Introduction

In order to licence casual trading a local authority has to allocate trading spaces to market traders. Trading spaces are therefore mapped, numbered and allocated to traders on each individual casual trading licence.

In circumstances where market rights cover a whole town, a local authority has to allocate trading spaces to all licence applicants and in all areas where trading had previously occurred. The allocation of trading spaces will then include all existing franchise market traders. This would fulfill the judgement in the ‘Ennis case’ and the requirements set out in ministerial guidelines, ensuring that where trading has taken place in a particular location that it should continue.

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

Discussion and Determination

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 s. 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.

. . . 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.

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, . . .

Casual Trading Act 1995, Guidelines for Local Authorities

General Principles of Casual Trading

(Guideline 10)

Local authorities should acknowledge that casual trading makes a valuable contribution to local economies. The Act requires that they regulate this activity and this should be done in good faith. As a general rule if casual trading has been carried on in a town or other location in the past there should be a presumption that it should carry on into the future.

Casual Trading Act 1995, Ministerial Guidelines for Local Authorities

Location of Designated Casual Trading Areas

(Guideline 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 center 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 recognized 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.

As the size of a franchise market without metes and bounds is naturally self-limiting, the question is, how many spaces, or how big an area does a local authority have to reserve to provide trading spaces to all applicants for a casual trading licence? (See ‘The Natural Size of a Market Without Metes & Bounds’.)

Market Rights and Casual Trading in a Town’s Retail Centre.

1. A local authority has the right to specify where trading will take place within a casual trading area or in circumstances where trading is licenced in the functional area of a local authority.

[Casual Trading Act 95, Section 4(1)(a)(i)(ii)].

2. A local authority has fulfilled its obligations to ensure that trading will continue in a town’s retail centre, when trading spaces are allocated in all areas where trading had previously occurred.

(See ‘Ministerial Guideline 17′ above.)

3. Market traders can be assured that their market rights have been preserved, when the number of allocated spaces is sufficient to provide trading spaces to all licence applicants. (See the ‘Ennis case’ above.)

4. With regard to the designation of a casual trading area; a local authority may consider parking provision, generated traffic, the size of a town’s retail centre, a town’s development plan, and all other matters it considers relevant to its decision to designate a casual trading area.

[Casual Trading Act 95, Section 6(3)].

5. There is nothing to prevent a local authority from promoting casual trading in another area of a town, but this cannot be at the expense of ensuring that trading will continue in a town’s retail centre.

(See the ‘Ministerial Guideline 17′ above.)

Summary

If trading has existed in the retail center of a town a Local authority may loosely draw a circle around all areas where trading has previously occurred and allocate trading spaces in those areas.

The Area Reserved for Casual Trading

When a whole town is designated as a casual trading area or when trading is licenced in the functional area of a local authority (County Bye-laws); market traders and the relevant local authority still need to know where trading will occur.

The Area Reserved for Casual Trading’ is the solution to this problem and it should entirely encompass all trading areas previously used by market traders. This effectively means numbering trading spaces, and identifying and reserving these trading areas on a map. The number of spaces in the area reserved for casual trading must be sufficient to provide trading spaces to all licence applicants.

(See ‘Market Property Rights and the Common Good’.)

The Historical Pattern of Trading at a Franchise Market

The size of the area used by market traders under a franchise changes over the course of a year, and may change further over a number of years. Ten years was chosen by Bantry Market Working Group as a period of time that fairly reflected the historical pattern of trading at a franchise market.

Mapping the Area Reserved for Casual Trading

With regard to the importance of the market rights at stake and to avoid possible legal challenges, it is essential that market traders or their representatives fully participate in the mapping of the ‘Area Reserved for Casual Trading’. The mapping of trading areas used by market traders can only be completed with the full agreement of market traders. The designation of ‘Areas Reserved for Casual Trading’ by market traders or their representatives should be done in good faith, ideally with the participation of all other relevant stakeholders:

Casual Trading Act 1995, Guidelines for Local Authorities

General Principles of Casual Trading

(Guideline 10)

Local authorities should actively promote casual trading as it contributes to the economic benefit of consumers.

Local authorities in formulating their policy and bye-laws on casual trading should actively consult casual traders (i. e. not just rely on the process in section 6 of the Act). The idea behind this guideline is that local authorities should not merely rely on notices in the newspapers. Existing traders should be contacted, as should traders interests groups. In other words the local authority should endeavour to go beyond the strict legal requirement in Section 6 (6) (a) of the Act.

Protection of the ‘Area Reserved for Casual Trading’ by Bye-law

In circumstances where a whole town is designated as a casual trading area, or where trading is licenced in the functional area of a local authority. Trading spaces/areas identified on a map, as ‘Areas Reserved for Casual Trading’ would form part of a town’s or a county’s Casual Trading Bye-laws. Substantial changes to bye-laws, such as the de-designation of trading spaces would require the local authority to go through the process outlined in section 6 of the Casual Trading Act 1995. Any change to casual trading bye-laws would also have to involve the full participation of market traders or their representatives.

Casual Trading Act 1995. Guidelines for Local Authorities

Amending Bye Laws under Section 6 (6) of the Act (Guideline 4, Page 2):

There is no provision under the Act for the amending of bye-laws made by Local Authorities. However the advice of the Office of the Attorney General is that notwithstanding the absence of a specific provision regarding the amendment of bye laws Local Authorities should go through the process in section 6(6) of the Act in cases where the change is substantial. In the instance giving rise to the advice the Local Authority intended to de-designate a casual trading area from bye laws already subject to the section 6 (6) process. It would be a matter for each Local Authority to determine what is substantial. However to avoid possible legal challenges it would be advisable to go through the process in section 6 (6) of the Act.

Casual Trading Act 1995. Guidelines for Local Authorities

Filling Vacant Pitches (Guideline 5, Page 2):

. . . If the local authority wishes to de-designate any vacant spaces the legal advice is that they should go through the process in section 6 (6) of the Act (see par. 4 above)