Licence Fees
The Casual Trading Act 1995 provides a local authority with an entitlement to charge a fee for a casual trading licence and to fix fees for different circumstances and different classes of persons.
Licence Fees for Different Sets of Circumstances
A local authority may licence casual trading in three sets of circumstances.
1) In the functional area of a local authority,
2) In a designated Casual Trading Area,
3) or at an event.
These three sets of circumstances are set out in section 4, of the Casual Trading Act 1995. A local authority may charge a licence fee appropriate to these individual circumstances.
Casual Trading Act 1995
Casual Trading Licences.
(ii) at one place only in one specified casual trading area in the functional area of the authority,
Licence Fees for Different Classes of Persons
A casual trading licence may be granted to persons selling different classes of goods that may require different types of documentation. The type of goods sold at a market may be divided into four categories.
1) Hot Food
2) Slow Food
3) Crafts, Second Hand and Assorted Goods
4) Livestock
A local authority may charge a licence fee appropriate to the type of goods sold.
Casual Trading Act 1995
Section 6—(2)
Section 6—(2)(d)
The Casual Trading Act 1995 also states that when a local authority is fixing fees it may have regard to the facilities and services it provides to casual traders.
Casual Trading Act 1995
Section 6—(4)
The use of the word ‘may’ in section 6(2)(d) acts only as a recommendation that licence fees be linked to the cost of facilities. The lack of an obligation in this part of the act has led to large variations in the level of fees charged by local authorities.
In 2002, Mary Harney in her capacity as Minister for Trade Enterprise and Employment commissioned a report on the implementation of the casual trading act by local authorities. The Competition Authority Report found that the fees set by local authorities varied from €13 to €1777.
The Competition Authority Report 2002
Variation in Fee Levels Relationship to Number of Traders
The report also found that local authorities were setting their licence fees using three different methods.
The Competition Authority Report 2002
Fee-setting and Allocation of Licences
A High Court judgement in 2001, known as the ‘Taxi Case’, ruled that a licence fee set by a local authority can only cover the cost of issuing a licence.
The Competition Authority Report 2002
The report went on to make four recommendations with regard to licence fees.
1) Licence fees should be based solely on the administrative cost of issuing a licence and the cost of facilities.
2) The word ‘may’ in section 6 (2)(d) of the 95 Act should be changed to ‘shall’ thereby creating an obligation on local authorities to directly link licence fees to the cost of facilities.
3) A local authority should make it’s licence fees public along with a breakdown of the associated costs.
4) There should be an amendment to the Casual Trading Act 1995 to allow fees to be challenged in the district and circuit court, as are all other aspects of bye-laws.
Recommendations 5, 6, 9 & 10 of the Competition Authority Report
Transparency
The report also recommended the introduction of Statutory Ministerial guidelines that would provide for the consistent implementation of the Casual Trading Act 1995 by local authorities.
Consistency Guidelines
Following the publication of the Competition Authority Report in 2002, Mary Harney went on to form the ‘Consumer Strategy Group’ that reported in 2005. The main objective of the CSG report was to put forward recommendations that would form a scheme of a bill, that became the Consumer Protection Act 2007. Chapter 3 of the CSG report mentioned the earlier Competition Authority Report and some of its recommendations.
Consumer Strategy Report, April 2005
Chapter 3
The Retail Sector
Chapter 3.3 Fruit & Vegetables
Chapter 17 of the CSG Report recommended that statutory Guidelines should be put in place via an amendment to the Casual Trading Act 1995.
Chapter 17
Recommendations and Action Plan
Key recommendations
The Consumer Strategy Group subsequently provided Statutory Ministerial Guidelines through an amendment to the Casual Trading Act 1995. The amendment to section 6 of the act was created via section 98 of the Consumer Protection Act 2007. Section 98 inserted section 6A into the 95 Act and states that a local authority making bye-laws under that section shall have regard to guidelines. The word ‘shall’ rather than ‘may’ creating a legal obligation on local authorities to implement guidelines.
The Consumer Protection Act 2007
Section 98.— Amendment of Casual Trading Act 1995.
The following section is inserted after Section 6 of the Casual Trading Act 1995:
Guidelines with respect to performance of functions under Section 6.
With regard to licence fees and the competition authority’s recommendations. Statutory guidelines included three of the four recommendations previously mentioned in the Competition Authority Report.
1) Local authorities can not use licence fees as a revenue stream and fees should be directly linked to the cost of facilities. This guideline effectively substituted the word ‘shall’ (should) for ‘may’ in section 6(4) of the 95 act.
2) In terms of transparency, a local authority has to provide a written break down of costs, showing how their fees are set and the costs of the facilities provided to market traders.
Casual Trading Act 1995 Guidelines for Local Authorities
Guideline 11.
Fees for Casual Trading under section 6 (2) (d)
There is no provision in the guidelines for appealing the level of licence fees in the district or circuit courts. The only way to appeal licence fees is by judicial review. The Competition Authority report commented on this situation in Chapter 2.
Competition Authority Report
Chapter 2
The Casual Trading Act 1995
An appeal to the courts may also argue that excessive licence fees are a barrier to trade and a restriction on the exercise of a market right under article 43.2.2 of the constitution. This was also mentioned in the Competition Authority’s report.
Competition Authority Report
Chapter 9
Methods for Setting Fees
The interplay between the Casual Trading Act and market property rights is also referred to in statutory ministerial guidelines.
Casual Trading Act 1995 Guidelines for Local Authorities
Guideline 6.
Market Rights
The Services Directive
In 2009 the Dept. for Enterprise Trade and Employment issued further guidance with respect to the European Services Directive which came into force in 2010. The guidelines refer to Articles of the European Services Directive 2006/123/EC and their effect of on casual trading. The EU Services Directive was transposed into Irish law via Statutory Instrument 533, European Union (Provision of Services) Regulations 2010.
The Services Directive guidelines discuss authorisation procedures or the granting of a casual trading licence. One aspect of these guidelines relates to the fee a local authority can charge for a casual trading licence.
The Services Directive Guidelines and the legislation on which they are based clearly state that only the administrative costs associated with an application can be charged in fees.
EU Services Directive Guide for Local Authorities
Guideline 10
EU Services Directive 2006/123/EC
Authorization procedures [Article 13 (2)]
Irish Law
European Union (Provision of Services) Regulations 2010
General requirements for authorisation schemes
The Services Directive effectively made it illegal to include the cost of facilities in a licence fee. This created something of a problem as a licence fee could no longer cover the cost of facilities.
The solution was to separate the Casual Trading Act’s Licence fee into two separate fees.
The first fee covers the cost of processing an application and producing a licence. This can continue to be called a licence fee.
The second fee is directly linked to the cost of facilities, this fee is historically called Stallage.
‘Stallage’ is defined as the right to erect a stall or stalls at a fair or market, or the rent toll or fee paid for a stall.
A local authority cannot use stallage fees as a revenue for profit stream; fees should be directly related to the cost of the facilities provided.
Those facilities may include the following:
1) The Space allocated for trading purposes
2) Cost of the Market Manager and other Authorized Officers
3) Cost of rubbish collection produced by the market
4) Cost of signage and other market fixtures and fittings.
Summary
The licence fee set by bye-law under section 6(2)(d) of the Casual Trading Act 1995 shall only cover the cost of issuing the licence and the direct cost of facilities [Section 6 (2)(4)].
A licence fee set by bye-law under the Casual Trading Act 1995 can be split into two fees, a licence fee and a stallage fee.
A licence fee can only cover the cost of processing an application and producing a licence (administration).
A Stallage fee can only cover the cost of facilities directly linked to the running of the fair or market.
Licence and stallage fees cannot be used as a revenue stream, a market has to be run on a cost neutral not-for-profit basis.
A local authority must make it’s licence fees public and provide a written break down and calculation of costs.
There is no provision under the Casual Trading Act to challenge fees in the District or Circuit Court. An appeal may be made via judicial review.
If a local authority, in fixing a fee, fixed a fee that no reasonable authority could fix, or if in the course of its fee-fixing procedures a local authority had been motivated by bias, or had taken into account matters which it ought not to have taken into account, or if the fee represented a restriction on the exercise of a market property right, the bye-law would be capable of being struck down on judicial review.