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GAZETTE
MARCH 1987
Recent
Ed i t ed by
Ga r y By r ne
FAMILY HOME PROTECTION
ACT 1976
Equitable Deposit of Title Deeds —
Consent of Spouse — Prior Consent
The Bank took an equitable deposit of the
Land Certificate of the Defendant on 14
March 1978, the Defendant having brought
his Land Certificate to the Bank with the in-
tention of leaving it with the Bank as securi-
ty for a loan which they had agreed to give
him. The Bank Manager pointed out to the
Defendant that his wife, who was not with
him at the time, would have to call and give
her consent to the transaction. The Defen-
dant left the Bank, leaving his Land Cer-
tificate in the custody of the Bank and later
on the same day his wife called and signed
the necessary consent to comply with the
provisions of the Family Home Protection
Act 1976. The Defendant contended that
the consent of his wife was not a prior con-
sent in writing as required by Section 3 of
the Family Home Protection Act 1976.
HELD:
"If the attempt by the Defendant
to effect a mortgage by equitable deposit of
his Land Certificate was already complete
before his wife called in to execute the con-
sent, then it was not a 'prior consent' as
required by the Act, and the transaction
should be regarded as void. However, in the
particular circumstances of the present
case, the Bank and the Defendant implied-
ly agreed to the retention by the Bank of the
Land Certificate as mere custodians thereof
until such time as the Defendant's wife
came in to sign the necessary consent, and
that a tacit agreement should be implied as
between the Bank and the Defendant that
as and from the time when Mrs. Hanrahan
signed the consent, the character in which
the Land Certificate was held by the Bank
should change and that from that time for-
ward they should be entitled to retain it in
the capacity of equitable mortgagees."
Governor & Company of the Bank of Ireland
-v- John Hanrahan, High Court per O'Hanlon
J., 10 February 1987, unreported.
Nicholas Comyn
PLANNING
Compansatlon —Grounds of Rsfussl of
Psrmisslon
The Claimant lodged an application for per-
mission for residential development of lands
at Killiney, Co. Dublin. The Planning Autho-
rity decided to refuse permission and the
Claimant appealed against the decision to
An Bord Pleanala. An Taisce also appealed
against the decision on the grounds that the
Planning Authority's decision to refuse was
not strong enough. An Bord Pleanala refus-
ed to grant the permission for the following
reasons:
1. The proposed development would be
contrary to the zoning objectives for the
area and both the Dun Laoghaire
Development Plan 1 976 and Draft Plan
1 983. These zoning objectives are con-
sidered reasonable and the development
would, therefore, be contrary to the pro-
per planning and development of the
area.
2. The proposed development, including the
access road, driveways, boundary walls,
and the considerable excavation, would
be seriously injurious to the overall
character of the area and contrary to its
proper planning and development.
The Claimant sought compensation under
Section 55 of the Local Government (Plan-
ning and Development) Act 1963 measured
at the sum of £2,375,000 for the loss of
development value. Section 56 of the same
Act provides that compensation under Sec-
tion 56 is not to be payable . . .
"(g) in respect of the refusal of permission
for development if the reason or one of
the reasons for the refusal is the necessi-
ty of preserving any view or prospect of
special amenity value or special interest.
(h) in respect of the refusal of permission
for development in an area to which a
special amenity area order relates.
(i) in respect of the refusal of permission
for development comprising any struc-
ture or any addition to or extension of a
structure if the reason or one of the
reasons for the refusal is that the struc-
ture, addition or extension —
(i) would infringe an existing building line,
or, where none exists, a building line
determined by the planning authority or
by the Minister, (ii) would be under a
public road, (iii) would seriously injure the
amenities, or depreciate the value, of
property in the vicinity."
The Arbitrator appointed to determine the
compensation which might be payable
stated a case for the opinion of the High
Court on the following question:
" A. Does Section 56(1)(g) apply on the
basis of the refusal given in such a
way to preclude compensation being
paid pursuant of
(sic)
Section 55 of
the Act.
B.
Do the grounds of refusal given com-
ply fully with Section 56(1 )(g)(iii) of
the aforesaid Act so as to enable
compensation to be precluded."
The High Court (per Murphy J.) held that
neither of the two reasons stated by An Bord
Pleanala was such as to defeat the claim for
compensation. The Planning Authority ap-
pealed to the Supreme Court. That Court
held that if a Planning Authority sought to
defeat a claim for compensation brought by
an individual it must do so within the con-
fines of Section 56 and the exclusion must
be clearly established and that it must be
assumed that An Bord Pleanala in departing
from the reasons ascribed by the Planning
Authority for refusing permission must be
assumed to have done so after due con-
sideration and knowledge of the conse-
quences.
The Court referred to a passage from the
Law of Local Government in the Republic of
Ireland by Keane at page 198 where the
author stated that ("the Bord") should also
ensure that the wording of the refusal does
not confer a right of compensation where
none was intended by the legislature."
The Court held that the reason stated by
the Planning Authority did not come within
the ambit of Section 56(1 )(i)(iii) also in-
dicating that it could not equate "overall
character" and "amenities".
Finally the Court approved the reasoning
of Murphy J. that if An Bord Pleanala had
wanted to use the appropriate terms it could
have done so, it was well aware of the form
of wording that would defeat a claim for
compensation "it is highly likely that for one
reason or another it must have appreciated
the desirability, indeed the requirement of
precise wording, it did not use such precise
wording and the applicants claim was not
to be defeated by not merely straining the
language but by introducing further and
other language into it."
The Court dismissed the appeal.
XJS investments Ltd. and Dun Laoghaire
Corporation Supreme Court (per McCarthy
J. nem. diss.) 11 December 1986.
John Buckley
COSTS
Solicitor and Client Bill — Taxation —
Jurisdiction of Taxing Master
A dispute arose between the Prosecutors
and their clients in respect of a Bill of Costs.
They had acted for her in matrimonial pro-
ceedings in which she had been successful,
and in which her husband had been ordered
to pay her costs. The Solicitors had receiv-
ed payment on account of costs during the
Action. After Judgement, without drawing
a party and party bill or seeking to agree a
figure for costs with the husband's
Solicitors, the Prosecutors sent their client
an "up to date Bill of Account". The client
requested the Prosecutors to send the bill
to her husband's Solicitors. The Prosecutors
declined to do this until they had been paid
their costs because they anticipated con-
siderable difficulty in enforcing the Order for
costs because the husband was in England.
The client paid the amount of the bill and
issued a requisition to tax the bill under Or.
99 Rule 1 5(e) under the 1962 Rules of the
Superior Court. The Prosecutors submitted
that the Taxing Master had no jurisdiction
to tax a bill, after it had been paid, without
an order of the Court. The Taxing Master
rejected this objection and proceeded to tax
a more detailed bill which he had required
the Prosecutors to submit. The amount of
the bill was reduced and the Prosecutors
were disallowed the costs of taxation and
directed to take up the Certificate of Tax-
ation and to pay the fees thereon.
The Prosecutors did not do this but sought
an order of
certiorari
on the grounds: 1. that
the Taxing Master had no jurisdiction to tax
a Bill of Costs after payment thereof without
an order of the Court referring such Bill of
Costs to him pursuant to s.6 of the At-
torneys and Solicitors (Ireland) Act 1849,
2. that the Taxing Master was
functus of-
ficio
on the date in question. The High Court