[New search]
[Help]
Bridgeman v. Limerick Corporation [2000] IEHC 121 (2nd June, 2000)
THE
HIGH COURT
JUDICIAL
REVIEW
1999
No. 298 JR
BETWEEN
MICHAEL
BRIDGEMAN
APPLICANT
AND
THE
MAYOR ALDERMEN AND BURGESSES OF THE LIMERICK
RESPONDENTS
Judgment
of Finnegan J delivered the 2nd day of June, 2000.
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:-
1. The
said bylaws are purportedly made by the Respondents pursuant to
Section 6 of
the
Casual Trading Act, 1995. The power to make bylaws under the said section
is not an absolute power but is subject to the limitation, inter alia, that
such bylaws must not contravene or purport to authorise the contravention of
existing legislation. The said bylaws and in particular bylaw 2 thereof
constitute the establishment of and purport to authorise the holding of a
market within the municipal boundaries of the Borough of Limerick and as such
contravene the provisions of the Limerick Markets Act, 1852 as amended and in
particular Section 32 thereof which expressly prohibits the holding of markets,
other than markets provided and established under the said Act within the
municipal boundaries of the Borough of Limerick and within a circuit of one
mile therefrom.
2. Further
the said bylaws purport to authorise the holder of a casual trading licence
granted by the Respondents to erect, place or use in the streets within the
casual trading area designated thereby (being within the borough of Limerick)
carts, booths, stalls, stands or trestles for the sale or display, inter alia,
(of) the commodities referred to in Schedule C of the Limerick Markets Act,
1852 contrary to Section 44 of the said Act.
3. The
Respondents in their statement of grounds of opposition rely upon the following
grounds -
1. The
Limerick Markets Acts, 1852-1992 have no function whatever in regulating the
type of trade in which the Applicant is employed and accordingly the Applicant
lacks locus standi to maintain the application made by him.
2. The
casual trading area proposed in the Limerick Corporation Trading Bylaws, 1998
is not a market within the meaning of the Limerick Markets Acts, 1852-1992 and
is not therefore created in contravention of any provision of the Limerick
Markets Act, 1852 as amended.
3. In
particular the bylaws in question authorise no breach of Section 44 of the
Limerick Markets Act, 1852 because the bylaws give rise to no necessary breach
of the said section.
4. The
power to enforce the provisions of the Limerick Markets Acts, 1852-1992 is
vested solely in the trustees of the said markets established under the said
Acts.
5. The
Limerick Corporation Casual Trading Bylaws, 1998 have been passed by the
Respondent in consequence of a statutory duty to do so under
Section 6(1) of
the
Casual Trading Act, 1995 in execution of its statutory duty to issue casual
trading licences in respect of its functional area or part thereof pursuant to
Section 4(1) of the
Casual Trading Act, 1995.
7. The
Applicant having failed to avail of the procedures for challenging the bylaws
provided by
Section 6(6) of the
Casual Trading Act, 1995 this Honourable Court
should refuse in its discretion the application made by the Applicant and
refuse to extend time for bringing the application herein.
THE
CASUAL TRADING ACT, 1995
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.
THE
LIMERICK MARKETS ACT, 1852
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:-
“Whereas
the present markets for the sale of corn and other agricultural produce in the
Borough of Limerick are insufficient: and whereas there are not at present
established in the said Borough or in the suburbs thereof any fit or sufficient
markets for the sale of live cattle or other livestock, or of dead pigs, or of
corn, butter, hay, straw, green food for cattle, vegetables, or other
agricultural produce, or of eggs, fowl, fish or such like articles in
consequence of which the same are sold in the public streets to the great
inconvenience and annoyance of the inhabitants of the said borough and of
persons resorting thereto,
And
whereas it would be a material accommodation and advantage to the inhabitants
of the said Borough, and to persons resorting thereto, and to all persons
interested in buying and selling therein, if all the markets within the said
Borough were rendered more sufficient, fit and convenient, and placed under
better control, and proper rules and regulations were made for the government
thereof:”
7. The
relevant sections of the Act are as follows:-
“30.
Whereas plans and sections of the market places, and of the approaches
thereto, and of the other works in connection therewith to be authorised by
this Act and also a book of reference containing the names of the owners or
reputed owners, lessees or reputed lessees, and of the occupiers of the lands
in, through, by, near, or along which the same are proposed to be executed,
have been deposited with the Clerk of the Peace for the County of the City of
Limerick: be it enacted, that subject to the provisions in this Act and the
Acts incorporated therewith contained, it shall be lawful for the trustees,
upon the lands delineated in the said plans and sections and described in the
said book of reference, to enter and the same to take and appropriate for the
purposes of this Act, and upon the lands so entered upon, taken, and
appropriated to make, construct, provide, and establish a new market place or
market places with all necessary buildings and works, conveniences and
appurtenances thereto, for the sale respectively of corn and all other
agricultural produce, cattle and other livestock, dead pigs, butter, fish,
fowl, eggs, potatoes, fruit and vegetables, hay, straw and green food for
cattle, and of all such other marketable commodities as are in Schedule C to
this Act annexed respectively mentioned or referred to, and to make, execute
and maintain the same, and the approaches thereto, and other works in connexion
therewith, upon the lands delineated and described in the said plans and
sections: provided always that it shall not be lawful for the trustees to take
any land for the purposes of making more than one of the new markets delineated
on the said plans in the first instance; provided also that the land shall only
be taken for the second of the said new markets when and so soon as the first
thereof shall have been opened and established.
32. The
markets to be provided and established under this Act shall be held within the
municipal boundaries of the said Borough; and, subject to the provisions of
this Act, no market, other than the markets to be provided and established
under this Act, shall be held within the said boundary and within a circuit of
one mile therefrom.
44. After
the said market places shall be open for public use, every person (except an
auctioneer selling by auction in any place other than the public street, or a
licensed hawker, or a person hawking or selling eggs or fruits, or a person
bringing by water carriage any corn, grain, pulses, or seeds,) who shall sell
or expose for sale in any place within the limits of this Act other than in
some one of the said markets places, or of such private legal markets, or in
his own dwellinghouse, shop, warehouse, yard, or store, any cattle or
livestock, or any corn or anything whatever in respect of which rents or tolls
are by this Act authorised to be taken shall for every such offence be liable
to a penalty not exceeding 40 shillings to be recovered in the same manner as
penalties are recoverable under the Markets and Fairs Clauses Act, 1847.”
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 -
(a) A
franchise conferring a right to hold a concourse of buyers and sellers to
dispose of commodities in respect of which the franchise is given:
Marquis
of Downshire -v- O’Brien,
(1887) 19 LR IR 380 at p. 390.
(b) The
like right conferred by Act of Parliament.
(c) The
concourse of buyers and sellers.
(d) The
market place.
(e) The
time of holding the market.
As
used in
the Act the word “market” when it is intended to refer to
the market place is coupled with the word place: elsewhere where not coupled
with the word place it is intended to refer to a concourse of buyers and
sellers and it is in this sense that the word “market” is used in
the second sub-clause of
Section 32 of
the Act. The effect of the section
accordingly is to prohibit the holding of a concourse of buyers and sellers
within the municipal boundaries and within a circuit of one mile therefrom.
However, having regard to the scheme of
the Act and in particular the preamble
thereto, the same does not prohibit a concourse of buyers and sellers in
relation to goods, products or produce other than livestock and specified
agricultural produce. The bylaws do not create a market in livestock and the
specified agricultural produce. The provisions of the
Casual Trading Act,
1995,
Section 4, with regard to licences will enable the Respondents to ensure
that no market which will infringe the provisions of Section 32 of
the Act of
1852 will be held within the casual trading area. Accordingly, the creation of
a casual trading area per se does not infringe the provisions of Section 32 of
the Act of 1852. The application fails on both grounds relied upon by the
Applicant.
11. The
Respondents in their grounds of objection raise two matters with which I
propose to deal, namely:-
1. whether
the Applicant has locus standi, and
2. whether
having regard to the circumstance that the Applicant failed to avail of the
right of appeal granted to him by the
Casual Trading Act, 1995,
Section 6(8),
the reliefs sought which are discretionary should be granted.
LOCUS
STANDI
In
Lancefort
Limited -v- An Bord Pleanala
,
(1998) 2 ILRM at page 440, Keane J said:-
“It
is clear, as was held by this Court in Chambers -v- An Bord Pleanala, (1992) 1
IR 234 that the fact that a person affected by a proposed development did not
participate in the appeals procedure is not of itself a reason for refusing
locus standi.”
12. Again,
at p. 435 he said:-
“The
authorities reflect a tension between two principles which the Courts have
sought to uphold: ensuring, on the one hand, that the enactment of invalid
legislation or the adoption of unlawful practices by public bodies do not
escape scrutiny by the Courts because of the absence of indisputably qualified
objectors and, on the other hand that the critically important remedies
provided by the law in these areas are not abused....
Nevertheless
the requirement that, as a general rule, a locus standi must be established
where a person seeks to challenge the decision of a public body remains,
although the criteria have changed over the years, a ‘sufficient
interest’ in the matter having replaced the somewhat more restrictive
concept of a ‘person aggrieved’. In the particular case of
challenges by way of Certiorari with which these proceedings are concerned, the
insistence on the party having such an interest reflects the policy of the
Courts which is intended to ensure that the most potent and valuable of legal
remedies is not resorted to by the merely officious or men or women of straw
who have nothing to lose by clogging up the Courts with ill-founded and
vexatious challenges.”
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.
DISCRETION
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:-
“The
question immediately arises as to the effect of the existence of a right of
appeal or an alternative remedy on the exercise of the Court’s
discretion. It is well-established that the existence of such right or remedy
ought not to prevent the Court from acting. It seems to me to be a question of
justice. The Court ought to take into account all the circumstances of the
case, including the purpose for which Certiorari has been sought, the adequacy
of the alternative remedy and, of course the conduct of the applicant. If the
decision impugned is made without jurisdiction or in breach of natural justice
then normally, the existence of a right of appeal or failure to avail of such,
should be immaterial. Again, if an appeal can only deal with the merits and
not with the question of the jurisdiction involved the existence of such ought
not to be a ground for refusing relief. Other than these grounds there may be
cases where the decision exhibits an error of law and a perfectly simple appeal
can rectify the complaint, or where administrative legislation provides
adequate appeal machinery which is particularly suitable for dealing with
errors in the application of the code in question. In such questions while
retaining always the power to quash a Court should be slow to do so unless
satisfied that for some particular reason, the appeal or alternative remedy is
not adequate.”
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.
© 2000 Irish High Court
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ie/cases/IEHC/2000/121.html
