Report by Head of Governance and Law
Minutes:
The Chair welcomed everyone to the meeting and introductions were made. He then outlined the procedure that would be followed and invited the Applicant to speak in support of his application.
APPLICANT
Mrs MacLeod spoke on behalf of the Applicant. She indicated that she believed Mr Serapiglia was well known to the Members of the Committee. She confirmed that he had a Street Trader’s Licence which covered a variety of addresses across Argyll and Bute and that he had held this licence for some considerable time. She advised that if this application was successful Mr Serapiglia’s daughter would be manning the van sited at Pier Road, Luss. She said that Mr Serapiglia owned and operated 8 vans – he used 2 of these and the remaining 6 were operated by other members of the family. She advised that Mr Serapiglia had invested £85,000 in a new ice-cream van. She confirmed that the van had been inspected by Environmental Health this morning and, having been approved, he would now seek to have this new van added to his licence. She said that the van brought with it a very quiet generator, CCTV cameras and parking sensors and advised that with these extra health and safety measures there would be no issues for the general public. She also advised that Mr Serapiglia and his family had a policy at the end of the day of picking up any litter near to their vans, whether or not this was litter dropped by customers. She referred to the application which requested an amendment to Street Trader’s Licence No. 4861 and advised that Mr Serapiglia was seeking to add a specific location at Pier Road, Luss to this licence. She referred to an updated plan which showed the specific location where Mr Serapiglia intended to trade from. She confirmed that he had discussed this location with Mr Hugh O’Neill of the Roads Department and that it was Mr O’Neill’s opinion that this was a suitable position for the van. She pointed out on the plan the St Mocha Coffee and Ice-Cream shop and advised that this business had now closed down and that there was no longer ice-cream for sale there. She suggested that Mr Serapiglia’s van could be a replacement for the ice-cream previously sold there. She also listed all the other places Mr Serapiglia was permitted to trade from across Argyll and Bute. She said that 2 Luss shopkeepers and a fellow Councillor have been vociferous about Mr Serapiglia trading in Luss. She advised that it was her opinion that the letter from Police Scotland was a representation rather than an objection to this application. She pointed out that Mr Serapiglia had previously applied for an Amendment to his Street Trader’s Licence requesting that Pier Road in Tarbet be added to his Licence but this had been withdrawn due to the National Park’s objection to him trading at this area. She suggested that as this location was no longer part of this application that the objection from the National Park should be ignored. She advised that Mr Serapiglia proposed siting his van at the end of Pier Road, Luss next to Loch Lomond. She said that Mr Serapiglia had no intention of parking outside anyone’s house. She confirmed that Mr Serapiglia had met with representatives from Planning and Roads and that both departments appeared quite happy with his proposal. She pointed out that there was considerable demand from tourists in the Luss area for bar meals, drinks, ice-creams etc. and said that there was room for everyone. She said that the shops in Luss sold more than just ice-cream. She advised that Mr Serapiglia did not wish to compete with anyone and that he wanted to trade and complement the existing businesses in the area. He wanted to attract and retain visitors to the area. She indicated that there would be no noise nuisance form the van as there would be no noisy generators and it would be even quieter than his existing vans. She commended this modified application to the Committee.
Copies of the updated plan and a picture of the new van were circulated by Mrs MacLeod to the Committee.
QUESTIONS FROM OBJECTORS
Councillor Freeman referred to Mrs MacLeod advising that the objection from the National Park should be ignored. He read out the submission from the National Park and said it was quite clear to him that they were of the opinion that both locations in Mr Serapiglia’s original application for Amendment to his Street Trader’s Licence were unsuitable for use. He asked why this objection should be ignored when it clearly referred to the locations at Tarbet and Luss. Mrs MacLeod said that the National Park had objected to the Tarbet location as they owned the road at Tarbet. She pointed out that they did not own the road at Luss. She commented that they had not come to the hearing to speak to their objection. She confirmed that she had addressed the issue of litter in her presentation which had been a concern the National Park had raised.
Councillor Freeman referred to Mrs MacLeod saying that Mr Serapiglia had received permission to operate at the location in Luss. She asked Mrs MacLeod if she knew who the owner of the land was. Mrs MacLeod advised that she had not said Mr Serapiglia had permission. She said that she had indicated that Mr Serapiglia had met with Roads. She pointed out that the road had been adopted by the Council.
Councillor Freeman asked Mrs MacLeod if she was aware that the adopted road did not include the turning area where Mr Serapiglia wished to park. Mrs MacLeod said that she aware that when a road was adopted it included one metre of verge on all sides. She said that Roads had agreed with Mr Serapiglia that this would be a suitable position as it would not interfere with traffic.
POLICE SCOTLAND
Inspector Capaldi read out the representation from Police Scotland following a visit by Police licensing staff to Luss on 20 February 2019. She confirmed that the Policy licensing staff were of the opinion that Pier Road in Luss was an extremely busy road with a large number of pedestrians visiting all year round but more so in the spring and summer months. Reference was made to the road narrowing as it headed towards the Pier and it was said that the road from the junction of School Road down to the Pier would be unsuitable for an ice-cream van to park as it would be difficult for other vehicles to pass safely, especially due to the number of pedestrians and lack of pavement in this area. Reference was also made to the number of shops already on Pier Road which may already sell similar goods to the Applicant. It was pointed out in the letter that this road was technically owned by Luss Estates but had been adopted as a highway by Argyll and Bute Council. It was suggested that the Committee may wish to confirm if Mr Serapiglia had the appropriate permission to trade in this area.
OBJECTORS
Councillor Freeman advised that he had submitted his objection on behalf of a number of his constituents as well as the Community Council. He said that it was his understanding that the Community Council had contact Mr McMillan to confirm their ongoing objection to this application and he asked Mr McMillan if this was correct.
Mr McMillan confirmed that an email had been received from the Community Council late on Friday 31 May. Mr Reppke advised that this correspondence had been received outwith the time allowed for submission of objections and that if the Committee wished to take this late objection into consideration there was a process for this which the Committee would need to take account of.
Councillor Freeman advised that the main argument, which Police Scotland had highlighted in their submission, was that Pier Road, Luss was not a suitable location for a vehicle to trade there. He advised that he had driven down the road earlier today and that it was chock a block at that time. He suggested that it would be totally unsuitable for a vehicle to be parked at the bottom of the road as that was a turning area which would be restricted if a large vehicle was parked there. He also raised the question of ownership of the road. He said that it was his understanding that the Council leased that part of the road from Luss Estates and that the lease did not allow the Council to permit people to trade from that land. He said that he was sure that Luss Estates would be able to confirm if this was the case. He advised that if this application was approved he was sure the Applicant would have difficulty from the landowner over accessing that site.
Mr McCay of Luss Estates advised that Police Scotland and Councillor Freeman had already covered the health and safety elements of their objection. He said that unfortunately there was a big problem in Luss with traffic and parking in the streets and the high number of vehicles circulating looking for parking spaces. He advised that he thought an ice-cream van at this location would mean this would continue to be a problem. He referred to lots of children congregating around an ice-cream van which he thought would be a real health and safety risk. He advised that this location was a turning circle and the road was a dead end at this point. He said that vehicles needed room to turn around at this point. He advised that at the moment people were parking there when they should not and that the Council should not be ensuring this can happen. He referred to the kiosk at the Pier and advised that this was closed temporarily. He said that Luss Estates were at an advance stage of negotiations with the National Park to whom Luss Pier was let. He advised that they wished to have a longer let and that once this was settled it would allow the National Park to re-lease the shop and that he expected it would be open again very soon. He also referred to the points raised about consent from the landowner. He said that he could confirm that while Pier Road was an adopted highway Luss Estates owned the ground in question. He suggested that adoption of the road meant the Council maintained a right to the highway over ground but this did not override seeking permission to use the land. He advised that consent had neither been asked for nor given in this case. He said that the Council had a lease covering the shore walk footway which began at the end of the pier and continued towards the lifeboat station and this included the ground subject to this application. He said that the lease did not allow sub-letting and did not give the Council authority to permit operation of an ice-cream van there. He said that permission had not been asked for on this occasion and that this should have a bearing on this case.
MEMBERS’ QUESTIONS
Councillor Redman referred to concerns about littering and commented that he was confused by this as when he used to sell ice-cream from a cone no litter was generated. He asked the Applicant and Objectors to comment on this. Mrs MacLeod advised that was the point she was making earlier that although there was no litter from an ice-cream cone Mr Serapiglia and his family still made sure there was no litter and picked up any in the vicinity of their vans. She said that there could be litter from ice lollies but not cones. She advised that litter should not be a concern and would not be generated as a result of Mr Serapiglia’s proposal. Councillor Freeman referred to the Applicant previously operating at Murray Place and that the residents there had complained of litter when the ice-cream had operated there. He said that he had observed litter being left. Mr McCay advised that obviously there would be no litter from an ice-cream cone but there could be from tubs, spoons, sticks and wrappers. He also pointed out that once a customer left the vicinity of the van the operator would have little control of that litter. He said that litter could still be a potential problem in other parts of the village.
Councillor Colville sought confirmation on the legal importance of the solum of the road. He asked if it was correct that if you owned the solum of the road then you still had control over its use. Mr Reppke said that the Roads (Scotland) Act made it very clear about entitlement of a local authority to control a road corridor and verge on either side. In terms of solum ownership he advised that this was irrelevant in the day to day running of a road. While operating as a public highway the Roads (Scotland) Act trumped all private ownerships during that time. Mrs MacLeod confirmed that she agreed with Mr Reppke that the Act allowed the local authority to have control of an adopted road and public access to it. Mr McCay said that it was his understanding that the Roads (Scotland) Act allowed the Council to use and to access it but not necessarily to permit businesses to operate on it. He said that Roads managed the road but it was his understanding that its interests still rested with the landowner. Councillor Freeman advised that Roads Officers had confirmed that this was a turning area. He said that if vehicles parked and there was trading there then clearly this would no longer be a turning area.
Councillor Currie advised that if it was the case that the Council had to get in touch with a landowner every time consideration was given to a Street Trader’s Licence this would have to be done on a daily basis as there was always someone that owned the ground beneath the tarmac. He questioned whether or not the interpretation of the Act by Luss Estates was wrong. Mr McCay advised that he would not say so. He referred to the Duke of Argyll owning the land at Inveraray and suggested that he may not be so concerned due to the size of that town and that it was very different to the village of Luss. He said that Luss was a small community and the estate took a particularly close interest in this location. He suggested that some landowners may not always use their rights in this way. He advised that it was the case that they would very much like to use their rights as landowners and that Luss Estates did not think this was a suitable location. Mrs MacLeod advised that Mr Serapiglia was asking for a variation of his Street Trader’s Licence which was controlled by the local authority. She pointed out that Mr Reppke had explained that once a road was adopted ownership of it was irrelevant.
Councillor Currie asked if Mr McCay was saying it was okay for some vehicles to park there but not others. Mr McCay advised that for the lease of the shop the shopkeepers were not permitted to park in the turning area but they were permitted to load and unload for the shop. He confirmed that Luss Estates seen this as an unloading and loading area and a turning area but not a parking area.
Councillor Douglas sought clarification on the current status of the St Mocha café as the Applicant had indicated that it was shut but Luss Estates were saying it was shut but would be starting up again. She asked how long it had been shut for. Mr McCay advised that St Mocha had traded since 2015 until the end of 2018 and that there had been a series of annual agreements between Luss Estates and the National Park. He advised that each year the National Park were given permission to sub-let the premises. He said that St Mocha was a seasonal business operating from April – October. He advised that the reason it was not open at the moment was because Luss Estates were currently negotiating with the National Park for a longer agreement. He said that Luss Estates had indicated that they were happy for St Mocha to continue trading in the meantime but the National Park had terminated the sub-lease until the longer lease was finalised. He advised that the previous agreement with the National Park ran until December 2018 and that he thought St Mocha had closed up at the end of October 2018. Mrs MacLeod advised that as far as her client was concerned the premises was shut and that he was not privy to negotiations between the National Park and Luss Estates.
Councillor Hardie ask Police Scotland if this application was granted would it be their opinion that this would result in serious congestion in Luss. Inspector Capaldi advised that the area was already congested and the addition of one large ice-cream van to the area at the end of the road would not help matters at all.
Councillor Blair commented that he did not think having a vehicle parked at the end of the road selling ice-cream would be a major health and safety issue. He asked if anyone would agree that it would be more dangerous if the van was parked half way up the road. He referred to the plan and said that he thought there would be room to park at least 4 cars at that location. He asked which way the cars would likely be positioned if parked at that location. Mrs MacLeod advised that they would probably park in the same way as the cars shown on the plan. She also advised that there were bollards at the location which were another safety feature.
Councillor Redman referred to the investment of a new van by the Applicant and asked if this application was granted would it create extra employment. Mrs Macleod advised that Mr Serapiglia’s daughter had just come home to join her father’s business. She confirmed that Mr Serapiglia and 4 members of staff were employed in this family business.
Councillor Moffat commented that she could not recall any current Street Trader’s Licence where the trader was not set off from the road. Referring to the plan she said that this proposed location appeared to be on the road with no pavement. She asked if she was right in thinking that this would be unusual for a Street Trader. Mr Reppke advised that vehicles often traded in the main street in places where cars normally parked. He said that there may be locations where they sit off set but he could not give Councillor Moffat a view on that.
Councillor Trail asked the Applicant if it would be his intention to take the van down and park at 10 am and stay all day. He questioned whether this would be unfair competition to other traders. Mrs MacLeod advised that Mr Serapiglia’s trading hours were restricted to 9 pm but he tended to be away from 6 – 6.30 pm.
Councillor Colville asked if this application was granted would it be for that specified area. He asked what would happen if cars were already parked there. Mr Serapiglia advised that he would arrive earlier. Councillor Colville suggested that by granting this application it would not guarantee the use of the site and asked Mr Serapiglia if he would agree. Mrs MacLeod advised that this application was an amendment to enable Mr Serapiglia to trade in Pier Road. She confirmed that Mr Serapiglia’s preferred location was at the end of the road. She advised that if he could not get parked there then she was sure he would move on somewhere else.
Councillor Kinniburgh sought confirmation that if Mr Serapiglia could not get parked at his preferred location on Pier Road, he would not park anywhere else on Pier Road. Mr Serapiglia said he would go away and return when a space became available. Councillor Kinniburgh asked if the Committee could specify that just that space be used. Mr Reppke advised that if the Committee were minded to grant the application to trade on Pier Road, Mr Serapiglia has advised that he would undertake only to trade from that location. Mr Reppke advised that he was not sure how the Committee could enforce that as the application was for Pier Road, Luss.
Councillor Kinniburgh referred to the area that Mr McCay advised was a turning area and that could also be used by the shop premises for loading and unloading. He asked Mr McCay if there were any parking restrictions such as double yellows lines at that location. Mr McCay advised that he could not recall if there were any.
Councillor Kinniburgh asked if Luss Estates had ever moved anyone on from the area if they were not loading or unloading at the shop. Mr McCay advised that it was his understanding that any parking restrictions would come under the local authority. He advised that parking and operation of the business would be another matter and that it was specified in the lease that it should just be for loading and unloading and not parking. He advised that in his time he could not recall having to enforce that as the business owners always abided by their lease.
Councillor Kinniburgh referred to Mr Serapiglia advising that if he was unable to park his van at that location he would go away and come back when a space was there and that he would not park at any other area on Pier Road even although the licence would be for the whole of Pier Road. He commented that in the past Mr Serapiglia had a tendency to park where he was not permitted to. Mr Serapiglia disputed that statement. Councillor Kinniburgh referred to the original application seeking permission to park at Pier Road in Tarbet and that this had since been removed from the application. He asked Mr Serapiglia if he had ever traded there before. He referred to photographs showing Mr Serapiglia’s van parked at that location in Tarbet. Mrs MacLeod advised that Mr Serapiglia was permitted to park in areas of Tarbet. Referring to the picture, Mr Serapiglia advised that he was parked having his lunch and that he was not trading at that location.
Councillor Douglas referred to the new agreement for Street Traders and commented that even although St Mocha was not operating, there were other places selling ice-creams. Mr McMillan advised that the previous Condition 17 placed restrictions on how close a street trader could trade next to a shop. He confirmed that this Condition was removed by this Committee as a standard condition and replaced with a new Condition 17 which limited the time a mobile street trader could stay and then return to the same location. He pointed out that in terms of Mr Serapiglia this Committee had agreed not to apply that new Condition 17 to Mr Serapiglia’s licence. He also referred to the trading times and confirmed that Mr Serapiglia was permitted to trade from 12 noon to 9 pm on all days.
SUMMING UP
Police Scotland
Inspector Capaldi confirmed that she had nothing further to add.
Objectors
Councillor Freeman referred to questions raised about the turning area and advised that Roads Officers had confirmed in the past that this was a turning area. He also referred to questions about trade and he pointed out that the new Condition 17 meant you could not trade for more than 30 minutes in the one location. He said the longest that any street trader could trade was 30 minutes. He advised that the problem with this application was that if it was approved today this would allow Mr Serapiglia to trade anywhere on Pier Road. He referred to street traders trading on roads and advised that many street traders with licences did not trade on adopted roads. He said they traded in fields and he referred to a trader at the top of the Rest and Be Thankful. He referred to comments about residents parking at that location on Pier Road and he said that they were entitled to park there. He advised that when he visited the location this morning there were 4 cars parked there and that they could do so on a regular basis. He said that if Mr Serapiglia turned up and there were cars parked there he would have to move on and if there were no cars there he would only be permitted to stay for 30 minutes. He referred to difficulties vehicles would have turning in that area due to parking. He also referred to the narrow road which made it particularly difficult for large vehicles to go down, turn, and travel back up on. He referred to the loading and uploading required as part of the lease the shop had with Luss Estates and said there has never been a problem with that in the past. He also said that if this application was approved then legally the landowner would not give approval for the operator to operate from that area. He confirmed that he would encourage the Committee to reject this application given the problems it would create for his constituents, Luss Estates and the Luss and Arden Community Council.
Mr McCay pointed out that if this application was for the entirety of Pier Road then this would only amplify his concerns. He confirmed that Luss Estates considered the end of Pier Road to be unsuitable and the remaining length of the road to be even more so. He said they would have concerns about operations taking place along that road. He asked the Committee to take account of objection from the Community Council and members of the community in the Luss area. He advised that it was a long way to come to Lochgilphead on a Monday afternoon and that a lot people were at work and he asked the Committee not to discount their objections.
Applicant
Mrs MacLeod reminded the Committee of the matter debated last December and the modifications that were made to Mr Serapiglia’s licence. She confirmed that Section 17 was removed and that the matter of time restrictions was not relevant. She advised that Mr Serapiglia was looking to amend his Street Trader’s Licence to allow him to trade on Pier Road and that he would undertake to trade at the quiet end of the road. She advised that to date there have been no difficulties with this turning area in the past and she did not see this causing any problem in the future. She indicated that if Mr Serapiglia could not get parked on Pier Road then he would move on. She confirmed that he saw an opportunity to trade at the quiet end of the road. She advised that he knew his business and that this was a long, established, family business and that he was providing a much loved facility for tourists and this was something that needed to be promoted. She advised that she had heard nothing from the objectors that gave her concern. She said that the road was adopted and that the Roads Officer was satisfied with the proposition. She commended the application for this minor amendment to the Committee.
When asked, all parties confirmed that they had received a fair hearing.
Councillor Freeman left the meeting at this point.
DEBATE
Councillor Redman referred to hearing a lot about other places selling ice-cream. He referred to the village of Portnahaven on Islay and said that 3 places there sold ice-cream. He said that this was a free market. He referred to concerns about congestion and advised that he has seen ice-cream vans parked in more cramped areas. He added that he did not think there would be much litter from ice-creams. He advised that all things considered and for economic benefit he was minded to support this application.
Councillor Currie sought clarification on what the Committee were being asked to approve as the covering report indicated that the application had been continued to allow the Applicant the opportunity to explore suitable parts of Pier Road where he could situate his ice-cream van and that the Applicant’s Agent had submitted an email and plan specifying the location where the Applicant would operate.
Councillor Kinniburgh confirmed that the application was to trade on Pier Road and that there was no way that the location identified by the Applicant could be enforced. Mr Reppke advised that paragraph 2.3 of the report set out the position of the Committee last time round. He said that paragraph 2.4 advised of the submission of a plan but the Chair was correct that the application was for Pier Road, Luss. He advised that the Applicant may have a preferred location but as Pier Road, Luss was what was being applied for it would not be restricted to that preferred location. Mr Reppke confirmed that the Committee did not request the Applicant to advise of a preferred location but they did agree to the Applicant’s request to be given time to look at preferred locations.
Councillor Currie stated that as there was no objection from Police Scotland and no objection from Roads he did not have any issue and thought that the application should be granted.
Councillor Colville advised that he had listened to all that had been said. He commented on the Chair making the point about the number of cars parked at that location and of Councillor Freeman advising that when he visited there were 4 cars parked. He confirmed that he took account of the representation from Police Scotland that the rest of Pier Road was not suitable. He advised that there was a fine line between a representation and an objection. He said that he would be happy to grant if it was just for a specific area on the plan and that he thought this was what the Applicant wanted. He asked if the Committee could change the application and grant for the specified area. He confirmed that he would listen to what other Members had to say but at the appropriate time he would put forward a motion to grant on that area alone. Mr Reppke advised that a condition could be imposed to restrict to a specified location on Pier Road.
Councillor Hardie advised that he had listened to all the arguments and had come to the conclusion, knowing Luss quite well, that it was a very congested area and it was his opinion that granting this application would make it worse so he would move to refuse.
Councillor Blair referred to opposing opinions with regard to providing opportunities for people to come and enjoy beautiful Argyll and Bute and Loch Lomond. He commented that St Mocha was not open at the moment and that tourism was a major factor. He referred to taking grandchildren for an ice-cream and walking about and using the litter bins provided by the Council. He commented that if the turning circle was an issue then this needed to be looked at as a Traffic Regulation Order. He said that he thought this application should be encouraged. He said that he took it on good faith that the Applicant would not park anywhere else on Pier Road. He said he did not have a problem with the ice-cream van being parked at the location on the plan.
Councillor Trail said that he took at different view from Councillor Blair. He pointed out that the issue of parking in Luss has been an issue for 30 years or more and it had still not been resolved and was getting worse each year. He said that he felt that location was not a good one for a van to be parked for an extended period through the year. He said that he found it unacceptable that the van could stay from 12 noon until the end of the day. He advised that he was not minded to support parking at that location and pointed out that the Applicant had 2 other places in Luss that he could trade from.
Councillor Douglas advised that she supported what Councillor Trail had said. She said that as someone that visited Luss, she could see year on year it was getting worse. She advised that Pier Road was chaotic with pedestrians and vehicles. It was her opinion that this proposal would cause an awful lot of congestion. She confirmed that the Applicant already had places in Luss he could trade from so she would be going against this.
Councillor Kinniburgh advised that contrary to what Councillor Freeman said, he, himself recognised that Section 17 had been removed from Mr Serapiglia’s licence and that he was allowed to trade from 12 noon to 9 pm on any of the locations listed on his licence. He said that Luss has been a problem for vehicles entering it for many years. He commented that there have been attempts in the past to rectify this. He advised that the area itself was always congested with cars especially down that area. He advised that he was not minded to move that this location be the sole one that is used as he did not think it would be long for residents to discover what was happening and they would park their cars there and prevent Mr Serapiglia from trading there. He confirmed that the application was for Pier Road, Luss. He confirmed that he believed the Police Scotland submission was a representation but they have stated that it was their opinion that Pier Road would be unsuitable because of the type of road it was. He referred to hearing about one metre either side of the road and pointed out that one metre either side of this road would be entering residents’ homes. He confirmed that he believed Pier Road was entirely unsuitable. He recognised that Mr Serapiglia could trade in other areas in Luss and commented that they too could be congested. For these reasons he would move to refuse the application.
Motion
To agree to refuse the application for Amendment of Mr Serapiglia’s Street Trader’s Licence on the grounds of road safety.
Moved by Councillor David Kinniburgh, seconded by Councillor Richard Trail
Amendment
To agree that the application to amend Mr Serapiglia’s Street Trader’s Licence be granted on condition that trading be restricted to the area shaded in green only submitted on the amended Plan tabled at the meeting.
Moved by Councillor Rory Colville, seconded by Councillor Gordon Blair
The Amendment was carried by 7 votes to 4 and the Committee resolved accordingly.
Decision
The Committee agreed that the application to amend Mr Serapiglia’s Street Trader’s Licence be granted on condition that trading be restricted to the area shaded in green only submitted on the amended Plan tabled at the meeting.
(Reference: Report by Head of Governance and Law, submitted)