The Gazette 1986

JULY/AUGUST 1986

GAZETTE

PLANNING Local

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.

Recent Irish Cases

Government & 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 (Planning

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).

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

v