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How does a local authority establish a market?

Market 25240022 s 146x219The LexisPSL team outline the powers available to local authorities looking to establish a new market.

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How are markets established?

Many market rights (often called market franchises) derive from ancient Royal charters; others operate under local Acts of Parliament.

By virtue of the royal prerogative, the Crown has always had the power of granting to a subject the right of holding a market or fair, and in former times this power was exercised frequently. A market or fair which depends for its legal existence upon a grant from the Crown is a franchise. See Commentary: Grant by the Crown: Halsbury’s Laws of England [804].

Alternatively, a market may be established by local Acts. The right to hold a market or fair may be created by statute, and in that case differs from a franchise granted solely by the Crown, since it is not liable to become forfeited to the Crown nor to be called in question by any process of scire facias. See Commentary: Markets created by statute: Halsbury’s Laws of England [809].

Local Acts for the establishment or regulation of markets or fairs usually incorporate the whole or some parts of the Markets and Fairs Clauses Act 1847 (MFCA 1847). MFCA 1847 extends only to such markets and fairs as are authorised by any local Act (called ‘the special Act’) which expressly incorporates it, and its clauses apply to the authorised undertakings subject to any express variations or exceptions in the special Act, and only so far as they are applicable. See Commentary: Incorporation of the Markets and Fairs Clauses Act 1847: Halsbury’s Laws of England [811].

How can a local authority establish a market?

Section 50(1) of the Food Act 1984 (FoA 1984) sets out that a local authority (LA) may establish a market within their area or:

‘acquire by agreement (but not otherwise), either by purchase or on lease, the whole or any part of an existing market undertaking within [their area], and any rights enjoyed by any person within [their area] in respect of a market and of tolls.’

Food Act 1984, ss 50(1)(b)(i) and 50(1)(b)(ii)

Where an LA has established a market, they may provide a marketplace with convenient approaches to it, and a market house and other buildings convenient for holding the market and may acquire land compulsorily for such purposes. However, a market may not be established so as to interfere with any rights, powers or privileges in the nature of a franchise enjoyed within the area in respect of a market by any person, unless that person consents.FoA 1984, s 50(1)

With regards to acquiring a market, the owner of a market undertaking, or of any rights in respect of a market and of tolls, whether established under, or enjoyed by virtue of, statutory powers or not, may sell or lease to an LA the whole or any part of their market undertaking or rights, but subject to all attached liabilities.FoA 1984, s 61

An LA which maintains a market is a market authority for the purposes of FoA 1984.

For guidance, see Commentary:

Alternatively, a wharf or other place provided by an LA under powers conferred on it by the Animal Health Act 1981 (AHA 1981) is a market within MFCA 1847 and MFCA 1847 is incorporated with certain exceptions with AHA 1981.

For guidance, see Commentary: Markets under the Animal Health Act 1981: Halsbury’s Laws of England [817].

For further guidance on related issues, see Commentary:

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