Studies in Public Law and the Retail Sector

Ann Everton, David Hughes

• Publisher: Taylor & Francis
• Year: 2017
• eBook ISBN: 9781351787031
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This title was first published in 2000: Part 1 Shifting patterns of retailing - a journey to and through the "golden age": highlights of the earlier history; the post-war decades - the '50s, '60s and '70s; the "retail revolution" of the '80s - the creation of the "golden age"; the early and middle '90s - less certain times...and a "watershed". Part 2 Planning control and retail developments: the policy; policy into practice - the law in operation. Part 3 Competition law and policy and retailing: preliminary observations; the domestic law - up to the Competition Act 1998; domestic law reform - the new Act; the European law; the approach to price discrimination and mergers; a consideration of certain further major issues. A postscript - in the "millennium spirit".

Part I
Shifting Patterns of Retailing: A Journey to and through the ‘Golden Age’

1
Highlights of the earlier history

For the purpose of the present study, the more distant chapters of the extensive history of retailing do not need a detailed account. They can be quite simply related. This is because, for a very long time, the evolution of shopping in this country proved a slow affair. It was only in the last century that movements appeared heralding the momentous changes which are central to our theme.

In a paper entitled ‘Retailing, Past Present and Future’, Lavery reviews the earlier history of die trade in this country. She begins:-

The origins of modern retailing can be traced back to medieval times. Households then were self-sufficient and produced all their own food and clothing, buying any other items required from travelling fairs or ‘festivals’. These fairs were usually held at a focal point in the town such as a church courtyard. Often the streets leading off this area would house specialist ‘producer-retailers’ who sold their goods from the front of their homes. However, by the beginning of the seventeenth century, fairs and markets were becoming less important and ‘home producers’ gave way in the eighteenth century to shops with closed fronts and window displays. At this time more than 50,000 families were either merchants, tradesmen or shopkeepers.¹

Up until the late nineteenth century shop development was almost static, and independent shopkeepers predominated, but the scene changed with the growth of manufactured goods and with people becoming concentrated in large towns. Lavery explains:-

In the Victorian era retailing became ‘big business’. Shops and other industrial and commercial developments were erected on cleared residential sites. In the 1860s prices began to fall when imports and ways of mass producing and distributing food became cheaper. Multiple retailing increased as family shops were replaced by chains and large department stores…²

The earlier parts of this story are also told in a mid-’70s study by Elizabeth Mills on ‘Recent Developments in Retailing and Urban Planning’.³ Beginning with the medieval trades congregating around traditional market places, she proceeds, via reference to the gradual establishment of permanent shops, thence to tell of die way in which, post industrial revolution, ‘…the demands of a rapidly increasing and more affluent population stimulated a number of changes’.⁴ She speaks of the arrival of the co-operative societies and multiple food chains, ‘[catering] for a growing working class demand, …and [pioneering] the sale of manufactured foods’.⁵ They became increasingly important during die inter-war period, she explains, ‘…and by 1939 had become socially acceptable to the middle classes as well as the working classes…’.⁶

This author also makes reference to the introduction into this country of department stores from France. The early ones, catering largely for the affluent middle classes with increasing disposable income, were established in town centres, and then these ‘…were followed by variety ‘bazaars’ such as F.W.Woolworth’.⁷ Again, in her survey, she notes the way in which, during the ’30s, the town centres came under growing competitive pressure, because of the ‘…considerable migration of potential customers from inner residential areas to new suburbs and [the consequential encouragement of] the growth of parades and small groups of shops in outer areas…’.⁸

During the last war, the winds of change which had then been blowing so strongly naturally died down. The development of new shops practically came to a halt, other, that is, than in situations where damage occasioned the need for re-siting. With the return of peace, however, the winds began to blow with renewed vigour, until indeed, they eventually assumed such power as to achieve the gale conditions of a ‘retail revolution’.

With the highlights of retailing’s earlier history thus briefly chronicled, the issue must now be addressed of the impact upon them of the laws relating both to land use and competition.

Taking first the law relating to the regulation of land use, a distinction has to be drawn between the public law of planning and private land law. It was only towards the end of the era that the seeds of what is at present called ‘planning control’ were sown. The nineteenth century transformation of an agricultural into an industrial nation, together with enormous population growth, produced adverse social conditions which led, in their turn, to a tide of legislative activity in the areas of both public health and housing. But improvements in the more sophisticated matters of amenity and convenience were to come later, and the dawning of planning control arrived only with file passing of the Housing, Town Planning etc. Act 1909.⁹ Moreover, it was not to be until after the Second World War, when the Town and Country Planning Act 1947 was enacted, that there would begin the system of planning which was to develop into the modern régime of today.

Although prior to 1947 only tentative steps were being taken in the direction of planning control, it was not the case that land use was unrestrained. The public control of land use such as is expressed in current planning legislation might not have existed, but certain aspects of private law (both land law and the law of torts) regulated a person’s enjoyment of land, and, in so doing, might well constrain its use for the purposes of trade.

Thus, for instance, for centuries the law of property had provided that where a relationship of lessor and lessee¹⁰ was created (by one person granting to another a lease of land in which he held the freehold) covenants which were entered controlling the use of the land leased would be legally enforceable, and further, might be legally enforceable not only as between the parties themselves but also their respective assignees. Somewhat similarly, (though only since the mid-nineteenth century) a principle of land law known as ‘the doctrine of restrictive covenants’ provided that where a person sold to another the freehold in part of his land and, in the course of the sale, covenants were entered into restricting the use of the part sold, those covenants might likewise be enforceable not only as between the original parties, but also, in certain conditions, their respective assignees. All these provisions were (and continue to be) forceful regulators of land use, albeit concerning the interests of private persons, and lacking, at least in concept, the public interest dimension.

In the context of covenants, reference must also be made to ‘development schemes’, for they afforded (and still afford) a particularly valuable application of the idea of a legally enforceable covenant as a ‘tool’ of land use control. A concept originating in the nineteenth century,¹¹ a ‘development scheme’ might arise where a common vendor or lessor laid out land in plots, sold or leased them to different purchasers or lessees, and, for the benefit of the whole area, took covenants from each that their plot would not be used in certain ways.¹² If the requisite conditions for the existence of a scheme were fulfilled, the covenants became reciprocally enforceable by and against the owner for the time being of any plot, the idea being that the covenants collectively formed a kind of local law for the estate.¹³

The private regulation of land was (and still is) also to be found in the tort of private nuisance. In developing the civil wrong of private nuisance, the common law was addressing the notion that there must be limits on a person’s right to enjoy and exploit his land in order that adjoining owners of land might also have similar such rights of enjoyment and exploitation. So, if a person used his property in such a way that he interfered with another’s use of his property to the extent that he either caused the latter sensible, personal discomfort or material injury to the property, the tort might be committed and an action for damages might lie,¹⁴ a principle which is still with us.

In this brief outline of the mechanisms for the control of land use, developed respectively by the law of property and the law of tort, emphasis has been placed on the way in which they were (and still are) concerned with the régularisation of private matters. For such a purpose, they might have been satisfactory tools of control, and (in our context) might serve well as a means by which one individual could obtain protection from the adverse consequences of the trading activity of another. As society grew increasingly urban and industrial, however, their adequacy for dealing with consequential problems was thrown in doubt, and, with the emergence of a system of planning, the needs of the public interest began to be addressed.

Turning to competition law, we find a situation which cannot be simply described in terms of principles of private law in due course accompanied by, and overlaid with, a régime of public law. Its history has been a mixture of private and public law, their relative importance reflecting the endless shifting of the economic and political climate. Running throughout, however, has been a continuous principle, namely, that the maintenance of an unhindered competitive process is in the public interest.

For many years, and dating back at least to the thirteenth century, the law was concerned with the perceived social evils of monopolies. It sought to deal with them by statutes, which, by the end of the eighteenth century had been repealed. But by the fifteenth century, the horizon was extending to embrace lesser restraints on trade. At this time, the courts were just beginning to entertain cases in which the question arose as to whether, in the light of the value placed on free competition, a contractual promise given by one party to refrain from competing in the future with the other party was enforceable.¹⁵

It was to become apparent that a common set of circumstances in which such a question might arise would be where, upon the sale of a business (including a retail business), the buyer would take from the seller a promise by the latter that he would not, for a given number of years and within a given geographical area, set up in competition with him. The basic legal premise was that a simple promise not to compete was unenforceable unless justifiable. It was further thought though, that in circumstances such as these, within certain limits, such a promise might be justifiable and hence enforceable. Justification would lie, it was considered, in the protection of the buyer’s legitimate interest in the goodwill which he had bought.¹⁶

The problem with which the judges were for centuries to labour was in the discernment of principles by reference to which the conditions for enforceability might be established. The troublesome issue was to what extent, in terms both of time and territory, a buyer might properly restrain the future trading activity of the seller and thereby safeguard what he had purchased. It was not until the end of the nineteenth century that the law was finally settled in the following way:– All restraints on trade, it was concluded, were prima facie void, but they would be held valid if they were reasonable, both in the interests of the parties and of the public.

Based on public policy, the ‘restraint of trade doctrine’ (as it has long been called) remains to this day ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgements
• Introduction
• PART I: SHIFTING PATTERNS OF RETAILING: A JOURNEY TO AND THROUGH THE ‘GOLDEN AGE’
• PART II: PLANNING CONTROL AND RETAIL DEVELOPMENTS
• PART III: COMPETITION LAW AND POLICY AND RETAILING
• A postscript ~ in the ‘millennium spirit’
• Index