West Berkshire District Council v Paine

For the purposes of the street-trading provisions, an area may be a street if the public has the ability or right to enter it without payment. Actual use by members of the public is not required. The expression must not be narrowed by importing the different concept of a public place from road-traffic legislation. Whether land is privately owned is not, by itself, material. The court must focus on public access without payment and the statutory purpose of regulating itinerant trading.

This was an appeal by way of case stated from the Berkshire Justices, who dismissed an information alleging that Simon Paine had traded from a van without the consent required by Schedule 4 to the Local Government (Miscellaneous Provisions) Act 1982.

The trading took place in a private office development. The Justices found that the site was used by office personnel, visitors and delivery personnel, with no direct evidence of use by the general public and no physical barrier preventing access. The central issue was whether the trading location was a “street” within paragraph 1(1)(a) of Schedule 4.

The appeal was allowed in substance. The case was remitted to the Justices because the trading location was a street within paragraph 1(1)(a) of Schedule 4 to the Local Government (Miscellaneous Provisions) Act 1982, although the separate issue concerning local adoption and designation remained unresolved.

1. Meaning of street. The words “access without payment” qualify roads, footways, beaches and other areas. They are an integral part of the statutory definition.
2. Potential access is sufficient. “To which the public have access” includes potential access, namely the ability or right to enter. It is unnecessary to prove that members of the public actually used the area. The absence of a physical barrier supported the conclusion that access was available.
3. Road-traffic authorities. The authorities concerning “public place” under the Road Traffic Act 1988, including R v Spence [1999] RTR 353, concerned a different statutory language and purpose. They were not helpful in construing paragraph 1(1) of Schedule 4.
4. Private property. The court treated O'Gorman v London Borough of Brent [1993] Crim LR 960 as supporting the view that private ownership is not material to whether an area is accessible to the public without payment. The relevant question was access, not whether the land was private or a public place.
5. The statutory scheme was intended to enable local authorities to regulate itinerant trading, including matters of consumer protection, trader suitability, nuisance and obstruction. The Justices had therefore erred in law and, on the facts found, should have concluded that the location was a street.

The outstanding issues relating to local adoption and designation were to be resolved by the Justices if necessary. The court rejected the submission that no costs order should be made merely because the dispute had become of limited practical relevance to the defendant.

• Berkshire Justices: On 18 February 2008, dismissed the information.
• High Court (Administrative Court): On appeal by way of case stated, held that the location was a “street” within Schedule 4 paragraph 1(1)(a) and remitted the case for resolution of the outstanding issue.