DPP (Long) v McDonald and Others

• Jurisdiction: Ireland
• Judge: Henchy J.
• Judgment Date: 01 January 1983
• Neutral Citation: 1982 WJSC-SC 2263
• Court: Supreme Court
• Docket Number: No.28 S.S./1977
• Date: 01 January 1983

1982 WJSC-SC 2263

THE SUPREME COURT

Walsh J.

Henchy J.

Griffin J.

No.28 S.S./1977

No.412 S.S./1978

Nos.19 & 20/1979

DPP (LONG) v. McDONALD&ORS

DIRECTOR OF PUBLIC PROSECUTIONS (LONG)

v.

MCDONALD AND OTHERS

and

O'MAHONEY AND OTHERS

v.

BIGGS AND OTHERS

1 Judgment of Henchy J. delivered the 22nd July 1982 [Nem. Diss]

2 The defendants in each of these two cases stated are street traders. They make their living by travelling around the country and selling their wares at fairs and markets, using their motor vehicles as mobile shops. Such a mode of trading is apt to cause traffic problems when it takes place in the narrow streets and congested squares of provincial towns. Parked motor vehicles, around which shoppers congregate, are usually incompatible with the need to have parking restrictions so as to have an adequately free flow of vehicular traffic. The Road Traffic Acts have recognized the need to control local traffic and parking problems by giving power to make special bye-laws designed to meet the needs of particular localities. As distinct from the power to make general bye-laws for the control of traffic and pedestrians in public places generally, these bye-laws (which are allowed to be made under s. 89, s. 90 or s. 92 of the Road Traffic Act, 1961) are designed to deal with special local problems, and the relevant local authority is given a say in the making of them.

3 S. 89(1) empowers the Commissioner of the Garda Síochána, with the consent of (now) the Minister for the Environment and after consultation with the local authority concerned, to make in respect of any specified area bye-laws for the regulation and control of traffic and pedestrians and to facilitate the movement of traffic and pedestrians. S. 89(7) makes it an offence to contravene a bye-law thus made. A study of the section as a whole shows that it is primarily designed to control traffic on specified public roads.

4 S. 90(1) empowers the Commissioner of the Garda Síochána, with the consent of (now) the Minister for the Environment and after consultation with the local authority concerned, to make in respect of any specified area bye-laws for the control and regulation of the parking of vehicles on public roads. Bye-laws made under s. 90(1) are devoted exclusively to the control and regulation of parking, A contravention of such a bye-law is made an offence.

5 If (as happened in the instant cases). bye-laws are made under s. 89 and s. 90, they may regulate and control both traffic and parking on the specified public roads.

6 There is a third way provided in the Act for the resolution by bye-laws of a special kind of local traffic problem on the roads. This is to be found in s. 92. Bye-laws made under this section are designed to provide "free passage of vehicular traffic through public roads on the occasion of fairs or markets". Unlike bye-laws made under s. 89 or s. 90, such bye- laws are made,not by the Commissioner of the Garda Síocháana, but by the relevant local authority acting on its own. Furthermore, the scope of their operation is more limited in time and place, for they are permitted to be made only for the purpose of securing the free passage of vehicular traffic through public roads on the occasion of fairs or markets.

7 This limitation of the scope and application of bye-laws made under s. 92 is necessary because a fair or a market is a property right. It is a franchise conferring a right to hold a concourse of buyers and sellers to dispose of commodities. The property rights involved in that franchise are required by Art. 40, s. 3, of the Constitution to be protected as far as practicable by the laws of the State. The Legislature, by s. 92, obviously considered that the common good warranted that a fair or market held on a public road could be encroached on by bye-laws made under that section, but only to the extent of securing the free passage of vehicular traffic through the public road on the occasion of the fair or market. Such an inroad on the property right was obviously deemed by the Legislature to be constitutional.

8 Therefore, on a comparison of the power to make bye-laws under s. 89 or s. 90 with the power to make bye-laws under s. 92, I am satisfied that the legislative intent was that when what is to be controlled is vehicular traffic in a fair or market held in a public place (which s. 3(1) defines as "any street, road or other place to which the public have access with vehicles whether as of right or by permission and whether subject to or free of charge"), the bye-laws must be made under s. 92.

9 The defendants in each of these two sets of cases were prosecuted in the District Court for breaches of bye-lays made under ss. 89 and 90. They were all convicted and fined. They appealed, by case stated, unsuccessfully to the High Court.They now appeal further to this Court. Their appeal is based on three main submissions: (1) that the bye-laws are bad for being unreasonable; (2) that they are bad for lack of good faith in their making, in that (it is said) they were made under pressure from local traders; and (3) that bye-laws made under ss. 89 and 90 are not applicable to the circumstances of these cases.I do not consider submissions (1) and (2) to be supported by the evidence, but submission (3) requires to be dealt with fully in the light of the circumstances of each of the two sets of cases.

10 I turn, therefore, to consider each set of cases separately.

The...