Local Market owners must be treated fairly

Local markets pave our community streets with living gold.

Markets do not simply appear. It takes determined and brave individuals months and years of unpaid thankless hard slog investing in early mornings and all types of weather which at the outset carries more uncertainty than reward.

It is in that light that we should pause and carefully examine a process that appears to be under consideration - the potential use of open Expressions of Interest for long-standing market sites on council land.

This is not, in itself, an unreasonable idea. Transparency and open process are important principles in public decision-making. But like all tools, their application matters. The question is not whether process should exist - it is whether the process, as applied, fully recognises the nature of what has been built.

Markets are ecosystems.

Over many years, operators invest in branding, relationships with stallholders, customer loyalty, and a sense of place that cannot be easily replicated. That accumulated goodwill is not owned by the landholder, yet it is inseparable from the success of the site itself.

We are beginning to see this tension emerge in conversations both in Hobart and the Derwent Valley, and it may well be a question arising in other municipalities. Where a market has been established and grown under one operator, what is the appropriate way to balance open opportunity with recognition of that investment?

There is established case law in Australia that even where governments have contractual rights, they must exercise them reasonably, in good faith, and with regard to the expectations they have created. Cases like Renard Constructions and Hughes Aircraft make it clear that process and fairness matter - particularly where one party has invested significantly in reliance on the arrangement.

That principle does not prevent change. But it does suggest that change should be approached with care.

“If we send a signal that value created on Council land can be reset to zero at the point it becomes successful, we should not expect anyone to invest in building that value again.”

This is not a warning, but an observation grounded in how investment decisions are made. People and organisations are far more likely to invest their time and energy where there is confidence that what they build will be treated fairly.

Importantly, recognising goodwill does not necessarily mean a cost to council. There are models where, if a process such as an Expression of Interest were pursued, any incoming operator would be required to acknowledge and compensate the value created - effectively purchasing that goodwill as part of the transition. In that scenario, it is not the public purse funding the value, but the party seeking to benefit from it. That approach preserves both transparency and fairness, rather than resetting value to zero.

There is also a broader policy context worth noting. At the Commonwealth level, legislation has long reflected caution around the acquisition of value without appropriate compensation. Section 51(xxxi) of the Constitution has led to the inclusion of compensation provisions in many statutes, ensuring that where value is effectively acquired, just terms are considered. While local government operates differently, the underlying principle - that value should not be taken lightly - remains relevant.

“We may have the legal power to do this - but the case law is very clear that how we exercise that power matters just as much as whether we have it.”

That is why this moment is an opportunity not to close off options, but to refine them.

If we take the time to get the process right, we protect more than a contract. We protect the willingness of people to build something meaningful in our city and to keep building it, year after year