§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Waddington.]
§ 1.13 a.m.
§ Mr. J. F. Pawsey (Rugby)
I rise to speak on the matter of the control of Sunday markets. I make it clear immediately that I am opposed neither to the principle of Sunday markets nor that of Sunday trading. Sunday markets discharge a worthwhile job. That is underlined by the fact that many people visit them. They provide an obviously valuable service and a wide and cheap selection of goods, despite the fifth schedule to and section 47 of the Shops Act 1950. They provide an interesting day out and are a source of considerable amusement. However, the benefits are gained at a cost to the residents who live near the sites of Sunday markets, with the noise of the traffic and fumes, and at a cost to the environment. I refer to the damage caused by many thousands of people who visit those markets and the amount of litter that is deposited. It turns what should be a day of rest into a day of disturbance.
At present, Sunday markets may be established without reference to the police, motoring organisations, residents or indeed to local authorities. Sunday markets are the unacceptable face of retailing. They operate effectively outside the law. They are subject to very little control and appear to have a uniquely privileged position. They do not pay rates and they appear to be unaffected by the legislation concerning health and safety at work. There are few planning regulations, if any, that apply, if Sunday markets are held fewer than 14 times per year. They require no permission from the Ministry of Transport. I also dare say that my right hon. and learned Friend the Chancellor of the Exchequer may be interested in the amount of tax that he may not be getting, because I suspect that Sunday markets help to encourage the growth of the black economy.
Sunday markets, then, can take advantage of the legally complicated division of responsibility that exists. That is a division of responsibility between the Department of the Environment, in regard to planning legislation, and the Home 1502 Office as it relates to Sunday trade and Sunday observance.
Sunday markets require basically three circumstances only. They require a large population to provide adequate turnover and to ensure that there is an effective population using and taking advantage of the market. They require a good communications network, preferably supported by a motorway. They need a large. flat and reasonably open space.
The thought that I put to this House is this: do marketeers and their customers have an overwhelming right to trade, irrespective of the damage to the environment and irrespective of nuisance to local people? I should like to quote from a letter from Wolvey parish council, addressed to my predecessor in this House. The letter is dated 22 March 1979. I had a copy since I am the county councillor for this division. The letter reads:The Councillors are very concerned "—that is the parish councillors—by the apparent lack of sympathy towards those who suffer from Sunday markets. Stronger legislation is needed to prevent these markets being set up where they cause so much disturbance. The mud that they deposit on the roads is a great danger to road users. The parking on the grass verges and on the approach roads would cause a considerable delay to any emergency services which were needed in case of fire or accident in the villages. Whilst we appreciate that these markets are popular, they should be controlled more and sited away from residential areas. The noise of stallholders arriving at the site begins at about 6.30 a.m. "—that is on a Sunday morning—and carries on until they pack up at night. The litter they leave behind is unsightly, to say the least.I have described the early start, the congested roads and the problem with noise and fumes. It is a fact that some of my constituents last year were almost prisoners within their own homes. The damage that occurs to their property, drives, fences, walls and hedges is considerable. I do not doubt that Sunday markets may be effectively outside the law, although effectively they are working well inside the green belt. Certainly I accept that Sunday markets are easy to organise. After all, all that is required is that the organiser reaches an arrangement with a land owner. All that is necessary is for the contact to be established with stallholders. Advertisements are then placed in the press and, bingo, 1503 we have instant business. Often the first that local residents know is when they read the advertisements, and those advertisements are very closely followed by the crowds.
I believe that this Government, like the previous one, are of the opinion that there are adequate controls, but I submit that that is not the case. I should like to quote from a letter from the Department of the Environment, dated 13 November 1978, addressed to my predecessor.
The letter said:Sunday trading is restricted by the Shops Act 1950, and the adequacy of controls under that Act is a matter for the Home Office. Although the Government are aware of the problems which local authorities face … we are not yet convinced that in relation to Sunday trading the provisions of Part IV of the 1950 Act are inadequate, as a means of controlling breaches of this branch of the law.On the second issue, the letter said:The position under planning legislation is that the holding of a market on not more than 14 days in any calendar year is permitted under Article 3 and Schedule 1 of the General Development Order 1977. However, a local planning authority may make a Direction under Article 4 of that Order which would have the effect for a subsequent year of removing the permitted development right, and so require application to be made for planning permission. For such a Direction to remain in force for more than 6 months, the Secretary of State's approval would be needed.It appears that there is a remedy, but the reality is different from the theory. My last quotation is from a letter to the Secretary of State for the Environment from Rugby borough council, dated 14 November 1978. The council said:The Council has through its appropriate Committees explored all the means available to it to stop the market operating and has come to the conclusion that the powers given to local authorities to deal with such situations are totally inadequate. Local authorities must rely on anachronistic medieval charter rights, planning legislation which can be easily circumvented and which is slow to take effect and Sunday trading laws which were never intended to apply to this situation.I take up those two issues in the nub of my argument. I should like to examine the lack of control in planning legislation. Article 4 of the Town and Country Planning General Development Order 1977 permits markets to operate without planning permission for 14 days in any calendar year, but since markets operate on only one day a week they are allowed to operate for three and a half months 1504 before a local authority can take action under the Town and Country Planning Act 1971.
I am aware that the local planning authority can serve an enforcement notice earlier if an article 4 direction is in force or if there is sufficient evidence to show that the market is intended to be permanent and not temporary; in other words, if advertisements are placed in local newspapers indicating that the market will be on the site every Sunday. Needless to say, the marketeers ensure that that is not said.
If an enforcement notice is served after the 14 weeks that a market has been on a site, an appeal may be lodged, and we know that that can take up to six months to be heard—during which time the market can continue to trade and cause nuisance. My hon. Friend the Under-Secretary may advise me that a " stop " notice can be served, but local authorities are loth to invoke a " stop " notice because they are aware that if it is not upheld by the courts they may be liable for loss of profits, which could be a substantial amount.
The market may move to another site, even to an adjoining field, and the whole circle commences again. For effectively another 14 weeks the market can operate without planning permission, necessitating the service of yet another enforcement notice. If the enforcement notice is upheld and a prosecution is successful for non-compliance, the penalty for a first offence is £400, which I suggest is a derisory amount when one takes into account that in a market of 200 stalls, the one with which I am familiar, the stallholders each pay £12 to the market organiser.
For subsequent offences there is a £50a-day penalty. That is a paltry sum. From experience in my constituency, these fines do not deter offenders.
The second leg of the suggestion concerns the Shops Act 1950. That Act does not in any way seek to make markets illegal and does not even mention Sunday markets. It prohibits the sale of certain goods on Sundays, which was its intention. It was not intended to stop the holding of markets. The Shops Act 1950 can be enforced by the prosecution of individual traders, the land owner and the market organisers for aiding and abetting 1505 or by making an application to the High Court for an injunction.
To carry out those three specific acts basic fundamental evidence is necessary, and practical experience shows that it is difficult to obtain that. In the majority of cases stalls do not display the names and addresses of the holders. When approached the holders refuse to give their names. Stallholders will even go to the extent of covering up the licence plates and tax discs on their vehicles so that the council is not able to trace them, and the vehicle owner is not always the stall owner. Customers who attend Sunday markets will not always co-operate and provide their names and addresses. Without the names and addresses of the alleged offender, no summons can be issued. That is the reality of the situation.
I hope that my hon. Friend the Under-Secretary of State for the Environment will take note of the difficulties that local authorities experience and perhaps come forward with positive suggestions—for example, simple licensing of Sunday markets, which could operate through the local authority.
§ 1.25 a.m.
§ The Under-Secretary of State for the Environment (Mr. Marcus Fox)
I am grateful to my hon. Friend in his lonely position for raising the matter tonight. In his constituency I think that he has had more trouble than most in this respect. It is a matter of some controversy.
I am sure my hon. Friend will agree that it would be a mistake to attack the principle of market trading. There are many long-established markets which exist under Royal Charter or Acts of Parliament that go back hundreds of years. They provide a valuable outlet for enterprise and initiative, and in no way do I take my hon. Friend's strictures to be attacking such markets. They are popular with shoppers, and many establishments that are household names in this country started in that way.
Although I talk about the acceptable face of these markets, there are operators who cause concern. There is no legal prohibition on new markets being formed. That is as it should be. It would be a sad day if that became yet one more of the rights of the individual to be taken away by well-meaning interference of legislators. Nevertheless, the law recognises that others have rights too 1506 and that the unregulated establishment of markets can interfere with these to an undesirable extent. In particular, they can provide what is seen by established traders as an unwelcome source of unfair competition. They can disrupt a locality, particularly if held in a rural area which cannot cope easily with the traffic, litter and sanitation problems. My hon. Friend has vividly described the problems that they can pose in the particular market to which he referred.
There are, however, a number of controls which already exist to contain these problems. As far as my Department is concerned, the main control is through the planning system, and I shall return to this later. As for Sunday markets, the Shops Act 1950 regulates which goods may be traded on a Sunday. It has been said that the provisions of this Act are difficult to enforce. My hon. Friend spoke of disguising names and number plates. Responsibility for this legislation rests with my right hon. Friend the Home Secretary. I am informed, however, that it has been used successfully on a number of occasions. The prosecution of individual stallholders, if they can he identified and traced, may indeed be difficult and ineffective as a means of taking action against the market as a whole. But authorities have the alternative of applying to the High Court for an injunction directed against the organisers of such a market. This course, though expensive when it has to be resorted to, has proved both to be effective in particular instances and to have a wider deterrent effect.
There are other controls which can be used to deal with some of the nuisances that temporary markets can cause in rural areas. The Highways Act, the Road Traffic Act and the Litter Act are all relevant here.
Another restraint on temporary markets is the right that franchise markets have to protection from other markets which might be set up in their area. I have heard this referred to as an " anachronism ". While the right may indeed be old, it is nonetheless effective for that, and I understand that this was the basis for action that was successfully brought against a temporary market operation in my hon. Friend's constituency. I assume that this is now closed or that the people have moved on.
1507 I shall return now to the planning controls which are the responsibility of my Department and which have been criticised as inadequate in respect of temporary markets. The planning system is concerned with the use of land, and the holding of a temporary market on land which is usually used for other purposes counts as a change of use requiring planning permission. Under the Town and Country Planning General Development Order 1977, however, permission is granted for the holding of a temporary market for not more than 14 days in any calendar year. This relates to markets on any day of the week, not just Sundays. This permission was reduced from the 28 days which was at one time allowed and which still applies for most other temporary users of land.
It is sometimes thought that, under the terms of the general development order, people who set out to operate a regular Sunday market may do so for the first 14 days without needing to apply for planning permission. This is not so. The High Court has ruled that a market which is set up to operate on a permanent basis cannot take advantage of provisions relating to temporary uses. Enforcement action can therefore be taken from the start in such circumstances.
In addition, the general development order allows a local planning authority to make a direction under article 4 withdrawing the permission that is otherwise automatically granted by the order. The effect of this would be that a planning application would be required for the use of land for a temporary market. Such a direction can be brought into force immediately and some local authorities have used these specifically to control the holding of Sunday markets.
I am aware of the criticisms that have been made of this procedure. In particular, if the temporary use has already started, then the article 4 direction cannot come into effect until the following calendar year. In addition, the Secretary of State has to approve the direction if it is to remain in force longer than six months. Some local authorities have found in the past that such approval has not always been easy to obtain.
We have to remember, however, that we are dealing with provisions that take away from people their statutory rights.
1508 The case therefore has to be considered very carefully and, like all difficult cases, there is much to be said on both sides.
We have to bear in mind also, that the planning Acts are not convenient catchalls for every subject under the sun. Even when planning permission is required for a temporary market—either because the 14 days have been exhausted or because an article 4 direction is in force—this does not automatically rule out the holding of a market. The usual planning procedures will apply and applications must be considered on their merits and with regard to the planning considerations, and only the planning considerations. The planning system is concerned with the use of land and not with the regulation of competition for established traders or any other worthy, but non-planning considerations.
There has also been criticism of the enforcement provisions to back up the controls that I have just outlined.
§ Mr. Fox
I am glad that my hon. Friend agrees with that.
Where a market is held in breach of planning controls, the local planning authority can serve an enforcement notice on the owners and occupiers of the land. The effect of this is to require the breach of planning control to be remedied. This would require the offending use of land to cease pending the submission and determination of a planning application. In the event of an appeal to the Secretary of State against an enforcement notice, the notice is suspended until the appeal is determined. This may take some time, as my hon. Friend said.
A more peremptory procedure is, however, available when necessary. This involves the use of a stop notice. It is served following an enforcement notice and can provide for a daily fine if the alleged breach of control continues after a further three days. Stop notices can be used if a temporary market breaches planning controls. This is a result of the Town and Country Planning (Amendment) Act 1977, introduced by my hon. Friend the Member for Warwick and Leamington (Mr. Smith). Where these procedures have proved ineffective, some local authorities have successfully sought High Court injunctions to remedy the problem.
1509 In spite of what my hon. Friend said, and indeed in spite of what he quoted from his local council in Rugby—the letter was dated 4 November 1978, I believe—other courses are open to the local authority. From what I have said, I think it is clear that the law already provides considerable powers to regulate temporary markets. Nevertheless, I recognise the feelings, which my hon. Friend has expressed so ably, that these markets require further action. I know that at least one local authority has seen the need to take local powers to require prior notification of temporary markets. This enables it to decide, for example, whether to resort to an article 4 direction before the market has started.
The local authority associations have now proposed to the Department that such a provision should be embodied in national legislation. This proposal is receiving our careful attention. We would have to be convinced, however, both that a national need existed to justify the legislation and that the proposal was an appropriate means of control. The last thing that I would wish to see would be yet another set of bureaucratic controls unless there was the strongest of justifications. I should also have to look very carefully at any proposals for a special licensing scheme for markets.
1510 Measures that might go some way to meeting the criticisms that have been voiced of the planning enforcement procedures will be included in the forthcoming Local Government Planning and Land Bill. They were suggested by the Dobry report and have been discussed with local authority associations and others. They would help to strengthen the local authorities' powers to take enforcement action. These extra powers, if introduced, would relate generally to enforcement action under section 87 of the Town and Country Planning Act 1971.
Therefore, a wide range of controls already exist which are applicable to Sunday markets. Nevertheless, problems can arise in some localities, and we are looking at a number of proposals that have been put forward for dealing with them. I shall look at the inadequate penalties that my hon. Friend has mentioned and we will see what can be done in that respect. I am grateful to him for raising this subject, but I must say to him that I remain to be convinced that the introduction of further controls is necessarily the right way to deal with this matter.
§ Question put and agreed to.
§ Adjourned accordingly at twenty-one minutes to Two o'clock.