Prior to 1823 the Fruit and Vegetable Market of Edinburgh was in use to be held by the Magistrates, in virtue of their exclusive right to hold fairs and markets, conferred by royal grant and legislation following thereon, in public streets of the city, at places varying from time to time. In 1823 a market-place was set apart and enclosed. In 1860 this site was acquired by a railway company under an Act providing that they should be bound to construct and make over to the Magistrates another marketplace, not in the open street, but enclosed, and of not less accommodation than that then existing, and the company subsequently agreed with the Magistrates to provide such a market-place, and constructed and gave over to the Magistrates in implement of the obligation a new market-place. In 1874 an Act was passed, of which section 8 provided that ‘the Corporation may cover in in a suitable and convenient manner the Fruit and Vegetable Market-place, and improve and better adapt the same for the purposes of such market, and for the accommodation of parties using the same, and of the public, and may make such internal and other arrangements and divisions in regard to stands, stalls, and shops as to them may seem suitable; provided always that the ground floor only of such market-place shall be used for such Fruit and Vegetable Market, and that all vacant portions of such marketplace, whether on the ground floor or above the same, and all vacant and unlet stands, stalls, or shops in or on such market-place, may be let or used by the Corporation for such purposes, and for such rents or rates as to them shall seem proper.’ Increased dues were levied by the Magistrates for the market gardeners’ stances in respect of these improvements. The market-place, under the bye-laws of the Magistrates, comprehended not only the market-house, but the streets, and co, within 100 yards measured from any part of it. The market was held on the mornings of three days in each week. The Magistrates having given for a public exhibition the use of the marketplace for a period of three weeks, so as to exclude the market gardeners and their customers from the market-house, and caused the market to be held on the public street within the 100 yards radius, an action was raised by the market gardeners to try the question of the power of the Magistrates so to act.
Held (aff. judgment of First Division) that the market-house was the ‘market place’ within the meaning of sec. 8 above quoted, and was held by the Magistrates primarily for use as a fruit and vegetable market; and (2) that it was beyond the powers of the Magistrates to exclude the market gardeners and the public using the market-house from the use of it for three weeks continuously, assigning them only unenclosed ground on the neighbouring streets.
Opinion (diff. from First Division) that the Magistrates had no discretion to exclude the public from the use of the market during market hours, whether such exclusion was to the extent of causing serious and material inconvenience or not.
Lord Chancellor Herschell, Lords Watson, Fitzgerald, and Halsbury
 UKHL 501, 23 SLR 501
England and Wales
Local Government, Land
Updated: 05 July 2022; Ref: scu.637727