The extinquishment of a market right does not mean that a market or fair will cease to exist. A market right can only be extinguished with the provision of alternative facilities in the same vicinity of the previous market or fair. The alternative facilities provided by a local authority must reasonably correspond in all respects and have regard to all the circumstances of the original market or fair. Extinguishment effectively means moving a market or fair from one location to another in the same vicinity.

In the vast majority of cases the extinquishment of a market right by a local authority usually ends in failure.

Guidelines – Casual Trading Act 1995

Location of Designated Casual Trading Areas

17. Casual trading has existed in Ireland since time immemorial. The trading usually takes place in the oldest part of the town or city and as well as providing products to the consumer the traders also create an ambiance. Efforts to replicate trading in a different part of the town or city usually end in failure. Equally efforts to recreate trading once it has gone can prove difficult.

The Competition Authority Report 2002

Market Rights

2.9 The local authority must publish notice of its proposal to extinguish a market right and a person who is aggrieved by such a proposal may appeal to the District Court against the extinguishment. The Court may prohibit the extinguishment, or authorise it subject to conditions, if it is of the opinion that the extinguishment would constitute an undue interference with the facilities enjoyed by the public in relation to the market right, notwithstanding the alternative facilities provided by the local authority.

2.10 In Bantry in Co. Cork, the local authority sought to relocate casual traders from their traditional market place in the town centre, which has a market right attached to it that is owned by the local authority, to an area of reclaimed land outside the town. This has been challenged by casual traders in Court and they were recently granted an interlocutory injunction, allowing them to trade in the original market area. The Court found that the local authority had not followed the correct procedures required to extinguish a market right.

In order to extinguish a market right a local authority has to follow the procedures outlined in Section 8(3)(a) of the Casual Trading Act 1995 Act.

Casual Trading Act 1995

Powers of Local Authorities in Relation to Market Rights Owned by Them.

Section 8(3)(a)

A local authority shall not extinguish a market right under this section unless it provides, or has already provided, alternative facilities in the same vicinity as the market or fair to which the right relates and comprising or including facilities reasonably corresponding in all respects, having regard to all the circumstances, to the market or fair.

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.

The extinguishment of a market right by a local authority through the provision of alternative facilities may be challenged in the district and circuit courts. (See section 8(5)(a) & (c) below.)

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

Discussion and Determination

Section 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.

There is some uncertainty as to whether a market right can be moved if that right encompasses a whole town. The ‘Ennis case’ states that a designated casual trading area has to respect the circumstances of a historical franchise market area and cannot be used to alter that area.

As the same assessment of circumstances is made for ‘extinguishment’, the relocation of a market in circumstances where a market right covers a whole town is practically impossible. Only a market with market rights granted in a specific area, such as a town square, could be moved from one another location to another via an extinguishment procedure.

Ministerial guidelines also require local authorities to ensure that where trading has occurred in a particular area that this should continue. Local authorities should also promote trading in the retail center of a town, and a town’s market should not be moved to a peripheral location.

Guidelines – Casual trading Act 1995

Location of Designated Casual Trading Areas

17. Local authorities should ensure that where casual trading has taken place in a particular location that this should continue.

. . . . The point of guideline 17 is that casual trading should take place in the retail centre of towns and not in some remote part of the town which appears to be the case in some locations. Of course local authorities may wish to develop casual trading in different parts of towns but this should not be at the expense of allowing casual trading in the town’s retail centre. If redevelopment involves closing off these areas until the redevelopment is complete this will probably involve disruption to all kinds of trading and this is understandable. It is also recognised that the retail centre of a town may not be the oldest part. Changes over time occur and the retail centre may have shifted to another area. Another factor is the physical size of retail centres in towns which of their nature may not be able to accommodate the demand for trading pitches. Given all these factors the principle should now be: local authorities should have a commitment to promote casual trading in the retail centres of their towns. This is without prejudice to the development of casual trading elsewhere in towns and without prejudice to the need to redevelop towns’ retail centres.

Finally it’s important to point out that Section 7(4) of the 95 Act states that a market right that is not exercised for a period of not less than 10 years shall stand extinguished.

Casual Trading Act 1995

Acquisition and Extinguishment of Market Rights.

Section 7(4)

Where, after the commencement of this section, a market right in respect of a market or fair in the functional area of a local authority remains unexercised for a period of not less than 10 years, then, the market right concerned shall stand extinguished.

In Peace & Chitty’s Law of Markets and Fairs this section of the Act is seen as controversial. It would also seem to runs contrary to the judgement in the case of Skibbereen UDC v. Quill. This case stated that the failure by the owner of a market right to hold a market or fair does not extinquish that right. The judgement also states that members of the public may gather and form a market under franchise rights when a market is not being held by the owner. However the public are not aware of this fact and may not be inclined to form an "impromptu market" and run up against traffic wardens, Guardai and the local authority! To say that a market right stands extinquished in such circumstances is questionable and it may be that this issue should be taken to judicial review.

It’s worth pointing out that it only takes one market trader to form a market during any 10 year period to avoid extinguishment. However there would have to be some record of trading occurring over a period of time, for the validity of a market to stand up in court.

Pease & Chitty’s Markets and Fairs

Chapter 12 The Irish Dimension

C The Main Provisions of the Casual Trading Act 1995

Additionally, and somewhat controversially as it has subsequently transpired, the section further provides that where a market right in respect of a market or fair in the functional area of a local authority remains unexercised for a period of not less than ten years after the commencement of the section, then, the market right concerned ‘shall stand extinguished’ (sub-s (4)). The relevant date for the purposes of calculation is 1 May 1996 [31]. This section should be read in the context of s 8 which empowers a local authority to extinguish a market owned by it in certain circumstances.

Skibbereen U.D.C. v. Quill [1986]I.R. 123

Lynch J

Question A. "Does the franchise granted by the charter still exist, or has the lack of exercise of such franchise by the Council effectively terminated it?"

Answer: The franchise granted by the charter still exists and has not been terminated by the lack of exercise of it by the complainant.

The following extract from the Casual Trading Act 1995 sets out the extinguishment procedures contained therein.

The Casual Trading Act 1995

Powers of Local Authorities in Relation to Market Rights Owned by Them.

Section 8

(2) A local authority may by order extinguish a market right owned by it.

(4)(a) Whenever a local authority proposes to extinguish a market right under this section the local authority shall—

(i) give notice in writing of the proposal to any person appearing to the authority to have an interest in the right, and

(ii) publish notice of the proposal in at least two newspapers circulating in the area in which the market or fair to which the right relates is held.

(b) Notices under this subsection shall include particulars of the facilities proposed to be provided or already provided by the local authority in the place of the market or fair to which the right proposed to be extinguished relates.

(c) A notice under this subsection may be served on any person by sending it by registered post in an envelope addressed to him at his usual or last known address.

(5)(a) A person who is aggrieved by a proposal of a local authority to extinguish a market right may, within a period of 21 days beginning on the date of compliance by the local authority concerned with subsection (4) (a) (ii) in relation to the right, appeal to the District Court against the extinguishment and that Court may, on the hearing of the appeal, if it is of opinion that the extinguishment would, notwithstanding the alternative facilities to be provided or already provided by the local authority and having regard to all the circumstances, constitute an undue interference with the facilities enjoyed by the public in relation to the market right, prohibit the proposed extinguishment or authorise the extinguishment 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) A party concerned may appeal to the Circuit Court from a decision of the District Court.

(6) A local authority shall not proceed with a proposal to extinguish a market right under this section before the expiry of 30 days from the date of compliance by the local authority concerned with subsection (4) (a) (ii) in relation to the right or, if an appeal is brought against the proposal, before the final determination of the appeal.

(7) The extinguishment of a market right under this section shall be a reserved function.

Extinquishment

Guidelines – Casual Trading Act 1995

Location of Designated Casual Trading Areas

The Competition Authority Report 2002

Market Rights

Casual Trading Act 1995

Powers of Local Authorities in Relation to Market Rights Owned by Them.

Section 8(3)(a)

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)

Discussion and Determination

Section 6.19.

Guidelines – Casual trading Act 1995

Location of Designated Casual Trading Areas

Casual Trading Act 1995

Acquisition and Extinguishment of Market Rights.

Section 7(4)

Pease & Chitty’s Markets and Fairs

Chapter 12 The Irish Dimension

C The Main Provisions of the Casual Trading Act 1995

Skibbereen U.D.C. v. Quill [1986]I.R. 123

Lynch J

The Casual Trading Act 1995

Powers of Local Authorities in Relation to Market Rights Owned by Them.

Section 8