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Neutral Citation Number: [2004] EWHC 1167 (Admin)
Case No: CO/5301/2003

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT



Royal Courts of Justice
Strand, London, WC2A 2LL
21/05/2004



B e f o r e :

THE HONOURABLE MR JUSTICE LEVESON

____________________
Between:

THE QUEEN (on the application of
WEST END STREET TRADERS' ASSOCIATION and another)
Claimant

- and -


THE LORD MAYOR AND THE CITIZENS OF THE CITY OF WESTMINSTER
Defendant


____________________

Miss Gillian Carrington (instructed by Rees and Freres, London) for the Claimants
Miss Marina Wheeler (instructed by C. T. Wilson, Director of Legal and Administrative Services, City of Westminster) for the Defendant
Hearing dates: 6-7 May 2004
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

Mr JUSTICE LEVESON:
1.Street trading within the boundaries of the City of Westminster (affecting some 900 street traders) is the subject of statutory control by the local authority (described in this judgment as "Westminster") pursuant to the provisions of the City of Westminster Act 1999 ("the Act"). Among other powers, Westminster is entitled thereby both to grant (and revoke) licenses for street trading – which may involve a pitch at a street market, or an isolated pitch in one of the streets of the City – and to levy charges to cover specified costs.


2.In general, charges are fixed on an annual basis although, in 2002, whilst a comprehensive review of street trading charging was underway, no increases were introduced; as a result, a deficit built up. By letter dated 24 March 2003, in accordance with the provisions of section 22(10) of the Act, a Consultation Document was circulated setting out proposed fees and charges. For market stalls, a reduction in charges was recommended; for traders from isolated pitches (and, in particular, those within the postal districts W1 and WC2 who had previously been granted an exemption from refuse collection charges on the grounds that they did not generate refuse or require its collection) very substantial increases were proposed. As permitted by section 22(11), the West End Street Traders' Association ("WESTA"), which is an unincorporated association representing approximately 100 street traders, the great majority of whom operate from isolated licensed pitches, rather than street markets, sought further information; there is an issue as to the adequacy of what was provided.


3.The matter came before the Major Licensing Applications Committee of Westminster ("the Committee") on 10 July 2003. After further representations and discussions, the Committee resolved to implement the proposed charges with effect from 25 August 2003 with two modifications. First, consideration of a sickness waiver scheme was deferred (and does not feature in this case); secondly, and of greater significance, Westminster's officers were asked to carry out an urgent review of refuse provision for isolated pitches and to report back to the Committee in six months.


4.This application is a challenge to that decision. It is said that Westminster misconstrued its charging powers and, in particular, determined that it was obliged to recoup its costs in their entirety and that it was entitled to charge all licence holders for refuse collection services whether such a service was desired or necessary; that it failed to apply its policy of 'the user pays' or did so inconsistently; that its decision was irrational having been reached without evidential foundation; and that its decision was flawed both because of inadequate disclosure of information legitimately sought and because irrelevant factors tainted the decision making process. Westminster denies each and every of these allegations and contends both that it complied with the letter and spirit of the legislation and that the decision was soundly based in the evidence, entirely open to its Committee on the facts and well within its powers.



The Facts
5.It is necessary to outline the facts in some detail and to start with the background. Under the terms of the Act (which I shall have to analyse in detail), Westminster has power to recover from licence holders charges to cover its reasonable costs of collection, removal and disposal of refuse or other services rendered by them to such licence holders; the cleansing of streets in which street trading takes place in so far as that cleansing is attributable to such trading; any reasonable administrative costs or costs not otherwise recoverable under the Act in connection with the administration of its provisions; and the costs of enforcing its provisions.


6.Notwithstanding that there should be an annual review of charges, involving consultation with street traders and their representatives, for a number of years the costs of the services rendered to the street traders has exceeded the income; by the end of 2001/2002, the accumulated deficit on the street trading account stood at £166,738. It is not necessary to analyse the reasons for this deficit although it is a fact that the charges for isolated pitches have been lower than those for market traders. Of particular relevance to this case is that the overwhelming majority of WESTA members benefited from an exemption from refuse collection charges on the basis that they declared that their business did not generate or require such a service.


7.At the beginning of 2001, there was an unsuccessful attempt to bring the charges for isolated pitches more closely into line with charges for market traders. When this was abandoned, Westminster's Licensing Client Manager, Philip Doyle, was charged with reviewing current charging policy (over and above the annual review of charges). This review was to consider the justification for all forms of differential charging including a number of concessions. In particular, the remit included these provisions:



"8.1.3 Through phased increases above inflation, it is proposed to gradually bring the charges for all isolated pitches into line with the charges for markets generally, except where there is a sound basis for maintaining a differential (e.g. for 'non refuse' isolated pitches) … [T]he Licensing Court Manager has undertaken to carry out a comprehensive review of current charging policy to ensure that traders at all locations pay their proper costs and that no one trader is subsidising another. …

8.1.5. For isolated pitches known not to leave refuse it is considered that the current differential is too generous. … The size of the differential for non-refuse pitches will form an integral part of the Licensing Manager's review of current charging policy for street trading pitches."

8.That review took longer than anticipated which meant that there was no annual alteration to the charges in 2002. When completed (following a reorganisation which had necessitated a fresh analysis of costs, particularly in relation to enforcement), the Consultation Paper was prepared. It started with a reminder of the policy set out above namely "to ensure that traders at all locations pay their proper costs, and that, as far as possible, no one trader is subsidising another" (paragraph 1.2).


9.The paper recommended far reaching changes which would have the effect of generating £121,000 additional revenue reflecting two years' inflation, part reduction of the deficit and increased recharges from Community Protection. It goes on:



"2.2 Market locations and isolated pitches will now have different charges, reflecting the differences in cost involved in administering and enforcing the licence conditions.

2.3 The distinctions between different levels of refuse provision for isolated pitches have been discontinued to bring them into line with pitches at market locations …

2.4 Isolated pitches in the W1 and WC2 postal areas (including Oxford Street) will now be paying a greater contribution towards the cost of enforcement action against unlicensed street trading, as there is evidence that it is overwhelmingly people in those areas that benefit from such action. …

2.10 The new structure of charges has a number of advantages:

The charge paid by all stall-holders will reflect as closely as possible the actual cost incurred by the Council in issuing licences (and associated administrative charges) and enforcing compliance with licence conditions. …

The greatest percentage rises occur at those pitches which reflect their prime location. …"
10.In its conclusion, it was said that introducing a higher charge in the W1 and WC2 postal districts reflected the additional enforcement activity necessary in those locations and simplified the charges to remove the distinctions between 'refuse' and 'non-refuse' stalls for isolated pitches.


11.Appendix A described the expenditure charged to street trading and explained in relation to cleansing how the cost was made up of contract costs with Onyx, transport for trucks used on street markets together with a proportion of depot costs and disposal costs (based on assessed waste tonnage of 3,630 tonnes emanating from street trading locations). It went on to deal with unlicensed street trading which involved enforcement teams (based on time recorded information apportioned 1% to exhibition holders, 21.25% to isolated pitches in W1 and WC2 postal areas and 3.7% in other areas) and depot storage costs relating to seizures of illegal street trading equipment. Dealing with other costs, the report goes on:



"Licensing Client and Administration A proportion of street administration time is charged to licensed street trading based on time recording information as detailed on the monthly redistribution journals. A proportion of the Licensing Client Group time is also charged to licensed street trading, apportioned to the overall activity of the service. …

Cashiers and other Capita maintain the street traders database for each pitch and recording traders and also produce weekly status reports showing the balance on each pitch for both current and former traders. The level of charge is based on a figure in line with the charge that was levied when the work was done in-house, but Capital do not give a separate costing for the work. Other corporate charges are based on estimated time spent supporting street trading from various sections of the Council, including Finance and Business Services, One Stop Services, Committee Services, support costs etc."
12.Appendix B is a detailed table of costs associated with street trading broken down to markets, isolated pitches (non W1/WC2 and W1/WC2) and Exhibitions. Thus, by way of example, it is possible to identify that Westminster claimed that the cleansing contract costs for markets was £203,466, for isolated pitches outside W1 and WC2 it was £69.476 and for isolated pitches within W1 and WC2 it was £93,858.


13.As I have said, the effect of the proposals was dramatic. Without reproducing the entire table, and again by way of example, markets (which had paid £10.74-£13.11 on Monday to Thursday and up to £21.14-£24.83 on a Sunday) saw reductions or very modest increases (£10 for Monday to Thursday up to £23-£25 on Sunday); isolated pitches in W1/WC2 which had always paid for refuse saw larger weekend increases because of enforcement costs (from £21.99 to £28 on a Sunday). The largest increases, however, were for W1/WC2 pitches that had not previously paid for refuse collection and had the additional enforcement costs; costs went up from £4.95 on Monday to Thursday and £8.56 on Sunday to £12 on Monday to Thursday and £28 on Sunday. Pitches outside W1/WC2 that had not previously paid for refuse collection also suffered substantial increases (£4.95 to £10 and £8.56 to £25 respectively). To put these sums into context, in 2003, of 138 licensed isolated pitches, only 17 paid full rate and 116 claimed the non-refuse discount (the remaining 8 paying a fruit and flower stall rate which I have not set out).


14.As permitted by section 22(10) of the Act, by letter faxed on 7 April 2003, WESTA sought a considerable amount of further information and explanation. Of particular relevance to the present claim, it asked for comparative income and expenditure figures for 2001/2. 2002/3 and estimated for 2003/4. It also asked for details of the evidence that "it is overwhelmingly people in [W1/WC2]" that benefit from enforcement against unlicensed trading (on the basis that the bulk of enforcement appeared to be against hot dog and fake perfume etc sellers none of whom competed with the licensed traders). As to the structure of the charges, although the principle appeared to be "the polluter pays", in relation to the abolition of the differential for isolated pitches leaving no refuse, it was said:



"No proper justification for the change is given but the principle seems to be the non-polluter should subsidise the polluter. Please supply detailed reasons why it is consider (sic) equitable that a trader leaving no refuse should pay the same as a trader who puts the Council to the expense of removing refuse. In particular, given the wording of section 22(2)(a) of [the Act] how can it be right to charge for "the collection removal and disposal of refuse" when it has not in fact taken place. Furthermore, can you please explain why you have used one principle to justify two changes and a completely contrary principle for other?"

The actual figures in relation to cleansing costs (consisting of the cost of the contract set out above, transport, depot and disposal less an allowance) were not the subject of a request for breakdown or further information.
15.The letter also raised a concern about the sentence at paragraph 2.10 that "the greatest percentage rises occur at those pitches which reflect their prime location" on the basis that it appeared to be a new principle. It challenged Licensing client charges charged on overall activity which it was said was not equitable given the time taken up by the Licensing Bill going through Parliament and expressed itself astounded that Westminster did not know the real cashiers' costs to the street trading account (which, by being tendered out, should have generated savings).


16.Westminster replied on 17 April 2003. An income and expenditure spreadsheet was supplied showing previous years and future estimates of costs. In relation to the costs of enforcement, it was reported that 85% of unlicensed street trading in Westminster took place in W1 and WC2 but that because others, such as shopkeepers, benefited only 25% of the costs had been re-charged to street traders: this reflected the level of enforcement not directly related to street traders. As to refuse collection, it asserted:



"Inspections by enforcement officers have demonstrated that additional refuse is generated at isolated pitches, even at those which currently receive a 'non-refuse' discount and do not pay the Council for its removal. The presence of a street trading stall can result in increased overall litter generated by customers who may discard packaging nearby. Pitches at market locations are required to pay for cleaning irrespective of the amount of refuse that they may generate."
17.As to paragraph 2.10, Westminster merely said that this was a statement of fact and that charges were calculated by reference to costs incurred by Westminster and not the market value. In relation to Licensing client charges, it was said that the accounting system ensured that only legitimate street trading costs were charged to those services and as to cashiers explained that the charges were included under 'Other Clientside and Corporate Costs' and was known albeit amalgamated; the contract was due to be re-let and would be reviewed.


18.This letter was followed by written representations as permitted by the Act which challenged the information provided. It was said that there was no detail of enforcement action and invited a table showing the date, time, location and commodity sold by each unlicensed trader reported over a 12 month period. It argued that the apportionment of time spent on street trading by certain staff who did record time did not justify apportionment of all Licensing client staff and that this, and the failure to identify the costs incurred by Capita on street trading justified disregarding these figures until accurate figures were produced. It also disputed the right to charge for the collection removal and disposal of refuse when the service was not provided and observed that no evidence had been disclosed to justify the assertion that traders had been leaving refuse.


19.There were meetings between WESTA and Westminster on 9 May and 21 May and a letter dated 22 May on behalf of WESTA threatening an injunction. Neither notes of these meetings nor that letter are in my papers. What is available, however, is a further letter from Westminster dated 18 June. It explained that the Licensing Service had been re-organised with additional IT provision which explained the increase in the recharge for licensing clients but that the overall "City Standards and Licensing Charges" showed a reduction in the 2003/4 estimate which showed that efficiency savings had been made. As for enforcement charges, it repeated that only 25% of the cost of enforcement was charged to street traders and went on:



"Only 46% of unlicensed street trading reports in 2002/3 related to hot dogs or perfume. The remainder related to other forms of trade, such as jewellery, Christmas items, decorations, flowers, newspapers, clothing, posters, music videos, souvenirs and toys. It would seem to be in the interests of licensed street traders that enforcement action is taken against these people and therefore fair for them to pay a proportion of these charges. Overall, 85% of the 25% charged to the street traders (ie 21.25%) is charged to isolated pitches in W1 and WC2 as it in these postal districts that most unlicensed trading takes place. Indeed, figures over the last two years have shown the proportion as being consistently between 85% and 90%."
20.None of this satisfied WESTA but although "far from convinced of the lawfulness of basing charges on guess estimates", by letter dated 26 June, it was made clear that it did not wish to hold up the determination of fees as charges because of the increase to the deficit. This was done "without prejudice to the rights of [WESTA] to challenge any fees and charges agreed by the Council in any way it deems appropriate…".


21.That brings me to the meeting of the Committee on 10 July 2003 when the decision now being challenged was reached. The papers for the meeting included a Report broadly similar to the Consultation Paper and some 18 representations (including the letters dated 28 April and 26 June from WESTA and letters from two other trade associations): in fairness, a number were concerned with a sickness provision which is not the subject of this challenge. Westminster's responses as set out above were not included but the broad thrust of them was clear from that which WESTA submitted.


22.The Review was introduced by Mr Doyle who said that the objective was to try to differentiate between the isolated pitches and street markets so that fees and charges more accurately reflected the costs associated with each on the basis that "overall the fee income has to match the cost to the City Council". Mr David Chambers, on behalf of WESTA, then addressed the meeting, underlining the points that had been made in correspondence, including his contentions as to the correct interpretation of the legislation that he, apparently, had helped to draft. He argued that insufficient information had been provided to WESTA and invited the Committee to defer a decision until full information was provided. He gave a number of examples including the failure to demonstrate that refuse is left at isolated pitches referring to one of the meetings with officials at which Westminster's client manager cited one pitch which enjoyed the 'non-refuse' discount where refuse had been left but, even then, no details could be provided.


23.Peter Large, the Deputy Director of Legal and Administrative Services then provided a measure of legal input. He made it clear:



"…[E]very year there is a debate between us and the Associations about whether the information we provided them with is sufficient to comply with the Act and in the end that is a matter of judgement rather than fact. I am advised that we have given the Associations all the information that we have give them (sic) in response to their queries and my view is that we have complied with the Act in that respect.

Mr Chambers said that the Act is essentially about cost recovery and that is absolutely correct and it would indeed be wrong to charge pitches more or less according to their location, whether it's a prime location or not and I don't think the report is suggesting that we should do that. …[W]hat the Act says is that we must do is recover charges as are sufficient in the aggregate to cover the costs of, amongst other things, collecting, removing and disposing of refuse and it's not required or us and nor do I think it's feasible for us to make charges to each individual street trader based on the exact costs that he personally is causing the Council to incur. We do have to strike a balance and set fees which are as fair as we can make them and which overall will cover our costs … "
24.Other representations were also made during the course of which the Chairman of the Committee observed:



"As far as isolated pitches and refuse are concerned, I have to say by complete coincidence I met with … the Cabinet Member for Environment yesterday in order for her to, on the agenda was to complain about the amount of refuse being left unattended by isolated pitches and I won't go into detail but W1 pitches were particularly on her agenda so there is a conscious knowledge of a problem on isolated pitches and refuse handling which she's asked for advice or enforcement on. So that is an issue which I don't entirely accept that there is no problem …. "

Mr Doyle said that he had photographic evidence of isolated pitches who get a fee waiver but leave refuse: that does not appear previously to have been mentioned and there is no suggestion that prior to the meeting, WESTA had been told about photographs let alone seen any.
25.There came a time when the Chairman considered it appropriate to adjourn consideration of the refuse collection issue whereupon Mr Doyle observed that the longer there was a delay in setting the fees, the greater would be the deficit. He suggested that another way forward was for the fees to be agreed as recommended and that the Officers be instructed to carry out an urgent review of the issue of isolated pitches and refuse collection and come back with proposals. In the event, that was the decision of the Committee.


26.I add one footnote to this account of events which is in relation to the subsequent Review. This was conducted without any input from WESTA; they were not contacted by Westminster and, although the members who attended the meeting knew that it was being undertaken, neither it, nor any of its members, nor the Consultant Mr Chambers contacted Westminster or provided any data for Westminster's officers to consider. The Review was copied to WESTA with very little notice prior to the meeting at which it was to be discussed and certainly none that permitted full instructions to be taken from the members. In the event, at that meeting, the new charges were left in place. It is unnecessary (and, perhaps, unhelpful) to detail the criticisms that each side makes of the other in relation to this Review. Suffice to say, that it is no part of my task to analyse that review; I am concerned solely with the process leading up to the meeting of 10 July 2003 and the legality of the decision then reached.



Requests for Further Information
27.Although the specific challenge is to the decision taken on 10 July 2003, the first complaint relates to the failure to provide information to which WESTA believed that it was entitled. The request was made under Section 22(11) of the Act which is in these terms:



"Within 21 days of the giving of the notice any body representative of licence holders may ask the council for such further information or explanations with regard to the proposed charges as the body concerned may reasonable require to ascertain whether the proposed charges are reasonable and in accordance with the provisions of this section and as soon as reasonably practicable the council shall comply with the request."
28.Thus, the limitations on this request are, first, that it must relate to the proposed charges; secondly, that it must be of information reasonably required; and, thirdly, that the purpose of obtaining the information must be for the purpose of ascertaining whether the proposed charges are reasonable. Where, as here, Westminster has specifically purported to link charges to costs, it clearly becomes reasonable to enquire about those costs although the level of detail sought is another matter.


29.WESTA complain about the information provided in relation to cleansing, enforcement, licensing client charges and cashiers' costs. As to each, the Table of Costs in Appendix B of the Review Paper had not only provided the gross figures, but had broken those figures down; Appendix A set out explanations or descriptions of the individual components making up the headings in the table. As I have observed, no questions were asked about the specific figures for cleansing costs said to be incurred; the questions raised were concerned with entitlement to charge and the evidence of use of refuse collection services by those with a non-refuse discount. That concerns the principle upon which charges were being levied (and to the effect that little if anything was revealed by way of direct evidence of abuse) rather than the costs incurred.


30.Questions concerning enforcement related to the evidence for the statement that "it is overwhelmingly people in [W1 and WC2] who benefit from [enforcement] action"; that led to the detailed statistics provided in the letter of 18 June. The further request for details of date, time, location and commodity sold in relation to each unlicensed street trader over a twelve month period was made outside the statutory period (being by letter dated 28 April, repeated on 26 June) but is, in any event, beyond that which it was reasonable to require Westminster to provide particularly having regard to the explanation in the letter of 18 June which repeated that only 25% of the cost of enforcement was being charged to street traders for reasons there explained with apportionment to isolated pitches in W1 and WC2 on the basis that these were the districts where most unlicensed trading takes place. Appendix A had said that this was based on time recorded information: no request was made to see that data either in whole or in part.


31.In relation to the other costs, again, the text of Appendix A explained how the expenditure was calculated and where assessments had been made (along with the basis for those assessments). By way of further information, clarification was provided in relation to licensing client charges (namely that they were based on time spent and recorded) and the past figures revealed a decrease in overall administrative charges. Where information could not be provided, that was made clear. To such extent as it was suggested that fallacious or incorrect assumptions had been made where assessments formed part of the figures, those allegations were dealt with and answered. Neither was there a request to see the way in which the data was collected and nor was it suggested that the costs where derived from identified data were incorrectly calculated or not actually incurred. In the circumstances, I do not accept that the breach of this Rule alleged by WESTA has been made out.


32.In the event, WESTA decided not to pursue further information by way of action but rather to submit that what were described as "guess estimates" should not be used to identify cost. As a matter of law, I see no reason why the Committee could not proceed on the basis assumptions which it considered justifiable and justified provided, of course, that it was ultimately satisfied that the expenditure no less than that claimed had been incurred. Ultimately, however, it was a matter for the Committee to consider the submission made to them, raise such questions as it saw fit with the officers and reach a conclusion.



The Challenge to the Charges

The Law
33. At the heart of this case is a fundamental disagreement as to the true construction of the power that permits charges to be levied on street traders. Section 22 of the Act provides (so far as is material):



"(1) The Council may charge to applicants for the grant or variation of street trading licences such fees as are sufficient in the aggregate, taking one year with another, to recover the reasonable costs of dealing with such applications.

(2) The Council may recover from licence holders such charges as may be sufficient in the aggregate, taking one year with another, to cover the reasonable costs of


(a) the collection, removal and disposal of refuse or other services rendered by them to such licence holders; and


(b) the cleansing of streets in which street trading takes place in so far as that cleansing is attributable to such trading; and


(c) any reasonable administrative costs or other costs not otherwise recovered under this Act incurred in connection with the provisions of this Act; and


(d) the cost of enforcing the provisions of this Act;



(5)
(a) The Council may at the request of a majority of licence holders in a particular market or area provide other services to licence holders in that market or area;


(b) The cost of those services may be included in the charge referred to in subsection (2) above provided that those costs are only included in the charges made to the licence holders in that particular market or area;


(c) At any time a majority of licence holders in a particular market or area may request the council to cease to provide such services and the council shall, subject to any contractual arrangements, accede to such a request within three months of the request."
34.What is the effect of these provisions? Fortunately, I am assisted by the decision of Sedley J (as he then was) in Regina v. London Borough of Tower Hamlets ex parte Tower Hamlets Combined Traders Association (CO/629/93, 19 July 1993) unreported save by way of headnote in [1994] COD 325. He was concerned with section 32 of the London Local Authorities Act 1990 which is cast in similar (but not absolutely identical) language to the Act. As to the purpose of the legislation, Sedley J said (at page 16):



"[T]he budgetary exercise required of a local authority under section 32 is a part of its larger duty to administer its funds so as to protect the interests of what is now the body of council tax payers. The broad object of section 32 is to enable the council to break even over time on its market trading account so that no special burden is transferred to the general fund. … [T]he council remains under an obligation to balance the market trading books."
35.He later made it clear (at page 40) that "the purpose of the legislation … is to ensure that the cost of running street markets falls, but falls fairly, upon the traders". Miss Carrington does not challenge this expression of purpose but argued that Westminster was not obliged to seek full recovery; she relied on Regina v. Manchester City Council ex parte King [1991] 89 LGR 696 in which Roch J observed that the judgment of what was a reasonable fee "for the purpose of recouping in whole or in part the cots of operating the street trading scheme" was for members of the local authority. That observation, however, was in the context of a challenge to fees set at a commercial rate rather than related to cost. In this case, it was, in reality, recognised by all that Westminster had embarked on full recovery of costs (not least because of the acceptance that a failure to determine, and increase, fees would simply increase the deficit, which, inferentially, the traders at some stage would have to meet: see, for example, Mr Chambers' letter of 26 June). I agree with and adopt the formulation of Sedley J to which I have referred above and reject Miss Carrington's submission to the contrary.


36.It is still necessary to determine the precise extent of the charges authorised by the Act (accepting, of course, that no charge can be imposed except on clear legal authority). Thus, Miss Carrington submits that section 22(2) does not confer a power to recover the costs of services from all licence holders regardless of whether that service is actually provided, necessary or desired. Further, the costs sought must be reasonable which she argues means fixed at a reasonable level for the service and reasonable to recover for the work actually carried out or the service actually provided. Thus, if individual traders neither require nor wish a particular service, it is not reasonable to require that trader to pay for that service. She points to the language of the section "services rendered", "cleansing … attributable to … trading", "costs … incurred in connection with the administration of the provisions of this Act".


37.Miss Wheeler accepted that the fixing of charges was subject to the defined constraint that the charges had been reasonably incurred (so that it might well not be lawful to seek to charge for the use an experimental cleaning system costing far in excess of traditional cleaning methods and no more effective). Having said that, however, she goes on to argue that the language of the section permits Westminster to charge traders as a group for costs incurred in relation to a service provided to the group. Thus, by way of example, section 22(2) permits Westminster to recover "from licence holders … charges … to cover the reasonable costs of …" collection … of refuse or other services rendered by them to such licence holders". That section points to services that are available to and thus provided for the group of license holders – refuse collection, street cleaning, administration of the Act and enforcement of its provisions. Thus, it is the group which should pay these costs.


38.She pointed to the further charging power within section 22(5) which allows a majority of licence holders in a particular market or area to request other services from Westminster; the cost of those services, if rendered, then falls on all the license holders whether or not they voted for the charge, or even use it. A majority can equally request the termination of these services. Miss Carrington counters by suggesting that this does no more than sanction contractual or quasi-contractual arrangements for the provision of extra services. In fact, it goes further than that: unlike a contract, which must be entered into by all who are to be bound by it, this section empowers Westminster to impose charges on a potentially large minority for a service which that minority do not want and have not agreed to pay.


39.In my judgment, the meaning of this provision is clear. Section 22(2) identifies certain services that Westminster is bound to supply to the population of street and market traders – waste disposal, street cleansing, administration of the system and enforcement of the Act (which enures to their benefit). Section 22(5) permits them to provide other services that by majority vote can be imposed on one market or area of traders with the cost then being met by all the members of that market or area. The word "reasonable" qualifies the valuation of the service provided to the group, and not to any individual trader. Although I have not examined the legislation and mention it only by way of analogy, a council tax payer cannot claim a discount on council tax simply because he does not have children and thus does not benefit from the education system.


40.Although not concerned with the proper construction of the Act, it is convenient to deal with a further argument to which I was initially attracted. It is common ground that Westminster was justifiably entitled to adopt a policy of "the user pays", or, as expressed in the Consultation Paper (paragraph 1.2) "to ensure that traders at all locations pay their proper costs, and that, as far as possible, no one trader is subsiding another". It was submitted by Miss Carrington that there was a clear inconsistency in the application of that policy which itself rendered the charges irrational and thus unlawful. On the one hand, in relation to enforcement, a higher contribution was sought from W1/WC2 isolated pitch traders because most enforcement was in their area and they were benefiting the most. On the other hand, although very few of the isolated pitch traders used refuse collection services, they were being made to pay for it, notwithstanding that they obtained no benefit. Miss Wheeler suggests that this is based on a misconception and submits that the withdrawal of the concession was precisely to give effect to this principle.


41.On reflection, I have come to the conclusion that there is a fallacy in Miss Carrington's argument. Whether or not a large number of isolated pitch traders were using the refuse collection service (and, in this regard, assertions that one or more traders used the service while claiming the discount constitutes something of a red herring), the service had to be provided. I repeat that there was no challenge to the cost of cleansing set out above; this was allocated, as to isolated pitches in W1/WC2, at £104,052. Someone must meet that cost. If one isolated pitch trader decides to dispose of all his own refuse, his neighbour, who pays for the service, would have to pay more, or alternatively, all other traders would have to pay more. In that regard, it is entirely legitimate to ask why a market trader should have to bear increased cleansing costs because an isolated pitch holder disposes of his own refuse. The fact is that the service is provided for all. Westminster was entitled to decide that it is unfair to those who pay that others, who choose not to use the service, cause the cost to those who do use it in that area to increase, let alone that they should cause the cost to those who use it in other areas to increase.


42.Enforcement, on the other hand, is nothing to do with choice. Westminster is required to undertake this duty and it is necessarily targeted in those areas where it is needed. Westminster has been careful to seek to apportion to street traders only enforcement in those areas which cover goods sold by street traders and to apportion also been them and shopkeepers who pay for the service through other charges. In the circumstances, therefore, I do not consider that there is an inconsistency in Westminster's approach.



Specific Challenges
43.In the light of my analysis of the true construction of the legislation, many of the challenges maintained by WESTA fall away. In relation to refuse collection, had the change been driven only by allegations of abuse of the non-refuse discount, it may well be that more evidence would have been required. The Consultation Paper, however, did not base the change on that argument. The argument about abuse of the system only arose when WESTA asked why it was equitable that a trader leaving no refuse should pay the same as a trader who does. The Paper (at paragraph 2.3) spoke of bringing refuse provision for isolated pitches into line with pitches at market locations and the subsequent explanation (set out in full in paragraph 16 above) makes the point that market locations pay for cleansing irrespective of the amount of refuse generated. In my view Westminster's approach is neither unlawful nor irrational.


44.That is not to say that the policy adopted is necessarily as fair as it possibly could be. Whereas I can well understand that it should not be open to a trader be able to avoid a charge for refuse collection by making his own arrangements to remove refuse generated by his trading, it may be that further consideration should be given to those who, by the very nature of what they sell, generate no refuse at all. The point is made by a newspaper vendor that any paper unsold is collected by his distributor with the result that there is nothing which he can throw away even if he wanted to. Whether this claim bears examination is another matter; Westminster may, however, consider it appropriate to examine that possibility as they now embark on the next review of charges.


45.As to enforcement, again, I consider that Westminster's approach is neither unlawful nor irrational. It was not appropriate to leave WESTA to "deal with illegal trading themselves" as was apparently suggested. Having said that, however, if charges are to be levied for the future, based on experience in the past (as, in relation to enforcement, appears to be the case), it is important that the differential cost of enforcement in different areas is reassessed each year (so that different requirements year by year are reflected in different charges albeit in the following year). Only in that way is the policy of no one trader subsiding another maintained.


46.As to the administrative, cashiers' and 'clientside' costs, I do not accept Miss Carrington's submission that they lacked evidential foundation. I have set out the exchange of contentions earlier in this judgment but it is clear that Westminster confirmed that licensing client charges were based on actual time spent (and overall administration had in fact decreased as compared to the year 2000/1). Where the figure was based on an assessment, the Consultation Paper and Review identified the basis on which the assessment had been made. Given that I have rejected the allegation that Westminster failed to comply with their obligation to provide further information in regard to these items and there is no other basis of challenge to them, this complaint is also rejected.


47.I must deal with a criticism that is repeated throughout the consultation period and has, additionally, surfaced in this challenge. It relates to the statement that "the greatest percentage rises occur at those pitches which reflect their prime location". Miss Carrington argues that the only proper construction of this sentence is that the charges were dictated by the profitability of the stall which is, as is clear from the decision of Sedley J to which I have referred, irrelevant. Westminster have always denied that this is the true meaning of the phrase and Miss Wheeler submits that it is simply a statement of fact; it is, however, said to the an advantage of the new structure of charges. On any showing, because of its ambiguity, it is an unfortunate expression but it is not sufficient to strike down the decision of the Committee because it was made abundantly clear at the meeting of 10 July by Mr Large that the Act was about cost recovery and that it would be wrong to charge pitches more or less because of their location (see paragraph 23 above).


48.Finally, I must mention a point that was repeated by a number of traders during the course of the representations. Criticism is made of Westminster for imposing such very substantial increases on a small number of traders (and, in particular, the W1/WC2 isolated pitch traders claiming the non-refuse discount) at a time when trading is difficult not only because of the effect on tourism of the threat of terrorism but also because of the introduction of the congestion charge which itself has impacted on the number of visitors to London. Although the point was made that the effect was relevant, no submission was made that the increase was, of itself, so high as to be irrational or unreasonable. Although I recognise that, in real terms, the increase is substantial, I do not consider that, in the context of this case and these circumstances, there is any impact on the legality of Westminster's approach.



Concluding Remarks
49.For the reasons which I have set out above, this claim fails. I ought to make it clear, however, that had I taken a different view of the decision making process, I would not have refused relief to WESTA either on the grounds of delay or because WESTA failed to avail itself of the right of appeal to the Secretary of State: as Collins J said when granting permission, the lawfulness of Westminster's approach will arise annually and it has been sensible that it be resolved.


50.I must also say something about what happened after the decision of 10 July 2003 and I repeat I have deliberately not analysed the circumstances in which the Review of January 2004 came to be considered by the Committee without representation from WESTA. Whatever the rights and wrongs of the matter, and whoever is at fault or more at fault, it is sufficient if I say that I consider it very unfortunate that the Committee did not have the assistance of the traders which could only have informed their evaluation of the new system of charges. I accept Miss Carrington's assessment that WESTA wished to co-operate with Westminster and is not irresponsible; she explained that no stay was sought because the traders could see problems concerning the unpaid deficit. In the circumstances, I make it clear that nothing I have said is intended to prevent WESTA making such representations as they feel appropriate as to the merits of the new system, including providing whatever data they are able to assemble, and I hope that Westminster will feel able to consider what is said with an open mind and in an effort to ensure that the system of charging under the Act is the fairest and most appropriate that can be devised. WESTA and Westminster must continue to work together and I hope that they can do so in a spirit of each understanding the legitimate concerns of the other.


51.Finally, although I have said that I would not have refused relief because of failure to make use of the appeal process, that view does not bind and may well not be the case for the future. Section 19 of the Act permits any person aggrieved by (among other things) "the amount of a fee or charge under section 22" to appeal to the Secretary of State "whose decision shall be final". This provides a far more appropriate remedy in respect of many issues likely to arise between street traders and Westminster. Most important, it can lead to a re-evaluation of the judgments that go to make up the decision on the merits.

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin


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