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RECENT IRISH CASES
LICENSING LAW
A District Justice can hear and
consider objections to the grant or
renewal of a certificate, under Section
5(c) of the Registration of Clubs
(Ireland) Act, 1904, based on an
allegation of habitual user in
contravention of the Planning Acts
and any conditions attached to a
planning permission. The District
Court is, however, not the forum to
hear
and
consider
evidence
concerning the validity of the
planning permission in evidence
before the Court.
This was a case stated from the
District Court to the High Court
(Finlay, P.) in which direction was
sought on the evidence to be heard in
the grant or renewal of a certificate
under the Registration of Clubs
(Ireland) Act 1904. Section 5 of that
Act enumerated the categories of
grounds on which an objection could
be taken. "This provision I am
satisfied prevents the Court on an
application for the grant Or renewal
of a certificate from exercising any
general discretion and confines it to
considering objections coming within
the enumerated categories", per
Finlay P. On the interpretation of
Section 5(e) the District Justice sent
the case stated to the High Court.
Section 5(e) provided as one of the
valid grounds of objection that the
business was not conducted in good
faith as a club or that it was kept or
habitually used for any unlawful
purpose or mainly for the supply of
excisable liquor.
The opinion of the High Court was
sought on two matters:
1. Whether the District Justice could
hear and consider objections to
the renewal of a certificate based
on an allegation of habitual user
in contravention of the Planning
Acts; and,
2. (a) Whether the District Justice
could hear and consider evidence
concerning the validity of the
planning permission; and, (b)
Whether the District Justice could
hear and consider allegations by
way of objection that the club was
habitually used in contravention
of a condition attached to a
planning permission.
Held:
(per Finlay, P.) (1) that the
answer to this question would be
"Yes". Per Finlay, P. "If a club
premises were habitually used in
plain contravention of the provisions
of the Planning Acts it would in my
view be habitually used for an
unlawful purpose, in the same way as
if, for example, it were habitually used
for unlawful gambling".
2. (a) No. it would be contrary to
natural justice for a court to be called
upon to adjudicate on the validity of
the acts of the planning authority in a
case to which the planning authority
was not a party, (b) Yes. The District
Court could hear evidence on this
objection without the production of a
conviction under the Planning Acts
and despite the objectors having a
right to apply to the Court under
Section 27 of the Local Government
(Planning & Development) Act,
1976 for an order restricting the
proprietor of the club from
continuing in breach of a condition
attached to the planning permission.
In re Comhaltas Ceolteolrl
Eireann
- Case stated — High Court
(Finlay, P.) - Unreported - 14
December, 1977.
SUCCESSION ACT
Succession Act 1965 — Con-
struction of Section 55 In relation to
Share of Surviving Spouse elected for
under Section 115 (1) (a).
The Plaintiff was the widow of the
testator. They had no children. By his
will, the testator left all his estate to
his nephew Joseph Hannon ("the
Defendant") subject to certain rights
in the dwelling house in favour of the
Plaintiff and subject to and charged
with the payment of £150 a year in
favour of his brother Lawrence
Hannon ("third named defendant").
The first named defendant was the
personal representative.
The Plaintiff elected under section
115 (1) (a) of the Succession Act
1965 to take the half share of the
estate to which she was entitled under
section 111 rather than that given to
her by will. Prior to the proceedings
subject to the present Appeal, the
Plaintiff had instituted High Court
proceedings seeking an Order under
section 56 of the Succession Act
requiring the personal representative
to appropriate the dwelling on the
lands in or towards the satisfaction of
her half share. This action failed as it
was held that the Plaintiff had failed
to discharge the onus cast on her by
Section 56 (5) (e) of proving that the
proposed appropriation of the
dwelling was unlikely to diminish the
value of the assets other than the
dwelling or to make it more difficult
to dispose of them in due course of
administration.
Subsequently, the second action,
the subject of this Appeal, was
instituted primarily seeking an Order
under Section 55 of the Succession
Act allowing the personal representa-
tive to appropriate the part of the
lands on which the dwelling is situate
in or towards the satisfaction of the
Plaintiffs half share. McWilliam J.
made that Order in the High Court
and the Defendant appealed from
same.
Held (per Henehy J.)
the
Supreme Court:
(i) the Succession Act makes no
provision as to how the personal
representatives are to discharge
the surviving spouse's legal right
to the estate. The legal right is
specifically given priority over
devises, bequests and shares on
intestacy (section 112). It must
be assumed that the legislative
intention was that the legal right
(where elected) is to be dis-
charged in the same manner as if
one half or one third of the estate
had been expressly given in the
will in priority over all devises
and bequests.
(ii) Section 55 allows the personal
representative, subject to the pro-
visions of the section, to
appropriate any part of the estate
in its actual condition at the time
the appropriation in or towards
satisfaction of the share of any
beneficiary. The right of appro-
priation given by this section is
an enabling right which may be
exercised only by the personal
representative. A person entitled
to a share is given no right to
compel the personal representa-
tive to propose an appropriation
under section 55. The personal
representative in this case had
not chosen to operate the section
and strictly speaking the Plain-
tiff was misconceived in her
efforts to compel him to do so.
(iii) In the High Court it was held
that the personal representative
was deemed to have served the
necessary notice under section
55 and the Counsel for the
personal representative had
made no objection to it being so
deemed. This appeal was dealt
with on the basis that the
personal representative was
willing to operate section 55 and