346 / 346
GAZETTE
N O V E M B E R
1983
words "particular purpose" in Section 19
of the 1963 Act. In that section the words
are used to mean purposes which are
residential, commercial, industrial,
agricultural or otherwise. Mr. Justice
McMahon felt that the same words used
in Rule 11 must be given a different
meaning for if they were not the
Arbitrator would have to disregard all
zoning with the result that his valuation
would exceed the market value which is
largely based on zoning. The learned
High Court Judge had ruled that in the
context of Rule 11 the words "reserved"
means set apart and "particular purpose"
means a purpose distinct from the
purpose for which the land in the area is
zoned.
HELD: that designations "to preserve
an area of high amenity" and " to provide
for recreational open space and ancillary
structures" amounts to a reservation for a
particular purpose within the meaning of
Rule 11.
The Arbitrator had raised two further
questions in his case stated namely:
1. Whether the County Council as
Sanitary Authority could in the
event of housing development
taking place on the subject land,
refuse a connection to its main
sewer, such sewer then being capable
of absorbing such sewerage.
2. Whether Section 56(1) (b) (i) of the
1963 Act would debar Mrs. Shortt
from recovering compensation
under Section 55 of that Act if
Planning Permission were refused
on the grounds that the capacity of
the Dodder Valley main sewer was
pre-empted to provide capacity for
schemes of development on the
lands some of which might be under-
taken by the Local Authority.
Section 56(1) (b) (i) refers to a refusal
of a planning application on the
basis that it is premature in that
there is an existing deficiency in the
provision of water supplies or
sewerage facilities.
If a refusal is properly made on such
grounds, compensation under the
provisions of Section 55 is not payable.
The Property Arbitrator's questions
raised a hypothetical problem in Mrs.
Shortt's case because of course the 1972
Development Plan had precluded the
possibility of building on her lands.
HELD: as to (1) that the County
Council cold not refuse a connection for
sewerage and that Section 23 of the Public
Health (Ireland) Act 1878 obliges the
Sanitary Authority to receive into its
sewers the sewerage of all premises within
its district provided proper notice is given
and the appropriate regulations
observed. The Chief Justice agreed with
the learned High Court Judge that the
provisions of Section 23 are not repealed
by implication by the provisions of the
1962 Act.
As to (2) the Chief Justice found on the
evidence before him that an existing
deficiency could not be established in that
the main sewer would have been capable
without difficulty of taking the
hypothetical sewerage from Mrs. Shortt's
development so that in the event of a
refusal issuing from Dublin County
Council such refusal would not be within
the provisions of Section 56(1) (b) (i) of
the 1963 Act.
The County Council of the County of
Dublin -v- Nora Teresa Shortt - The
Supreme Court (O'Higgins, C.J., Henchy
J., Henderman J.)per O'Higgins C.Jfnem.
diss.). [1983] ILRM 377.
John Gore-Grimes
NATURAL JUSTICE
Reports of the Army Pensions Board and
decisions as a consequence made by the
Minister for Defence are invalid as being in
breach of natural justice where the reports
are based on evidence which the applicant
had no opportunity of examining, or
rebutting.
Mrs. Bemadette Williams, on her own
behalf and that of her family, applied
under the Army Pensions Acts, 1923 and
1958, for several allowance and gratuities
arising out of the death of her husband,
an army officer, Sergeant Williams. S. 11
of the Army Pensions Act, 1968, specifies
the conditions for entitlement. The first
two requirements were met: Sergeant
Williams died while serving in the forces
and was a soldier in receipt of marriage
allowance. The factual issue for deter-
mination by the Army Pensions Board
was whether his death was due to disease
aggravated, accelerated or excited by —
(1) a wound or desease attributable to
service with a United Nations force, or (2)
service with a United Nations force. Mrs.
Williams, in her claim form, said that he
had been admitted to hospital in Cyprus
while on U.N. duties suffering from a
suspected tropical virus. She could also
give the place of death and the cause of
same as recorded in the Death Certificate.
Sergeant Williams was flown home
from Cyprus for medical attention. From
then until his death, eleven years later, he
was in receipt of regular medical
treatment. The army authorities provided
hospital treatment in Dublin at different
times for him. As a result, the army
authorities had considerable medical
evidence available for presentation to the
court in reporting on the application of
Mrs. Williams. This evidence was not
however made available to her. When her
claim was turned down, Mrs. Williams
applied for re-consideration by the Board
under Article 10 of the Army Pensions
(Investigations of
App l i c a t i on s)
Regulations, 1928, which empowered the
Board to re-consider the application in
the light of "any additional evidence"
submitted to it. Mrs. Williams sought
access to the medical evidence, presented
by the army authorities. This was rejected
by the Army Pensions Board because it
was not its practice to make such evidence
available. Again, the Board made a
report adverse to her claim, on the
grounds that no additional evidence had
been received on her behalf.
HELD: The reports of the Army
Pensions Board and the decisions made
as a result by the Minister for Defence
would have to be quashed because Mrs.
Williams was unfairly and unjustifiably
prevented from rebutting, if that was
possible the conclusion reached by the
Board. This one-sideness amounted to a
breach of natural justice. The functions of
the Army Pensions Board are judicial in
nature because it makes an adjudication
after consideration of evidence tendered
in relation to an application.
The terms of Section 11 of the 1968 Act
are that the Minister "may" grant certain
allowances and gratuities on satisfying
the conditions specified. The Minister's
function is administrative and is confined
to acting in accordance with the findings
of the Board. If the findings are
favourable to an applicant, the Minister
has no option but to grant the allowances
and gratuities provided. Dictum cited by
Walsh J. in application
ot Dunne
[1968]
I.R. 105, at p. 116 approved.
The original application to the High
Court for relief by way of certiorari
(which was refused) was on notice to the
respondants and because of that, and the
appeal being allowed, an Order, of
Certiorari would issue in absolute form.
Stale (Williams)
-v-
Army Pensions
Board and Minister for Defence - Supreme
Court (per Hency J. and McCarthy J. per
Hederman J. concurring). [1981] ILRM
379.
Joseph P. Mannix
Edited by Gary Byrne
Copies of judgments in the above cases are
available to members on request from the
Society's Library.
XLIII