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Cite as: [2001] IEHC 239

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THE HIGH COURT

JUDICIAL REVIEW

20/1999

BETWEEN

DERMOT BYRNE

APPLICANT

AND

BLAISE TRACEY, COUNTY MANAGER

AND

WICKLOW COUNTY COUNCIL

RESPONDENTS

Judgment of Mr. Justice Frederick Morris delivered on the 7th day of February 2001

This matter comes before the Court pursuant to an Order of the 18th June 1999 made by McCracken J. whereby the Applicant was given leave to apply by way of an Application for Judicial Review for a number of reliefs. These are seven in number and the reliefs which he seeks may be summarised in the following way:

(1) An Order quashing the decision of the Respondents which was communicated to the Applicant on the 3rd November 1998 refusing to permit the-Applicant to trade at "The Square", Blessington, Co. Wicklow.

(2) An Order quashing the decision of the Applicants refusing to designate or to retain as previously designated any area at "The Square", Blessington, Co. Wicklow as a casual trading area.

(3) An Order quashing the decision of the Respondents that the only place the Applicant could trade in or near the town of Blessington was at the Cattle Mart.

(4) An Order of Mandamus directing the Respondents to hear submissions from the Applicant regarding casual trading in Blessington.

(5) An Order quashing the Respondents' decision to refuse to renew the Applicant's licence to trade as a casual trader at "The Square".

(6) An Order quashing the Respondents' decision to designate the Cattle Mart as the sole casual trading area near the town of Blessington.

(7) An Order directing the payment of damages to the Applicant.

The grounds upon which the Applicant sought these reliefs are twelve in number but these grounds can, I believe, be summarised in the following way:

(1) That in making the decision the Respondents acted in breach of the Applicant's Constitutional rights to work as a casual trader.

(2) That the Applicant had a legitimate expectation that the "ancient and historical trading area" at "The Square" in Blessington would be retained and so designated in the By-laws introduced by the Respondents.

(3) That the Applicant had a legitimate expectation that he would get full notice of the intention to make the By-law and that the Respondents failed to provide the Applicant with such notice.

(4) That the Respondents failed to provide reasonable notice of the introduction of the Bye-law and a reasonable period of time for the Applicant to make submissions.

(5) That the Respondents failed to give proper notice of the introduction of the By-law.

(6) That the Respondents failed to give the Applicant sufficient time to submit an appeal or to notify the Applicant of his entitlement to appeal or to consider his appeal.

(7) That the Respondents acted unreasonably in abolishing "The Square", Blessington as a place where the Applicant could trade pursuant to ancient custom.

(8) That the newly designated area at the Cattle Mart is unsuitable.

(9) That the decision renders the occupation of the Applicant as a casual trader unprofitable and unworkable.

I am satisfied that the following are the facts of the case. The Applicant is a casual trader and has held a Casual Trader's licence. He has traded for the past 3 years continuously at "The Square" in Blessington and occasionally for the last 15 years. Between March and September and in the month of December the Plaintiff has traded 7 days a week in "The Square" and for the remainder of the year 5 days a week.

From the photographs which have been exhibited I am satisfied that the Plaintiffs place of business is a caravan type structure with an opening flap which is parked in a convenient place in Blessington. It is by no means unsightly. His merchandise, mainly flowers and vegetables are displayed on the pavement. I do not believe that this market stall could be regarded as presenting a nuisance to the town people of Blessington and certainly from the number of signatories to the petition that he has exhibited in his Affidavit to the Court he would appear to have the wholehearted support of the people in the locality.

The hardship which the decision of the County Council may be to the Applicant or the merits of his trading are not of any relevance in the decisions of the issues before the Court.

The case concerns the adoption by the Wicklow County Council of a By-law pursuant to the Casual Trading Act 1995. This Resolution was passed on the 8th June 1998 and the By-law was signed and sealed on the 19th June 1998. Throughout the proceedings the Applicant has referred to "the Resolution which was communicated to him on or about the 3rd November 1998." I am satisfied that this is the Resolution of the 8th June 1998 to which the proceedings relate and this is the Resolution and By-law which is being challenged.

The first issue which has arisen in this case is the failure on the part of the Applicant to comply with Order 84 of the Superior Court Rules which provides the time limit within which relief by way of Judicial Review is to be sought. Order 84 Rule 21(1) provides that "An application for leave to apply for Judicial Review shall be made promptly and in any event within three months from the date when the grounds for the application first arose or six months where the relief sought is Certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made." The Notice of Motion herein is dated 26th January 1999. The Resolution of the County Council was in fact passed on the 8th June 1998 and signed and sealed on the 19th June 1998. The relief sought therefore was outside of the six month period of the time starts to run on the date of the passing of the Resolution or its signing and sealing. In his proceedings the Applicant refers to the date upon which he was notified of the making of the decision namely the 3rd November 1998. However it is clear that long before that date the Applicant was aware of the existence of the Resolution because on the 17th June 1998 the Applicant brought an appeal to the District Court as he is entitled to do under Section 6 of the 1995 Act. It is therefore suggested that the reference in the proceedings to the date upon which he was notified by letter of the making of the decision is of no relevance and is no more than a ruse to overcome the six month limitation period.

By his Order of the 18th January 1999 McCracken J. extended the time for the making of the Application. This Order was not appealed. The Respondents now seek to have that part of Mr. Justice McCracken's Order reviewed on the grounds that the extension of time should not have been granted. For the reasons which I have set out in Florin Oirdache and the Minister for Justice, Ireland and the Attorney General and on the authorities referred to therein namely Voluntary Purchasing v Insurco Limited and Camara v Minister for Justice and Others I am of the view that it is within the capacity of this court to review an Order made ex parte in an appropriate case. However the correct practice is to apply to the Court on notice to the Applicant for an Order setting the original Order aside well in advance of the hearing of the substantive application. In this way an orderly procedure of the case may be maintained and the costs of the substantive hearing will be avoided if the original ex parte order is set aside.

In the present case in view of the overall decision which I come to in this case it is not necessary for me to deal with this preliminary point.

I am satisfied that the County Council is required to comply with Section 6 of the Casual Trading Act 1996 in the making of this By-law. It is required "as soon as may be after the commencement of the Act" to make a By-law in relation to the control, regulation, supervision and administration of casual trading in its functional area. I am satisfied that on the 20th January 1997 it was proposed to consider making a By-law by the second named Respondents and that a draft of the By-law was circulated at that meeting. On the 27th January 1997 the Baltinglass area Planning meeting was held at which the designation of casual trading in the Blessington area was discussed and it was agreed that four casual trading places would be designated at "The Mart" in Blessington. As is required by Section 6 of the 1995 Act the Respondents published notice of intention to make the By-law in the Irish Independent and in the Wicklow People of the 16th January 1998. No submission was received from the Applicant but the Blessington and District Chamber of Commerce and the Blessington Tour de France Committee both made submissions.

On the 8th June 1998 a Resolution was passed adopting the proposed By-law and a notice of the adoption of the By-law was published in Irish Oifigiuil on the 16th June 1998 and in the Irish Independent and the Wicklow People on the 1lth June 1998. I am satisfied that the By-law was signed and sealed by Order of the first named Respondent herein on the 19th June 1998.

I am accordingly satisfied that the adoption of the By-law was in accordance with the provisions of Section 6 of the Casual Trading Act 1995.

The Applicant appealed to the District Court on the 17th June 1998 against the making of this By-law. It came on for hearing in Blessington on the 16th September 1998 and was dismissed on the grounds that the Applicant had not brought the appeal within the period set out in the Act namely 21 days of the publication of the notice. This decision was appealed to the Circuit Court where it stands in the Circuit Court list at the present time under adjournment.

Turning now, on those facts, to the reliefs which the Applicant seeks and the grounds upon which he seeks them.

The Applicant complains that the affect of the Resolution is a breach of his Constitutional rights to work as a Casual Trader.

This challenge was mounted unsuccessfully in Shanley v Galway Corporation 1995 1 I.R. 369 and Hand v Dublin Corporation 19911.L.R.M. 556. In the latter case the Supreme Court in dismissing the Plaintiffs appeal noted that it was open to the Oireachtas to provide for strict controls and regulations of casual trading having regard to common good. The Constitutional right to work relied on by the Plaintiff was not an unqualified right and was one that must be controlled by considerations of the common good. In the former case McCracken J. in considering a restriction placed on the Plaintiffs right to trade said the following: "I do not consider this to be a breach of any natural or Constitutional right of the Plaintiff to earn a living. It is a condition imposed for the common good by the local authority who consider it unreasonable that casual trading in food should be allowed in Eyre Square. The condition imposed by the local authority in casual trading are imposed pursuant to a statute of the Oireachtas."

Within the Act itself there is a machinery provided for a consideration by the courts of any such challenge to the passing of a Resolution or the making of a By-law. Where an aggrieved party questions the passing of such a Resolution the Act empowers a trader affected by the proposed Resolution to appeal to the District Court. This hearing would include a consideration of the merits of the Scheme envisaged by the Respondents. However Section 6(8)(a) provides a limitation period of 21 days beginning on the date of compliance by the local authority with Sub-section 6 for this application. In fact the Applicants sought to utilise this appeal procedure but that appeal failed as he was late in doing so.

In my view the Applicant's present claim is an effort under the guise of Judicial Review Proceedings to make the case which should properly have been made before the District Court. His complaints include the unsuitability of the place designated for casual trading, the suitability of the "The Square" for his business and the service derived from the public by his presence in "The Square." These are the very matters which would properly fall to be decided if the matter were to be dealt with in the District Court. In my view they play no part in determining the Applicant's right to Judicially review the order made. The Applicant's rights of appeal to the District Court may yet be intact in that the Order of the District Court is now under appeal before the Circuit Court.

The next challenge mounted by the Applicant is that he had a "legitimate expectation" that "the Square" in Blessington would be retained as a casual trading area since it was the ancient and historical trading area.

To succeed in a claim of this nature the Applicant clearly must advance his case beyond the mere expectation that he personally felt that the original site would be retained. Nothing in the way of conduct on the part of the Respondents is identified as giving rise to this purported legitimate expectation such as might entitle him to relief and in my view this case fails.

The next four grounds relate to the notice given to the Applicant of the various steps which were being taken by the Respondents in the passing of this By-law. In my view there has been a strict compliance with the provisions of the Act. The question of whether this notice is adequate or otherwise is not an issue for this Court and even if it were no case is made out to support this claim. In my view the claim fails.

The final ground upon which the Applicant seeks the reliefs claimed is that set out in paragraph 11 of his grounds. That is in the following terms: "The Respondents have acted unreasonably in purporting to abolish the right of the Applicant to set up his market stall as a casual trader in "The Square", Blessington, Co. Wicklow in pursuance with ancient custom." The Submission made is that there is evidence before the Court that a patent was granted on the 2nd August 1669 to the Archbishop of Dublin to hold a market in "The Square", Blessington, Co. Wicklow and that it is unlawful for the Respondents to interfere with that right.

The evidence which has been submitted to the Court is a copy of a page from Logas Manuscripts entitled "Return showing the towns at which markets are held." One entry on that page reads:

Wicklow Blessington Thursday August 2 1669

Archbishop of Dublin Thursday.

If one leaves aside all the deficiencies associated with this document and the mode of proof and if one takes the document at its best it might support the view that there was a patent granted to the Archbishop of Dublin on the 2nd August 1669 to hold a market in Blessington on Thursdays. The date of this patent then was the 2nd August 1669.

No evidence whatever is tendered to the Court beyond this one page and it leaves open for question the status of the market right since that date. It is not known whether it was ever used and if so by whom nor is there any evidence offered of the status of this right at the present time. In Skibereen Urban District Council v Patrick Quill and Others 1986 ILRM p 171 Lynch J. held that the owner of a franchise to hold a market, namely the local authority, could not destroy the traders' livelihood simply by acquiring the market rights under Section 2 of the Casual Trading Act 1980 and the Applicants have sought to rely on this decision. However, I am satisfied that the existence of the market right in the Skibereen Urban District Council case was established to the satisfaction of the Court. This is not the case insofar as the Applicant's case before me is concerned.

Likewise D.P.P. V McDonald & Others 1983 ILRM 223 was relied upon as authority for the proposition that providing that there is sufficient authority to establish a presumption of the existence of a market by immemorial user from which a long grant might be presumed that the Applicant's rights to hold the market would be established and that therefore an attempt at prohibition by the Respondents would be restrained.

I am satisfied as in Long v McDonald and O'Mahoney v Briggs & Others that there is no sufficient evidence before me which would lead me to believe that such a market right exists. The Applicant has traded over a period of fifteen years in "The Square" in Blessington. I am not satisfied that that fact coupled with the evidence before me establishes a market right. In the Long v McDonald case the Supreme Court was dealing with a prosecution upon which the Defence relied upon an assertion that a market right existed. In delivering the Judgment of the Court Henchy J. said "It has been said however that the evidence was such that an onus was placed on the Prosecution to show that a lawful market was not being held on that occasion. That onus was not discharged by the Prosecution. The summonses therefore should have been dismissed.

In my view a different onus arises here. The onus is upon the Applicant to establish the existence of the market and this, in my view, he has failed to do.

Accordingly the Applicant's claim fails and I refuse the relief claimed.