Street-trading licensing authorities are not liable in negligence or public nuisance for traders’ highway obstructions absent assumption of responsibility, special control, or proven knowledge and opportunity to abate

1. Introduction

Sintes v London Borough of Tower Hamlets [2026] EWCA Civ 752 concerned a personal injury claim arising from a trip hazard in Whitechapel Market after dark. The claimant (a pedestrian who had just alighted from a bus) fell over long metal poles protruding from a trolley across a footpath gap between two market pitches and sustained a serious ankle fracture. The poles were assumed to belong to an unidentified market trader; there was no evidence that the local authority had placed them.

The defendant local authority was the street-trading licensing authority under Part III of the London Local Authorities Act 1990 (“the 1990 Act”), but it was not the highway authority for the footpath (Transport for London was), and it was not alleged to be the occupier of the market area or highway.

The County Court (Deputy District Judge) found the authority liable in negligence and public nuisance, relying heavily on the authority’s 2018 licence conditions and internal “Standard Operating Procedures and Processes for Market Officers” (“SOPP”), which included references to keeping walkways and bus stops “clear of obstruction”. The authority appealed.

The Court of Appeal (Stuart-Smith LJ, Bean LJ, Yip LJ) allowed the appeal, entering judgment for the authority.

2. Summary of the Judgment

  • No duty of care in negligence: The claimant’s case was, in substance, a complaint that the authority failed to prevent harm caused by a third party. Applying Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33 and related omission principles, the authority neither assumed responsibility to protect the claimant nor exercised the kind of “special control” over the trader required to create an exception.
  • Internal procedures do not create liability: The SOPP’s existence and the authority’s failure to meet its own inspection aspirations could not convert a non-actionable omission into actionable negligence.
  • Factual finding on duration was unsustainable: The trial judge’s finding that the obstruction had been present since 14:45 was “plainly wrong” (applying Volpi v Volpi [2022] EWCA Civ 464), because the reasons were non sequiturs and there was no evidential basis for any precise timing.
  • Breach and causation not proved (even if duty existed): On the trial judge’s own inspection standard (one inspection between 14:45 and 18:00), there could be no breach by 17:00; and without proof how long the poles had been present, causation could not be established.
  • Public nuisance failed: The authority did not “permit” the nuisance (it prohibited it via licence conditions), and “adoption/continuation” could not be made out without proof of knowledge (actual or constructive) and a reasonable opportunity to abate—impossible given the unknown duration.

3. Analysis

3.1 Statutory and regulatory context: the 1990 Act, licence conditions, and section 35

Part III of the 1990 Act creates a licensing scheme for street trading, requiring traders to hold licences and allowing borough councils to impose standard conditions (s.27) and enforce them through sanctions including prosecution and revocation (ss.28, 34). “Receptacles” include stalls and equipment; it was common ground the poles were within that definition.

The Court of Appeal emphasised the statutory structure as implemented by the 2018 licence conditions: responsibility for safe trading (including keeping within pitch limits and avoiding trip hazards/obstructions) lies squarely with the licence holder, backed by enforcement powers and mandatory public liability insurance. The authority’s statutory tools—especially s.35 (power to remove unremoved receptacles and recover costs)—were characterised as “empowered backup” to mitigate non-compliance rather than a guarantee of safety for all highway users.

On Ground 3, the Court rejected a narrow interpretation of s.35 that removal powers only arose at “market closure”; it endorsed an individual-trader reading (“cessation of trading” by that trader). However, this did not assist the claimant because the duty issue was dispositive.

3.2 Precedents cited: how they shaped the outcome

Negligence: omissions, “baseline”, and the limits of public authority liability

  • Tindall v Chief Constable of Thames Valley Police [2024] UKSC 33: adopted as the governing framework. The Court applied the “baseline” comparison—what would have happened if the defendant had done nothing at all—and the core distinction between (i) making matters worse (often actionable) and (ii) failing to confer a benefit/protect from third-party harm (generally not actionable).
  • Michael v Chief Constable of South Wales Police [2015] AC 1732: reinforced the “no liability for pure omissions” rationale (Lord Toulson at [97]) and the point that even dereliction of public law duties does not, without more, generate a private law duty.
  • East Suffolk (as referenced in Tindall and in the judgment’s analysis): used to show that failing to meet internal standards/manuals does not create liability unless the authority’s conduct made the claimant worse off than if the authority had done nothing.
  • Gorringe v Calderdale MBC [2004] 1 WLR 1057: cited for the proposition that an authority’s past exercise of a power (e.g., painting “SLOW”) does not create a common-law duty to repeat it; when the benefit fades away, the situation reverts to baseline. This supported rejecting the idea that the SOPP (an “inspection policy”) could itself found a private law duty.
  • N v Poole BC [2020] AC 780: used to frame “assumption of responsibility” in the public authority context. Like Poole, this case involved no service undertaken in a way that could ground reliance or an undertaking to protect.
  • Dorset Yacht v Home Office [1970] AC 1004: treated as the paradigm “special control” case (custodial control of known offenders). The Court held the authority’s relationship to licensed traders—sanctions and potential enforcement—was not comparable.
  • Phelps v Hillingdon BC [2001] 2 AC 619 and Barrett v Enfield LBC [2001] 2 AC 550: contrasted with the present case; those authorities involve functions akin to assuming/undertaking direct responsibility for welfare (education/social care), not merely licensing and enforcing conditions against third parties.
  • HXA v Surrey County Council [2024] 1WLR 335 and Kent v Griffiths [2001] QB 36: referenced via Tindall to illuminate assumption of responsibility (assurances/undertakings and reliance). The Court held there was no communication or undertaking to the claimant comparable to those situations.

Appellate review of fact-finding

  • Volpi v Volpi [2022] EWCA Civ 464: supplied the “plainly wrong” threshold. Importantly, the Court found that the trial judge’s key timing inference was not merely debatable; it was unsupported and reasoning-based error (non sequiturs), satisfying the appellate intervention standard.

Public nuisance: responsibility, “permission”, and adoption/continuation

  • Ali v Bradford MBC [2010] EWCA Civ 1282. [2012] 1 WLR 161: relied on by the authority; not a complete answer because it concerned a highway authority’s non-liability for third-party deposits absent creation of the nuisance, but it underlined the need to distinguish between occupier-like responsibility and a public authority’s statutory role.
  • Sedleigh-Denfield v O'Callaghan [1940] AC 880: referenced for the “adoption/continuation” concept; the Court held the prerequisites (knowledge and opportunity) could not be established on the evidence.
  • Diboll v City of Newcastle Upon Tyne [1993] PIQR P16: treated as limited support for the possibility of market authority nuisance liability, but not authority that a licensing/enforcement role alone makes a council responsible for third-party nuisances. The Court stressed the thin reasoning and lack of analysis in Diboll as to knowledge and the basis of “overall responsibility”.
  • Lippiatt v South Gloucestershire Council [2000] QB 51: distinguished as factually remote (landowner/occupier allegedly allowing land to be used as a base for repeated off-land nuisance).
  • Le Jones (Insurance Brokers) Ltd v Portsmouth City Council [2002] EWCA Civ 1723, [2003] 1 WLR 427: treated as a “control” case in nuisance (control of trees causing encroachment/subsidence). The Court held it did not assist where the authority neither created the hazard nor had proven knowledge/opportunity to abate it.

3.3 Legal reasoning: why the negligence claim failed

The Court identified the claimant’s case as an attempt to impose liability for an omission: a failure to prevent harm caused by an unidentified trader. The crucial “baseline” question was whether the authority made the claimant worse off than if it had done nothing. The Court’s answer was that issuing licences (and even having inspection/enforcement arrangements) did not cause the obstruction; the trader did. The complaint was therefore a failure to confer a protective benefit, which is not actionable absent an exception.

The Court then tested the two pleaded/argued exceptions:

  • Assumption of responsibility: there was no undertaking, promise, communication, or relationship of the Phelps/Barrett type. The SOPP and licence conditions were directed to regulating traders, not to undertaking responsibility to individual pedestrians for third-party wrongdoing.
  • Special control: the authority’s “control” was limited to regulatory powers (warnings, prosecution, revocation, removal/storage powers), not custodial or immediate control capable of preventing the trader’s wrongful act in the way Dorset Yacht contemplated.

The SOPP was central to the County Court’s approach; the Court of Appeal treated that as an error of principle. Internal policies may be relevant to operational standards where a duty exists, but they do not themselves generate the duty, nor do they alter the baseline comparison for omissions liability.

3.4 Legal reasoning: factual error, breach, and causation

The finding that the poles were present from 14:45 was set aside as “plainly wrong”. The Court held the trial judge’s two stated reasons—(i) traders sometimes leave early and (ii) there was no inspection after 14:45—did not logically support a finding that the poles were in place at 14:45. The evidence could not support any precise duration; at most it established an indeterminate period that might have been minutes.

Even accepting the (hypothetical) inspection duty standard the trial judge adopted, breach and causation collapsed: if the authority’s obligation was to inspect once during 14:45–18:00, then at 17:00 the time for compliance had not yet elapsed, so breach had not occurred. Separately, without proof of how long the obstruction existed, the claimant could not prove that any earlier inspection would have found it and prevented the accident.

3.5 Legal reasoning: why the public nuisance claim failed

The Court rejected the County Court’s characterisation that the authority “permitted” the nuisance. The licence conditions did the opposite: they prohibited placing articles outside pitch limits and required gangways to be clear. Treating “permission” as meaning “failure to guarantee no trader ever breaches conditions” was held to be unrealistic and unjustified.

As to “adoption” or “continuation”, the Court treated knowledge and opportunity as prerequisite. Because the evidence could not establish how long the poles had been there, the claimant could not prove constructive knowledge or a reasonable opportunity to abate. The suggestion of any reverse burden on the authority was rejected: duration was a threshold fact the claimant had to establish.

3.6 Impact

  • Regulatory role ≠ private law responsibility: Licensing, setting conditions, and having enforcement/inspection procedures will not, without more, create negligence liability for third-party hazards on adjacent highways.
  • Internal policies are not duty-creating instruments: SOPs may evidence aspirations and operational planning, but do not transform omissions into actionable negligence or establish assumption of responsibility to the public at large.
  • Nuisance claims require proof of knowledge/opportunity where the defendant did not create the nuisance: In transient-obstruction cases, inability to prove duration will often be fatal to “adoption/continuation” allegations.
  • Causation discipline in “inspection duty” cases: Courts will scrutinise whether the alleged inspection interval had expired at the time of accident and whether an inspection would probably have made a difference.
  • Procedural/administrative note: The concurring observations highlight allocation concerns where multi-track trials raise substantial public authority duty issues.

4. Complex concepts simplified

Omissions liability and the “baseline”
Negligence usually requires the defendant to have caused harm (or made things worse), not merely failed to prevent harm caused by someone else. The “baseline” asks: what would have happened if the defendant had done nothing at all? If the claimant would have been no better off, the claim is typically barred unless an exception applies.
Assumption of responsibility
A duty can arise where the defendant undertakes (expressly or impliedly) to protect someone from a risk, sometimes coupled with reliance. Here, regulating traders and planning inspections was not treated as an undertaking to individual pedestrians.
Special control over a third party
Exceptionally, a duty may arise where the defendant has a high level of control over the wrongdoer (e.g., custodial control). The power to sanction or revoke licences was not enough.
Public nuisance and “adoption/continuation”
If a defendant did not create the nuisance, they may still be liable if they knowingly allow it to continue when they have a reasonable opportunity to abate it. Without proof that the defendant knew (or ought to have known) and had time to act, liability will not attach.

5. Conclusion

[2026] EWCA Civ 752 draws a clear line between (i) a local authority’s statutory licensing/enforcement framework for street trading and (ii) private law liability to pedestrians for hazards created by independent traders. The Court of Appeal held that such liability cannot be imposed as an omissions-based “failure to protect” claim absent a recognised exception (assumption of responsibility or special control), and that public nuisance liability for third-party obstructions requires proof of knowledge and opportunity to abate—proof that will often depend on establishing how long the obstruction existed.