The Gazette 1983

JULY/AUGUST

1

GAZETTE

where such a determination is made and in the instant case the Respondent acted properly and within his jurisdiction. The State (Laffey) v. Esmonde and Others. Supreme Court (per O'Higgins C. J., and Henchy J., Griffin J. concurring), 2 July, 1982 — unreported. Ciaran A. O'Mara ROAD TRAFFIC ACTS Bye-Laws under Road Traffic Act, 1961, Sections 89,90 and 92 —Control of Traffic and Parking on Specified Public Roads —Control of Traffic on the Occasion of Fairs and Markets The Defendants in each of these two groups of cases are street traders and were prosecuted in the District Court, convicted and fined for breaches of Bye- Laws made under Sections 89 and 90 of the Road Traffic Act, 1961 relating to the regulation and control of traffic and the parking of vehicles. Cases having been stated, the High Court upheld all the con- victions. A further Appeal was taken to the Supreme Court. Bye-Laws made under Sections 89 and 90 of the Road Traffic Act, 1961, are not, and are not intended to be, effective to regulate traffic and parking in a lawful Market or Fair. The regulation of traffic through a public road where a Fair or Market is being lawfully held can be effected only by Bye-Laws made under Section 92 (1) and then only to the extent allowed by that sub-section. Where the evidence raises an inference that the conduct complained of may consist of trading in a lawful Market, the Prosecutor must rebut that inference if he is to secure a conviction for a breach of Bye-Laws made under Sections 89 and 90. The Supreme Court allowed all the appeals and directed that the several summonses should stand dismissed. Director of Public Prosecutions (Long) v. McDonald and Others; Same v. O 'Mahony and Others; Same v. Biggs and Others. — Supreme Court (per Hency. nem. diss.) 22 July, 1982) — unreported. William Dundon PLANNING — Local Government (Planning and Developments Acts) 1963/1976, Housing Act 1960 — Whether Decision to Refuse Decision Made and Communicated within Statutory Time Limits The Plaintiff lodged an application with the Defendants for permission to carry out

tion (Ireland) Act, 1854, but ultimately that suggestion was withdrawn and the case solely rested on the exemption provided by Section 63 of the Poor Relief (Ireland) Act 1838. On the latter the Court held that the tenements and heredita- ments of Wesley College are not used exclusively for charitable purposes and are not of a public nature and dedicated to or used exclusively for public purposes and accordingly should not be thus distinguished in the valuation lists. Governors of Wesley College and the Trustees of the Methodist Church in Ireland v. Commissioner of Valuation. Supreme Court (per Henchy J. Nem Diss) 9 December 1982 — unreported. Peter Connolly CRIMINAL LAW When sentencing a young person, the District Court or Circuit Court, which certifies that the unruly character of the young person prevents it from ordering that the offender be detained in a place of detention, may determine that a sentence of imprisonment be imposed. L. was a young person within the meaning of the Children Act, 1908, who was sent forward to the Circuit Court for sentence, having signed pleas of guilty to over 80 offences. The Circuit Court Judge certified L. to be "of so unruly a character and of so depraved a character that he cannot be detained in and is not a fit person to be detained in a place of detention for young persons under the Children Act, 1908".Such a certificate enables a sentence of imprisonment to be imposed on a young person and a sentence of two years in Mountjoy Prison was passed. L. obtained a conditional order and, in time, an absolute order of certiorari in the High Court on the ground that S.106 of the Children Act, 1908, prohibited a sentence of more than one month's imprisonment for a young person. The Respondent appealed to the Supreme Court. HELD: S. 106 of the Children Act, 1908 is an enabling one which allows the District Justice or Circuit Judge, when he considers that none of the other methods with which the ease may legally be dealt with is suitable, to commit a child or young person to a specified place of detention for a period not exceeding one month instead of imposing a term of imprisonment. In this case the Circuit Judge considered that the other methods of dealing with L. were not unsuitable. Instead, the Judge determined that a prison was the appropriate place to send the applicant. S. 106 has no application

a development at Strand Road, Bray on or about 6 October 1978. As the proposed development would have entailed the demolition of an existing habitable house, a' separate application was made to the Defendants for permission under the Housing Act 1969 for the demolition of the house. The Housing Act permission was refused and an appeal brought to the Minister for the Environment, who granted permission for the demolition on 20 August 1979. The Defendants were, under the provisions of Section 26(4)(a) and (b) of the Local Government (Planning and Development) Act 1963 as amended by Section 10 of the Housing Act 1969, required to make and give notice of their decision in relation to the Planning Application within a period of five weeks from the date of final determination of the application for the permission to demolish. The Defendants made a decision on the application on 24 September 1979 and on that day sometime after 4.30 p.m. an official from the Planning Authority handed in a registered letter, containing the notice of decision to grant permission and addressed to the Plaintiff, at Bray Post Office. The latest time for posting registered post each day at Bray Post Office was 4.30 p.m. and a notice to this effect was prominently displayed in the post office. Any registered letters accepted after that time would not go out until the following morning. The Plaintiff and Defendants both issued proceedings seeking certain declarations on the various issues. The Court considered that the issues to be determined could be resolved by considering what answer should be given to the following series of questions: 1. Is the day upon which the Minister's decision was given on the appeal of the Housing Act 1969 to be taken into account in calculating the "appropriate period" of five weeks within which a decision should have been given on the Planning application? 2. If it is and the five week period expired on 23 September 1979 is the situation affected by reason of fact that that date fell on a Sunday? 3. If 24 September 1979 is to be regarded as the last day of the statutory five week period, was notice "given" within the meaning of the Acts, when the registered packet was handed into the post office on that date and accepted for posting by the person in charge? 4. If the notice was not given within the requisite five week period is it now open to the Plaintiff to challenge the validity of the decision to refuse permission, having regard to the time limit for bringing proceedings imposed as a result of the amendment of Section 82 of the Local Government (Planning and Development) Act 1963 effected by Section 42 of the amending Act of 1976.

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