In Poole & Anor, R (On the Application Of) v Birmingham City Council [2021] EWHC 1198 (Admin), HHJ David Cooke dismissed all five grounds brought by the claimants and said it would be "wholly disproportionate to quash the entire policy".

The case was brought by two Birmingham street traders who are the chair and secretary of the Birmingham Street Traders Association (the BSTA), an informal and unincorporated group.

The claimants' challenge of the Birmingham City Council Street Trading Policy 2020. The claimants argued that the policy should be quashed and remitted on the following grounds:

• The Innovative Products Criterion (“IPC”) was in breach of Regulation 15 of the Provision of Services Regulations 2009
• The IPC was in breach of Regulation 21The IPC was unclear and dissuasive
• The general conditions were not reasonably necessary
• The IPC was contrary to the statutory purpose of the Local Government (Miscellaneous Provisions) Act 1982.

Concluding his judgment, Judge Cooke said: "In case the matter goes further however I should say that had I been with the claimants on any of the matters relating to the IPC [Innovative Products Criterion], which was the principal focus of their claim, I would not have made an order quashing the policy as a whole, or quashing the decision to adopt it, but limited any remedy to a declaration that would have prevented the Council from taking the IPC into account in any assessment of an application.

Ms Sackman submitted that where a decision was found to be unlawful, the normal remedy is for the decision to be quashed and remitted so that it may be taken again lawfully. But questions of remedy are as she accepts discretionary, and it would in my judgment be wholly disproportionate to quash the entire policy because one small aspect of it was found to be unlawful. If the policy were quashed, the Council would have no basis in place to regulate the existing consents or evaluate new ones, until it was able to put a new policy in place, which would likely entail the expense and delay of a further consultation process.

"The policy would however be perfectly operable without the IPC, which is unlikely in any event to come into consideration until 2022 when existing consents fall to be renewed and there may be competition for pitches. By that time, the policy will have been reviewed and, if it had been found that the IPC was unlawful, it would no doubt be removed during any such review.

"I will fix a date for this judgment to be handed down without a hearing, and invite the parties to agree the order resulting. It there are matters arising that cannot be agreed, they should if possible be dealt with on the basis of brief written submissions, to be received no later than the day before the handing down."