Street market — Material change of use — Enforcement notice appeal — Planning permission granted subject to conditions — Market franchise granted by letters patent — Whether granted under royal prerogative — Whether use authorised under royal prerogative exempt from planning control
A weekly market in the high street and a twice-yearly fair were held in Moreton-in-Marsh, Gloucestershire, between 1638 and 1923 under letters patent of Charles I. In 1923 it was moved to a different site in the town and continued as a cattle market until 1956. In 1976 the market franchise was acquired by the controlling shareholder of the appellant company, and they revived the market at its original site. The local planning authority issued several enforcement notices alleging a material change of use. The appellants appealed and, following a public inquiry, the inspector granted planning permission subject to certain planning conditions.
The appellants accept that as the original site was not normally used for the market on July 1 1948, a material change of use of that site has occurred. But the appellants appealed the conditional planning permission, on the ground that the market use is outside planning control. Their contention was that as the market franchise was granted by letters patent of Charles I, this was an exercise of the royal prerogative, and a franchise owner acts on behalf of the Crown: as the Crown is not bound by the need to obtain planning permission in respect of its own land, it should follow that a franchise owner exercising a right of the Crown should be similarly exempt. Macpherson J (June 5 1987) decided the question against the appellants.
Held There can be no doubt that once a market franchise is granted by the Crown, it becomes private property in the hands of the owner and is freely alienable by him. It cannot be said that a market owner acts on behalf of the Crown in any sense at all. The position is no different from a tenant male of lands settled by the Crown to devolve with a title of honour. A person holding a grant under prerogative powers is not himself exercising the royal prerogative. The market use was subject to planning control. The appeal was dismissed.
A-G v Trustees of the British Museum
[1903] 2 Ch 598 considered.
Harry Wolton QC and Stephen Whitaker (instructed by Halsey Lightly & Hemsley) appeared for the appellants; and John Laws (instructed by the Treasury Solicitor) appeared for the respondent.
