345 / 346
GAZETTE
N O V E M B E R
1983
October, 1981 and it also failed but, since
the original sentence had expired on 22
October, 1981, an application was
successful when made on the following
day.
A conditional Order of Certiorari was
granted by the President of the High
Court on September 23, 1981, on the
grounds "that the decisionof the said
Respondent (the Governor) to terminate
the temporary release was reached
otherwise than in accordance with
natural justice". Cause having been
shown on behalf of the Respondent, the
conditional Order of Certiorari was made
absolute by BarTon J. on 21 May, 1982,
holding that there was no basis upon
which the Governor could fairly hold in
favour of the accusation made against
Murphy at that time.
The Respondent appealed the decision
to the Supreme Court.
The question arising in the appeal was
whether, on the facts, the temporary
release of Murphy has been at any time
validly terminated. Barron J. had held
that it had not, although the question
was, by the time the matter came before
him, essentially moot, as Murphy had by
then already been released from custody.
O'Higgins C.J. said "The facts of this
case show that the Governor treated the
arrest on these serious charges as termina-
ting the temporary release. In so doing he
was probably acting in a common sense
manner.
"I doubt, however, whether he could
lawfully do so without it being clearly
established that a breach of the peace had
occurred. This was a matter which in the
circumstances of this case fell to be
decided by the courts. An assumption of
guilt on the charges preferred could not
be made."
Griffin J. stated "The Governor did
not consider any factor other than that
the Prosecutor had been charged with
these serious offences. The fact that he
had been charged with an offence is in my
opinion an insufficient reason for the
revocation of temporary release. Charges
are frequently dropped or not proceeded
with, and if the temporary release can be
revoked merely or solely because the
person was charged with an offence, what
of the apparent injustice done to such
person who, in the time intervening
between the charge and the dropping of
the charges, has lost the liberty to which
he would otherwise have been entitled
under the Act and the Rules?"
Finding that the situation in the instant
case was not analogous to that in
The
State (Duffy) -v- The Minister for Defence
9 May 1979 — Supreme Court —
unreported) McCarthy J. said that here
the Prosecutor was merely notified of the
action of the Governor based, not upon
an established static position "but,
rather, upon the bringing of certain
charges against the Prosecutor, charges
of which he was and is presumed by law to
be innocent, and using that wholly
innocent circumstance as a ground for
re-imposing prison conditions upon him
and for the Director of Public Prosecu-
tions successfully to oppose an
application for bail made on two
occasions in the High Court. On any
view, justice was neither done or seen to
be done".
The Court dismissed the appeal.
The State (Murphy)
-v-
The Governor of
St. Patrick's Institution -Supreme Court
(per O'Higgins C.J., Griffin J.. McCarthy
J.), 30 June. 1983 - unreported.
Damien McHugh
BANKRUPTCY
Charge on Bankrupt's Licensed premises
did not secure priority over the Intoxica-
ting Liquor Licence an apportionment of
the proceeds of sale ought not be taken.
The bankrupt was the Registered
Owner of a small plot of ground on which
a Licensed premises stood and was the
holder of the intoxicating liquor licence in
respect thereof. After the Bankrupt's
adjudication permission was given by the
Judge to sell the Licensed premises as a
going concern and assent to this was
given by the Official Assignee and by the
interested parties who appeared in the
proceedings, without prejudice to any
claim they might subsequently make
against the purchase money. The
premises were sold and the Bankrupt
endorsed over the Licence to the
Purchaser.
The Official Assignee asked the High
Court for directions as to the correct
distribution of the proceeds of sale and
contended that four Burdens registered
against the property did not capture the
excise Licence as none of the charges
expressly professed to affect it. The Court
held that as the Assignee had agreed to
the sale of the Licensed premises as a
going concern, he was estopped from
questioning its validity or propriety.
From that decision the Assignee appealed.
The Supreme Court held that in this
case the Licensed premises with the
benefit of the licence had been validly
sold to the Purchaser. It is well
established that the premises could not
have been sold for a particular figure to
the Purchaser and the licence for a further
figure to another person.
The Court in
Macklin -v- Greacen
[1982] I.L.R.M. 182, held that an
intoxicating liquor licence could not be
sold as an item of property with a viable
existence separate from the premises. If
the point had been taken before the sale
was completed then the decision may
have been different. In
Irish Industrial
Building Society
-v-
O'Brien
[1941] I.R. 1,
it was held that in the absence of any
statutory or contractual duty on the part
of the Judgment Mortgagor to endorse or
to hand over the Licence on a sale by the
Court, the sale would have to be confined
to the premises without the Licence.
However, since all interested parties
agreed to the sale, the Court would not
now overthrow the basis of that sale and
replace it with a hypothetical and unreal
sale which would assume a Purchaser of
the premises and a separate Purchaser of
the licence.
In the matter of Brendan J. Sherry -v-
Brennan, Bankrupt - Supreme Court (per
Henchy J.. 26th July 1983 - unreported.
Donal O'Sullivan
PLANNING
Rule 11 of the Fourth Schedule to the Local
Government (Planning 8l Development)
Act, 1963 is inserted into Section 2 of the
Acquisition of Land (Assessment of
Compensation) Act, 1919, by Section 69 of
the 1963 Act. The rule provides that
"Regard shall not be had to any depreda-
tion or increase in the value attributable to
(a) the land or any land in the vicinity
thereof being reserved for any particular
purpose in a development plan; (b)
inclusion of the land in a Special Amenity
Area Order.
This case arose from a case stated by
the Property Arbitrator concerning 18
acres of land lying between the Dodder
River on the north and Firhouse Road on
the south in County Dublin. The land was
zoned under the County Dublin
Development Plan 1972 to preserve an
area of "high amenity" and the permitted
use of the land was "primarily agricul-
tural". A small portion of the land was
zoned under the Development Plan, "to
provide for recreational open space and
ancillary structures" and the permitted
use was stated as "solely recreational
use". The case stated to the High Court
had asked the question as to whether
these designations amounted to a reserva-
tion for a particular purpose within the
meaning of Rule 11.
Dublin County Council argued that
the objectives "to preserve an area of high
ame n i t y" and " to provide for
recreational open space and ancillary
structures" were not particular purposes
but general objections and that particular
purposes referred to specific uses such as
burial grounds set out at paragraphs 2,3
and 4 of Part IV of the 3rd Schedule to the
1963 Act.
Mrs. Shortt argued that a designation
for a public purpose is a reservation for a
particular purpose and that the limitation
of the use to the uses for purposes
compatible with the preservation of high
amenity or use as a recreational open
space, destroyed any market for the land
and the Arbitrator must therefore be
entitled to ignore the particular purpose
and ascertain what the value would be if
there was no reservation.
O'Higgins C.J. accepted Mr. Justice
McMahon's interpretation of Rule 11
where the learned High Court Judge had
referred to the meaning given through the
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