High Court of Ireland Decisions

1. The Applicant is a market trader trading in costume jewellery. For upwards of 7 years he has traded in Limerick in a market which is held every Saturday in streets surrounding the Milk Market and which market has been operating for upwards of 30 years. On the 13th July, 1998 the Respondents made bylaws pursuant to the Casual Trading Act, 1995, Section 6 thereof in relation to the control, regulation, supervision and administration of casual trading in its functional area. The Respondents by the said bylaws designated a casual trading area in the vicinity of the mik market comprising parts of Robert Street, Carr Street, Cornmarket Row and an unnamed public road (pubic road schedule number 504). The casual trading area is subdivided into a total of 99 spaces referred to as casual trading spaces each casual trading space measuring 10 feet by 6 feet or 6 feet by 6 feet. The spaces are not capable of accommodating the vehicle from which the Applicant trades.

2. The Applicant in his statement required to ground application for Judicial Review seeks relief by way of an Order of Certiorari, Declarations and Injunctions. The stated grounds upon which relief is sought are as follows:-

3. The Respondents in their statement of grounds of opposition rely upon the following grounds -

4. The Casual Trading Act, 1995, Section 6(6), requires a local authority before making bylaws under the section to publish notices in at least two newspapers circulating in the area to which the proposed bylaws relate indicating the times at which, the period (being not less than one month) during which and the place within their functional area where a copy of the proposed bylaws may be inspected and stating that the local authority will consider any submissions in relation to the proposed bylaws which are submitted to the authority in writing by any person within two weeks after the end of the period during which the proposed bylaws may be inspected. The subsection further provides that a person may within two weeks after the end of the period for inspection of the proposed bylaws make submissions in writing to the local authority in relation thereto and that the local authority shall before deciding whether to make the bylaws take into consideration any submissions duly made to it and not withdrawn. Finally, the subsection provides that a person who is aggrieved by any proposed bylaws may within a period of 21 days beginning on the date of compliance by the local authority with the requirements as to notice and inspection of the proposed bylaws appealed to the District Court against the proposed bylaws and that Court may on hearing the appealed prohibit the proposed bylaws or authorise them subject to such conditions, if any, as it may deem appropriate. An appeal lies to the Circuit Court from a decision of the District Court. The Applicant did not avail of the facility for making representations to the Respondents nor did he appeal to the District Court.

5. The issues raised on this application can be resolved by a consideration of the terms of the Limerick Markets Act, 1852 with a view to the determining whether the bylaws contravene or purport to authorise the contravention of the provisions thereof.

6. The relevant portion of the preamble to the Act provides as follows:-

7. The relevant sections of the Act are as follows:-

8. The Act in Schedule C sets out the rents and tolls chargeable, payable and recoverable under the Act in the markets established under the Act. The produce mentioned in the Schedule is as follows - wheat, oats, barley, bere, beans, peas, rye, rape seed, flax seed, grain, corn, other seeds not enumerated, flax, hemp, wool, bark, butter, hay, straw, clover, grass, rapesrye, vetches or other green food for cattle, mangold wurzel, turnips, other agricultural produce whatever, save and except potatoes, fish, eggs, coal, iron, lead, copper or other mineral, hides or skins, and livestock.

9. The recital to the Act is a guide to the legislative intention - “a key to open the minds of the makers of the Act, and the mischiefs which they intend to redress” Stowel -v- Lord Zouch , (1569) 1 Plowd. 353 per Dyer CJ at p. 369 cited in Imperial Tobacco Limited -v- A.G., (1979) QB 555 at p. 575. The mischief which the Act intended to redress is the sale of livestock and agricultural produce of the specified type in the streets of Limerick to the inconvenience of the city’s inhabitants and to furnish the Respondents with powers of compulsory purchase to enable them to acquire lands and to develop the same as markets for the sale of livestock and the specified agricultural produce. The Act did not restrict a licensed hawker or a person selling eggs or fruits from selling otherwise than in a market established pursuant to the Act. The sale of anything other than livestock and the specified agricultural produce elsewhere than in a market established under the Act was not prohibited.

10. The word “market” at common law bore a number of meanings -

11. The Respondents in their grounds of objection raise two matters with which I propose to deal, namely:-

12. Again, at p. 435 he said:-

13. In this case even applying the more restrictive criterion of a person aggrieved, it is clear that the Applicant has locus standi. He is severely affected in his business as a market trader who habitually traded within the Borough of Limerick. He has made a no doubt substantial investment in a vehicle from which to trade which cannot be accommodated in the trading spaces which it is proposed by the Respondents to provide and his investment is thereby being rendered futile to that extent and he is thereby affected in earning his livelihood. Having satisfied the more stringent criterion of an aggrieved person he clearly qualifies as having a sufficient interest and so has locus standi.

14. While facts relevant to determining whether an applicant has locus standi and facts relevant to the exercise of the Court’s discretion may overlap, it is clear that the existence of an appeal procedure and whether or not the Applicant availed of the same are relevant in determining whether the Court should exercise its discretion in favour of the Applicant. In The State (Abenglen Properties Limited) -v- The Right Honourable the Lord Mayor Aldermen and Burgesses of Dublin, (1984) IR 381 and 393, O’Higgins CJ dealt with the matter as follows:-

15. In the present case the Applicant seeks to challenge the jurisdiction of the Respondents to make bylaws. The appeal provided for in the Casual Trading Act, 1995, Section 6(8)(a) is unrestricted in that the District Court and the Circuit Court on appeal may prohibit the proposed bylaws or authorise them subject to such conditions as are deemed appropriate. Accordingly, the alternative avenue of appeal was available to the Applicant. Unlike the situation which existed in The State (Abenglen Properties Limited) -v- The Lord Mayor Aldermen and Burgesses of Dublin, however, there was not here a deliberate choice not to avail of the remedy of appeal. It appears from the Applicant's affidavit that submissions on behalf of the traders as a body were made to the Respondents and an appeal taken to the District Court on their behalf but not by the Applicant in his own name. The appeal was dismissed on the basis that it was out of time and while an appeal to the Circuit Court against the decision of the District Court was contemplated it was not pursued. Applying the dicta of O’Higgins CJ to the circumstances of this case, had I construed the Act in the manner contended for by the Applicant as the issue raised goes to the jurisdiction to make the bylaws it would have been appropriate to exercise my discretion in favour of the Applicant and grant the relief which he seeks.

16. The relief sought is refused.