R (Corporation of London) v Secretary of State for Environment, Food and Rural Affairs and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Sir Martin Nourse,Lord Justice Laws |
| Judgment Date | 21 December 2004 |
| Neutral Citation | [2004] EWCA Civ 1765 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2004 |
| Docket Number | Case No: C1/2004/0512 |
[2004] EWCA Civ 1765
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION, ADMINISTRATIVE COURT
THE HONOURABLE MR JUSTICE MITTING
Lord Justice Pill
Lord Justice Laws and
Sir Martin Nourse
Case No: C1/2004/0512
C047542003
MR T STRAKER QC & MR P COPPEL (instructed by the Comptroller & City Solicitor, London EC2P 2EJ) for the Appellants
MR J CROW & MR T WARD (instructed by DEFRA) for DEFRA
MS HAZEL WILLIAMSON QC (instructed by Messrs. Stephenson Harwood, London EC4M 8SH) for CGMA
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.
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."
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.
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.
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."
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.
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."
"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...
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