The Gazette 1978

GAZETTE

APRIL 1978

work, the plaintiff decided that he

required a ladder and he got the use

of the defendant's step-ladder. This

he placed in such a way that two of

the legs were on a flower bed and the

other two legs were on the adjoining

grass lawn.

The Plaintiff mounted the ladder

and worked from it for upwards of

half an hour. Then, as lunch-time

approached the plaintiff descended to

have a break but immediately

changed his mind and decided to go

back up the ladder to finish two more

trees before his lunch. While lopping

branches on these two trees the

ladder swayed to one side because

the two outside legs sunk into the

ground. The Plaintiff lost his balance

with the result that the saw made

contact with his hand and he was

injured. The Plaintiff said that when

he placed the ladder by the trees in

the manner indicated he had no

reason to think that the ground or

that the legs would sink.

In an action in the High Court, the

plaintiff alleged against the defendant

negligence and breach of duty in not

providing planks to support the feet

of the ladder. The trial Judge

withdrew the case from the jury on

the basis that there was not sufficient

evidence of negligence. Against that

decision, the plaintiff appealed to the

Supreme Court.

Held: (per Griffin, J.) that the trial

judge was correct in withdrawing the

case from the -jury and the appeal

would be dismissed. Per Griffin, J.:

"In Smith v. Austin Lifts Limited

[1959] 1 W.L.R. 100, at p. 105,

Viscount Simonds said that he

deprecated any tendency to treat the

relation of an employer and skilled

workman as equivalent to that of a

nurse and imbecile child. It is rarely

that one would find a case in which

his observation would have more

relevance."

Paris v. Stepney Borough Council

(1951)

.C. 367. applied. Charles

Dalton v. David Frendo—Supreme

Court (per O'Higgins, C. J., Griffin,

J. with Kenny, J.)—unreported—15

December, 1977.

PLANNING LAW

Local Government (Planning and

Development) Act 1963—Right of

Applicant to compensation under

Sec t i on 55 not a f f e c t ed by

subsequent' sale—no obligation on

Minister to decide on application for

compensation wkhin any specific

time.

The Defendants were the lessees of

a dwellinghouse at Pembroke Road

in Dublin and on 18 October 1965

they applied to the Plaintiff for

p l ann i ng pe rmi s s i on for the

development of the premise as office

accommodation. On 1 December

1965 the Plaintiff Corporation

refused the application on the

grounds that the area would be zoned

for residential purposes in the

Development Plan, T7ie Defendants

appealed against that decision to the

Minister for Local Government ("the

Minister") who confirmed the refusal

and the grounds of it on 20 July

1966. On 15 August 1966 the

Defendants applied for compensation

under Section 55 of the Act and on

31 August 1966 they applied to the

Minister for an Order under Section

58 (1) declaring that it would not be

just and reasonable that payment of

compensation should be prevented by

Section 56 (1); this application was

necessary because the permission

sought would have involved a

material change of use.

On 17 December 1965 the

Defendants had agreed to sell the

premises but the contract was

conditional on the obtaining of the

planning permission which they had

sought, and on the final refusal by the

Minister the contractual relationship

between the parties ceased. On 24

October 1966 the Defendants

entered into a further agreement for

the sale and that sale which was

unconditional was completed.

On receipt of the Defendants'

application, the Minister sought from

the P l a i n t i ff their views or

submissions with regard to the

application and correspondence took

place .which ceased in 1969. Nothing

further appears to have happened

until 16 July, 1974 when the Minister

made a Declaration under Section 58

(1).

The Plaintiffs challenged the right

of the Defendants to compensation

and the validity of the Minister's

Order on two grounds; the first

ground being that no person could

recover compensation under Section

55 unless, (i) he had a legal estate or

interest in the lands at the time of the

decision to refuse a planning

permission, and (ii) he retained that

legal interest up to the time his

compensation was assessed; and the

second ground being that the

Minister's decision under Section 58

was invalid because it failed to

comply with the condition which

must be implied into Section 58 that

the decision on an application under

that Section should be given by the

Minister within a reasonable time.

Held: (per Finlay, P.), on the

Plaintiff's first ground, that it was

clear that there was no express

proviso which made it a condition of

the recovery of compensation that

the person who is applying should

not only have had an interest which

was reduced in value at the time of

the decision but that he should retain

or have retained that interest up to

the time of the assessment or

payment of compensation, and that

the Court should not put by

implication a restriction or condition

on a right to compensation unless it

was forced to.

On the Plaintiff's second ground,

the Court refused to construe the

Section as necessarily carrying an

implied term that the decision should

be made within a reasonable time.

The 1963 Act contained a number of

time limits, some of them inflexible

and most of them relatively strict.

Section 29 (5) contained a fixed time

limit of six months within which the

Minister must make a decision with

regard to the Compulsory Purchase

by a Planning Authority under the

Section, and if he did not make a

decision within that period he is

deemed to have confirmed the

Purchase Order. In the absence of

any similar express provision in

Section 58 the Court could see no

basis for implying it.

The Right Honourable The Lord

Mayor, Aldermen and Burgesses of

the City of Dublin v. Walter A.

Smithwick and Others—High Court

(per Finlay, P.)—unreported—12

July, 1977.

PRACTICE AND

PROCEDURE—COSTS

Supreme Court Appeal — Failure by

Defendant to serve cross Notice of

Appeal — Order 58, r 8 & r 10 —

Supreme Court may vary High Court

Order but Defendant may be

penalised in costs.

The High Court had awarded the

Plaintiff

£4,000

against

the

Defendant for damages for breach of

contract. The Plaintiff appealed.

The Supreme Court (per Kenny,

J.) held that in its view the proper

amount payable was £2,243, not

£4.000. Kenny, J. then went on to

consider

whether

the

circumstances of the Appeal he could

vary the High Court Order and to

consider the question of costs.

The Plaintiff in his Notice of