England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION, ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE MITTING
C047542003

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 December 2004

Lord Justice Pill:

1. This is an appeal against the decision of Mitting J to refuse the Corporation of London ("the appellants") permission to review judicially a decision of the Secretary of State for Environment, Food and Rural Affairs ("the Secretary of State") to grant a consent to the Covent Garden Market Authority ("CGMA") in May 2003 under Section 18(1)(f) of the Covent Garden Market Act 1961 ("the 1961 Act"). The consent was in the following terms:

"HEREBY CONSENTS to the [CGMA] granting, or extending the scope of, leases for the purpose of selling fish or meat, or fish or meat products, on such part or parts of the Site as the [CGMA] considers to be surplus to its requirements for the purposes of providing market facilities for the dealing in bulk in horticultural produce, subject to the following conditions:

(a) that this Consent shall take effect, such that the [CGMA] may only grant, or extend the scope of, such leases after the expiry of three months from the date hereof, and

(b) the [CMGA] shall provide one month's prior notice in writing to the Corporation of its intention to grant, or extend the scope of, any such lease,

PROVIDED THAT this consent is given only for the purposes of section 18(1)(f) of the Covent Garden Market Act 1961 and shall not be taken as (i) granting any market rights, or (ii) dispensing with any requirement to obtain the consent or authorisation of any other person that may be required for the purposes of carrying on the activities to which consent is given, or (iii) authorising any activity carried on without such other consent or authorisation being obtained or (iv) authorising any activity that may otherwise be unlawful."

The 'Site' was identified in the consent as "the site of New Covent Garden Market at Nine Elms, London, SW8" ("Nine Elms"). It is south of the River Thames and about 4 miles from the former site.

2. The appellants seek to quash that consent, which was notified on 19 June 2003. They also seek an order prohibiting CGMA from extending the scope of leases or licences "so as to permit face-to-face trading in meat or fish, or in meat or fish products", at Nine Elms, and an injunction restraining CGMA from granting or extending leases and licences to permit such trading. By letter date 2 July 2003, CGMA stated their intention, pursuant to the consent, to "extend the scope of the leases of three existing tenants at [Nine Elms] to permit face-to-face trading by them variously in meat and fish and meat and fish products."
3. The claim for judicial review was filed on 19 September 2003. In the course of the hearing, this court granted an extension of time within which to bring the appeal against the decision of Mitting J and gave permission to apply for judicial review, rejecting submissions that it should be refused because of earlier delay. We kept in mind the grant of leases which, we are told, followed the decision of Mitting J. The issues, and their importance, are such that permission should not be refused by reason of the passage of time which occurred. Permission was limited to a challenge based on a consideration of the extent of the powers granted under section 18(1)(f) of the 1961 Act.
4. The submission made by the appellants is that the proposed activity required the consent of the Secretary of State and that Section 18(1)(f) of the 1961 Act did not empower the Secretary of State to permit CGMA to use New Covent Garden Market, set up as a horticultural market, for the sale of fish and meat face-to-face. If that is right, it follows that CGMA cannot grant leases or licences permitting that activity.
5. For centuries, a market in horticultural products was conducted at Covent Garden in Central London. By virtue of the 1961 Act, a private act, the Market was put on a statutory footing and letters patent of Charles II granting market rights at Covent Garden to the Earl of Bedford in 1670 were, by section 3, revoked. Powers vested in the CGMA on 25 March 1962. The general purposes of the 1961 Act can be seen from its long title:

"An Act to establish a Covent Garden Market Authority and vest in them lands in the parish of Saint Paul, Covent Garden, and chattels the property of Covent Garden Market Limited; to make provision for the conduct in, and adjacent to, Covent Garden, under the control of the Covent Garden Market Authority, of activities relating to the dealing in bulk in horticultural produce; and to make provision with respect to matters arising out of the matters aforesaid."

6. Between 1961 and 1966 it was decided that Covent Garden Market should be rebuilt outside the Covent Garden area of Central London and the Covent Garden Market Act 1966 ("the 1966 Act"), a public act, achieved that result. Its long title provided:

"An Act to make provision for the transfer of Covent Garden Market to a site in the London Boroughs of Lambeth and Wandsworth; to empower the Covent Garden Market Authority to acquire lands and easements for that and other purposes; to confer further powers on that Authority; to amend the provisions of the Covent Garden Market Act 1961; and for other purposes."

The statutes are interrelated and it is necessary to make detailed reference to each of them to ascertain their combined effect.

7. Section 16 of the 1961 Act (repealed by s21 of the 1966 Act, which imposed substituted duties) defined the "duties and powers of the CGMA". It provided:

"(1) On and after the vesting day it shall be the duty of the Authority to provide within the Covent Garden Area facilities (hereinafter in this Act referred to as "market facilities") for the conduct of a market for the dealing in bulk in horticultural produce and any such other commodities as, immediately before that day, were commonly so dealt in on those parts of the market lands commonly known as the Charter Market, the Floral Hall, the Russell Street Market, the Flower Market and the Jubilee Market.

(2) In the first instance the duty imposed on the Authority by the foregoing subsection shall be discharged by the provision by them of facilities on the market lands, but they shall, so soon as practicable, take such steps as are practicable either to improve those facilities or to provide, in substitution therefore, better ones on other land within the Covent Garden Area.

(3) It shall be the duty of the Authority to provide, so soon as practicable, adequate facilities (hereinafter in this Act referred to as "storage facilities") for the storage of horticultural produce intended to be dealt in in bulk in the Covent Garden Area and of empty containers for produce so dealt in; and so far as practicable the Authority shall provide those facilities outside the Covent Garden Area.

(4) The Authority shall keep the market and storage facilities provided by them under constant review, and shall carry out such alterations or improvements to those facilities as appear to them requisite and practicable."

8. "Additional Functions" of the CGMA were set out in section 18 of the 1961 Act and section 22 of the 1966 Act. Section 18, as amended by the 1966 Act, provides:

"18. (1) The Authority shall have power –

a) to provide such vehicles, plant, containers, pallets, equipment and machinery as the Authority may think necessary or convenient for the transport or handling of horticultural produce within any market area or from or to any market area to or from any other market area or any place outside any market area or for any other purpose of or in connection with the discharge or performance of any duties or powers imposed or conferred upon the Authority by the Covent Garden Market Acts 1961 and 1966;

b) to provide plant and machinery for accelerating or retarding the ripening of horticultural produce or for securing the storage of such produce at controlled temperatures or otherwise in conditions designed to prevent its deterioration;

c) to provide plant and machinery for washing or cleansing the place where the Authority are providing market facilities;

d) to provide, or secure that there is provided, for persons employed in, or frequenting, the places where market facilities are provided by the Authority, rest rooms, sleeping accommodation, restaurants, canteens, washing facilities and sanitary conveniences and such other (if any) accommodation or facilities the provision of which appears to the Authority expedient for the purpose of securing the welfare of such persons;

e) to provide (consistently with the discharge of their duties) facilities for enabling persons to carry on, at the place where the Authority are providing market facilities, business consisting of, or comprising, the sale, otherwise than by wholesale, of horticultural produce;

f) to carry on all such other activities as it may appear to the Authority to be requisite, advantageous or convenient for them to carry on for or in connection with the discharge of their duties or with a view to making the best use of any of their assets;

but the Authority shall not, by virtue of paragraph (f) of this subsection, carry on activities with a view to making the best use of any of their assets except with the consent of the Minister."

Section 18(1)(f) was not amended by the 1966 Act.

9. Under the heading "Duties and Powers of the Authority", section 21 of the 1966 Act provides, as far as is material:

"(1) Section 16 (Duty of the Authority to provide market and storage facilities) of the Act of 1961 is hereby repealed and in lieu thereof the duties set out in the following subsections of this section shall be imposed on the Authority.

(2) It shall be the duty of the Authority on and after the appointed day to provide market facilities within the area comprising the Nine Elms lands and on any other lands acquired by them under section 20 (Acquisition of additional lands) of this Act for the purposes of a market.

(5) It shall be the duty of the Authority to keep the market facilities provided by them under constant review and to carry out such alterations or improvements to those facilities as appear to them requisite and practicable."

Section 21(3) of the 1966 Act provided that "development on the Nine Elms lands for the provision thereon of a market for dealing in bulk in horticultural produce or for purposes incidental thereto or in connection therewith shall be deemed to be permitted development" within the relevant class of the General Development Order. I will refer later to other sub-sections of section 21

10. Section 22 of the 1966 Act provides:

"22. (1) In addition to the powers conferred upon them by section 18 of the Act of 1961, the Authority shall have power in relation to the Nine Elms lands-

a) to use, lay out and develop so much of those lands as for the time being belongs to them as a market for dealing in bulk in horticultural produce, and therein and thereon and in connection therewith to erect all buildings and do all works necessary or convenient for that purpose;

b) (consistently with the discharge of their duty under section 21 of this Act) to erect, extend, alter and maintain on those lands houses, flats, dwellings, shops, offices, garages, car parks, warehouse and any other buildings, structures and erections of whatsoever character which the Authority may think necessary or convenient to provide:

Provided that development carried out in the exercise of the powers of this paragraph for any purpose other than the provision of a market for dealing in bulk in horticultural produce or for other purposes incidental thereto or in connection therewith shall not be deemed to be permitted development within Class XII of Part I of Schedule 1 to the Town and Country Planning General Development Order 1963."

11. The appellants' interest is that they own Billingsgate Market, where fish is traded, and Smithfield, where meat is traded, in the City of London. These markets are even older than the Covent Garden Market and date back to the fourteenth century. The appellants' economic interests and those of traders at those markets may be adversely affected if meat and fish products can be traded at Nine Elms. Billingsgate and Smithfield were in the 1960s, and remain, markets at common law enjoying as such the privileges and protection which the law confers on them. We have not been referred to the current state of trading in those markets, though it is clear that a reorganisation of London wholesale markets has been the subject of consideration and report. In June 2002, the Government, jointly with the appellants, commissioned Mr Nicholas Saphir to undertake a strategic view of the provision of wholesale markets in London and he reported on 22 November 2002.
12. The issue turns upon the construction, in context, of Section 18(1)(f) of the 1961 Act. The submission of the respondents is that the power to consent conferred on the Secretary of State in Section 18(1)(f) is sufficiently broad to permit the use of units at Nine Elms for face-to-face trade in meat and fish. The appellants' submission is that, in the context of statutes dealing specifically with a horticultural market, and conferring powers for that purpose, an apparently general power cannot be construed as a power to permit trade in fish and meat.
13. New Covent Garden Market opened at Nine Elms in 1974. CGMA's wish to diversify has been stimulated by the change in market patterns which has occurred since the 1960s. These are summarised in a document submitted to the court by CGMA. Since about 1990 there has been a gradual decline in the number of traditional traders in wholesale horticultural produce. Large scale retail enterprises have encroached upon high street greengrocers to the extent that horticultural wholesalers have suffered a decline. The number of vacant units in the market increased and enquiries were received from persons engaged in other sectors of the food and catering industries. CGMA wished to respond positively in order to improve its income from its property and also because of a "growing desire of purchasers for a 'one-stop shop' for all aspects, or as many aspects as possible, of food and catering supplies". Satisfying that desire, it is submitted, will also work in favour of horticultural trading.
14. This change in trading patterns has been acknowledged by Government. Reference has been made to a MAFF news release of 20 September 2000 which records the Minister of Agriculture as welcoming new traders at Nine Elms including a company which provided high quality smoked salmon and other specialised food items, by telephone and the internet, to the London catering trade. That is the background against which CGMA have taken the action disputed in these proceedings. We were told that there are 300 units at Nine Elms of which over 90% are occupied. There are about 240 traders not more than 20 of whom are involved in activities other than horticulture. Each of the 3 traders mentioned in the letter of 2 July 2003 is in a different block at the premises. In the other cases, consents have been given by the Minister and consequential grants by CGMA without action being taken against them by the appellants.
15. On behalf of CGMA, Miss Williamson QC submits that judicial review is not appropriate because the Corporation, and those concerned with markets in the City, have an alternative private law remedy. The holder of a market franchise enjoys a right of protection from disturbance by a rival market established within the common law distance of 6²/₃ miles and disturbance is a tort in respect of which the owner has a right of action. Nine Elms is within that distance of Billingsgate and Smithfield.
16. I do not accept the submission that the existence of that cause of action makes judicial review inappropriate in this case. CGMA have taken action with respect to leases and have done so pursuant to a consent granted by the Secretary of State. The case turns on whether the Secretary of State has exceeded his powers in granting the relevant consent. That issue is one of public law to be determined by way of judicial review.
17. Mr Crow, for the Secretary of State, accepts and asserts that the 1961 and 1966 Acts do not override private law rights with respect to markets. The statutes could have, but did not, confer a power to create market rights. Mr Crow concedes that the Secretary of State could not, by his consent, create market rights in CGMA at Nine Elms. The statutes do not confer that power on him. The proviso in the consent of May 2003 that it shall not be taken as granting any market rights merely stated the obvious and was inserted in an abundance of caution.
18. In general terms, the purpose of the 1961 Act was to establish CGMA and regulate the horticultural market at Covent Garden on a statutory basis. The provisions of the 1961 Act regulate, in considerable detail, the conduct of the market at Covent Garden as a horticultural market. In the Act, as amended by the 1966 Act, horticultural produce is said to mean "fruit and vegetables" and "flowers" and "market facilities" are defined by reference to the "transport or handling of horticultural produce" (Section 55 of the 1961 Act, as amended). There are numerous references to "horticultural produce" in the statute (s17(1), s21-24, s28(1) s30(2), s33 and s35). Some of these provisions have been repealed and others replaced by provisions in the 1966 Act.
19. The purpose of the 1966 Act was to relocate the market the subject of the 1961 Act, to make provision for the use of land at the acquired site at Nine Elms and to update the regulatory provisions of the 1961 Act. The preamble refers to CGMA's duty to provide "market facilities for the conduct of a market for dealing in bulk in horticultural produce and certain other commodities, to the availability of a site "convenient for the transport thereto of horticultural produce by rail" and to the expediency of "the persons carrying on business by means of the facilities to be provided by the Authority [to] be enabled to compete on fair and equal terms with other persons carrying on in Greater London the business of selling horticultural produce by wholesale". The references to horticultural produce in section 22(1) have already been cited. Section 21 empowers the Authority to levy tolls "in respect of horticultural produce", section 28(1) to the power of CGMA to require information and returns with respect to such produce. Section 29(1) empowers the CGMA to make market by-laws. The powers are detailed and specific and deal with aspects of trading in horticultural produce. The 1966 Act conferred protection on Nine Elms as a horticultural market but only within a radius of one mile of the site (section 23(10) of the 1966 Act).
20. It is against this background that section 18(1)(f) of the 1961 Act has to be construed. Mr Crow and Miss Williamson do not dispute the duty on CGMA under the 1961 and 1966 Acts to provide and conduct a market in horticultural products. The presence of detailed provisions for the conduct of such a market is in those circumstances not surprising, it is submitted. There is no basis, it is submitted, for construing section 18(1)(f) other than in accordance with the broad scope of its language. Reference is made to the expression "all such other activities". The word "all" is comprehensive and the word "other" must refer to activities other than those set out in detail in the other sub-paragraphs of section 18(1). The expression "requisite, advantageous or convenient" is also very broad and general.
21. It is further submitted that the requirement for ministerial consent with respect to the power to make "the best use of any of [CGMA] assets" is explicable on the basis that activities other than those imposed by duty under the statute are contemplated. The words "additional functions" in the side note to section 18 support that view. The purpose of the second limb of section 18(1)(f) is, it is submitted, to enable the Secretary of State to clothe CGMA with a power it did not previously have. If it had been intended to confine powers to providing a market for horticultural produce, there would have been no need for the provision. It is accepted that the Secretary of State could not derogate from CGMA's duty to provide a horticultural market in accordance with the terms of the statutes.
22. Miss Williamson refers to the change in trading patterns and the weakening demand for units at Nine Elms for the sale of horticultural produce. The need for a wider use of the facilities at the site has now arisen and power has been conferred on the Secretary of State in section 18(1)(f) to allow CGMA to make best use of their assets at Nine Elms. Miss Williamson concedes that in relation to that provision, if the relevant consent is beyond the powers of the Secretary of State, it is beyond the powers of CGMA to grant leases or licences.
23. Miss Williamson concedes, somewhat reluctantly, that there is a market for horticultural produce, in the common law sense, at Nine Elms. She accepts the duty on CGMA to provide such a market and her reluctance appears to be based on whether the present arrangements at Nine Elms, for example as to security of tenure of tenants, permit the market to be a market in the common law sense. What is acknowledged is the statutory duty to provide such a market and observe the statutory requirements as to the conduct and regulation of that market.
24. I gave permission to appeal on paper. The permission was "limited to construction of section 18(1)(f) of the 1961 Act. Arguable … that, in the statutory context of a market in horticultural produce, the paragraph does not permit extension to meat and fish at New Covent Garden Market". In the final substantive paragraph of his skeleton argument, Mr Straker QC, for the appellants, submitted that: "Accordingly section 18(1)(f) of the 1961 Act … does not enable the Secretary of State to consent to the CGMA granting, or extending the scope of, a lease of a site or part site of NCGM for the purpose of selling fish or meat, or fish or meat products". It is also submitted that CGMA is not empowered to grant such leases. That submission is within the terms of the permission and has been sustained at the hearing. Mr Crow and Miss Williamson have strongly argued that the appellants are not permitted to argue that a market in fish or meat has been or is being established at Nine Elms. That would be beyond the terms of the permission and, moreover, would involve issues of fact which the court, in its present jurisdiction, ought not to undertake. In his reply, Mr Straker has sought to argue that, whether or not a market in a different product or products has been established at NCGM, the grant of the disputed leases would involve a disturbance of the rights of Billingsgate and Smithfield which the courts would protect. That, submits Miss Williamson, is an issue for a private law action in defence of market rights and not for the present public law action upon the construction of a statute.
25. I agree with the respondents, first, that factual issues cannot be resolved at this hearing and, secondly, that the court cannot determine whether and when, if at all, the grant of leases such as the disputed leases would have the effect of creating a market in fish and meat at Nine Elms. The relevance of the authorities on disturbance, to which reference has now been made, is in my judgment limited to an issue fully ventilated at the hearing; whether, and if so to what extent, the common law market background to the Acts of 1961 and 1966 bears upon an assessment of the extent of the powers granted by section 18(1)(f). It is common ground that at common law the holder of a market franchise enjoys a right of protection from disturbance by a rival market within the distance of 6 ²/₃ miles. I am not prepared to decide whether CGMA are levying a rival market; I am prepared to consider whether the existence of common law rights as to the protection and disturbance of markets throws light on the intention of Parliament when granting powers in a context where one of three major common law markets in the City of London is being put by Parliament on a statutory footing. Did Parliament contemplate a consent to activities by CGMA which would compete with the other existing, and ancient, markets ?
26. It was suggested that the disputed leases may be granted pursuant to the first limb of section 18(1)(f) upon which the exercise of powers by CGMA does not require the consent by the Secretary of State. That would require activities "in connection with the discharge of their [CGMA] duties". The basic duty, set out in section 16 of the 1961 Act, is a duty to provide for the conduct of a market for dealing in bulk horticultural produce. Reference has been made to the many sections of the 1961 Act (and now the 1966 Act) in which duties pursuant to that general duty are spelt out. That the context is a duty with respect to a market in horticultural produce is clear. Providing leases for the activity of selling fish and meat face-to-face cannot in my judgment be activities in connection with the duties spelt out in the statute. If the respondents are to succeed, it must, in my judgment, be upon the second limb of the paragraph.
27. In the event, I do not consider that the present case turns on a detailed analysis of the law of disturbance. The existing markets in fish and meat are entitled to such protection as the law confers. Whether a grant of leases does disturb those rights to the extent that the activities permitted under the leases can be restrained by an injunction is a matter for private law action and the hearing of evidence. What the court has to decide in this action is the prior question of the extent of the powers conferred on the Secretary of State by the second limb of section 18(1)(f) of the 1961 Act. If the Secretary of State has exceeded his powers in granting the consent, action taken by CGMA in reliance on that consent is beyond their powers and unlawful.
28. At the beginning of the hearing, Mr Straker conceded that the Secretary of State could authorise at Nine Elms activities which are not only ancillary to the activities of the horticultural market but activities beyond that scope. Mr Crow submits that, once that concession is made, the appeal is unwinnable. A power construed so as to permit a totally unrelated trade cannot then be limited to exclude a trade in fish and meat. Mr Straker starts from the other end. He submits that once it is conceded that the power in section 18(1)(f) does not include a power to grant market rights, it cannot include a power to permit trade which is in competition with the existing markets and may lead to a disturbance of their market rights.
29. In the 1961 and 1966 Acts, Parliament could have, but did not, confer on CGMA market rights in produce other than horticultural produce. That was not achieved either directly or by way of empowering the Secretary of State to achieve it. It was clearly not intended to achieve that end. In the absence of such a power, I find it difficult to accept that Parliament intended to permit competition with the existing markets, whether the competition involved a disturbance in the common law sense, or not.
30. The context of the Act, as described, has in my judgment an important bearing upon the meaning of the second limb of section 18(1)(f). The context, that of regulating one of several London markets each dealing in a separate category of produce, does not readily give rise to an intention to create a power to allow competition with the other markets in their category of produce. It was expedient, according to the preamble to the 1966 Act, to enable those traders at Nine Elms to compete on fair and equal terms with other persons carrying on in Greater London the business of selling horticultural produce by wholesale. That assists in demonstrating the Parliamentary intention; first, the relationship with other markets in Greater London was in contemplation and, secondly, it was not contemplated that there could be competition, in fair and equal terms or otherwise, other than in horticultural products.
31. In conferring the power on the Secretary of State, Parliament may well have had in mind the possibility of changing trading patterns which would make it expedient, if CGMA were to make the best use of the their assets at Nine Elms, to allow them to seek the consent of the Secretary of State to conduct activities other than those of a market in horticultural products. I do not consider that Parliament intended the power of the Secretary of State to be construed so broadly as to permit him to consent to a use of assets which involved direct competition with existing markets in fish and meat whether or not such competition currently constitutes a disturbance actionable in private law
32. The principal purposes of the statutes were to place on a statutory basis rights formerly granted by letters patent, to regulate in detail the duty to provide a market in horticultural products and, by the 1966 Act, to provide for transfer of the market in horticultural products to Nine Elms. The powers and duties conferred by statutes regulating a market in horticultural produce do not in my judgment extend to permitting competition with long established existing markets in other products. Notwithstanding the generality of wording in the second limb of section 18(1)(f) of the 1961 Act, Parliament did not contemplate in 1961 a trade in competition with Billingsgate and Smithfield. That limitation was not ended by the removal, by virtue of the 1966 Act, of the horticultural market to Nine Elms on terms which gave it a limited statutory protection from rival markets.
33. The 1961 Act was a private act. In Harper v Hedges [1923] 93 LJQB 116, Scrutton LJ stated, at page 119:

"There are two well-known principles of construction of a private Act of Parliament, as this Act is. As far as the person not concerned in the Act are concerned, the Act is read strictly against the promoters; so far as the promoters themselves are concerned it is read as a contract between them, and to be construed accordingly; …"

The continued existence of the first of those principles was confirmed in Allen v Gulf Oil Refining Ltd [1981] AC 1001, at p1015, per Lord Edmund-Davies and at p1020, per Lord Keith of Kinkel (dissenting on another ground). While CGMA cannot strictly be treated as promoters, the purpose of the private act was to define their duties and powers. These should not be read expansively, and, in context, should not be read as conferring on the Secretary of State the power now claimed to exist.

34. The powers were not extended, in this respect, by the 1966 Act, a public act. The wording of section 18(1)(f) was not amended and nothing in the statute in my judgment suggests a broader power in this respect than had been conferred in 1961. I do not consider that Parliament can have intended to confer on the Secretary of State the power to permit trade in competition with the existing markets in fish and meat at Billingsgate and Smithfield. While the statutes can be construed as permitting consent to be given for a beneficial use of the assets of CGMA beyond providing a horticultural market, a consent to permit competition, whatever its scale, with the existing markets was in my judgment beyond their scope.
35. It does appear, from material placed before the Court, that changes in trading patterns may have rendered desirable a re-appraisal of the functions and operations of the traditional London markets as a whole and between each other. That should not, in my judgment, influence the construction of Section 18(1)(f) of the 1961 Act. If it is thought to be desirable, reorganisation can be achieved in other ways.
36. I would allow this appeal and quash the Secretary of State's consent of May 2003. It follows that CGMA had no power to grant the leases mentioned in the consent. Laws LJ and Sir Martin Nourse agree and we will hear submissions as to what consequential relief should be granted against CGMA.

Lord Justice Laws:

37. I have had the opportunity to read in draft the judgments prepared by my Lords Pill LJ and Sir Martin Nourse. I gratefully adopt the account of the facts and statutory materials given by Pill LJ, and I concur in the order proposed by him.
38. During much of the argument it seemed to me that the answer to this appeal might lie in the City's rights to protection against disturbance in respect of the markets at Billingsgate and Smithfield. But I have come to agree, as does Sir Martin Nourse, with Pill LJ that the question whether or not there has been such a disturbance cannot be determined in these proceedings for judicial review.
39. I have at length concluded that the case falls to be resolved by reference to the nature of the franchise enjoyed by CGMA. I agree with Sir Martin Nourse that the grant of a franchise for a market in specified commodities implies a prohibition of a market in other commodities within the concourse. As Sir Martin says, "[s]uch a restriction is the necessary corollary of the monopoly granted by the franchise". The second limb of s.18(1)(f) of the Covent Garden Market Act 1961 cannot in my judgment be read as having effect to lift the prohibition.
40. My Lords have referred to the concession made by Mr Straker QC for the City that the second limb of s.18(1)(f) empowers CGMA to use surplus land for non-horticultural purposes such as a public car park. I agree that this concession was rightly made. However that does not, I think, affect the general conclusion which I have reached. It is true that in the result CGMA may use land (for example) for a car park or a restaurant but not for the sale of commodities other than horticultural produce. But I do not think that is anomalous. A car park or a restaurant would not affect the nature of the market granted by the franchise. The establishment of outlets to sell meat or fish does. Nor, in my judgment, can a prohibition of such specific outlets be justified on the distinct basis that such a trade exposes existing markets in meat and fish to competition. That approach would, I think, require us to confront and resolve the City's complaints of disturbance, and we are agreed that that is not to be done in these proceedings. The reason why CGMA may not allow outlets within the concourse for trade in meat and fish is that the grant of a franchise for a market in horticultural produce forbade it, and s.18(1)(f) of the 1961 Act does not allow it.

Sir Martin Nourse:

41. I agree that this appeal should be allowed. I concur in the order proposed by my Lord, Lord Justice Pill.
42. The effect of the letters patent of Charles II of 1670 was to grant to the Earl of Bedford a franchise, or monopoly right, to hold a market in Covent Garden "for the buying and selling of all manner of fruit, flowers, roots and herbs, whatsoever"; see the first recital to the 1961 Act. By the time of the 1961 Act (see the sixth recital) the franchise had become vested in a limited company, and the purpose of that Act (see the long title) was to establish a new market authority (CGMA), to vest in them the lands and chattels belonging to the company and to make provision for the conduct in Covent Garden, under the control of CGMA, of "activities relating to the dealing in bulk in horticultural produce".
43. The 1961 Act could, at any rate in theory, have vested the franchise in CGMA, along with the land and chattels. Instead, by section 3(a), it was provided that the letters patent should cease to have effect and, by section 16(1), a duty was imposed on CGMA to provide within the Covent Garden area "market facilities", being facilities "for the conduct of a market for the dealing in bulk in horticultural produce and any such other commodities [as previously dealt in within that area]". Section 18(1) gave CGMA additional powers, including, in paragraph (f), the power which is in question in this case. Section 55(1) contained a detailed definition of "horticultural produce". It is unnecessary, for present purposes, to refer to any other provisions of the 1961 Act.
44. The principal purpose of the 1966 Act (see the long title) was to make provision for the transfer of the market to Nine Elms. By section 21(1), section 16 of the 1961 Act was repealed and in lieu thereof the duties set out in that section were imposed on CGMA. By section 21(2) it became the duty of CGMA to provide market facilities within the Nine Elms area. By section 42 and schedule 4 amendments were made to the 1961 Act. These included amendments to section 55(1) so as to substitute new definitions of "horticultural produce" and "market facilities". The effect of these amendments was entirely neutral, at any rate so far as the commodities which could be traded in the market were concerned. Amendments were also made to section 18(1), though these are insignificant for present purposes; in particular no amendment was made to paragraph (f).
45. The effect of the 1961 Act was to convert the original market from a common law market into a statutory market. But it is now settled that the incidents of the statutory market, in particular the monopoly right to hold the market, continue to be those of the common law market except in so far as they are varied or taken away by the statute; see Manchester City Council v Walsh (1985) 84 LGR 1 (CA). (It is to be noted that that was another case where the old franchise had been expressly extinguished by the statute; see p.6.) Thus CGMA have a monopoly right to hold a market for dealing in bulk in the same commodities (horticultural produce) as were dealt with in the common law market. They could, if necessary, restrain the holding of a rival market in those commodities within what has now been reduced to a one mile radius by section 23(10) of the 1966 Act.
46. I turn to the powers conferred on CGMA by section 18(1) of the 1961 Act as amended. The powers in paras (a) to (e) are all ancillary to dealing in bulk in horticultural produce; so too is the power, in the first limb of para (f), to carry on all such other activities as it may appear to CGMA to be requisite, advantageous or convenient for them to carry on for or in connection with the discharge of their duties. For the reasons given by Lord Justice Pill, I agree that CGMA are unable to rely on the first limb of para (f) in this case.
47. The critical power is that conferred on CGMA by the second limb of para (f), which is a power:

"to carry on 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",

subject to a proviso that they shall not carry on such activities except with the consent of the Secretary of State.

48. Perhaps because the relief sought by the appellants does not include an order quashing any decision of CGMA, merely the Secretary of State's consent, there appeared to be some confusion during the argument as to the structure and effect of the second limb of para (f) and the proviso. In my opinion the correct analysis is as follows. The first step must be for CGMA to make a decision to carry on an activity which it appears to them to be requisite, advantageous or convenient for them to carry on with a view to making the best use of one or more of their assets. The second step is for them to seek the consent of the Secretary of State. The third step is for the Secretary of State to give or withhold consent. Unless or until consent is given, CGMA's decision has no effect. Equally, if the decision is one which CGMA has no power to make, the Secretary of State's consent is nihil ad rem. As Mr Crow, for the Secretary of State, accepts, it must be quashed.
49. So the question is whether CGMA has power, under the second limb of section 18(1)(f), to authorise trading in the market in commodities other than horticultural produce. Admittedly, that would involve a use of one of their assets, i.e. their land, and perhaps a use of their chattels as well. On behalf of the appellants Mr Straker QC conceded, in my view correctly, that surplus land, i.e. land outside the concourse itself which CGMA do not, for the time being, need in order to discharge their duty run a horticultural market, can generally be used for non-horticultural purposes, e.g. for a public car park having no connection with the market. As I understood it, that was as far as his concession went and, in any event, a concession as to the true construction of a written instrument does not bind the court; see Bahamas Trust Co Ltd v Threadgold [1974] 1 WLR 1514 (HL); a fortiori in the case of the true construction of an Act of Parliament. We are not here concerned with surplus land in that sense. We are concerned with three units in the fruit and vegetable market itself, in other words on land which is at the very heart of the concourse.
50. The classical definition of a franchise of market, consistently approved, and approved at the highest level (see Scottish Cooperative Wholesale Society Ltd v Ulster Farmers' Mart Co Ltd [1960] AC 63), is that given by Chatterton VC in the Irish case of Downshire v O'Brien (1887) 19 LR Ir 380, 390:

"A market is properly speaking the franchise right of having a concourse of buyers and sellers to dispose of commodities in respect of which the franchise was given." (emphasis added).

We have not been referred to any authority in which the effect of the words emphasised has been examined. But it must be the case that the grant of a franchise to hold a market for the buying and selling of specified commodities does not entitle the grantee to hold a market for the buying and selling of other commodities. Such a restriction is the necessary corollary of the monopoly granted by the franchise. In other words, and to state the obvious, the grant of a franchise to hold a market for the buying and selling of horticultural produce does not entitle the grantee to hold a general market or, more to the point, a market for the buying and selling of meat and fish.

51. That having been, in law, the state of affairs subsisting at the time that the power in the second limb of section 18(1)(f) was enacted, what ought we to make of that power? In my judgment Parliament, especially in a private Act, cannot be taken to have intended, by the general words it has used, that CGMA should be able, even with the consent of the Secretary of State, to extend the ambit of their own franchise. As is stated in Maxwell on the Interpretation of Statutes, 12^th ed; p. 262:

"Perhaps most strictly construed of all enactments are local and personal statues which, by their very nature, create exceptions to the general law of the realm. The court is entitled to notice that such Acts are framed by those who benefit under them, and to treat them as contracts between their promoters (or that portion of the public which might be directly interested in them) and the legislature. It follows that the maxim, verba cartarum fortius accipiuntur contra proferentem (which is ordinarily inapplicable to statutory construction) is relevant in the context of this class of statute."

Although a body established for public purposes, it is CGMA who are the beneficiaries of the 1961 Act. Without clear words, I decline to attribute to Parliament the intention of allowing them, even with the consent of the Secretary of State, to achieve an enhanced monopoly for which no express provision was made.

52. It will be apparent that, in construing section 18(1)(f), I have not found it necessary to rely on the pre-existence of the Billingsgate and Smithfield markets and their respective monopoly rights in the buying and selling of fish and meat products. In relation to those products, however, the pre-existence of those markets can only confirm the construction I would have adopted without them.
53. It goes without saying that section 18(1)(f) cannot be construed so as to permit CGMA to authorise any disturbance of either of the Billingsgate and Smithfield markets. But I agree with Lord Justice Pill that the question whether there has or may have been such a disturbance is not one we can decide in proceedings for judicial review.
54. Finally, I agree with Lord Justice Pill that it is readily apparent, from the material placed before the court, that changes in trading patterns may have rendered desirable a re-appraisal of the functions and operations of the London markets as a whole and between each other. That certainly cannot be achieved by adopting a strained construction of the 1961 Act.