Market Appeal Hearing

Tuesday, 23 November 2021

After much consideration and taking account of the facts and evidence, hearing from the parties involved and taking into account all other matters, please find the recommendations of the Appeal Panel below:


APPEAL PANEL REPORT AND RECOMMENDATIONS


Downham Market Town Council established an Independent Appeal Panel to consider appeals from two market traders, Belinda Leach an Steven Moyes, following decisions to terminate their market licences.


The Appeal Panel consists of the following members:


Jayne Cole ( Local Council Consultant on law and procedures ) Graham Wilson ( NABMA Legal and Policy Consultant ) Alan Ottey ( Markets and Town Centre Consultant and Officer )


Before the appeal hearings were held the Town Council supplied the Appeal Panel with substantial material relating to the Market and the background to the appeals. In particular the Appeal Panel had sight of the current licensing arrangements, the letters of the 17th September from the Town Council solicitors informing the appellants that their market licences had been terminated, correspondence from the appellants and a link to the Town Council meeting of the 7th September 2021.


Because of the travelling requirements of the members of the Appeal Panel it was proposed that the appeal hearings be held via zoom. Both the Town Council and the appellants agreed to conduct the appeals in this way.


Before the appeal hearings were held the Appeal Panel held a preliminary discussion agreeing on a procedure to deal with the appeals and ensuring that the appellants were happy with the arrangements they had made. It was agreed that Jayne Cole would serve as Chair.

While there are common issues relating to both appeals it was agreed to hear each appeal separately.


Sadly there were some technical issues with the zoom arrangements, particularly in respect of the second appeal hearing in respect of Belinda Leach, but the Appeal Panel feels that they have sufficient information from the material they have seen and the information provided by the appellants and the Town Clerk to make recommendations to the Town Council.


The first appeal hearing concerned Steven Moyes who was accompanied by Barrie Wiles. The Appeal Panel agreed that Barrie would be able to speak, as appropriate, on Steven’s behalf. The Town Council was represented by Deputy Chairman, Cllr Jackie Westrop.


The second appeal hearing concerned Belinda Leach who was also accompanied by Barrie Wiles. The Appeal Panel again agreed that Barrie could speak, as appropriate, on Belinda’s behalf. The Town Council was represented by Deputy Chairman, Cllr Jackie Westrop.


In respect of both appeals Jayne Cole outlined to all the parties the procedure that would be followed and the fact that the Appeal Panel would be making recommendations to the Town Council. Both appellants and the Town Clerk were happy to proceed on this basis.


Both appellants have been long standing market traders, Steven thirty years ( fifty five years counting his father’s service ) and Belinda thirty six. The termination of their market licences arose from events at the Town Council meeting of the 7th September 2021 involving members of their respective families. The Deputy Chairman also referred us to other issues particularly social media coverage. Both appellants sought to argue that whatever events had taken place at the Town Council meeting they were not personally involved and the actions of their family members should not be a basis for the action taken to terminate their market licences.


The Appeal Panel had sight of the letters of the 17th September sent from the Town Council’s solicitors to the appellants and take particular note that the only reason given for the termination of the market licences is the conduct of the various family members.


In the case of Steven Moyes the solicitors letter refers to “ your wife was one of two members of the public who disrupted that meeting “


In the case of Belinda Leach the solicitors letter refers to “ your brother was one of two members of the public who disrupted that meeting “


Given the content of the letters from the Town Council’s solicitors the Appeal Panel has to conclude that the only issue they are properly entitled to consider in respect of the termination of the market licences is the behaviour of family members at the Town Council meeting of the 7th September 2021.


While the Appeal Panel accepts there are other matters highlighted by the Deputy Chairman which might be viewed as contributing to the decision to terminate the market licences the Appeal Panel feels that they cannot be considered as part of the appeal process because of the content of the solicitors letters. If other matters contributed to the decision they should have been fully particularised in the solicitors letters.


In the solicitors letters of the 17th September there is reference to the provisions of the Market Regulations 2021 and particularly the following provisions are quoted:


“for the avoidance of doubt, responsibility for adherence to the rules and for the behaviour of any person employed or manning a stall remains with the person to whom a licence was allocated. Failure to behave in accordance with these rules may lead to permanent termination of a licence”


The Appeal Panel established that both family members mentioned in the solicitors letters were employed on the appellants stalls and therefore fall under the scope of the Market Regulation set out above.


The Appeal Panel accepts that events at the Town Council meeting on the 7th September were unacceptable and the behaviour of certain individuals was questionable. As previously stated the appellants themselves took no personal involvement in the events at the Town Council meeting.

However the decision to terminate the market licences was based on the behaviour of family members who were employed to work on the appellants stalls. Whether or not the behaviour of the family members at the Town Council meeting merits censure the Appeal Panel feels that this does not justify a decision to terminate the appellants market licences.


The wording of the Market Regulation refers to “employed or manning a stall” and the Appeal Panel takes this to mean that it relates to actions arising from actual trading in a situation, for example, where a person is abusive to a member of the public or a Council official on a market day.


Both appellants put forward the argument that they cannot be held responsible for the actions of family members committed outside of their employment and the Appeal Panel accept this argument. Extending responsibility in a more general way cannot be justified.


In the circumstances the Appeal Panel recommends to the Town Council that they should consider lifting the termination notices and reinstating the market licences.


While it is strictly outside of the Appeal Panel’s remit we would like to make two further recommendations to the Town Council:


1. It is recognised that the management and operation of a Market is very dependent on developing good working relationships. The recent events are likely to have had a detrimental impact on the Market and it is important for the future success and well being of the Market that good relationships are restored as soon as possible. In this respect we would urge the Town Council to consider some kind of conciliation or mediation process with traders to seek to avoid this kind of dispute in future escalating to the point where it undermines the effective running of the Town Council.


2. During the appeals hearing issues were raised about the governance arrangements of the Town Council particularly the remit of the Market Strategy Group. The Appeal Panel is aware that the Town Council has received separate legal advice about this matter and therefore does not feel it appropriate to comment in detail on this matter particularly as it did not affect the basis of our recommendation. However we would suggest the Town Council might look at the introduction of a delegation scheme to officers that sets out their scope of their powers.

Market Appeal Hearing