Shanley v Galway Corporation

• Jurisdiction: Ireland
• Judge: McCracken J.
• Judgment Date: 20 June 1995
• Neutral Citation: 1995 WJSC-HC 5508
• Docket Number: No. 11034p/1991,[1991 No. 11034P]
• Court: High Court
• Date: 20 June 1995

1995 WJSC-HC 5508

THE HIGH COURT

No. 11034p/1991

SHANLEY v. GALWAY CO COUNCIL

BETWEEN

DERMOT SHANLEY

PLAINTIFF

AND

THE MAYOR ALDERMEN AND BURGESSES OF THE COUNTY BOROUGH OF GALWAY, MINISTER OF INDUSTRY AND COMMERCE, MINISTER OF THE ENVIRONMENT, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Citations:

CASUAL TRADING ACT 1980 S2(1)

CASUAL TRADING ACT 1980 S2(2)

CASUAL TRADING ACT 1980 S2(2)(d)

CASUAL TRADING ACT 1980 S3(1)

CASUAL TRADING ACT 1980 S4(1)

CASUAL TRADING ACT 1980 S4(7)

CASUAL TRADING ACT 1980 S5(1)(a)

CASUAL TRADING ACT 1980 S5(3)(a)

CASUAL TRADING ACT 1980 S7(1)(a)

CASUAL TRADING ACT 1980 S7(2)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACTS 1963 – 1976

CASUAL TRADING ACT 1980 S7(6)(a)

AG V PAPER LINK LTD 1984 ILRM 373

HAND V DUBLIN CORPORATION 1991 1 IR 409

CONSTITUTION ART 40.3.2

CASUAL TRADING ACT 1980 S3(2)

CASUAL TRADING ACT 1980 S5(3)(b)

CASUAL TRADING ACT 1980 S7(5)

CASUAL TRADING ACT 1980 S7(6)(b)

CASUAL TRADING ACT 1980 S7(6)(c)

CASUAL TRADING ACT 1980 S3

CASUAL TRADING ACT 1980 S7(6)

CASUAL TRADING ACT 1980 S5

CASUAL TRADING ACT 1980 S5(1)

CASUAL TRADING ACT 1980 S5(3)

Synopsis:

CONSTITUTION

Personal rights

Livelihood - Protection - Limits - Public good - Furtherance - Statutory discretion of local authority - Casual trading area - Permit only granted on condition that trade in foods excluded - Predetermined policy decision - (1991/11034 P - McCracken J. - 20/6/95) - [1995] 1 I.R. 396

|Shanley v. Corporation of Galway|

LICENCE

Grant

Power - Exercise - Condition - Imposition - Statutory discretion of local authority - Casual trading area - Permit only granted on condition that trade in foods excluded - Predetermined policy decision - (1991/11034 P - McCracken J. - 20/6/95) [1995] 1 I.R. 396

|Shanley v. Corporation of Galway|

TRADE

Street trading

Licence - Permit - Issue - Conditions - Authorisation - Statute - Powers - Exercise - Livelihood of applicant trader - Whether constitutional rights infringed by condition attached by local authority to issue of casual trading permits - Predetermined decision to impose such condition - Condition preventing sale of foods - Casual Trading Act, 1980, ss. 2–5, 7 - Constitution of Ireland, 1937, Article 40 - (1991/11034 P - McCracken J. - 20/6/95) - [1995] 1 I.R. 396

|Shanley v. Corporation of Galway|

WORDS AND PHRASES

"Shall ... grant"

Local authority - Statute - Powers - Exercise - Street trading - Permit - Grant - Enactement stated that local authority shall grant permit to applicant who holds specified licence - Enactment also stated that the permit shall contain such conditions as authority determines - Condition excluded grant of permit sought by applicant - (1991/11034 P - McCracken J. - 20/6/95)1995 1 IR 396

|Shanley v. Corporation of Galway|

1 Judgment of McCracken J. delivered the 20th day of June 1995.

2 The Plaintiff had operated a business in Galway and Salthill for several years prior to 1986 selling pre-cooked foods from mobile units. During this period the Casual Trading Act, 1980was in force and the Plaintiff seeks in this action to challenge the operation of this Act by the First named Defendant ("the Corporation"). The Act is stated in its long title as being an Act to provide for the control and regulation of casual trading. I think it would be helpful at this stage to set out in full the relevant sections of the Act, which are:-

"Section 2(1) Subject to subsection (2) of this section, "casual trading" means selling goods by retail at a place (including a public road) to which the public have access as of right or at any other place that is a casual trading area".

"Section 2(2)(d) Casual trading does not include.... selling of sweets, chocolate, confectionery, cooked foods (other than those cooked at the place of sale), fruit or non-alcoholic beverages or favours from a tray, basket, barrow, trolley or other similiar device at an event to which the public are admitted, whether subject to or free of charge, or on the day on which, and at or in the immediate vicinity of the place at which, there takes place, such an event".

"Section 3(1) A person shall not engage in casual trading in a casual trading area unless he is, or is the servant or agent acting as such of, a person who holds a casual trading licence and a casual trading permit that are for the time being in force and the casual trading is in accordance with the licence and the permit.

(2) A person shall not engage in casual trading in an area other than a casual trading area unless he is, or is the servant or agent acting as such of, a person who holds a casual trading licence and the casual trading is accordance with the licence."

"Section 4(1) Subject to the subsequent provisions of this section the Minister shall, on the application in writing of a person therefor and on the payment of a fee of £100, grant to the person a licence (referred to in this Act as "a casual trading licence"), in such form and specifying such matters as the Minister may determine, authorising the person to engage in casual trading."

"Section 4(7) A casual trading licence, if not previously revoked, shall continue in force for a period of 12 months and shall then expire"

"Section 5(1)(a) Where there is a casual trading area in the functional area of a local authority, then, subject to the subsequent provisions of this section, a local authority shall, on the application in writing therefor of a person who is the holder of a casual trading licence for the time being in force and on payment of a fee of £20, grant to the person a permit (referred to in this Act as "a casual trading permit"), in such form and specifying such matters as the local authority may determine, authorising the person to engage in casual trading at one place only in one specified casual trading area in a functional area of the authority on specified days".

"Section 5(3)(a) A casual trading permit shall contain such conditions (if any) as the local authority concerned determines and specifies in the permit."

3 (b) A person who holds a casual trading permit shall comply with the conditions of the permit."

"Section 7(1)(a) A local authority may designate (i) any land (including a public road) in its functional area to which the public have access as of right or any land occupied by and in the functional area of the authority.... as a place where casual trading may be carried on (in this Act referred to as "a casual trading area") and may revoke a designation under this subsection"

"Section 7(2) When deciding whether to designate any land as a casual trading area or to revoke a designation made under this section, a local authority shall have regard to the proper planning and development of its functional area (including the preservation and improvement of the amenities thereof), the development plan for its functional area and any special amenity order (within the meaning in each case of the Local Government (Planning and Development) Acts, 1963and 1976) relating to its functional area, the traffic likely to be generated by the casual trading in the casual trading area and to all other matters that it considers relevant to its decision."

"Section 7(6)(a) Any person may, within a period of 21 days beginning from the date of compliance by the local authority with subsection (5) of this section, appeal to the Circuit Court against the proposal and that Court may, on the hearing of the appeal, prohibit the proposal or authorise it subject to such conditions (if any) as it may deem appropriate and specify.

(b) Notice of an Appeal under this subsection shall be given to the local authority concerned and an officer of the local authority shall be entitled to appear and be heard on the hearing of the appeal.

(c) No appeal shall lie from a decision of the Circuit Court on an appeal under this subsection."

4 The effect of Section 3 appears to be that where an area has been designated by a local authority as a casual trading area, a person shall only engage in casual trading within that area, but where no area has been so designated by a local authority, a person may engage in casual trading anywhere within the functional area of such local authority, provided he holds a casual trading licence. As the Corporation had not designated any casual trading area up to 1986, the Plaintiff was able to and did operate as a casual trader inter alia, both in Eyre Square, Galway and at Salthill. The Plaintiff had a casual trading licence for 12 months from 21st June, 1985 and for 12 months from 21st June, 1986, which licence was not subject to any conditions. The Plaintiff did not obtain or seek to obtain a licence valid subsequent to 21st June, 1987.

5 The question of designating a casual trading area was discussed at meetings of the Corporation as early as 1983, and a number of motions relating to the subject were debated over several years. Ultimately, on 26th May, 1986, it was resolved:-

6 a "(a) That a section of the Fairgreen at Forster Street as outlined in red on map entitled "Galway Corporation Casual Trading Area" and dated 10th January, 1983 be formally designated a casual trading area.

7 (b) That notice be given of the Corporation's proposal to designate as a casual trading area land at Eyre Square, Galway, as outlined in red on map entitled "Galway Corporation Casual Trading Area Eyre Square" and dated 26th May, 1986".

8 Notice of this proposal in relation to Eyre Square was duly given, and appeals under Section 7(6)...