Pavements aren't made of gold

Local authorities throughout the country had been awaiting the outcome of a judicial review which ended in the Queen's Bench Division recently.

The battle was between a group of street traders who squared up to Liverpool City Council over proposals to reform the city's street trading scene. It ended in victory for the traders. Keith Robinson, of Liverpool firm Jackson & Canter, masterminded the victory which is estimated to have run up costs of around £50,000.

He is in no doubt that the action, in which the council had argued that even a single street trading pitch could be classified as a 'stall' for the purposes of the 1982 Local Government Miscellaneous Provisions Act, serves as a warning to all local authorities against over-imaginative interpretation of the law.

He is also convinced that had the council won, Liverpool's scheme could have served as a blueprint for local authorities to curb street trading.

The case hinged on interpretation of the 1982 Act's definition of a street. The Act stipulates that for trading purposes a street can be regarded as any road, footway, beach or other area to which the public have access, or any part of one of those areas.

Liverpool City Council drew up a scheme in which it cut the number of street trading pitches in the city centre's Church Street from 24 to six and then designated each individual pitch as a 'mini street'.

When the council's new policy was applied it resulted in a situation where, once a trader was allocated a 'mini street', it rendered applications by any other traders to trade there hopeless, because there was only room for one.

The council argued before Mr Justice Judge that even an area as small as a postage stamp could in the eyes of the law be classified as a 'street' and that any other interpretation would render it extremely difficult for the council to limit the number of street traders.

However, the judge, in allowing judicial review both of the council's scheme and its handling of pitch allocations, ruled that this was not so.

He said the scheme drawn up by the council had been based on an "incorrect analysis" of the statutory provisions of the 1982 Act and that the selection procedure to decide which traders should have the right to trade on the new 'mini streets' was also flawed.

Robinson, whose firm acted for 12 of the traders says: "If the decision had gone the other way there would have been a number of local authorities who would have taken up the scheme. We are told other councils were waiting on the sidelines to see if the scheme would get the High Court seal of approval. If so, then they would have used it."

He says the case should be viewed as a cautionary tale and a warning to local authorities against being too creative with statutory provisions.

"The lesson to learn is that if you are going to start playing around with an Act of Parliament you have to be extremely clever and have also got to be fair and reasonable," he says.

"There is always an opening for statutory interpretation, but that interpretation must not be taken too far."

He says the traders who were privately funded had hoped the case could be settled without the final courtroom confrontation. Because of the nature of the scheme, however, he says this was not possible.

Short of any appeal moves, Robinson now hopes the two sides can agree a solution on ways the council can revise its street trading policies within the framework of the law.