The Gazette 1985

GAZETTE

JULY/AUGUST

1985

to another or a group of other develop-

ment p r o v i s i on s. The qualified

description "a particular permission"

gives recognition also to the facts that

there may be more than one contem- •

poraneous permission granted to one

developer for development of the same

structure or other lands and that there

may be more than one developer to whom

permissions had been granted in relation

to the same structure or other lands. The

expression "particular permission" has

significance also for the developer or

applicant for a decision under Section 4.

It signifies that the permission must be

distinguished from other permissions

whether relating to the development of

the same structures or other land or

relating to other developments.

Section 4(1) is explicit as to what it

requires and the fact that it is included in

a section imposing a mandatory function

precludes consideration of any other

matters. A decision by a Planning

Authority to extend, or not to extend, the

appropriate period of a particular

permission, arrived at without consider-?

ing all the specified matters, or upon

consideration of other matters, would be

ultra vires.

Although it may correctly be said that

the decision as expressed in the notice

does not state that the Planning

Authority considered each or any of the

matters set out in Section 4(1 Xa), (b) or

(c), (i), (ii) or (iii) and in that sense, it may

appear to be defective, it cannot be said

that in the process of reaching a decision

the Planning Authority took into account

matters not proper for their considera-

tion. They had to consider whether or not

the development to which the "particular

permission" relates had been commenced

to the extent of substantial work done but

not completed and whether or not it

could be completed within a reasonable

time. The facts disclose in this case that a

substantial portion of the development to

which the "particular permission" relates

no longer can be done in accordance with

the permission, by reason of the

completion of two other developments on

two portions of the same property under

two other permissions.

The Respondent's decision, expressed

as given for the reason "the permission

for thirty-six semi-detached houses was

superceded by permissions for a total of

eighteen detached houses on portions of

the site" is consistent with consideration

of the facts set out in Section 4( l)(c) of the

1982 Act and does not indicate the taking

into consideration of matters which do

not come within the scope of that section.

Accordingly, the decision is not

ultra vires

and is valid.

The State (at the prosecution of Patrick J.

McCoy)

-v-

The Corporation of Dun

Laoghaire - High Court (per Gannon J.), 1

June, 1984 - unreported.

Sarah Cox

SUCCESSION ACT

Rights of Election and Appropriation —

Construction of "dwelling" for the

purposes of Section 56 of the Succession

Act 1965 — Once a spouse has elected in

favour of the legal right under Section 115

or has applied for appropriation under

Section 56 of the Act, and subsequently

dies, this constitutes a claim against the

deceased's estate which can be enforced on

behalf of the spouse's estate.

A Testator died in 1979, by his Will

bequeathing three small pecuniary legacies

and leaving the residue of his estate

upon trust for his wife, the Plaintiff, for

life with remainder to fourteen named

beneficiaries. Instead of taking the life

interest, the Plaintiff exercised her right

under Section 115 of the Succession Act

1965 and thereby became absolutely

entitled to one half of the Testator's

estate, there being no children of the

marriage. The Plaintiff further exercised

her right under Section 56 of the Act and

called on the executors to appropriate in

or towards satisfaction of her claim

against the estate "the house and land

and the household furniture and effects".

This was taken as meaning for the

purposes of the proceedings, a claim to

have appropriated in her favour the

dwelling in which, at the time of the

Testator's death, the Plaintiff was

ordinarily resident, together with the

household chattels therein. These

proceedings arose out of a disagreement

between the Plaintiff and the executors as

to the manner in which the expression

"dwelling" as used in Section 56 should

be construed.

"Dwelling" is defined in Section 56(14)

as "an estate or interest in a building

occupied as a separate dwelling or a part,

so occupied, of any building and includes

any garden or portion of ground attached

to and usually occupied with the dwelling

or otherwise required for the amenity or

convenience of the dwelling".

The Testator and his wife had lived for

the last eleven or twelve years of his life in

a small bungalow measuring approxi-

mately 950 sq ft. situate on a plot of land

of about six acres. The bungalow itself

and a small garden to front and rere were

enclosed with a hedge and a post and wire

fence, so that the enclosed plot repre-

sented only a very small fraction of the

total area of the plot. Access from the

bungalow to the field comprising the

remainder of the land was through a

small wooden gate, suitable only for

passage on foot. Access to the field from

the adjoining public road was by way of a

full size gate suitable as an entrance for

any vehicle, livestock or machinery.

During the time the deceased was living in

the bungalow, he kept a few cattle in the

field, selling and replacing them as

necessary in order to supplement his

income. Usually there would be four to

six cattle grazing the field. The septic tank

serving the bungalow was situate in the

field whilst the well supplying water was

also outside the hedge surrounding the

bungalow but within the line of the wire

fence preventing cattle from the field

coming into the garden of the bungalow.

A further issue arose to be decided by

reason of the fact that the widow, having

elected to take her legal right and having

applied to have the dwelling and contents

appropriated in satisfaction of her claim,

subsequently died after the institution of

these proceedings. The proceedings were

reconstituted by substituting her acting

executor as Plaintiff in her place, but the

Defendants queried whether it was open

to anyone other than the spouse to

maintain such a claim, having regard to

the fact that the statutory provisions

appear to have been designed to avert

hardship in the case of a spouse who

might otherwise be deprived of the family

home.

HELD per O'Hanlon, J.:—

Referring to the definition of

"dwelling" contained in Section 56 (14),

the field could not be considered to be "a

garden" and, having regard to the use

made of it while the Testator was alive

and the use to which it could

appropriately be put given the size and

nature of the bungalow, nor was it

required "for the amenity or convenience

of the dwelling". However, the field did

consist of "a portion of ground attached

to" the dwelling, since it was connected

by a gateway leading to the bungalow.

The location of the septic tank was well

outside the curtilage of the bungalow, but

within the field. This supported the view

that the field remained "attached" to the

bungalow throughout the deceased's

lifetime. So, too, did the fact that the

deceased, so long as he lived in the

bungalow, made constant use of the field

for his own purposes.

The phrase "usually occupied with"

caused more difficulty. If the phrase in

the sub-section were to read "usually

occupied with

dwelling", the Court

would not have considered that the

definition covered the field, but when the

Act says "usually occupied with

the

dwelling", the Court took that as

referring to the use which had been made

in the past of this particular dwelling. The

Court's conclusion was that the

"dwelling" which the widow was entitled

to have appropriated to her own use

under the Act included the parcel of land

surrounding the bungalow comprising

approximately 6 acres.

Once the widow has elected in favour

of her legal right, this constitutes a claim

against the deceased's estate which can be

enforced on behalf of her estate and,

similarly, once she has applied for the

appropriation of the dwelling in satisfac-

tion of her claim against the estate, an

equity arises in her favour which is

enforceable by her personal represen-

tatives. This entitlement is of course