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GAZETTE
JANUARY/FEBRUARY 1981
leases in respect of premises of
the type the subject matter of
the application are unknown in
the property world and in view
of the evidence that it would be
pure speculation to try and
endeavour to determine the
inflationary trends (if any) over
a ninety-nine year period.
The President of the Circuit Court
had accepted the following matters as
being established by the evidence:
(a) The sum of £10,000 determ-
ined by the County Registrar as
the purchase price was so
determined without regard to
inflation.
(b) If inflation was to be ignored
this sum of £10,000 was
reasonable.
(c) Over the past ten years infla-
tion had shown an average
(annual) increase of 12.2%.
(d) The Respondents would not be
willing to grant a ninety-nine
year lease of the premises
without a provision for rent
reviews.
(e)
A ninety-nine year lease of
premises similar to the subject
matter of the application was
something which would now be
unknown in the property world.
(0
It would be impossible to
predict the rate of inflation for a
ninety-nine year period.
The supreme Court was referred to
its decision in
Byrne v. Loftus
[1978]
I.R. 211, in which it had held that if
there was evidence to support such a
course, a Court could (in granting a
twenty-one year lease approval) fix a
rent which would provide an aggre-
gate amount of rent over twenty-one
years equal to the total of the rents a
willing landlord would obtain by
granting a lease for twenty-one years
with a clause providing for rent
reviews. The Court stated that it
found it difficult, if not impossible, to
imagine credible evidence being
adduced which would indicate a
likely or possible rent to be determ-
ined now which would on aggre-
gation over more than ninety-nine
years equate to what an imaginary
lessor would be willing to take and an
equally imaginary lessee would be
willing to give for a ninety-nine year
lease subject to rent reviews. The
Court could therefore not apply the
principle laid down in
Byrne
v.
Loftus.
HELD (per O'Higgins CJ. with
Kenny and Parke J J. concurring,
and with separate concurring judg-
ments from Henchy and Griffin J J.).
That on the facts as found by the
President of the Circuit Court it was
simply not possible to have regard to
a rent which would be reserved (with
no provision for periodic rent
reviews) by a reversionary lease for
ninety-nine years of the premises the
subject matter of the application as
such a rent was not capable of being
ascertained. Accordingly the Court
answered the first question "no" ana
also held that the determination of
the County Registrar was governed
by the statutory requirements con-
tained in Section 17 (2) (b) of the Act
of 1978 and accordingly answered
the second question "no" also.
In his concurring judgment
Henchy J. stated:
"If computation by reference to
the gross rent were merely directory,
the position would be different. But it
is a prerequisite to the exercise of
jurisdiction to fix the purchase price.
The rule to be applied, therefore, is
that stated as follows in Maxwell on
The Interpretation of Statutes
, 12th
edition, p. 328:
'Where an act or thing
required by the statute is a
condition precedent to the juris-
diction of a tribunal, compli-
ance cannot be dispensed with
and, if it be impossible, the
jurisdiction fails. It would not
be competent to a Court to
dispense with what the legis-
lature has made the indis-
pensible foundation of its juris
diction.'"
In concluding his concurring judg-
ment Henchy J. stated:
"The way out of the unfortunate
impasse disclosed by this case stated
is for Parliament to enact, in placc of
the existing method of ascertaining
the purchase price of a ground rent, a
method which will not depend on an
unworkable element. It is unfor-
tunate that, pending such a statutory
change, a ground rent can be bought
out by a tenant only when the parties
agree to the amount of the purchase
price."
Seán Gilsenan v. Foundary House
Investments Ltd. and Rathmincs
Properties Ltd.
Supreme Court
(per O'Higgins CJ .) with concurring
judgments of Henchy and Griffin
JJ.) -
14 November 1980
unreported.
LOCAL GOVERNMENT-
SANITARY SERVICES ACT 1964
Section 3 (8) (a) of Sanitary Services
Act 1964 — prohibiting the repair or
letting of premises ("structure") or
the carrying out of works on the site
unto payment to the sanitary
authority of sums expended by the
authority on carrying out of speci-
fied works in default of owner doing
so pursuant to District Court Order
— applied to the premises and site in
question and not only to the then
owner of the site; and a person subse-
quently purchasing the premises or
site took subject to and affected by
the District Court Order. Who was
"owner" at the time of the Order also
considered on the facts.
The Prosecutor (F. & C. Limited)
bought the fee simple in the four
premises numbers 1-4 Roby Place,
Dun Laoghaire, by indenture of
conveyance dated 9 June 1978 from
Rochford Holdings Limited ("Roch-
ford"). Rochford had owned the
property from prior to 31 May 1976.
In 1974 and 1975 applications for
planning permission in respect of the
premises had been made by archi-
tects on behalf of T. & J. Nolan Buil-
ders Limited ("T. & J. Nolan")
stating that T. & J. Nolan were the
owners of the fee simple. There was
an identity of directors in both Roch-
ford and T. & J. Nolan.
On 31 May 1976 Dun Laoghaire
Corporation ("the Corporation")
served Notice on T. & J. Nolan
pursuant to Section 3 of the Local
Government (Sanitary Services) Act
1964 ("the 1964 Act") of the fact
that the Corporation were of the
opinion that the floors and ceiling of
the four premises was a "dangerous
structure" within the meaning of
Section 1 of the 1964 Act and
requiring T. & J. Nolan to carry out
certain works specified in the Notice.
On 29 June 1976 further Notice was
given by the Corporation to T. & J.
Nolan of an application to the
District Court in accordance with
Section 3 (5) of the 1964 Act for an
Order requiring T.
& J.
Nolan to
carry out the work specified in the
Notice and in default for an Order
II