The Gazette 1986

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

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

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

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

Temple

Road

and

seriously

injurious

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

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