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Business / Knitwear company wins court appeal over refusal of street trading licence

The van which was at the centre of an application for a street trader's licence.

A KNITWEAR producer who took Shetland Islands Council (SIC) to the civil court after being denied a street trader’s licence has had her appeal upheld by the sheriff.

Sheriff Ian Cruickshank ruled that the decision of the council’s licensing committee in June to turn down Mary Macgregor’s application was “unreasonable”.

One of his main points of contention was that the committee vowed to carry out a review of the specific council licensing policy which Macgregor’s application fell foul of, but gave no indication of when it would actually be carried out.

He referred the case back to the SIC for reconsideration of its decision.

Mary Macgregor, who runs the Fair Isle knitwear company BAKKA, had applied to sell goods out of a van in the centre of Lerwick.

She originally applied to trade from three locations in the heart of Lerwick, but Irvine Place was her preferred site.

The licensing committee, however, turned down the application in view of a piece of policy formed in the 1990s which prohibits street traders from selling goods of the “same or similar class and description” as shops within 50 metres.

Macgregor wanted to trade from the van next to the former pet shop during peak tourist periods and drive the vehicle away afterwards, but her plans received objections from Living Lerwick as well as some town based retailers which sell knitwear.

They pointed to Irvine Place being within 50 metres of other shops selling knitwear such as Anderson and Co and Ninian.

Macgregor – who has a licence until June 2020 to trade from a stall a stone’s throw away at Harrison Square – told the committee in June that her work was unique as “no-one else is producing Fair Isle knitwear in fine gauge”, and as a result she did not feel it was “the same or similar class and description” as any other retailer operating nearby.

The similar goods policy prompted lengthy discussion from councillors on the licensing committee, and the decision went to a vote, with members ultimately turning down the application by four votes to two and calling for an early review of the policy over its seeming lack of clarity.

Macgregor also separately applied for planning permission to site the van at Irvine Plane for more than the 28 days a year a street trader licence allows, but that was refused by the SIC’s planning department.

In his 31-page response to the appeal, Sheriff Cruickshank directed the SIC to give reconsideration to the licence application within three months, and said Macgregor was entitled to expenses.

Macgregor argued in the appeal process that the council had made an error in law in relation the “same or similar goods” policy, adding that the SIC was unable to confirm to her when a review of the legislation would be carried out.

She also claimed that the SIC had acted against their corporate plan, which includes an aim to “encourage creativity” and support the “development of new ways of working”, while she also suggested the decision went against the aims of the Shetland Partnership Plan.

A solicitor on behalf of the council said that the local authority had acted lawfully in considering the application with reference to their licensing conditions.

They said that the much-debated licensing policy on similar goods was there for a legitimate reason.

The solicitor denied that the licensing committee made an error in law in assessing BAKKA’s goods, saying the members did not reach their decision based on any incorrect material fact.

He conceded, though, that reference to an early review of policy might not have merited inclusion in the committee’s decision, but he said it did not make things unreasonable.

The sheriff said it was his opinion that councillors did not make an error in law when deciding that BAKKA’s goods were the same or similar to other knitwear.

Sheriff Cruickshank did say, however, that three out of four letters of objection presented to the licensing committee should not have been placed before members.

This was because some related to the planning application and not the street trader request, while the Living Lerwick letter was unsigned and no address was given.

The sheriff concluded that the inclusion of a vow to review policy in the committee’s formal decision was the main sticking point.

“In my judgment, what makes the defenders’ exercise of discretion unreasonable is that, as recorded in the decision, the defenders stated that, in refusing the licence, an early review of the street trader policy conditions would be carried out,” he said.

“That is a wholly irrelevant consideration in relation to the refusal of the pursuer’s licence. There is no rational basis for this forming part of the decision. It therefore makes the decision wholly unreasonable.”

He also noted that an applicant is unable to make further application for a street trader’s licence within one year of refusal, saying that Macgregor could have re-applied sooner if an early review of policy was carried out.

Macgregor declined to comment further on the appeal judgement.

A spokesperson for the Shetland Islands Council said: “In his judgement dated 27th November the Sheriff upheld Mary MacGregor’s appeal against the Licensing Committee’s refusal to grant a street trader’s licence, and remitted it to the council’s Licensing Committee for reconsideration of their decision within 3 months.

“Until such time as the application process is concluded, the council will make no comment that could in any way have an impact on its proper consideration.”

General Election - 12 December 2019