Byrne v Tracey & Wicklow County Council
| Jurisdiction | Ireland |
| Judge | Mr. Justice Frederick Morris |
| Judgment Date | 07 February 2001 |
| Neutral Citation | [2001] IEHC 239 |
| Court | High Court |
| Docket Number | 20/1999 |
| Date | 07 February 2001 |
[2001] IEHC 239
THE HIGH COURT
BETWEEN
AND
AND
Citations
CASUAL TRADING ACT 1995 S6
RSC O.84
RSC O.84 r21(1)
IORDACHE V MIN FOR JUSTICE UNREP MORRIS 30.1.2001
VOLUNTARY PURCHASING V INSURCO LTD 1995 2 ILRM 145
CAMARA V MIN FOR JUSTICE UNREP KELLY 26.7.2000
SHANLEY V GALWAY CORPORATION 1995 1 IR 369
HAND V DUBLIN CORPORATION 1991 ILRM 556
CASUAL TRADING ACT 1995 S6(8)(a)
CASUAL TRADING ACT 1995 S6(6)
SKIBEREEN URBAN DISTRICT COUNCIL (UDC) V QUILL 1986 ILRM 171
CASUAL TRADING ACT 1980 S2
LONG, DPP V MCDONALD, O'MAHONY & BIGGS 1983 ILRM 223
Synopsis:
Administrative Law
Administrative; judicial review; applicant was casual trader in "The Square" in Blessington; adoption by Wicklow County Council of by-law pursuant to Casual Trading Act, 1995 designating area known as "The Mart" in the town of Blessington as an area where casual trading would be permitted; applicant seeking inter alia an order quashing this decision of the respondents; whether the effect of the resolution is a breach of applicant's constitutional right to work as a casual trader; whether the adoption of the by-law was in accordance with the provisions of s.6 of the Casual Trading Act, 1995; whether the applicant's claim was an effort under the guise of judicial review proceedings to make a case which should properly have been made before the District Court; whether there was conduct on the part of the respondents which could have given rise to a legitimate expectation on the part of the applicant that the original casual trading site would be retained; whether there had been strict compliance with the provisions of the Act of 1995 in the passing of the by-law; whether there was sufficient evidence to show the existence of a market right; whether applicant had discharged the onus on him to establish the existence of a market right.
Held: Relief refused.
Byrne v. Tracey - High Court: Morris P. - 07/02/2001
The applicant took judicial review proceedings regarding the designation of a certain area as a market trading area in Blessington, Co. Wicklow. The applicant wished to trade in another area of the town in which he had previously traded but had been refused permission to do so. Mr. Justice Morris held that the applicant had failed to discharge the necessary onus and refused the relief sought.
Judgment of Mr. Justice Frederick Morrisdelivered 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 inBlessington.
(5) An Order quashing the Respondents" decision to refuse to renew the Applicant's licence to trade as a casual trader at "TheSquare".
(6) An Order quashing the Respondents" decision to designate the Cattle Mart as the sole casual trading area near the town ofBlessington.
(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 followingway:
(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 isunsuitable.
(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 Plaintiff's 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 theproceedings relate and this is the Resolution and By-law which is beingchallenged.
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...
To continue reading
Request your trial