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GAZETTE
MAY1980
Section 15 was to prevent
appeals or references which were
without reality or substance, that
the amount of the deposit was
not so high as to prevent genuine
appeals being brought; that, in
addition, it was a deposit which
was returnable when the appeal
was
heard,
withdrawn
or
determined;
that
a
similar
provision was made under the
Electoral Acts in relation to
candidates standing for Dail and
other elections; and that there
was
no
unconstitutional
discrimination involved in the
Section.
With regard to Section 16, the
Plaintiff submitted that giving the
discretion to the Board as to
whether an appeal should be
heard orally or otherwise was an
unconstitutional interference with
certain constitutional rights of
citizens and particularly that as
such a citizen bringing a planning
appeal under the 1963 (Planning)
Act had an absolute right to an
oral hearing and that the change
in the law by the
1976
(Planning)
Act
was
an
unconstitutional deprivation of
that right.
(2)
Held:
(per O'Higgins C.J.)
That this decision was fallacious
and that it was open to the
Oireachtas in providing for this
type of appeal to alter the law in
the manner provided for in
Section 16. With regard to
Section
18,
the
Plaintiff
submitted (without going into
detail) that such wide powers
ought not to have been given to
the Board.
(3)
Held:
(per O'Higgins C.J.)
That the Section enjoyed a
presumption of constitutionality
and that it was also to be
presumed that it would be
operated
without
violating
constitutional rights; that while
Section 18 gave to the Board
power to determine an appeal
notwithstanding the fact that it
had heard no submission from
the appellant, it had to be
assumed that the notice provided
for in the Section would be
accompanied by an opportunity
given to the appellant to put
forward his case; that the powers
given to the Board by the Section
could only be exercised under the
Section after an opportunity is so
afforded; and, that the Section
did not infringe the Constitution
in the manner submitted.
Flnnegan v. An Bord Pleanala and
Industrial Development Authority and
Raybestos
Manhattan
(Ireland)
Limited
— Supreme Court (per
O'Higgins C.J., giving the opinion of
the full Court, with Henchy, Griffin,
Kenny and Parke JJ.) — 27 July 1979
— unreported.
CONTRACT — Special Condition
Where the Vendor fails to make clear
provision in a Special Condition for
what the Purchaser is to be bound to
do Purchaser is not bound by that
condition.
The Plaintiff was the Purchaser from
the third Defendant ("the Vendor")
who
was
Parish
Priest
of
Templemore, of a dwellinghouse
("the premises") at Templemore
under a written contract dated 13
August
1976,
containing
the
following special condition;
"The public sewer which serves
the said premises at present
terminates in the garden of the
said premises. Permission has
been granted to extend this sewer
so that it will cross the
Templemore-Thurles road and
extend into the property at the
west side of (that) road, and for
that purpose permission was given
to enter in the said garden at all
reasonable times and do all work
that is necessary or expectant in
connection
with
the
said
extension. Any damage to the said
garden or to the premises in the
making of the said extension will
have to be made good to the
satisfaction of the Vendor. The
premises are being sold subject to
the reservation in this respect and
no obligation or requisition will be
made by reason thereof."
The Vendor occupied the premises by
virtue of his office under a deed of
trust of 3 December 1943 whereby
the property had been conveyed to
trustees. At the date of the contract,
the Vendor was not a trustee and all
the trustees thereby appointed were
dead. The contract provided that the
conveyance to the Purchaser would
be
made
by
the
personal
representative of the last surviving
trustee. The deed of trust did not
contain any power of sale, nor did it
contain any power to grant a
wayleave or any other easement. The
three Defendants were appointed the
new trustees of the deed of trust of
1943 by the Commissioners of
Charitable Donations and Bequests
("the Commissioners") by deed dated
28 October 1977 and on 7 February
1978 the Commissioners authorised
the sale. The title being then in order
on 9 March 1978 the Purchaser's
Solicitors sent their requisitions. No
special
requisition
was
made
regarding the extension to the public
sewer. The usual formal requisition
regarding rights or agreements
relating to the laying of wires, cables,
pipes or poles under or over the
property was included — to which
the answer was: "Yes". There is
reserved the right to extend the town
sewer from the rear of the premises
across the Thurles road to the land at
the west side of the Thurles road."
The Purchaser made no further
requisition on this matter.
In September or October 1976,
because the Vendor had been unable
to complete without the intervention
of the Commissioners, the Purchaser
had been let into possession under a
caretaker's
agreement and the
purchase money had been put on
joint deposit. In May 1978 a draft
conveyance and engrossment, which
made no reference to the permission
to extend the sewer, were sent by the
Purchaser's
Solicitors
to
the
Vendor's Solicitor. Later that month
the
Vendor's
Solicitor
wrote
enquiring either that the conveyance
should contain a reservation of the
right to extend the sewer or that there
should be a grant of such a right by
another deed and for the first time the
Vendor's Solicitor disclosed that the
permission was in favour of his (the
Vendor's Solicitor's) wife. No further
information was given as to the
agreement for the extension of the
sewer. The Purchaser refused to
comply with this requirement and the
Vendor claimed to be entitled to have
such a grant or reservation made to
the wife of his Solicitor. The
Purchaser issued a summons in June
1978 to determine whether he was
bound to give effect to the agreement
with regard to the extension of the
sewer in this manner or not and also
whether he was liable to pay interest
to the Vendor (or to the Trustees) at a
rate higher than that payable on the
joint deposit, and, if so, in respect of
what period he must pay it. By a deed
of 8 September 1978 the Defendants