Horticultural market — Private Act conferring powers on market authority subject to consent of secretary of state — Consent given for sale of fish and meat — Whether power to give consent for sales in competition with nearby markets — Appeal allowed
The respondent corporation owned Billingsgate fish market and Smithfield meat market in London. The second appellant was the market authority for the nearby New Covent Garden horticultural market. The operation of that market was governed by the private Covent Garden Market Act 1961, under which the authority was required to provide facilities “for the conduct of a market for the dealing in bulk in horticultural produce”. However, 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… with a view to making the best use of any of their assets”, provided that it first obtained the consent of the first appellant secretary of state.
The authority applied for consent 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 surplus to the requirements of the horticultural market. Consent was given, subject to a condition requiring written notice to be given to the respondents of any intention to exercise the power. The consent was expressed not to grant “any market rights”. The authority subsequently gave notice of its intention to extend the scope of three leases to permit trade in meat or fish.
The respondents applied for permission to challenge the consent and the notices by way of judicial review on the ground that they fell outside the scope of section 18(1)(f). Permission was refused, but an appeal against that decision was allowed on the sole issue of the construction of section 18(1)(f). The appeal court ruled that permitting the face-to-face sale of fish or meat at the market was outside the scope of the authority’s statutory powers and could not be brought within those powers by a consent under section 18(1)(f). It held that either there was an implied restriction against holding a market for buying and selling commodities other than horticultural produce or section 18(1)(f) did not encompass activities that competed with the respondents’ markets.
The appellants appealed. The respondents accepted that the grant of consent did not, by itself, interfere with their common law right to protection from competition by a rival market, and that the exercise of the powers conferred by it would not necessarily involve such an interference.
Held: The appeal was allowed.
The language of section 18(1)(f) was very wide and its second limb, “or with a view to making best use of any of their assets”, suggested that the authority’s activities did not need to relate to its duties in respect of horticultural produce. Activity that competed with the respondents’ markets would not, for that reason alone, be excluded from the scope of the section. The owner of a market could not complain about competition unless: (i) that competition constituted a rival market; (ii) the rival was trading within the area in which the owner was entitled to protection; and (iii) the competition was sufficiently substantial as to constitute in law a disturbance to the owner’s market. The appeal court’s construction of section 18(1)(f) attributed to parliament an intention to bar the authority from activities that might compete with, but would not, under the ordinary law, amount to actionable interference with, the respondents’ markets.
It was not necessary for the House to express a view as to whether there was any implied restriction of the kind identified by the Court of Appeal because, in any event, the consent given by the secretary of state would not be caught by any such restriction. The consent, which expressly excluded any grant of market rights, did not authorise the authority to hold a meat or fish market. If what the authority did in purported reliance upon it constituted the holding of such a market, that would be outside the ambit of the consent. It would be a question of degree whether the number of the outlets and the extent of the business being carried on justified the conclusion that the “nature” of the market had changed to that of a meat and fish market. It could not be said that the nature of the market had changed until a point was reached where there was actionable interference with the respondents’ market rights. Accordingly, anything that amounted to an actionable interference would fall outside the ambit of the consent.
Jonathan Crow and Timothy Ward (instructed by the legal department of Defra) appeared for the first appellant; Hazel Williamson QC and Amanda Tipples (instructed by Stephenson Harwood) appeared for the second appellant; Timothy Straker QC and Philip Coppel (instructed by the legal department of the Corporation of London) appeared for the respondents.
Sally Dobson, barrister
