The Gazette 1976

GAZETTE

UNE

LY 1976

RECENT IRISH CASES

HOUSING

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

(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

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

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

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

lands

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