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. No weekly market was held between 1956 and 1976. 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 against which the
appellants appealed. The Secretary of State for the Environment by his
inspector allowed the appeal and granted planning permission subject to a
number of modified conditions. The appellants accepted 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. The appellants appealed that decision 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, an
exercise of the royal prerogative, 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. The appellants appealed against
a decision of Macpherson J (June 5 1987) rejecting their contentions.
Held The appeal was dismissed. 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, see p 116A-F.
to in the judgments
Attorney-General v Trustees of the British Museum [1903] 2 Ch 598.
Ministry
of Agriculture, Fisheries and Food v Jenkins
[1963] 2 QB 317; [1963] 2 WLR 906; [1963] 2 All ER 147; [1963] EGD 423; (1963)
186 EG 179, CA.
Appeal against
a decision of Macpherson J
This was an
appeal against a decision of Macpherson J (June 5 1987), whereby he had
dismissed an appeal brought by the appellants under section 245 of the Town and
Country Planning Act 1971, seeking to quash a decision of the Secretary of
State for the Environment by his inspector, who had granted planning permission
subject to conditions following an appeal against several enforcement notices.
QC and Stephen Whitaker (instructed by Halsey Lightly & Hemsley) appeared
for the appellants.
(instructed by the Treasury Solicitor) appeared for the respondent.
following judgments of the court were delivered.
LORD
DONALDSON OF LYMINGTON MR: I will ask Nourse LJ to
give the first judgment.
NOURSE LJ: Under letters patent of Charles I a Tuesday market and twice-yearly
fairs were held in the high street of the Gloucestershire town of Moreton in
Marsh between 1638 and 1923. In the latter year, the market not being limited
to any specified part of the town, it was removed to a site in the station
road, where it continued as a cattle market until 1956. Between 1956 and 1976
no markets were held. There has been no interruption in the fairs, each now of
three days’ duration, which have been held in the high street down to the
present day.
In 1976 the
right to hold the market and the fairs was acquired by a Mr Maby, by whom the
appellant company, Spook Erection Ltd, is controlled. The appellants then
revived the weekly market as a general retail market on its former site in the
high street. But since no market was being held there on the appointed day
(July 1 1948) there is no doubt, and the appellants accept, that its resumption
in 1976 constituted a material change in the use of the site, and thus
development, within section 22(1) of the Town and Country Planning Act 1971. What
the appellants do not accept is that planning permission is required for the
carrying out of that development under section 23(1) of the 1971 Act. In regard
to that matter they have been in dispute with the local planning authority, the
Cotswold District Council, since 1983; enforcement notices being served in
October 1984.
The present
position is that, after an appeal to the Secretary of State and a public
inquiry, planning permission has been granted subject to modified conditions
which the appellants still regard as being unsatisfactory, but with which they
are prepared to live if their primary submission that no permission is required
does not succeed. So far, that submission has been rejected by the inspector,
the Secretary of State and Macpherson J, and the appellants now rest their
hopes on a contrary decision of this court. Their appeal raises a short and
straightforward question of principle.
The right
which was granted to one Anthony Bourchier by the letters patent of June 29
1638 was a franchise; an incorporeal hereditament which has been
authoritatively defined as a royal privilege or branch of the royal prerogative
subsisting in the hands of a subject, by grant from the King; see Chitty’s
Prerogatives of the Crown (1820) p 119. Founding himself on this
definition, Mr Wolton QC, for the appellants, has argued that the owner of a
market franchise acts on behalf of the Crown, so that in relation to land over
which the franchise is exercised he stands on the same footing as the Crown in
relation to its own land and planning permission is not required.
By an
application of the general principle that the Crown is not bound by an Act of
Parliament unless it is expressly or impliedly made subject to it, it is well
settled that the town and country planning Acts do not require the Crown to
obtain planning permission in respect of its own land; see Ministry of
Agriculture, Fisheries and Food v Jenkins [1963] 2 QB 317. By
contrast, it was also there held that a tenant of Crown lands is required to
obtain planning permission. And it is obvious that the position of an alienee
of such lands is a fortiori to that of a tenant.
What is the
position of a market owner? A market
franchise has no existence until it is granted by the Crown. Notwithstanding
the terms of the ancient definition, it cannot be doubted that, once granted,
it becomes a
held exclusively for his own enjoyment and it is fully and freely alienable by
him. Moreover, although it can be forfeited for abuse or non-user, being no
part of the flowers of the Crown, it reverts in esse and does not merge again
in the Crown: see A-G v Trustees of the British Museum [1903] 2
Ch 598, at pp 612-613, per Farwell J. In the light of these considerations,
it cannot be said that a market owner acts on behalf of the Crown in any sense
at all. So far as concerns the need to obtain planning permission, his position
is no different from that of a tenant in tail male of lands settled by the
Crown to devolve with a title of honour and to revert to the Crown on a failure
of heirs male and the consequential extinction of the title.
Mr Wolton has
relied much on the undoubted duties towards members of the public which the law
imposes on a market owner, in particular the duty to hold the market and to
provide convenient accommodation for all who wish to buy and sell in it. Such
duties do not affect the essentially private nature of the right. They
certainly do not advance the argument that the market owner acts on behalf of
the Crown. Suppose that Her Majesty the Queen had conveyed on trust for public
purposes a parcel of land which was formerly held in right of Her Duchy of
Lancaster. It could not be suggested that the trustees were not required to
obtain planning permission for a material change in its use. Even though the
purposes of their trust were exclusively public, they would no more be acting
on behalf of the Crown than any other trustees for such purposes. In neither
case would the trustees be exempted from the application of the town and
country planning Acts.
In accepting
the main argument which was advanced by Mr Laws on behalf of the Secretary of
State both here and below, Macpherson J said:
. . . it is
fallacious to say that a person holding a grant given under prerogative powers
is himself exercising the royal prerogative. In analysis the exercise of the
royal prerogative is not itself in play in the appellant’s exercise of the
rights and obligations given or imposed by Charles I’s charter to Anthony
Bourchier.
On that ground
and for the other reasons which I have given, I think that the decision of the
learned judge was entirely correct. Like him, I must respectfully disagree with
the contrary views which are tentatively expressed in Pease and Chitty’s Law
of Markets and Fairs, 3rd ed (1984), chapter VIII, pp 115-116.
I would
dismiss this appeal.
MANN LJ: I agree.
LORD DONALDSON
OF LYMINGTON MR: I also agree.
Appeal dismissed with costs; application for
leave to appeal to the House of Lords refused.
