Spotlight

Whitby Market: Forces -v- Counterforces

Nigel June 22, 2018 Scarborough Borough Council

Whitby Market: Forces -v- Counterforces

an “In My View” article by NIGEL WARD, reporting on Scarborough Borough Council’s intention drastically reduce trading times in Whitby Market.

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The Past

The historical status of Whitby Market from 1,122 A.D. is recorded in the Gazetteer of Markets compiled by the Centre for Metropolitan History:

In the late nineteenth century, Whitby Market fell within Borough regulation under the terms of the Whitby Market Act 1872:

In more modern times – i.e. long since the requirement of the Shops Act 1911 to establish so-called “early closing days” (in Whitby, Wednesdays) and since the Sunday Trading Act 1994 – Whitby Market has opened for business, in one form or another (and at divers times), on most days of the week, despite (but with the full knowledge of) constraints set out in a Report to Cabinet dated 18th March 2008.

The Present

Scarborough Borough Council, having failed to maintain proper audited accounts over the past 15 to 20 years, and having left the Market to its own devices without a pennyworth of investment in facilities, maintenance or promotion/publicity – in short, simply reaping the revenue – is now under ‘advice’ from the Auditors to rationalise and adminstrate Whitby Market in compliance with modern regulatory and accountancy requirements.

Getting a grip on the regulatory requirements is proper and as it should be. Moreover, it should easily be achievable without negative impact on the practices established as common usage with the full knowledge and co-operation of previous Market Supervisors Terry CULLEN and, latterly, Nick TAYLOR – who, conveniently or otherwise, are now longer employed by SBC. All that is necessary is an atmosphere of mutual co-operation.

Regrettably, however, SBC has now decreed that:

“In order for the Council to effectively manage the market and ensure compliance with regulation, as from Monday 16 July 2018 trading days will be restricted to Tuesday, Saturday (the official chartered market day), and a seasonal farmers’ market on a Thursday.”

This decree has proved immensely unpopular. Only a fortnight ago, Hull’s Walton Street market was closed down by Hull City Council, who terminated the operators’ licences without warning. Some Whitby traders are concerned that the same could happen here.

A Change.org petition entitled “Keep Whitby Market a daily Market” exceeded 1,000 signatures in its first 24 hours on-line and is still growing. There is also a hard-copy petition available for signatories on stalls and some shops in the immediate area that is also proceeding apace as I write.

The dismal performance of Scarborough Market following an opulent £2.8M re-vamp under the purview of Mssrs TAYLOR & RICHARDS does little to persuade Whitby stall-holders that SBC has the first idea how to manage a market successfully.

Regular readers will recall that part of the Scarborough re-vamp included a much-trumpeted £210K ‘Click & Collect’ website which simply has not materialised – even though a series of payments have been made to the contractor, University of Hull (Scarborough Campus) – now defunct.

Instead, Scarborough Market has been fobbed off with a rather uninspiring platform which appears to have been commisioned and paid for quite separately; £6K to Create Arts Development Ltd (according to the Open Data page on the SBC website):

Readers who missed that exclusive NYE coverage can catch up here:

All told, a great deal of money has been invested in Scarborough Market. In marked contrast, Whitby Market has enjoyed virtually zero investment, though stall-holders have been requesting metered electricity in vain for many years.

Whitby Town Hall, at the top of the Market Place, is the second-most photographed historical building in Whitby (after the Abbey). The Market Place and the cobbled section of Church Street attracts a footfall greater than any other part of Whitby – one of the most popular visitor destinations in the country.

Whitby Market offers an exceptional trading opportunity for stall-holders – provided always that the weather is clement. But this is England; ergo, the weather is not always clement and when the rain does come, the streets can empty and business is all but non-existent.

It follows that being constrained to just two days per week – on the whim of the weather, at that – may render trading unviable for some stall-holders, depriving them (and their staff) of a livelihood. This is a heavy price for them to pay for the apparent negligence and incompetence of now-departed SBC Officers Terry CULLEN and Nick TAYLOR (pictured below).

Mr Nick Taylor – former SBC Market Supervisor

Serendipitously, You & Yours – BBC Radio 4’s consumer affairs programme – interviewed Conservative MP Jake BERRY yesterday on the topic of markets. Here is what he said:

“What we have to remember about our markets is they are the first ever social network our world has ever known and that’s why they should be at the heart of our market towns and of course of our high streets, because if we talk about the great challenges ahead of competing with on-line retail, I just want everyone to think (you know, I was almost given a hug when I came into this market by one of my friends who works here and you cannot get a hug on-line) markets are intensely social and in fact they, like the future of retail, are about that retail experience rather than just buying things that can never be replicated on the internet.”

Clearly, Conservative SBC has been singing from a different hymnal.

And, understandably, the present attempt to curtail traders’ livelihoods is meeting with unanimous resistance amongst stall-holders. But there are other interests to be considered.

Turf Wars

It is inevitable that changes are about to take place in the operational management of Whitby Market. There will be ‘winners’ – and ‘losers’.

But where change takes place, opportunities inevitably arise. What will become of the public space ‘freed up’ on the days when no stalls are set out?

The freehold of that public space resides with Scarborough Borough Council. Call me a cynic, but I believe hell will freeze over before SBC passes up a revenue opportunity. If there is a way to monetize the public space, then the Council will not want for offers. High mark-up businesses seeking to exploit the exceptionally heavy footfall passing through the Market Place will recognise their ability to offer (and afford) far higher rents than the stall-holders presently pay – or can afford to pay.

In consequence, the present Review (which has been in the pipeline for some time now – albeit not in the public domain) has triggered what can only be described as “turf wars”.

Saddly, there has been reckless mud-slinging, both in the neighbourhood and on social media (my screenshot collection would make your hair curl), with allegations including favouritism, nepotism, racism (a Police investigation is in progress), paedophilia, protectionism (associated with alleged flagrant breaches of Licensing and Planning consents) and rumours of businesses conspiring with SBC to carve up the Market against a commitment to higher rents and a future acceptance of liability for Business Rates.

Horrible. But, hey – follow the money. Greed certainly brings out the worst in people.

I hope that I will not find it necessary to report on these unpleasantries in any detail.

For the moment, it is no exaggeration to state that the only recent change to life of Whitby Market is that stall-holders are experiencing fear, anxiety and distress in high degree. Again, regular readers will be familar with these terms – “fear, anxiety and distress”. They are the key criteria giving rise to the crime (and tort) of harassment, as defined under the terms of the Protection from Harassment Act 1997.

In their urgency to implement their long-overdue Review of Whitby Market, Councillors and Officers and businesses should take care not to perform any “course of action” (defined as just two ‘incidents’) such as would render them susceptible to legal proceedings, whether civil or criminal. We are, of course, all equal under the law.

The Future

Whitby Market traders have been given formal notice by SBC that, as of Monday 16th July 2018, trading in Whitby Market will be limited to Tuesdays and Saturdays, with a separate ‘Farmers’ Market’ on Thursdays. There will be no trading on Sundays, Bank Holidays or the days (other than Saturdays) of the twice-yearly Whitby Goth Festival. In short, all the peak trading days have been cancelled. In several cases, this will effectively close businesses and put workers on the dole – and all without formal consultation of stake-holders and residents.

On 12th June 2018, SBC produced a document entitled ‘Whitby Market – Review as of 12-06-18’, setting out the terms of the Review of commercial arrangements for Whitby Market. This was passed to me from within the Council.

The present Review was initiated by the new Market Superintendent Penny BENISTON.

Two days later, this document was supplanted by a revised version taking the form of a letter (the formal Notice referred to, above) to each of the Market traders under the title ‘Whitby Market – Changes to operation of Whitby Market’, dated 14th June 2018. It is interesting to note that Conservative-led SBC takes party policy of “austerity” so seriously as to justify sending out who-knows-how-many letters by Special Delivery at £6.50 a piece:

Common to both documents is a section setting out the three Stages of the process of reforming commercial arrangements and operational practices in Whitby Market.

12th June 2018 Document:

14th June 2018 Document:

Note the following crucial differences in the revised version (14th June), as compared to the original version (12th June):

Stage 1;

contains an additional sentence: “These actions must be undertaken to ensure the Market is placed on a sound and sustainable footing before moving forward.”
in the final sentence, the word “consultation” has been replaced with the word “dialogue”.

Stage 3;

in the first sentence, the commitment to investment in the Marlet has been downgraded by the removal of the word “capital” from the phrase “potential capital investment in existing facilities”. The revised form of words offers no commitment to improving facilities for stall-holders.

These differences may seem trivial. They are not. Moreover, SBC has acted in bad faith by dramatically moving the goalposts over a 48-hour period in the ways set out above.

Regrettably, Mr Alex RICHARDS, SBC’s Acting Regeneration Services Manager (Regeneration & Planning Services), does not appear to understand (or, at least, purports not to understand) the vital significance of definitions in matters of law.

One stall-holder who does understand wrote to Mr RICHARDS to confirm that she/he had never been granted the opportunity to engaged in any “dialogue” – much less a “consultation”. The stall-holder even provided Mr RICHARDS with a definition of the word “dialogue”. This is important because, in law, a “consultation” imposes binding constraints on the Council’s freedom to progress initiatives like those set out in the Whitby Market Review, whereas a mere “dialogue” amounts to an informal chat which imposes no constraints at all.

Mr RICHARDS’ response to an appeal for clarification on this key point is appalling. It is at once patronising, evasive and supercilious. On the face of it, either he has been disingenuous – or he has been incompetent. One wonders whether or not Mr RICHARDS – a paid public servant – considers himself in some sense above the hoi polloi who provide his salary (and pension, etc). He certainly comes on that way.

On 18/06/2018 09:56, Alex Richards wrote:

Dear [REDACTED],

Whilst I recognise your understandable frustration with this process I am not able to become embroiled in a dialogue over the definition of words. Suffice to say you were aware that changes were being considered and you have now been formally notified of those changes.

I will instead focus my efforts on dealing with your outstanding queries and any requests for assistance which may come forward from you and/or others.

Regards

Alex Richards

Acting Regeneration Services Manager
Regeneration and Planning Services
Town Hall, St Nicholas Street, Scarborough

“Dialogue”? I have been unable to locate a single market trader who has had even the sniff of an opportunity to engage in a proper “dialogue” with Mr RICHARDS or Ms BENISTON. To ‘the man on the Market’, these names belong to disembodied desk-jockeys.

Summing up; the word “consultation” (on 12th June) was abandoned in favour of “dialogue” (14th June) and, by 18th June, “dialogue” was abandoned in favour of “dealing with outstanding queries” – which many traders feel smacks of “done deal”.

Mr RICHARDS, in virtue of his years of experience, should by now be aware (and probably is) that a “consultation” is, in law, a serious matter indeed.

In fact, the Government has provided comprehensive guidance on interpretation of the the word “consultation” in this context, which I commend to Mr RICHARDS’ attention:

Notwithstanding the above, SBC has determined to impose its new regime on Whitby Market commencing on Monday 16th July 2018, but has now confirmed that it will conduct a ‘Whitby Market Survey’ – “Survey”? – between Friday 11th August 2018 and Thursday 31st August 2018.

For the avoidance of doubt, a “survey” is a tighter concept in law than a mere “dialogue”, but it holds none of the mandatory powers of a “consultation” – and, anyway, how is a “survey” concluding on 31st August 2018 intended to inform a decision implemented on 16th July 2018?

With the permission of the editor, I include in this report a letter from one of the Market traders. Readers may form their own opinion of what would seem to me to be a good case, well-argued and expressed with courtesy and without acrimony. Compare and contrast with Mr RICHARDS’ effort.

Letter to the Editor

Dear Editor,

As a regular trader on Whitby Market for some years now, having built up a business that is tailored specifically to the tourist trade and particularly to Whitby, I am studying a letter from Mr Alex Richards, Acting Regeneration Services Manager of Scarborough Council, entitled “Changes to Operation of Whitby Market” dated 14/06/2018.

This is the first direct communication I have had from anyone at the council with regard to changes at Whitby Market.

While I have no issues with the short term objectives outlined (Stage1), I am concerned that any changes should be implemented fairly, with due consideration given to everyone affected, and not rushed.

On its website, the Council refers to markets as an important part of creating vibrant high streets and safeguarding jobs. It also says “Market stalls are small businesses and provide employment for substantial numbers of people”.

My own business provides full-time work for myself and one other person as well as several seasonal workers each summer.

Depending as it does on the summer months, and in particular the school holidays, it would not survive the proposed reduction of trading days to two per week, and being given four weeks notice that this would take effect from the start of the school holidays, after months of planning, buying stock etc. strikes me as especially unfair.

I hope that in the days between my writing this letter and its publication, the Council will have taken steps to make sure that everyone who has a stake in this issue feels they have been properly considered and fairly treated before completing Stage 1 and moving on to Stage 2 of the planned changes.

Yours Faithfully,

Anne Marshall, Whitby.

A Ray of Hope

Yesterday, Thursday 21st June 2018, Councillor Rob BARNETT [Lab.] (Whitby Streonshalh) and I met with Councillor Bill CHATT [Ind.], the SBC Cabinet Portfolio Holder whose remit includes responsibility for the Borough’s Markets.

Rob and I presented some suggestions for compromise to Councillor CHATT, who appeared to be unaware of the changes effected by Mr RICHARDS in his letter of 14th June, as compared to the agreed draft dated 12th June 2018.

One of our suggestions in particular gained considerable traction with Councillor CHATT and he agreed to meet with Council Officers this morning to clarify whether or not there were any regulatory impediments to proceeding along the lines we suggested.

Speaking with Councillor CHATT at lunchtime today, it would appear that some progress has been made and a meeting is to be convened mid-week next week between Councillor CHATT and both Streonshalh Ward Councillors (Rob BARNETT and Sandra TURNER), as well as Senior Officers, to consider (and hopefully resolve) a compromise arrangement to secure trading at least throughout the school holidays for at least part of the Market.

I hope to be able to report on some positive developments by the end of next week.