The applicant had been refused a licence to operate within the farmer’s market. It sought judicial review of the rejection, but the respondent argued that it was a private company not susceptible to review.
Held: The decisions of the Farmers Market were open to judicial review. The farmers markets were held on publicly owned land to which the public had access, the company was set up by the council using statutory powers and it stepped into the council’s shoes performing the same functions as the council had previously performed. From the start the council assisted the company by providing facilities and finance. The company was established to take over on a non profit basis the running of markets previously operated by the council in the exercise of its statutory power in what was considered to be the public interest. In that light, the company having taken over a public function, retained a sufficient element of the exercise of a public function to make its decisions susceptible to judicial review: ‘unless the source of power clearly provides the answer, the question whether the decision of a body is amenable to judicial review requires a careful consideration of the nature of the power and function that has been exercised to see whether the decision has a sufficient public element, flavour or character to bring it within the purview of public law.’
Dyson LJ said: ‘It seems to me that the law has now been developed to the point where, unless the source of power clearly provides an answer, the question whether the decision of a body is amenable to judicial review requires a careful consideration of the nature of the power and function that has been exercised to see whether the decision has a sufficient public element, flavour or character to bring it within the purview of public law. It may be said with some justification that this criterion for amenability is very broad, not to say question-begging. But it provides the framework for the investigation that has to be conducted. There is a growing body of case law in which the question of amenability to judicial review has been considered. From these cases it is possible to identify a number of features which point towards the presence or absence of the requisite public law element’.
Judges:
Lord Justice Dyson, Lord Justice Longmore and Sir Martin Nourse
Citations:
[2003] EWCA Civ 1056, Times 25-Aug-2003, [2004] 1 WLR 233
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Take-over Panel, ex parte Datafin PLC CA 1986
Amenability to judicial review
The issue of amenability to judicial review often requires an examination of the nature of the power under challenge as well as its source: ‘In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction [of . .
Cited – Poplar Housing and Regeneration Community Association Ltd v Donoghue CA 27-Apr-2001
The defendant resisted accelerated possession proceedings brought for rent arrears under his assured shorthold tenancy, by a private housing association who was a successor to a public authority.
Held: Once the human rights issue was raised, . .
Cited – Regina (Heather and Another) v Leonard Cheshire Foundation CA 21-Mar-2002
The appellants appealed rejection of their application for judicial review. They were long term residents in a nursing home, which the respondents had decided to close.
Held: Though the respondent did exercise some public functions, and its . .
Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – Regina v HM Treasury, Ex Parte University of Cambridge ECJ 3-Oct-2000
When considering public law governed the procedural requirements for procurement contracts, the court had to consider whether body was financed ‘for the most part’ by public funds. The words referred to the majority of income, and the calculations . .
Cited – Regina v Barnsley Metropolitan Borough Council, ex parte Hook CA 1976
The applicant applied to have quashed the decision of the local council to exclude him from trading in the market and to revoke his right to have a stall.
Held: He succeeded on the grounds that the decision had been taken in breach of the . .
Cited – Regina v Basildon District Council, ex parte Brown CA 1981
The status of a market was not relevant to the crucial question whether the stallholder’s licence had been validly terminated. The exercise of the powers by the local authority must be governed by the same principles whether in relation to a . .
Cited – Regina v Wear Valley District Council, ex p Binks 1985
The applicant operated a hot food takeaway caravan from a market place. She had no written licence, operating under an informal arrangement with the local authority. Her rights were terminated without notice.
Held: The decision was quashed. It . .
Cited – Regina v Durham County Council, ex parte Robinson 31-Jan-1992
The applicant sought to challenge the decision of the local authority to terminate his stallholder’s licence. The parties had agreed that a sufficient element of public law was involved to give the court jurisdiction to review the decision.
Cited – Regina v Birmingham City Council, ex parte Dredger QBD 22-Jan-1993
The local authority, operators of the market, increased the rents payable by the tenants. The tenants sought a review of the decision.
Held: The act was that of a public authority and was subject to judicial review. The market stall-holders . .
Distinguished – Regina v Servite Houses, London Borough of Wandsworth Council ex parte Louisa Laura Goldsmith, By Her Daughter and Litigation Friend Linda Goldsmith v Florence Nellie Chatting By Her Niece and Litigation Friend Marlene Turner Admn 12-May-2000
. .
Cited by:
Cited – Boyle, Regina (On the Application of) v Haverhill Pub Watch and Others Admn 8-Oct-2009
The claimant had been banned from public houses under the Haverhill Pub Watch scheme. He now sought judicial review of a decision to extend his ban for a further two years. The Scheme argued that it was not a body amenable to judicial review, and . .
Cited – London Borough of Lewisham and Others), Regina (on The Application of) v Assessment and Qualifications Alliance and Others Admn 13-Feb-2013
Judicial review was sought of the changes to the marking systems for GCSE English in 2012.
Held: The claim failed. Though properly brought, the failure was in the underlying structue of the qualification, and not in the respondent’s attempts . .
Lists of cited by and citing cases may be incomplete.
Local Government, Licensing, Judicial Review
Updated: 07 June 2022; Ref: scu.184822