Poole & Anor, R (On the Application Of) v Birmingham City Council

An authorisation criterion is not unlawful merely because it may affect competition or have economic effects. Under the Provision of Services Regulations 2009, the relevant question is whether the criterion is justified by an overriding public-interest reason and proportionate to that objective. A criterion concerned with consumer choice, urban environment and the character of a city centre may satisfy those requirements.

An economic test prohibited by regulation 21 requires an assessment of economic need, market demand, economic effects or economic planning objectives. A criterion requiring evaluation of product variety, without assessing those matters, is not necessarily such a test. Competitors are not indirectly involved in authorisation merely because their activities form part of the factual environment considered by the decision-maker.

The claimants, street traders and representatives of an informal traders’ association, challenged Birmingham City Council’s adoption of a written street-trading policy under Sch 4 to the Local Government (Miscellaneous Provisions) Act 1982.

The principal challenge concerned a criterion requiring the Council, when assessing competing applications for limited pitches, to consider whether proposed goods were innovative and not readily available in the high-street market. The claimants argued that the criterion breached regulations 15, 18 and 21 of the Provision of Services Regulations 2009, and that various policy conditions exceeded the Council’s statutory powers.

1. The claim was dismissed. The Council’s policy was a lawful framework for exercising its discretion over street-trading consents under Sch 4 to the Local Government (Miscellaneous Provisions) Act 1982.
2. The innovative-products criterion was justified by an overriding reason relating to the public interest. It formed part of a broader package concerned with consumer choice, the urban environment and the character and ambience of the city centre. Those objectives were not purely economic, even though they might affect commercial activity. Commission v Spain [2011] 2 CMLR 50 did not establish the claimants’ wider proposition that any criterion affecting what goods were sold or by whom was impermissible.
3. The criterion was proportionate. Applying the approach in R (Lumsdon) v Legal Services Board [2015] UKSC 41, the appropriate intensity of review was that applicable where a public authority makes political, economic or social choices in implementing a regulatory scheme. The criterion had a rational connection with increasing consumer choice and was not manifestly disproportionate.
4. The criterion was not an economic test prohibited by regulation 21(1)(e). It did not assess economic need, market demand, the economic effects of the activity or the appropriateness of the activity against an economic planning objective. Nor was it determinative of the outcome: rival applications could receive different scores under numerous other criteria.
5. Competitors were not indirectly involved in granting authorisations contrary to regulation 21(1)(f). Their activities could form part of the factual context, but the connection was too remote and fortuitous to amount to real influence over the decision. Public consultation was expressly permitted by regulation 21(3).
6. The criterion was sufficiently clear, objective, transparent and accessible. Applicants could identify the relevant policy and submit their own evidence. The Regulations did not require certainty in advance about the result of an evaluative decision. The general policy conditions, including those concerning cleanliness, statutory compliance and indemnity, were reasonably necessary within the Council’s powers.
7. Had any challenge to the innovative-products criterion succeeded, the proportionate remedy would have been a declaration preventing its use, rather than quashing the entire policy. That observation was unnecessary to the result.