The Gazette 1983

GAZETTE

JULY/AUGUST 1983

the evidence were relevant to each

Count. The Court found that there was

nothing in the evidence relating to the

first count which was prejudicial to the

accused on the second count, except that

Count one was included in the first in-

stance, and the Jury were quite entitled

to come to the verdict they did come to

on the second count.

Director of Public Prosecution

Patrick Wallace and Gerard Wallace,

Court of Criminal Appeal

(Per

McWilliam J. With O'Higgins C.J. and

Ellis J.) - 22 November 1982 -

unreported.

Felicity Hogan

PLANNING

Condition in permission requiring

contribution to services — payable to

more than one local authority — valid-

ity of condition — duty of local

authority.

Application

for

Permission

develop land at Finglas County Dublin

was submitted to the Defendants on be-

half of the Developers (Finglas Industr-

ial Estates Limited) in 1975. The

Defendants refused the application

giving five reasons, the most important

being that facilities for the disposal of

pipe sewage and service water were not

available because the only sewer in the

vicinity was in the functional area of

Dublin Corporation and was already

being used to full capacity.

The Developers appealed to the then

Minister for Local Government against

the refusal and on 17 February 1977 the

Minister

by Order granted

the

Permission sought subject to the

following condition:—

"The Developer shall pay a sum of

money to the Dublin County Council

and/or to Dublin Corporation, as

may be appropriate as a contribution

towards the provision of a public

water supply and pipe sewage facilit-

ies in the area. The amount to be paid

and the time and method shall be

agreed between the Developers and

the said Council and/or the said

Corporation before the development

is commenced or failing agreement

shall be as determined by the Minister

for Local Government".

The Court noted that the Permission

had been granted to Developers who

had no existence for they were not in-

corporated until April of 1981, and said

that if that were the only issue in the

Appeal it would hold the Ministerial

Permission invalid for having been

granted to a nonexistent person.

The Developers' offer to meet the

financial requirements of the condition

failed primarily because in the opinion

of the Defendants the required facilities

could not be made available within the

legal lifetime of the Permission.

Under the Local Government (Plann-

ing & Development) Act 1976 most of

the powers of the Minister exercisable

under the 1963 Act had been transferred

to An Bord Pleanala ("The Board") and

the Developers asked the Board to carry ,

out the assessment reserved to the Min-

ister by the condition. The Board made

an Order on 23 December 1980

determining the contribution at £1,500

per acre and that it was to be paid to the

Defendants as the Sanitary Authority.

On 19 January 1981 the Developers sent

the Defendants a cheque for the amount

payable in accordance with the Board's

Order. The Defendants refused to

accept the cheque or the accompanying

letter. The Developers applied for and

obtained an Order of Mandamus from

the High Court which commanded the

Defendants to accept the cheque. The

Defendants appealed to the Supreme

Court from that Order.

The Defendants argued that the

Order of the Board could not be

questioned having regard to Section 82

(3A) of the 1963 Act as inserted by Sect-

ion 40 (2) of the 1970 Act which provides

as follows:—

"A person shall not by prohibition,

Certiorari

or in any other legal

proceedings whatsoever question the

validity of:—

(a) a decision of a planning authority

for permission or approval under

Part IV of the Principal Act (i.e.

the 1963 Act).

(b) a decision of the Board on any

appeal or on any reference.

(c) a decision of the Minister on any

appeal, unless the proceedings are

instituted within the period of two

months commencing on the date

on which the decision was given".

The Court held that the Order of the

Board did not come under:—

(a) because it was not a decision of a

Planning Authority or;

(b) because it was not a decision o f the

Board on any Appeal or reference or;

(c) because it was not a decision of the

Minister on Appeal but only a matter in-

cluded in a condition attached to such

decision and that the Defendants were

therefore entitled to argue that the

Order of the Board was a nullity.

The Court noted that the provision of

the 1976 Act which affected the transfer

to the Board of the Minister's powers to

assess or arbitrate on the amount of con-

tributions, only related to agreements

between the Developers and the

Planning Authority. The Minister had

provided for payment to the Defendants

and / or Dublin Corporation. If the

Defendants had granted Permission

subject to such condition they would

have been acting

ultra vires,

for the

statute did not provide for a condition as

to payment to another Planning

Authority either primarily or in the

alternative. Since the Defendant as

xxvi

Planning Authority had no power to

grant such a Permission the Minister in

exercising Appellate jurisdiction was no

less bereft of such a power.

The Court went on to say that even if

the Board had the power to fix the

amount, the time, and the method of

payment it would have had to be held

that the effect of their Order was merely

to determine the nature and extent of

the financial duties that fell on the

Developers.

Mandamus could not issue to compel

the Defendants to accept the amount

tendered.

The

Developers

might

have had other remedies open to them,

such as a declaratory action as to their

rights, or a claim for a mandatory In-

junction but no valid argument had been

advanced to show that there was a public

duty, at common law or under Statute

on the Defendants to accept the cheque

tendered by the Developers. A Public

Authority cannot be compelled by

Mandamus to accept money tendered to

it unless there was a public duty to

accept it. The duties and obligations of

Sanitary

Authorities

permit

connections to their sewers are

governed by Sections 23 and 24 of the

Public Health (Ireland) Act 1878. These

sections appear to deal with the right of

the owner/occupier of premises to

cause his drains to empty into the sewers

of the Sanitary Authority and therefore

presuppose the existence of these

sewers at a point where a connection

may be made from the premises in

question to the sewers. TTiey do not

appear at first sight to deal with the

more knotty problem of what is to be

done where there are no sewers in the

locality. If there be any legal obligation

on the Sanitary Authority to provide a

sewage system where none exists, or to

permit a connection to an existing

sewage system it is not to be found in the

Planning Acts. In this case the Court

was not called upon to make any com-

prehensive ruling on that question. It

was sufficient to say that the condition as

to financial contribution imposed by the

Minister must be construed as referring

to a contribution towards the cost of

providing public water supply or pipe

sewage facilities in the area only if the

Council were either willing or legally

bound to make such provision.

The State (Finglas Industrial Estates

Ltd.) v. Dublin County Council -

Supreme Court (per Henchy J.) 17 Feb-

ruary 1983. — unreported.

John F. Buckley