Designating a Casual Trading Area

Section 6(2)(a)(i) of the Casual Trading Act 1995 provides a local authority with the power to designate a casual trading area, as a place where casual trading may be carried on.

Casual Trading Act 1995

Bye-laws

Section 6(2)(a)(i)

(2) Without prejudice to the generality of subsection (1), bye-laws under this section may make provision in relation to one or more of the following matters:

(a) the designation of—

(i) any land (including a public road, other than a motorway or a busway within the meaning in each case of the Roads Act, 1993 ) 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, or

as a place where casual trading may be carried on (in this Act referred to as “a casual trading area”),

In the case of Simmonds & Anor -v- Ennis Town Council (2012), Mr. Justice Clarke made the following observation:

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)

Section 6.8

. . . Section 8—(1) (of the casual trading act 1995) allows a local authority to manage and regulate a market or fair “to which a market right owned by it relates”.

A local authority wishing to regulate casual trading under section 8 of the 95 Act, as the owner of a market right, has a number of different options open to it.

A local authority could licence trading in its own functional area, and by default at any location in a town; if a town’s ‘market rights’ were granted without boundaries, and the town lay within the functional area of the Local Authority.

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)

Section 6.15

. . No great difficulty might be posed in circumstances where the local authority concerned did not designate any “casual trading” area for in those circumstances the licensee can carry on business at any place within the local authority’s functional area and could, thus, carry on business within the terms of any relevant franchise market, including its location.

Market Rights with Specified Boundaries

In a situation where ‘market rights’ exist in a specific area of a town, a local authority would have no difficulty designating a casual trading area, if that area included all of the locations specified in the ‘market rights’.

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)

Section 6.15

Equally if a local authority were to designate, as a “casual trading” area, an area which included all of the places in which the franchise market concerned could take place, then no difficulty would arise for the licensed “casual” trader would again be entitled to carry on trade on the same terms as to location as applied under the franchise.

Difficulties Associated with Designation

Local authorities were presented with a problem when designating a casual trading area, if that area did not include all of the historical franchise market area covered by the existing market rights.

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)

Section 6.16

However, in any circumstances where some of the historical franchise market area was not included within a designated casual trading area a potential difficulty arises, for in those circumstances section (4) would seem to require that traders who wished to trade within the boundaries of a franchise market would have their entitlements reduced by the fact that not all of the franchise market area was included within the casual trading area.

Extinguishing Market Rights

A local authority could choose to extinguish a market right and designate a Casual Trading Area. However extinguishing market rights in circumstances where they were granted without metes and bounds also poses difficulties:

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)

Section 6.16

. . . It is, of course, the case that, if ultimately deemed reasonable in accordance with a move to extinguish a market right by the provision of alternative facilities in accordance with s. 8 (provided that the alternative facilities meet the test contained in s. 8(3)(a)), the location of a franchise market can, in effect, be moved . . . However, in the absence of the invocation of s. 8, it is hard to see how the designation of a casual trading area which did not include all market areas would not amount to a diminution of market rights.

If a local authority were to designate a Casual Trading Area that was smaller in size than the area covered by the existing market rights, the designation would render the extinguishment procedure, defined in section 8 of the 95 Act as meaningless.

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)

Section 6.19, 6.20, 6.21

6.19 Like considerations arise under s. 8. The Oireachtas has set out a detailed and measured approach to the extinguishment by moving of franchise market rights backed up by an entitlement to apply to court in the event that it is contended that the measures proposed by the relevant local authority do not provide corresponding facilities to those being extinguished. It could not be that the Oireachtas intended that the same local authority, by invoking a power of regulation by byelaw, could achieve the same end without going through the procedures specified in section 8. To take such a view would be to render s. 8 meaningless.

6.20 . . . the power of regulation by byelaw contained in the 1995 Act cannot be used by a relevant local authority to designate an area which does not include the entirety of the area in respect of which an existing franchise market right exists and cannot be used to alter that area, . . .

6.21 . . . It follows that a local authority may not designate a casual trading area, which does not encompass the entirety of an existing franchise market area . . .

To summarise, a local authority has two options available to it when wishing to designate a casual trading area in a town where the market rights exist without metes and bounds.

Option 1) Extinguish the market rights and designate a Casual Trading Area that meets the conditions set out in section 8 of the Casual Trading Act 1995.

Option 2) Maintain the existing market rights and designate a Casual Trading Area that covers the whole town.

Designating a Casual Trading Area

Section 4 of the Casual Trading Act 1995, provides for the licencing of casual trading in three places:

1. Within a local authority’s functional area,

2. Within a casual trading area, or

3. At special events.

When a Casual Trading Area is designated, casual trading can only be licenced within the casual trading area, with the exception of special events.

Mr Justice Clarke clearly stated that the licencing of casual trading under section 4 of the Casual Trading Act 1995 could not function if a designated casual trading area did not include the entirety of the area in respect of which an existing franchise market right exists and that designation by byelaw cannot be used to alter that area.

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)|

Section 6.18.

How is s. 4 to operate unless the relevant local authority, if it chooses to designate a ‘casual trading’ area, so designates in a way which includes all of the area encompassed in the franchise market?

Section 6.20.

. . . the power of regulation by bye-law contained in the 1995 Act cannot be used by a relevant local authority to designate an area which does not include the entirety of the area in respect of which an existing franchise market right exists and cannot be used to alter that area, . . .

Designating a Casual Trading Area without Metes & Bounds

In a town where market rights exist without metes and bounds a local authority has to designate a casual trading area that covers the whole town. A local authority may then licence trading at any location within the designated casual trading area. This model for licencing casual trading and designating a casual trading area with respect to a historical franchise market area, follows the judgement in the case of ‘Simmons v Ennis Town Council’.

The Designation of a Casual Trading Area

Designating a Casual Trading Area

Casual Trading Act 1995

Bye-laws

Section 6(2)(a)(i)

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)

Section 6.8

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)

Section 6.15

Market Rights with Specified Boundaries

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)

Section 6.15

Difficulties Associated with Designation

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)

Section 6.16

Extinguishing Market Rights

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)

Section 6.16

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)

Section 6.19, 6.20, 6.21

Designating a Casual Trading Area

Simmonds & Anor -v- Ennis Town Council (2012) IEHC 281 (10 February 2012)|

Section 6.18.

Section 6.20.

Designating a Casual Trading Area without Metes & Bounds

The Designation
of a Casual Trading Area