The Gazette 1976

J UNE /J U LY 1976

GAZETTE

of a Housing Authority under the guidance of the Minister. If the Minister is willing to vary a de- velopment Plan, in order to effectuate a Compulsory Purchase Order for Housing Purposes, there is no guidance as to how the Minister might exercise his appel- late powers, if a Development Application were made in respect of the same lands by a private person. Under the Rules issued in relation to the 1919 Act, there is furthermore a statutory prohibi- tion, as the Rules state that no account is to be taken of the existence of Proposals for the de- velopment of the land or any other land by a Local Authority. It was specifically held in Re Deansrath Investments — (1974) I.R. — that, while the basic rule is that the measure of compensation is to be the open market value of the land, the arbitrator must leave out of reckoning of that value the exis- tence of the proposed Local Authority development, so that that authority will not have to pay more for the land than would an ordinary purchaser. Accordingly the Arbitrator should not take into account, by reference to the Tran- script of Evidence at the Public Inquiry, the existence of the Cor- poration's proposal for develop- ment, or any matter arising there- from, such as the Minister's attitude to the zoning of land. The appeal is unanimously allowed by the Supreme Court and Butler J. is accordingly reversed. In Re Popplntree — Balbutcher — Santry Area Compulsory Purchase Order 1967 and in Re Joseph Murphy — Supreme Court (O'Higgins C. J., Henchy and Griffin JJ.) per Henchy J. — unreported — 21 November, 1975.) CONTEMPT OF COURT The Constitution has not changed the previous procedure relating to contempt of Court. Application for Habeas Corpus and Certiorari. In July, 1974, Circuit Judge Fawsitt in Tipperary made an Order in the course of matrimonial proceedings, by which the prosecutor was restrained from all acts of inter- ference with his wife in her use and enjoyment of lands in Tipperary. The prosecutor, though served with the order, disobeyed it, and, on a motion for committal, was sent to prison. He was sub- sequently released on purging this 9

RECENT IRISH CASES HOUSING

(2) The Arbitrator should have regard to the evidence at the Public Inquiry only so far as it may indicate that, in rela- tion to a proposal by the Cor- poration to develop the lands for residential purposes, the Minister would consent to altering it from the zoning of land for agricultural purposes. As regards the first question, the date on which compensation is to be assessed for land compulsorily acquired, may be of great impor- tance if the market value of the land has changed, since the Com- pulsory Purchase Order was made. In this case, the value of the lands was falling. If the date of assessment were taken as that of the first Notice on 12 March, 1973, the value of the lands would have been £1,486,500. By 10 May, 1974, at the date of the second Notice, the value of the lands would have fallen by £379,400, and would con- sequently have only been worth £1,107,100. The claimant Murphy contends that the determination was made by the High Court in March, 1973; the Corporation con- tend that this determination was only made by the Supreme Court in May, 1974. It was held that under S.78(3) of the Housing Act, 1966, such determination necessarily refers to the decision of the High Court. There is no provision in the Act for withdrawal of one Notice to Treat, and service of a second one. "The date of determin- ation" is clearly when a judicial determination has been given. Accordingly the effective service of Notice to Treat was effected on 12 March, 1973. As regards the second question, the Arbitrator wished to have an authoritative ruling as to whether he could refer to the Transcript of Evidence given at the Public Inquiry. This must be answered in the negative, because it is not proper in an Arbitration to rely on evidence given in other proceed- ings for the purpose of proving facts relevant to the arbitration. The Transcript is part of a Report made by the Inspector for the Minister alone. The claimant con- tends that the Minister's approach to the present Compulsory Purchase Acquisition indicates that the land has a potential for non-agricultural purposes; consequently the Arbit- rator should take that potential into account in fixing the compen- sation. But this argument is un- sound, as the purposes of the Act are essentially within the province

Under the Housing Act 1966, the date on which compensation is to be assessed for land compulsorily acquired is the Notice to Treat fol- lowing a High Court decision. The Arbitrator under the 1919 Act should neither, in assessing com- pensation, take into account the Transcript of Evidence at a Public Inquiry, nor the Minister's attitude to the zoning of land. The facts in this case were reported in the December, 1975, GAZETTE at page 299. It will be recalled that lands were acquired compulsorily by Dublin Corporation under the Housing Act, 1966, and that the Compulsory Purchase Order was confirmed by the Minister in January, 1969. The claimant then brought proceedings in the High Court to have this Order declared invalid, but the High Court found the Order valid on 1 March, 1973. On 12 March, 1973, Dublin Cor- poration served a Notice to Treat on Murphy, which is the first step by which the Housing Authority decides to acquire the relevant land. On 20 March 1973, a notice of appeal to the Supreme Court against the order of the High Court was served on the Corporation. In consequence, the Corporation served a second Notice to Treat on Murphy on 10 May, 1974, as they considered the first Notice to Treat of 12 March, 1973, to have been invalidly served, and the Supreme Court had only dismissed the appeal in April, 1974. The Special Arbitrator under the Acquisition Land (Assessment of Compensation) Act, 1919, Mr. Owen McCarthy, held an arbitra- tion for the award of compensation, and referred a Special Case Stated for the High Court on the follow- ing two questions:— (1) Whether the Notice to Treat related to the 10 May, 1974, or to the 2 May, 1973. (2) Whether the Arbitrator was entitled to have regard to the Transcript of the Proceedings at the local Public Inquiry held prior to the confirmation of the Compulsory Purchase Order, for the purpose of assessing the potential value of the land. Butler J. answered the questions as follows:— (1) The Notice to Treat related to 10 May, 1974 —and