Sevenoaks District Council v Pattullo & Vinson Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,THE MASTER OF THE ROLLS,LORD JUSTICE GRIFFITHS |
| Judgment Date | 25 November 1983 |
| Judgment citation (vLex) | [1983] EWCA Civ J1125-3 |
| Date | 25 November 1983 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 83/0462 |
[1983] EWCA Civ J1125-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(SIR DONALD RATTES, Q.C., sitting as a Deputy
Judge of the Chancery Division)
Royal Courts of Justice.
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Griffiths
and
Lord Justice Slade
83/0462
1982 S. No. 5875
MISS HAZEL WILLIAMSON (instructed by J.C. Brunker, Esq.) appeared on behalf of the (Plaintiff) Respondent.
MR. RICHARD MAWREY (instructed by Messrs. Argles & Court of Maidstone) appeared on behalf of the (Defendant) Appellant.
This is an appeal from an order made on
the 4th February, 1983 at the trial of an action by Mr. Donald Rattee, Q.C., who was sitting as a Deputy Judge of the Chancery Division. By this order he declared that the plaintiff, S venoaks District Council,
"is entitled to market rights (other than the right to sell livestock or to hold auction sales of any description) in an ancient market to be held on Saturday in every week in the town of Sevenoaks in the County of Kent and to the tolls, stallage and other profits to the said market appertaining."
The judge further granted an injunction restraining the defendant, Pattullo & Vinson Ltd., from
"holding a market (other than a market limited to the sale of livestock or an auction sale) in the Cattle Market Site in Hitchen Hatch Lane, Sevenoaks aforesaid on Saturdays or otherwise using or permitting to be used any portion of their property on the said site in such manner as to interfere with or prejudicially affect the said market rights of the Plaintiff in the ancient market at Sevenoaks…"
A market right, whether acquired under the common law or by statute, is a form of property, conferring a right to hold a concourse of buyers and sellers to dispose of the commodities in respect of which the right is given: (see Halsbury's Laws of England, 4th edition, paragraph 601). The Crown, b virtue of the royal prerogative, has always had the power to grant to a subject the right to hold a market and, if such a right depends for its legal existence upon a Crown grant, it is a franchise: (ibid paragraph 603). Since the holder of such a franchise has a monopoly of market within the relevant area and the justification for this monopoly is the public benefit, the Crown's power to grant market rights has always been limited by the rule that a later grant, if made without the consent of the owner of the rights conferred by an earlier grant, is void as against him if the courts consider it injuriously to affect his rights under such earlier grant: (ibid paragraph 605). It has been common ground before the judge and this court that, because of this limitation, by a long established rule law, a grantee from the Crown of the right to hold a market in a specific area is entitled to complain of the opening of a new market by another person at any point within 6 2/3 miles of the site of the prior market grant. As the judge explained, this distance of 6 2/3, miles, within which it was thought appropriate to protect a market owner against competition, was apparently linked in some way to a distance of 20 miles, which it was assumed that a man could walk in a day; but the rationale of this rule requires no investigation for present purposes.
A market has been held in the Market Place in the High Street of Sevenoaks ("the Market Place") from almost time immemorial. In the evidence before the judge there were undisputed references to such markets being held as far back as 1292. He was invited by counsel on both sides to proceed on the assumption that, by virtue of the doctrine of presumed lost grant, the third Baron Sackville, as Lord of the Manor of Sevenoaks and Knole ("the Manor"), immediately before the transactions to which I am about to refer, was entitled to the widest possible rights to hold a market of any description in Sevenoaks, at least on Saturdays. There appears no reason to doubt the correctness of this assumption.
In 1919 Lord Sackville granted a lease of the right to hold a market in Sevenoaks and of the soil of the Market Place. Soon after that, the livestock part of this market, which had previously been held from ancient times in the Market Place, was moved to a site known as "the Cattle Market", situated at Hitchen Hatch Lane, which is also within the Manor. The day of holding such livestock sales was changed from Saturday to Monday. The general non-livestock market continued to be held on Saturdays in the Market Place. By a conveyance of the 7th May, 1923 Lord Sackville sold the freehold reversion expectant on the determination of the 1919 Lease to Kent and Sussex Farmers Ltd. ("K. and S.F.").
For present purposes nothing turns on the particular provisions of the 1919 lease and the 1923 conveyance. It is common ground that by virtue of these two documents, through an original franchise granted by the Crown, and in the events which had happened, K. and S.F. became entitled to the freehold of the soil of the Market Place and all the market rights which had previously been vested in Lord Sackville as the Lord of the Manor—in other words, to the widest possible rights to hold a market of any description in Sevenoaks, at least on a Saturday.
Such was the position when K. and S.F., on the 12th January, 1925, executed a conveyance of certain rights in favour of Sevenoaks Urban District Council, the predecessors in title of the plaintiff. The 1925 conveyance is of cardinal importance in the present case, because it is the foundation of the plaintiff's claims to a declaration and injunction in the form which the judge gave it.
By the 1925 conveyance the vendors, K. and S.F., with the concurrence of certain mortgagees, conveyed to the Sevenoaks Urban District Council, for a consideration of £450, first the soil of the Market Place and, secondly, (I quote from the conveyance):
"All such estate and interest as the vendors have of and in all those market rights and market to be from time to time held on Saturdays and other lawful days in the said Market Place (but not elsewhere) excluding the right to sell livestock or to hold auction sales of any description."
The 1925 conveyance also contained covenants by the vendors for themselves, their successors and assigns, that they would not hold any sale by auction in the Market Place and covenants by the purchasers for themselves, their successors and assigns, that they would not give permission to anyone to hold any sale by auction in the Market Place.
Some two years later by two respective conveyances of the 16th March, 1927 K. and S.F., then in liquidation, with the concurrence of certain debenture holders and the liquidator, conveyed to Pattullo Higgs and Company Ltd.
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(a) in consideration of £500, the freehold of the site of the Cattle Market;
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(b) in consideration of £3,450, the franchise theretofore held and enjoyed by K. and S.F., and formerly held by their predecessors as part of the Manor, comprising the market rights and the markets to be from time to time held on Saturdays and other lawful days in or near Sevenoaks "other than and except such market rights as were conveyed by the Vendor Company to the Urban District Council of Sevenoaks by (the 1925 conveyance)…but including all such rights as were excluded from such indenture together with the benefit of the covenants on the part of the said Urban District Council contained in this indenture…"
The particulars of the two 1927 conveyances do not matter, since it is common ground, first, that they operated to convey to Pattullo Higgs & Company Limited all such rights to hold markets in the Manor as K. and S. F. then had power to convey and, secondly, that any and all such rights have now devolved on the defendant.
Since the date of the 1925 conveyance the Sevenoaks Urban District Council, and more recently the plaintiff, in reliance on the rights granted by that conveyance, have operated a general market in the Market Place (or more accurately a part of the Market Place) on Saturday in each week. The plaintiff intends to continue operating it and the defendant does not challenge its right to do so.
Since the 1927 conveyances the defendant or its predecessor, in reliance on the rights granted by those conveyances, has continued to operate a livestock market in the Cattle Market on Monday of each week, which the plaintiff does not seek to prevent.
The judge also found that
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(i) since at least 1930 and "possibly, even, from as early as 1923" the defendant or its predecessors also operated a general market in the Cattle Market on Mondays, albeit as ancillary to the livestock market;
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(ii) the defendant in addition now operates a general market in the Cattle Market on Wednesdays.
The plaintiff does not seek to prevent these activities.
The events that gave rise to the present litigation were these. In August 1981 the defendant started operating on the Cattle Market on Saturday in each week a new general market which was on a larger scale than that operated by the plaintiff on Saturday each week in the Market Place. This new general market did not last very long and was finally closed. As the judge put it:
"There is no suggestion that the defendant's Saturday market on the Cattle Market did, or in future would, have any adverse effect on the operation of the plaintiff's Saturday market in the Market Place."
However, the defendant still claimed the right to reactivate a general market on Saturdays in the Cattle Market if it thought fit. The plaintiff for its...
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Stoke-on-Trent City Council v W. & J. Wass Ltd
...within the common law distance is a nuisance to the lawful one, has now been settled by the decision of this court in Sevenoaks District Council v. Pattullo & Vinson Ltd. [1984] Ch., 211, approving the decision of Mr. Vivian Price, Q.C., in Tamworth Borough Council v. Fazeley Town Council ......