Corporation of London v Secretary of State for Environment, Food & Rural Affairs & Anor

A statutory power to make the best use of market assets may authorise uses beyond the market’s core activity, but its general wording must be read in context. Where legislation establishes a market franchise for specified commodities, the power does not permit the authority, even with ministerial consent, to turn the market concourse into a market for other commodities or to extend the franchise. The statutory market retains common-law incidents unless the legislation clearly varies them. A private-law remedy for disturbance does not displace judicial review where the issue is whether a minister acted within statutory powers. Consent is ineffective where the authority had no power to undertake the activity for which consent was sought.

The Corporation of London challenged the Secretary of State’s consent under section 18(1)(f) of the Covent Garden Market Act 1961. The consent enabled the Covent Garden Market Authority to grant or extend leases at New Covent Garden Market, Nine Elms, for face-to-face sales of meat, fish and related products. The Corporation operated Billingsgate and Smithfield markets and argued that the statutory powers were confined to horticultural produce.

Mitting J refused permission to bring judicial review proceedings. During the appeal, the Court of Appeal granted permission to appeal and permission to apply for judicial review. The central issue was whether section 18(1)(f), read with the 1961 and 1966 Acts, authorised the consent.

The appeal was allowed unanimously. Pill LJ gave the principal judgment, with Laws LJ and Sir Martin Nourse agreeing in the result.

1. Judicial review. The existence of a possible private-law action for disturbance of market rights did not make judicial review inappropriate. The issue was whether the Secretary of State had exceeded statutory powers, which was a public-law question.
2. First limb of section 18(1)(f). The first limb concerned activities connected with the Authority’s statutory duties. Those duties were directed to providing and regulating a market for dealing in bulk in horticultural produce. Face-to-face trading in meat and fish could not fall within that limb.
3. Second limb and statutory context. The second limb could permit beneficial uses of surplus assets beyond the horticultural market. It did not, however, authorise the use of units within the market concourse for a market in other commodities or for direct competition with established meat and fish markets. The Covent Garden Market Act 1966 relocated the market and amended the statutory scheme, but did not broaden section 18(1)(f).
4. Market franchise. Laws LJ emphasised that a franchise for a market in specified commodities necessarily excluded a market in other commodities within the concourse. Sir Martin Nourse held that the statutory market retained the common-law incidents of the franchise, including its monopoly, except so far as altered by statute. The general words of a private Act could not be treated as extending the franchise or creating an enhanced monopoly without clear language.
5. Consent structure and disturbance. Sir Martin Nourse identified three stages: the Authority’s decision to undertake the activity, the application for ministerial consent, and the Secretary of State’s decision to consent or refuse. Consent could not validate an activity which the Authority had no power to undertake. Whether the leases caused an actionable disturbance was a factual private-law question requiring evidence and was not decided in the judicial review proceedings.
6. Order. The Secretary of State’s May 2003 consent was quashed. It followed that the Authority had no power to grant the leases described in the consent. Consequential relief against the Authority was left for further submissions.

1. Administrative Court: Mitting J refused the Corporation permission to apply for judicial review of the Secretary of State’s consent.
2. Court of Appeal (Civil Division): Permission to appeal and permission to apply for judicial review were granted during the appeal. The appeal was allowed and the consent was quashed.