Meath County Council, Navan Tanker Services Ltd

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 01 January 1998
• Neutral Citation: 1997 WJSC-HC 1798
• Court: High Court
• Docket Number: [1995 No. 164 J.R.]
• Date: 01 January 1998

1997 WJSC-HC 1798

THE HIGH COURT

Record No. 164 J.R./95

NAVAN TANKER SERVICES LTD V. MEATH CO COUNCIL

BETWEEN

NAVAN TANKER SERVICES LIMITED

APPLICANT

AND

MEATH COUNTY COUNCIL AND BY ORDER OF THE COURT IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

EUROPEAN COMMUNITIES (VEHICLE TESTING) REGS 1991 SI 356/1991 ART 5

EEC DIR 77/143

EEC DIR 88/449

EUROPEAN COMMUNITIES (VEHICLE TESTING) REGS 1981 SI 193/1981

EUROPEAN COMMUNITIES (VEHICLE TESTING) REGS 1991 SI 356/1991 ART 8

EUROPEAN COMMUNITIES (VEHICLE TESTING) REGS 1991 SI 356/1991 ART 3

EUROPEAN COMMUNITIES (VEHICLE TESTING) REGS 1991 SI 356/1991 ART 10

JENNING TRUCK CENTRE V OFFALY CO COUNCIL UNREP MURPHY 14.6.90 1993/8/ 2310

EUROPEAN COMMUNITY (VEHICLE TESTING) REG 1981 – 1986

EUROPEAN COMMUNITIES (VEHICLE TESTING) REGS 1991 SI 356/1991 ART 5.1

O'NEILL V MIN FOR AGRICULTURE UNREP BUDD 5.7.95 1995/11/3018

EAST DONEGAL CO-OP V AG 1970 IR 317

EUROPEAN COMMUNITIES ACT 1972 S3

EUROPEAN COMMUNITIES ACT 1972 S2

EUROPEAN COMMUNITIES ACT 1972 S3(2)

EEC DIR 77/143 ART 4

TARA PROSPECTING LTD V MIN FOR ENERGY 1993 ILRM 771

GREALY V DUBLIN CORPORATION UNREP MORRIS 7.3.94

EUROPEAN COMMUNITIES ACT 1972 S4

EUROPEAN COMMUNITIES (AMDT) ACT 1973 S1

Synopsis:

JUDICIAL REVIEW

European Communities (Vehicle Testing) Regulations, 1991 - appointment of vehicle testers - exercise of discretion by issuing authority - applicant not informed that adequate service already in existence - whether breach of natural justice - whether legitimate expectation to be heard on question of adequacy of supply - Held: Breach of natural justice - legitimate expectation to be heard - certiorari granted - (High Court: Carroll J. - 13/12/1996) - [1998] 1 IR 166

|Navan Tanker Services Ltd. v. Meath County Council & Anor.|

1 Miss Justice Carroll delivered the 13th day of December, 1996 .

2 This is an application for Judicial Review of a decision of Meath County Council dated the 19th December, 1994 and communicated to the Applicant on the 10th April, 1995 refusing to appoint the Applicant as authorised tester of light and heavy goods vehicles in accordance with the European Communities (Vehicle Testing) Regulations, 1991 S.I. No. 356 of 1991 (the 1991 Regulations).

3 These regulations were made following Council Directive No. 77/143/EEC which provided for the regular roadworthiness testing of heavy goods vehicles (H.G.V.) and Council Directive No. 88/449/EEC extending the categories of testing to light goods vehicles (L.G.V.). By the 1991 Regulations, the Minister revoked an earlier Statutory Instrument No. 193 of 1981 dealing with H.G.V.'s alone and introduced new regulations dealing with both classes of vehicles.

4 Article 5 of the 1991 Regulations provides:-

"5.(1) An issuing authority may appoint as authorised testers as respects all or any of the vehicle classes to which these Regulations apply persons or bodies who make application in a form approved by the Minister and who have or have access to premises, trained personnel within the meaning specified in sub-article (2) of article 6 hereto and equipment appropriate to carry out roadworthiness tests in respect of the items listed in the schedule or schedules specified in column 4 of the First Schedule hereto for the relevant vehicle class or classes."

5 Subparagraph (3) provides:-

"An issuing authority may at any time suspend or terminate the appointment of an authorised tester".

6 Article 8 provides:-

"8. The Minister may from time to time issue recommendations to issuing authorities and to authorised testers as to the manner in which tests shall be carried out in relation to all or any of the items listed in the schedules specified in column 4 of the First Schedule hereto and in carrying out such tests, authorised testers shall have regard to any such recommendations."

7 Article 10 provides:-

"10.(1) On presentation to an issuing authority of a pass statement together with the appropriate fee specified in sub-article (4) of this article, such authority may issue a certificate of roadworthiness in the form set out in the Second Schedule to these Regulations and which includes the particulars which are required in the said form to be specified."

8 Meath County Council is an issuing Authority as defined in Art. 3 and is vested with the function of granting licenses to authorised testers under Art. 5 of the 1991 Regulations.

9 The Applicant is a limited company established in 1986, which is a family business run by Mr. John Kelly who swore the Grounding Affidavit. The company carries out repairs and maintenance to commercial vehicles (including tankers and buses). The company first applied to Navan U.D.C. for planning permission and obtained it on 28th September, 1993 to carry out renovations at its garage. The company applied to Meath County Council to be appointed as an authorised tester for H.G.V.'s and L.G.V.'s. These applications were received on the 11th July, 1994. On the 17th October, 1994 the company applied to Navan U.D.C. for a further planning permission and retention of extension to workshops which was granted on the 29th December, 1994.

10 Mr. Dwane, the authorised officer appointed in accordance with the 1991 Regulations, wrote a report for Mr. Whelan the authorised officer in the Motor Taxation Section, received on 6th December, 1994. Mr. Whelan recommended that the appointment be refused. This recommendation was endorsed by the County Secretary and the County Manager then decided to refuse the appointment on 19th December, 1994.

11 On the 10th April, 1995 Mr. Whelan, the authorised officer, wrote to Mr. Kelly saying:

"... I regret to inform you that your application has been unsuccessful having regard to the small number of goods vehicles in the County, and to the presence of the existing test centres which are of relative convenience for vehicle owners."

12 On further enquiry by the Applicant's Solicitor, the Applicant was informed by letter dated the 20th April, 1995 from Mr. McDonagh, the County Secretary:

"... In relation to the relative convenience of the existing centres for vehicle owners, I would point out that there are three test centres within a 15 mile radius of Navan.

The small number of goods vehicles in the County is reflected in the annual returns for vehicle testing, the results of which are published in the Department of the Environment Bulletin of vehicle and driver statistics each year.

In relation to your query on guidelines or rules for the appointment of authorised testers, I would refer again to Article 5 of the European Communities (Vehicle Testing) Regulations, 1991. The question of satisfaction with Mr. Kelly's plans, equipment or staff is not relevant having regard to the reasons set out in our letter of the 10th April, 1995."

13 On 26th June, 1995 the Applicant was granted leave to apply for judicial review of the decision of 19th December, 1994 refusing the appointment. It is not necessary to set out the Applicant's grounds in detail as the issues arising (being four in number) are identified in the Applicant's arguments.

14 In his Grounding Affidavit, Mr. Kelly avers that the County Council were at all material times aware of the company's investment, which Mr. Kelly put in excess of £50,000. He said that Mr. Dwane, Regional Engineer, and the authorised officer of the County Council appointed under the 1991 Regulations, actively encouraged and advised on the construction of the premises. He said Mr. Dwane told him that as far as he knew there was a remaining licence available within County Meath.

15 Mr. Kelly was cross-examined on his Affidavit. He said that he approached Mr. Dwane in 1993 in perhaps June or July. He first met him in the Council yard of Meath County Council and later in September 1993 he met him in his office. At the first meeting he wanted to know what they would need to be appointed as a D.O.E. (Department of the Environment) tester. He said that on the first occasion Mr. Dwane said there was still one D.O.E. licence available. Mr. Kelly said he got an architect, Sean Boyle, to draw up the plans for the testing centre. They had intended to renovate anyway but not to the extent they actually did. They ended with three full workshops as the D.O.E. area had to be cordoned off. If there was no question of a licence, they would have left it as an open workshop.

16 There was a meeting with Mr. Dwane on the 29th of September, 1993. At that stage they had been notified of the decision to grant planning permission. He did not tell Mr. Dwane about this, possibly through an oversight. He was concerned with looking for directives on layout and equipment of a D.O.E. centre from Mr. Dwane. In the application for further planning permission and retention, (made in October 1994), one building was enlarged and another reduced so as to get access for a 40 foot trailer onto the equipment. They got second-hand equipment (a rolling road) which was to be over-hauled and calibrated by Mr. Gerry Nolan. They asked Mr. Dwane to come to the test. At the meeting Mr. Dwane made it clear that if anything was wrong with the premises they would not get a D.O.E. appointment. He agreed that Mr. Dwane said there was no guarantee his application would be successful but he interpreted that as meaning they would not get it if they did not comply with the regulations. Mr. Dwane came to see the roller-brake test on the 10th June, 1994 which was installed before they applied to the County Council. They did not know they had to apply to the Meath County Council for appointment until told by Mr. Dwane when he came out. Before that Mr. Kelly thought that application was made to the authorised officer. Mr. Dwane provided the guidelines issued by the Department of the Environment. He said he would attend on the understanding that it was not for a D.O.E. licence. Mr. Kelly said that...