows and similar receptacles. Permanent structures were addressed by the separate statutory regime in Part VIIA of the Highways Act 1980.
2. Section 21(2)(f) of the 1990 Act was properly regarded as confirming the position rather than changing it. Trading from a permanent structure erected under, or with permission granted under, Part VIIA was outside the street-trading code. The question did not depend on a minute analysis of where or when the contract of sale was made.
3. The appellants had no tenancy, lease or fixed-term licence. The parties understood that occupation was by way of licence, and the assurance that licences would ordinarily be renewed for many years did not promise occupation for 25 years or any other fixed term.
4. Nevertheless, the appellants occupied the sites under revocable licences. In the private-law context, a person who has encouraged another to expend substantial sums in the expectation of lengthy occupation cannot revoke the permission merely because of a change of mind. The principles illustrated by Ramsden v Dyson and Crabb v Arun District Council applied.
5. The Council’s purported exercise of Part III powers, including de-designation of the pitches, did not revoke the licences. Other statutory powers might potentially be available, but their exercise and any question of revocation upon payment of compensation were not decided.
6. The orders requiring the appellants to cease trading and remove the kiosks were set aside. The refusal of declarations concerning a lease or fixed-term licence was upheld. Costs were awarded to the appellants on the appeal and below, except in relation to the Part 20 claim.

• Chancery Division: Miss Sonia Proudman QC, sitting as a Deputy Judge, held that the appellants were engaged in street trading and ordered them to cease trading and remove the kiosks. Their claims to a lease or fixed-term licence were refused.
• Court of Appeal (Civil Division): The appeal was allowed in part. The orders concerning cessation of trading and removal of the kiosks were set aside, while the refusal of the fixed-term tenancy and licence claims was upheld.