Appellant local authority running farmers’ markets — Appellants establishing private company to continue running markets — Company refusing licence to farmer — Whether that decision susceptible to judicial review — Appeal dismissed
In 1999, the appellant local authority organised a series of farmers’ markets, pursuant to section 33 of the Local Government Housing Act 1989, for the purpose of promoting the economic development of the area. In 2000, following the success of that pilot scheme, the appellants assisted the stallholders in setting up a limited company (the company) in order to run the market themselves. The appellants provided the company with office accommodation, equipment and personnel.
The respondent trout farmer was initially accepted into the scheme but his application for a licence for the 2002 programme of markets was refused. He applied for judicial review, where a judge quashed the company’s decision, after finding that the appellants exercised sufficient control over the company to conclude that the company’s functions were woven into a system of governmental control.
The appellants appealed, arguing that the company did not perform any public function that would render its decisions amenable to judicial review.
Held: The appeal was dismissed.
The decisive issue was neither the identity of the market holder nor the source of the power to hold the market, but whether the public were entitled to have access to the market: R v Barnsley Metropolitan Borough Council, ex parte Hook [1976] 1 WLR 1052 and R v Wear Valley District Council, ex parte Binks [1985] 2 All ER 699 applied. In the instant case, the markets were held with the co-operation of local authorities on publicly owned land to which the public had access.
It was common ground that if the decision to exclude the respondent had been taken by the appellants prior to the incorporation of the private company, it would have been amenable to judicial review. It was therefore a question of identifying the nature of the relationship between the appellants and the company. The company had been set up by the appellants, under their statutory powers, to take over the running, on a non-profit basis, of the markets that the appellants had previously operated in the public interest. The company continued to run the markets on the same basis as the local authority had originally done. The company was therefore acting as a public authority within the meaning of section 6 of the 1998 Act, and its decision was amenable to judicial review.
Gillian Carrington (instructed by the solicitor to Hampshire County Council) appeared for the appellants; James Maurici (instructed by Thring Townsend Solicitors) appeared for the respondent; Hampshire Farmers’ Markets Ltd did not appear and was not represented.
Vivienne Lane, barrister
