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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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