Council operating statutory market — Rival Saturday market commenced — Claim that planning permission granted for market — Whether grant of planning permission conferring positive right — Whether planning permission giving immunity from suit — Application for interlocutory injunction — High Court holding that grant of injunction would maintain status quo — Judgment for council
On Saturdays the council operated a statutory market in the centre of Holywell. In July 1994 they extended the market into the High Street in an area which had just been pedestrianised and improved. The council’s purpose was to support the economic viability of the town centre. On July 30 1994 the defendants opened a Saturday market at Llanerch-y-Mor, three miles from the council market.
The council complained of infringement of their market right and sought and interlocutory injunction to restrain the defendants’ conducting their Saturday market. The defendants claimed that they had been granted planning permission in 1983, which amounted to the establishment of a market within the meaning of section 50 of the Food Act 1984. If that was correct the market so established would be protected by section 50(2) as a prior market right. Alternatively, planning permission amounted to a consent or a statutory right to run a market in accordance with that permission, which was good against all the world.
Held The injunction was granted.
1. Planning permission merely removed the impediment on use or development imposed by the planning laws. It did not involve overriding any other rights relevant to the land. A restrictive covenant preventing a development would remain valid even if planning permission were granted for it.
2. The grant of planning permission did not confer on the owners of the land in question a market right which was a franchise — a local monopoly to run a market. Planning permission was nothing of the sort, though any market conducted by or with the licence of the holder of the right would also require planning permission unless exempted.
3. Moreover, planning permission did not confer a positive right beyond the planning laws. It was not legitimate to extend the word “right” to make it into a universal positive right destroying any obstacles of law having nothing to do with the planning laws.
4. It had been argued that planning permission amounted to a statutory authority giving immunity from suit. There was nothing in the legislation which indicated any such intention. In Gillingham Borough Council v Medway (Chatham) Dock Co Ltd [1992] 1 PLR 113 it was held that a planning permission (for development of a large dockyard) was to be taken into account in deciding whether the necessary detriment to nearby residents amounted to a public nuisance. But that did not mean that the planning permission conferred a right to commit a nuisance: see Wheeler v JJ Saunders Ltd [1994] EGCS 209.
5. To establish whether there was a property right to which a local authority ought to have regard in retaining or exercising a market right it was necessary to have a full complete picture of what trade the defendants had established. It would be a serious fetter on the powers of the council if there was no significant Saturday market on the site in question.
6. In the meantime the status quo favoured the grant of an injunction. If it proved to have been unjustified all that would result was a delay in the establishment of the defendant’s Saturday market. The council had offered a cross-undertaking which would cover any quantifiable damage the defendants might suffer.
Stuart Isaacs QC and Clive Lewis (instructed by Sharpe Pritchard) appeared for the plaintiffs; Augustus Ullstein QC and Victoria Domenge (instructed by Clintons) appeared for the defendants.
