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GAZETTE
JULY/AUGUST 1986
Recent
Irish
Cases
Edited by
Gary Byrne, Solicitor
ROAD TRAFFIC
Specialised refrigerated van used for door
to door selling on a speculative basis
exempt from 'Tacograph' Regulations.
The Defendant was summoned
to
appear before the District Court on two
offences as follows:—
1. That on 19 March, 1985 at Malahide
Road, Kirisealy, in the Dublin Metro-
politan District being the crew member
of a motor vehicle, installed with
recording equipment in compliance
with Regulation 6 of the European
Communities
(Road
Transport)
(Recording Equipment) Regulations
1979, failed to use the saici recording
equipment in contravention of Article
3 of Regulation EEC No. 1463/70 of
the Council of 20 July, 1970, as
amended, and Regulation 7 of the
European Communities (Road Trans-
port) (Recording Equipment) Regula-
tions 1979 contrary to Regulation 9 of
the said European Communities (Road
Transport)
(Recording
Equipment)
regulations 1979 made under the
provisions of the European Communi-
ties Act 1972 as amended by the
European Communities (Amendment)
Act 1973.
2. At the same place on the same date
being the crew member, etc., failed to
produce, on request by an authorised
inspecting officer, record sheets giving
full details of all relevant periods for
not less than seven days preceding the
time when the check was made, in
contravention of Article 17(5) of
Regulation EEC No. 1463/70, etc.
The prosecuting garda gave evidence and
produced copies of the aforesaid EEC
Regulations and copies of the following
Irish Statutory Instruments:—
European Communities (Road Trans-
port) Regulations 1975 (S.I. No. 260 of
1975).
European Communities (Road Trans-
port) Regulations 1979 (S.I. No. 16 of
1979).
European Communities (Road Trans-
port) (Recording Equipment) Regula-
tions 1979 (S.I. No. 214 of 1979).
European Communities (Road Trans-
port) Exemption Regulations
1980
(S.I. No. 390 of 1980).
Road Transport Regulations (Trans-
fer of Departmental Administration
and Ministerial Functions) Order 1981
(S.I. No. 417 of 1981).
It was submitted on behalf of the
Defendant:
(a) That although the facts were not at
issue and although in general the
'Tacograph' Regulations applied to
all vehicles used for the carriage of
goods which have a maximum laden
weight exceeding 3.5 tonnes (deemed
in Irish Law to be equivalent to an
unladen weight of more than 1.5
tonnes), that this vehicle was an
exempted
vehicle engaged in a
national transport operation and was
being used as a specialised vehicle for
door-to-door selling and as such was
exempt from the Regulations;
(b) That both the vehicle and its use were
exempt by Section 5 of the Regula-
tions by virtue of the fact that the
vehicle
was
constructed
as
a
specialised refrigerated van and that
the Defendant was employed as a
driver/salesman engaged in selling
frozen foods from the vehicle by
Green Isle Limited and at the time of
the alleged offence was calling to
shops in the North County Dublin
area on a speculative basis; and that
this activity consisted of frequent
stops at retail shops and there was no
question of delivery of pre-deter-
mined orders.
The Sales Manager of Green Isle
Limited gave evidence confirming these
factual submissions on behalf of the
Defendant.
H E LD (per District Justice Delap) that
he was bound by a decision of the
European Court of Justice dated 11 July,
1984 (Case No. 133/83) which was a
reference to the Court under Article 177 of
the EEC Treaty by the English House of
Lords for a preliminary ruling in the
proceedings pending before that Court in
the case of
Regina
-v-
Thomas Scott & Sons
(Bakers) Limited and Brian Rimmer
; where
the European Court had ruled:—
(I)
That the term 'specialised vehicle' for
certain types of transport operations
within the meaning of the Regula-
tions was intended to cover exclu-
sively vehicles whose construction,
fitments or other permanent charac-
teristics guarantee that they were
used primarily for one of those opera-
tions such as door to door selling; and
(II) That the activity of door-to-door
selling within the meaning of the
Regulations might consist of calls on
potential wholesale customers such as
shops, work canteens, old people's
homes or supermarkets, provided
that the activity of selling was
characterised by frequent stops by the
specialised vehicle.
The Justice held that it appeared from
the evidence and the
1
facts of the case that
the Defendant was entitled to a dismiss on
the merits as his vehicle and activity came
within the terms of the exemption in
Section 5 of the Regulations.
Garda Patrick J. Devine, Complainant,
-v-
Raymond
FitzGerald,
Defendant;
Swords
District Court, 3 December,
1985 - per
District Justice Sean Delap - unreported.
District Justice Sean Delap
PLANNING
Local
Government
(Planning
&
Development) Acts - Powers of An Bord
Pleanala -
Res Judicata.
There were three adjoining detached
houses on Temple Road, Rathmines,
Dublin — No. 27 (Mr. Kenny), No. 29 (Mr.
Hussey) and No. 31 (Mr. Meenan). On 21
November, 1979, Mrs. Eustace, then the
occupier of No. 31, applied to Dublin
Corporation for outline permission to erect
a single storey house on a site at the rere of
No. 31. No objection was raised by Mr.
Hussey or Mr. Kenny nor was any appeal
against the decision to grant permission
lodged. In October 1980, Mr. Meenan
bought the site with the benefit of the
outline permission. He sought planning
permission for a two storey building and
obtained a decision to grant permission
from Dublin Corporation. Mr. Hussey and
Mr. Kenny appealed against the decision to
An Bord Pleanala and their appeal was
upheld. Mr. Meenan applied again and this
time applied for planning permission for
the erection of a single storey dwelling on
the site and on 25 September, 1981 Dublin
Corporation made a decision to grant
permission. Mr. Kenny appealed to An
Bord Pleanala which refused permission
for the following reason:—
" T he proposed single storey house
would, by reason of its visual obtrusi-
veness and proximity to No. 31 Temple
Road, be out of character with houses
on
Temple
Road
and
seriously
injurious
to
existing
residential
amenity."
Mr. Meenan made another application
for planning permission for a single storey
dwelling and Dublin Corporation decided
to grant such application. Mr. Kenny
appealed
and
An
Bord
Pleanala
determined the appeal on 20 May, 1983 by
a decision to grant the approval sought,
subject to conditions set out in the
decision, the 3rd, 4th and 5th conditions
being related to visual and residential
amenity. The Bord stated the reasons for
their decision:—
" It is considered that, subject to
compliance with the conditions set out
in the Second Schedule hereto the
proposed development would not be
contrary to the proper planning and
development of the area or otherwise
be injurious to the amenities thereon."
The Prosecutors sought an order of
Certiorari
quashing the order of An Bord
Pleanala on the grounds that the making of
the order was in excess of jurisdiction and
was contrary to the principles of natural
justice in that An Bord Pleanala failed to
be consistent in the discharge of its
statutory duties. A conditional order was
granted but when cause was shown the
conditional order was discharged by the
High Court.
The Prosecutors appealed and in their
appeal relied
inter-alia
on the following
grounds: —
1. the learned trial Judge erred in law in
holding that the lirst-named Respon-
dent was not entitled to refuse the
application for planning approval;
4.& the trial Judge erred in law in holding
5. that the first-named Respondent was
v