Horticultural market — Private Act conferring powers on market authority subject to consent of secretary of state — Secretary of state giving consent for sale of fish and meat — Whether power to give consent for such sales in competition with existing nearby markets — Judicial review — Claim allowed
The appellant corporation were the owners of Billingsgate fish market and Smithfield meat market in London. The second respondent was the market authority responsible, by virtue of the private Covent Garden Market Act 1961, for operating the New Covent Garden Market. The 1961 Act required the authority to provide facilities “for the conduct of a market for the dealing in bulk in horticultural produce”. Section 18(1)(f) empowered it to carry out “all such other activities as it may appear to the Authority to be requisite, advantageous or convenient for them to carry on for or in connection with the discharge of their duties or with a view to making the best use of any of their assets”, provided that the authority obtained the consent of the first respondent secretary of state.
The secretary of state gave consent, under section 18(1)(f), for the market authority to grant or extend the scope of leases for the purpose of selling fish or meat on such parts of the market site as it considered to be surplus to requirements for the purposes of providing a horticultural market. The appellants sought permission to challenge the grant of consent by way of judicial review on the ground that it fell outside the powers conferred by section 18(1)(f). Permission was refused and the appellants appealed. The market authority contended that judicial review proceedings were inappropriate because of the availability of a private law remedy, in the form of the private law right, enjoyed by the holder of a market franchise, of protection from disturbance by a rival market established within a certain distance.
Held: Permission was granted and the judicial review claim was allowed.
The existence of the private law cause of action did not render judicial review inappropriate. The case did not turn on a detailed analysis of the law of disturbance. It turned on whether the secretary of state had exceeded her powers in granting the consent, and that was an issue of public law to be determined by way of judicial review. The purpose of the 1961 Act was to define the duties and powers of the market authority, and, this being a private Act, those duties and powers should not be read expansively: Harper v Hedges [1923] 2 KB 314 and Allen v Gulf Oil Refining Ltd [1981] AC 1001 applied. Parliament could have, but had not, conferred upon the market authority market rights in produce other than horticultural produce, either directly or by way of empowering the secretary of state to do so. In the absence of such a power, it could not be accepted that parliament had intended to permit competition with the existing markets, whether or not the competition involved a disturbance in the common law sense. The statute could be construed as permitting consent to be given for a beneficial use of the assets of the market authority beyond providing a horticultural market, but a consent to permit competition with the existing markets, whatever their scale, was beyond its scope. The grant of consent would therefore be quashed.
Timothy Straker QC and Philip Coppel (instructed by the solicitor to the Corporation of London) appeared for the appellants; Jonathan Crow and Timothy Ward (instructed by the Treasury Solicitor) appeared for the first respondent; Hazel Williamson QC (instructed by Stephenson Harwood) appeared for the second respondent.
Sally Dobson, barrister
