CHESTER PUBLIC MARKET

Daily Licensed traders who are of long standing trading six days

Chester's Improvement Act of 1845 makes certain provisions to enable the City Council to be
able to grant leases . In the case of the 1845 Improvement Act section 211 .

And be it Enacted That it shall be lawful for the Council to let any of the stalls standing places
benches or other conveniences in the said market - halls market places or markets to any person for any term
not exceeding three years

This was to be further extended by the Chester Improvement Act of 1884 section 81

It shall be lawful for the Corporation to let or lease on such terms and conditions as they shall think fit for any term not exceeding ten years from the date of the lease or agreement any part of a market or any building or part of a building on or in any market or any shop stall standing bench or other convenience in any market or any exclusive or other right or privilege of selling by auction in any market :For the purposes of this section the term market shall include any place ( whether enclosed or not ) for the time being forming or used as part of any market or fair .

We can see that over one hundred years ago that it was obvious that parliament and the council recognised that there may be a need to grant individual traders a lease for a stall standing or bench . Many of the traders on the C' stalls feel that such is the length of their occupation of their bench style stalls that they are entitled to greater consideration than their present position dictates .The fact that local authority lettings are not generally excluded from the application of the Landlord and Tenants Act itself supports the view that tenants of local authorities are regarded as being as much in need of security of tenure as other tenants .

Where business premises are such as would normally be within the ambit of the Landlord and Tenant Act , Pt. II , they are not excluded from such ambit merely by the fact that they are subject to local statutes which are in minor respects different from the 1954 Act . ( Regina V Huddersfield County Court Judge 1967 )

The Market is on floor three of the 1960's Forum redevelopment the shop units and B' stalls in the market already have periodic tenancies , the tenancy agreements between the Council as the landlord and the traders who are tenants of the A' Shops and B' unit have been reviewed and renewed over the last thirty years . Whereas the traders who occupy the C 'stalls do so on a daily charge that is reviewed annually these fall in to two categories .

( 1 ) Traders who trade and leave the market on the same day .
( i ) These traders need no further consideration as the relationship is acceptable to both
parties .

( 2 ) Traders who are occupying C' stalls for considerable more than one day , periods in terms of years . Some are paying quarterly for their electricity and telephone , have fitments that it would be unreasonable to expect them to remove daily .
( ii ) It is here that there is a problem it would appear that they may have transpired to tenants at sufferance .

Tenancy at sufferance -
A tenancy that arises when a tenant holds over and the landlord has not indicated whether or not he agrees to the tenants continued occupation . If the landlord gives his express agreement the tenancy becomes a tenancy a will

At present the C' stall trader has no right to any notice of the councils intention to terminate the traders pitch . The only security they have is that of the Common Law .

That is where ever a market is held every member of the public has , of common right , the liberty of coming into the market place and frequenting it for the purpose of buying and selling . Although every person has of common right , the liberty of frequenting the market they have no right to a stall or exclusively any particular part of the soil or the right to erect a stall . .

Licence or Tenancy

A tenancy is stated to be the grant of a right to the exclusive possession of land for a determinate term less that
which the grantor has himself in the land . The distinction between a tenancy and a licence is that the former
there is a right to exclusive possession of property , whilst in the latter a right conferred which does not give
exclusive possession ; the grant of an exclusive right to do something on premises is the grant of a licence only
( Woodfall Ch 1 )

To effectively grant a licence instead of a tenancy is not as easy as it sounds even though the parties have the right to agree between themselves .If the tenant occupies under a licence or a tenancy at will , or as in some cases the landlord is prepared to offer only a licence instead of a proper tenancy then the courts will be reluctant to agree to let the landlord off the hook of
the protection of the Landlord and Tenant Act and thus will carefully scrutinise any agreement expressed to be only a licence or tenancy at will .

Tenancy at will -
A tenancy that can be terminated by the landlord or the tenant at any time .A tenancy at will usually arises by implication , when the owner of the land allows a person to occupy it although he has no fixed term , periodic tenancy or licence ( for example when a landlord agrees that the tenant may hold over ) More rarely , a tenancy at will may be created by express agreement . If the landlord starts to accept rent on a regular basis , an ordinary periodic tenancy is created . A tenancy at will of business premises does not have the statutory protection given to a business tenancy .

If there is non - exclusive occupation ( i.e. the ' landlord ' keeps the right to come in to the premises at any time and does not give the ' tenant ' any rights to stay more than temporarily in the property ) , then the courts may agree that the business tenancy protection does not apply . But if there is any doubt , the courts usually come down on the side of the tenant and would
imply that there is a periodic tenancy .It is important that any contractual licence or tenancy at will is there for not a sham document , that is it intends to confer the elements of a tenancy , but avoid its protection . Additional provisions were given to the Landlord and Tenants Act in 1954 , the right of an arbitrary rent review with sections 24-26 giving tenants greater security
of tenure . Tenancies have been granted for a parking space in a basement ( Harley Queen V Forsyte Kerman [1983 ] CLY 2077 ) or even open land used for training horses has been held to bea business tenancy within the 1954 act ( Bracey V Read [1963] Ch 88 )

The C' stalls which are in the centre of the public market are of three different sizes , many traders have more than one stall unit .The stalls are let by Chester City Council who are the landlord , the rent is collected daily . The Council now operates a retainer fee system that is , should the trader be unable to attend the Market then the City Council will charge the full toll ,
even if the stall is let temporarily to another trader this is on the understanding that the trader retains the right to the future use of the stall .The effluxion of time has seen changes in the occupation of the C' Stalls , but there are traders
who have occupied their stalls for the thirty years that the market has been in its present location . They wish to carry on trading , especially as they have built up a clientele and goodwill from their established trading position . The Council minutes of 1974 reported that traders were to be reminded of the need to comply with rule 19 '' The need to remove stock at the end of day .'' This was soon to be altered as traders were soon only to occupy stalls on the traditional busy days , later copies of the guidance given to casual traders and their conditions of occupation rule 9 stated '' No casual trader will be allowed a Saturday stall unless they operate on at least one other day during the week .''

To be entitled to a tenancy the occupier needs to be able to prove that he has identifiable land a landlord and exclusive possession

Traders have affixed boards to adjoin stalls that are next to each other , which has excluded the general public from walking through the sales area , this also increased the size of the sales area and given added security . Some of the C' stall traders are paying quarterly for their electric which they contract from Chester City Council and have separate lockable storage
areas in the service bay or on the mezzanine floor .

Whilst for the most part the Council has done everything it can to minimise disruption or upheaval to the traders , its has to be recognised that the Council has reserved the right to move traders to other stalls . This is inconsistent with the right to exclusive possession therefore inconsistent with the existence or implication of a tenancy ( Dresden Estates Ltd v Collinson [1987] 1 EGLR 45 9per Glidewell LJ at 47 A-B ) .

It is also important to note that the council let only the surface area . The lower section of the stall is sub-let as storage in most cases this is to the same trader , but this is not ubiquitous this storage is charged weekly , usually on the Mondays daily rental receipt . The council restrict the opening and closing times of the market hall there by restricting the traders use of the Public Market , it also provides attendants and services ( repair and maintenance costs are equally shared ) , this indicates that the council as landlord retains a certain degree of control over the premises which is incompatible with exclusive possession . It
is however difficult to assertain any difference in the application of this to the C stall traders , to that of those who occupy the A 'shops and B' units , who already have a periodic tenancy and are also restricted to the same trading hours , with the same services .

The main difference between C' stalls and the A' shops and B' units is that the latter are lockable units this gives a sufficient degree of control over the premises to be able lawfully to exclude others including the landlord (who retains only the right to enter for a specific purpose) from their stalls .

The rating valuation officer will use the notice required to evict a trader as one of the criteria in assessment as to whether to individually or globally assess the rates . Stallholders may , be liable to be rated if they occupy fixed places exclusively and such occupation is more than fleeting or intermittent . ( Roberts v Overseers of Aylesbury 1853 Westminster Corporation v Southern Railway 1936 )

The C' stall traders at present are globally rated , any long term tenancy offered would have a baring on this assessment as the Landlord and Tenants Act of 1954 gives the tenant the minimum of six months notice before they can be evicted ( see appendix )

Will giving the traders of C' stalls a licence or tenancy at will , affect the common law right of other people who may wish to attend the market ?

The Council use the covered part of Princess Street which runs along side the market hall , it can accommodate up to thirteen stalls and is used as an over spill trading area . There is no longer any use of the Market Way in the Forum for this purpose , this suggests that the Council no longer believe that there is a need of an excess of space to accommodate the common law right. The Council are also consenting to grant the local Countess of Chester City Hospital , Rugby Club , Northgate Sporting Arena and its own Town Hall the right to let stalls for various market activities . These all fall within the common law distance of six and two third miles of the Public Market , this implies that there is little if any shortfall in availability for somebody to ' sell ones wares ' .

To set up a market means a provision of facilities for a concourse of buyers and sellers
( Co-operative Wholesale Soc. V Ulster Farmers mart CO 1960 A.C. 63 )

How will granting a licence or tenancy to the traders of the C ' stalls affect the Public Market
''concourse of buyers and sellers '' ?

In Shops Plc V Derby City Council ( 11th October 1996 ) Lloyd J.
The essential feature in this case was that there was no provision for a concourse of sellers it therefore could not constitute a rival market . The proposed leases to be granted for five years terms of separate self - contained retail units ( each of which would be excluded from the protection of sections 24 - 28 of the Landlord and Tenant Act 1954 by the appropriate court order ) would give to each trader such a degree of security so as to take the case out of the definition of a market for the purposes of market law . The plaintiff would have put it out of its power to allow a fluctuating class of sellers , a general concourse of sellers , so as to fall within the definition of a market

Nourse L. J. considered that whilst a concourse is essential to the tort of levying a rival market , it is not so for
the purpose of determining whether the business conducted is a market ( Graysim Holdings Ltd V P & O
Property Holdings [ 1994 ] 1 W.L.R. 992 )

As the Council will not wish to evict the present long term occupants of the C' stalls then granting a licence or tenancy without the right of assignment will not affect the present status quo . If neither the tenancy at ' will ' or licence are transferable then the council will retain control over the allocation of space and the terms of letting of any future occupants of the allocated space .

Conclusion
If the tenant is occupying the premises with a contractual licence or a tenancy ' at will ' then the tenant has no protection under the Landlord and Tenant Act and so he or she will have to leave when the lease or license expires . There will be insufficient security to alter the definition as to a fluctuating concourse of a buyers and sellers , neither will it affect the
rateable valuation or the future letting of stalls . For the most part the occupants of the C' stalls are not entitled to tenancy rights , in the cases of long standing traders the Council should when an A' shop unit or B' Stall becomes vacant offer this to the existing long standing C ' stall trader before putting it out to tender as recommended at the Council Meeting of 27th October 1977 . The Council need to offer traders who are trading six days a week a licence to trade similar to the one attached ( appendix B' ) this will provide a modicum of security of tenure and clarify the position of the traders .

Appendix A

Tenancy
The 1954 Act applies to all business lettings with only limited exceptions
If the tenant is given a fixed - term tenancy of up to six months , the Act will not apply . Thus the tenant will have no security of tenure
and is reliant on the landlord's discretion about renewing the lease . The landlord can use thus this way of evading the Act only twice : once the
tenant has been in occupation for more than twelve months the tenant aquires full rights under the Act .


Continuation of tenancies .
Section 24 L. T. A. as amended L.P. A . 1969
( 1 ) A tenancy to which this Part of this Act applies shall not come to an end unless terminated in accordance with the provisions of this Part of
this Act ; and , subject to the provisions of section twenty - nine of this Act , the tenant under such a tenancy may apply to the court for a new
tenancy -
( a ) if the landlord has given notice under section 25 of this act to terminate the tenancy , or
( b ) if the tenant has made a request for a new tenancy in accordance with section twenty - six of this Act .
( 2 ) The last foregoing subsection shall not prevent the coming to an end of a tenancy by notice to quit given by the tenant , by surrender or
forfeiture , or by the forfeiture of a superior tenancy . unless
( a ) in the case of a notice to quit , the notice was given before the tenant had been in occupation in right of the tenancy for one month ; or
( b ) in the case of an instrument of surrender , the instrument was executed before , or was executed in pursuance of an agreement made before
the tenant had been in occupation in right of the tenancy for one month .
( 3 ) Notwithstanding anything in subsection ( 1 ) of this section -
( a ) where a tenancy to which this part of this Act applies ceases to be such a tenancy , it shall not come to end by reason only of the cesser , but if
it was granted for a term of years certain and has been continued by sub - section ( 1 ) of this section then ( without prejudice to the termination
thereof in accordance with any terms of the tenancy ) it may be terminated by not less than three nor more than six months notice in writing given
by the landlord to the tenant :
( b ) where , at a time when a tenancy is not one to which this part of the act applies , the landlord gives notice to quit , the operation of the notice
shall not be affected by reason that the tenancy becomes one to which this part of the act applies after the giving of the notice .


Termination of tenancy by the landlord .
Section 25 L . T. A. as amended L . P. A. 1969
( 1 ) The landlord may terminate a tenancy to which this Part of this Act applies by a notice given to the tenant in the prescribed form specifying
the date at which the tenancy is to come to an end ( hereinafter referred to as " the date of termination " )
Provided that this subsection has effect subject to the provisions of Part IV of this Act as to the interim continuation of tenancies pending the
disposal of application to the court .
( 2 ) Subject to the provision of the next following subsection a notice under this section shall not have effect unless it is given not more than
twelve nor less than six months before the termination specified therein .
( 3 ) In the case of a tenancy which apart from this Act could have been brought to an end by notice to quit given by the landlord -
( a ) the date of termination specified in a notice under this section shall not be earlier than the earliest date on which apart from this part of this
Act the tenancy could have been brought to an end by notice to quit given by the landlord on the date of the giving of the notice under this
section ; and
( b ) where apart from this Part of this Act more than six months notice to quit would have been required to bring the tenancy to an end , the last
foregoing sub- section shall have effect with the substitution for twelve months of a period six months longer than the length of notice to quit
which would have been required as aforesaid .
( 4 ) In the case of any other tenancy , a notice under this section shall not specify a date of termination earlier than the date on which apart from
this Part of this Act the tenancy would have come to an end by effluxion of time .
( 5 ) A notice under this section shall not have effect unless it requires the tenant , within two months after the giving of the notice , to notify the
landlord in writing whether or not , at the date of termination , the tenant will be willing to give up possession of the property comprised in the
tenancy .
( 6 ) A notice under this section shall not have effect unless it states whether the landlord would oppose an application to the court under this part
of this Act for the grant of a new tenancy and , if so also states on which of the grounds mentioned in section thirty of his Act he would do so .