Policy / Legal
This allows a local authority Market Operator to get advance notice of a temporary market. It is an adoptive provision and if it is to be used it is important that information is available to those affected to understand the requirements. It is used most effectively in conjunction with a market licensing policy but it can be used as a stand-alone provision. It has not been used extensively. (GW)
There have been several challenges to market rights using the European dimension and to date all the challenges have been successfully defeated. However this does not mean European requirements can be ignored. It is important that market rights are enforced reasonably and proportionately and there is a clear policy dimension involved. At this point no one knows the full implications of BREXIT but it would be unwise to believe that Councils can go back to enforcing market rights in an arbitary manner. (GW)
A Market Operator can change the market day but it is necessary to be clear about the market powers relevant to the market before taking a decision. A Royal Charter might limit the market day to a particular day whereas Part 111 of the Food Act 1984 gives discretion to appoint any day. There needs to be a formally recorded decision – ie. It needs to be minuted by the Council. In addition to being clear about the powers relied upon the Market operator needs to ensure that any other approvals such as highways and planning are met. (GW)
The Sunday trading legislation affects “large shops” which are defined as exceeding 280 square metres. Many market halls are caught by this size requirement but given the separate nature of the letting arrangements with traders given separate licences, tenancies and leases and the separate trading units it is unlikely that market halls are within the provisions. (GW)
Byelaws are intended to govern behaviour in the market. They apply to both traders and the general public. They are approved by the Secretary of State. There is a model set of byelaws but market operators can amend to suit their particular requirements. The byelaws are enforced by court action. Regulations are part of the contractual relationship with traders and are more flexible than byelaws. They are much easier to review and change as the Market Operator has overall responsibility for enforcement. It is important that both byelaws and regulations are enforced if they are to be of proper use. They can be used together but ensure the provisions are consistent. (GW)
Q6. A Market Operator is thinking of moving the Market to a new location. Are there are particular issues that should be considered?
In addition to all the operational issues the Market Operator should consult in detail with the traders particularly if the new location does not provide as many trading opportunities. There must be clear criteria for applying for stalls etc at the new location. Also the Market Operator needs to consider the needs of the community the market serves particularly if that community represents a particular element of the population. How will the markets community be affected by the move?
Some Market Operators have been successfully challenged where this has been neglected. (GW)
Q7. What are the implications of having the Landlord and Tenant legislation included in Market Tenancies and Leases ?
The granting of a tenancy or lease creates a contractual relationship with the trader but in addition to that relationship the requirements of the Landlord and Tenant legislation provide an additional framework which means that the operator is required to meet the statutory requirements as well as the contractual ones. In order to avoid this situation some market operators include a specific provision within their tenancies and leases formally excluding the requirements of the Landlord and Tenant legislation. (GW)
Pedlars are still governed by the 1871 legislation and case law demonstrates that the current arrangements are very inadequate. If your market is affected by pedlars you need to keep a log of evidence over a few weeks supplemented by photographs and street plans. You need to evidence the size of the pedlar’s trolley or stall, the time that he is in one place, what he is doing when he is not serving customers, how he arrived at the market, whether he goes back to a van to replenish stocks and the distance he moves and at what intervals. Traders can help collect evidence but this will need to be supported by enforcement officers. Once this evidence is collected it can be tested against the current pedlar requirements. Normally if the trolley or stall is bigger than a supermarket trolley, the pedlar remains in one place without serving customers for beyond fifteen minutes and moves only a few yards over an extended period then you have a reasonable cause of action. (GW)
Business Rates are charged on both Market Halls and Open Markets. Many Market Halls are now the subject of separate assessments with the traders having assessments in respect of each of their trading units.
Street trading is generally exempt from Business Rates but the more the street trading activity is operated like a market eg if the operator makes stalls available then the more it is likely to fall under the Business Rates regime. (GW)
Q10. What action should I take about a commercially operated Sunday market/car boot sale that has been operating for some time in our area ?
You should have a markets licensing policy in place before attempting any action to control a car boot sale. However if the car boot sale has been operating for sometime then you are unlikely to be in position to take effective action. The ultimate enforcement action to protect market rights is to obtain an injunction but the grant of an injunction is a discretionary remedy and if the court feels that you have delayed taking action it is unlikely to be sympathetic. You will have to demonstrate that there has been some material change in the car boot sale operation such as an increase in size. (GW)
Just because you have certain powers to operate a market does not mean you can set up a market anywhere without getting any other approvals. Market powers only give the market operator the powers to operate the market.
The first requirement is to get the approval of the landowner where the market is held. If you do not own or have possession of the relevant land then it means entering into an agreement with the landowner to use the land for the purpose of the market.
Secondly, if the market is to be held in a street, highway or pedestrianised area it will be necessary to get an order form the highway authority stopping up the relevant area for the purposes of the market. Depending upon the frequency of the market, this may involve a time consuming and potentially expensive procedure to obtain a traffic regulation order but if the market is only held on one occasion each year, eg a Christmas Market, it might be possible to use a much quicker procedure under section 21 of the Town Police Clauses Act 1847.(GW)
There are two important aspects to this issue. Firstly a market must have clear and enforceable market regulations. You need to ensure that your regulations are kept under regular review and issues which often lead to conflict such as the items traders can sell, opening hours and placing goods in market alleyways are both workable and enforced by market management. Market operators who fail to enforce the requirements of the regulations may find themselves in difficulty when a disciplinary issue arises.
Secondly, when it comes to disciplinary matters you need to have a written down procedure which again is publically available and shared with traders. It can be part of your market regulations or it can be a separate policy document.
It is important, taking into account that you are potentially affecting someone’s livelihood, that any remedies are proportionate to the matter complained about. However, in appropriate cases, there is no reason why a market operator cannot immediately suspend a trader from a market if the matter complained of is sufficiently serious. (GW)
It is vitally important that every market operator is clear about the powers they use to hold a market. This can include a royal charter / letters patent/ prescription / loss grant / local legislation and Part III of the Food Act 1984. While many markets enjoy the benefit of a royal charter, which can add status to the market, it is important that a market operator using the provisions of a royal charter understands how the provisions of the royal charter affect the market.
There are occasions when the royal charter can be restrictive in how the market operates, for example, limiting the market to a particular day of the week. If these restrictions exist or if there is uncertainty about the provisions of the royal charter then a local authority market operator should look to use the provisions of Part III of the Food Act 1984. This is a modern statutory framework for the operation of markets and provides powers to deal with all the main issues affecting markets.
There is no reason why a royal charter cannot be used alongside Part III of the Food Act 1984 provided there is clarity on how the respective powers are to be applied. It should be a public statement setting out the powers under which the market operates so those affected by the market are clear about the basis upon which it operates. (GW)
A “rival” market is one which is normally created without legal authority. In recent years there has been a tremendous growth in car boot sales, specialist markets, table top sales and food markets, particularly Farmers Markets. Unless such an event can point to legal powers giving the market operator the authority to proceed or they are licensed by a market operator with the relevant powers, then that is a “rival” market.
A market operator, using their own powers can set up a licensing system which can determine the number, quality, and balance of the markets in their area. This enables control to be exercised over “rival” markets. Any policy which provides a licensing arrangement needs to be reasonable and proportionate and sets out a framework for the consideration and determination of applications. (GW)
Many markets held on highways and streets are called markets but are operated under street trading powers. This is particularly the case in London. These markets are not markets in the strict legal sense and therefore they do not have the rights and responsibilities which attached to markets created under market powers such as royal charter / letters patent and legislation such as Part III of the Food Act 1984.
There are important distinctions between the two including the right to control “rival” markets, the level of charges and the ability to make profit. In general terms the street trading legislation is based on a regulatory licensing system whereas market stalls provide more flexibility and have a commercial element attached to them. (GW)
Many of your market traders earn their living as a result of market trading so it is necessary to have a consultation policy that takes into account their views on what is happening on your market. This does not mean you have to consult on every detail affecting the market but if, for example, significant increases in charges are proposed or there is a redevelopment project affecting the market, then it is important to take into account your traders views.
This does not necessarily mean that you have to accept what your traders tell you but you should be seen to listen and respond with a considered answer. There are lots of Court cases where traders have challenged market operators and have successfully delayed or frustrated plans for the market. The use of newsletters or occasional surveys can show that you are keen to keep in touch with your traders. You might seek to appoint designated trader representatives to discuss issues periodically or form a Markets Forum which is used for consultation purposes. (GW)
A good market will have a varied offer of different items but when it comes to letting empty stalls it is always important to agree lettings against the background of a balance of trade policy. This can be a relatively simple document specifying, for example, the number of different trades permitted on the market or can allocate different trades to different parts of the market. It is important that potential traders know how your letting arrangements work and this should be a publically available policy document. If you have empty stalls you are not obliged to let them to a trader if you feel that your balance of trade policy will be undermined. If, for example, you have three fruit and vegetable traders but several empty stalls, you have no obligation to take another fruit and vegetable trader if you feel that three is what the market can sustain, provided that such an arrangement is covered by your balance of trade policy. (GW)
The classic definition of a market is a “concourse of buyers and sellers” which has been approved in a number of Court cases. This definition includes car boot sales, table top sales, and specialist events such as Italian markets and Christmas markets. Some local authorities also include antique fayres and wedding fayres in the definition of a market. Normally you will need a minimum of five stands, stalls or pitches to constitute a legal market. The five stands, etc must be allocated to separate traders rather than one trader occupying all five. Obtaining this minimum number is important because once you have a legally constituted market, then certain rights and responsibilities follow. (GW)