The Gazette 1977

MAY-JUNE

GAZETTE

the condition, namely the provision of satisfactory sewage disposal, must itself be treated as a condition binding on the Local Authority or the Minister. The plaintiffs claim for a declaration must accordingly be dismissed. Killiney and Ballybrack Development Association Ltd. v. Minister for Local Government and Templefinn Estates Ltd. (No. 2) - McWilliam J. - unreported — 1st April, 1977. CRIMINAL LAW - EVIDENCE - VOLUNTARY STATEMENTS Defence contentions that statements made relating to the kidnapping of Dr. Herrema were not voluntary rejected. The two accused were convicted in the Special Criminal Court on the first count of having on 30th October, 1975, at Limerick falsely imprisoned Dr. Herrema by un- lawfully detaining him against his will, and, on the second count, of the unlawful possession of firearms. The only evidence against them was contained in their respective statements, and in Garda sketches of the scene of the kidnapping. It was first contended that the trial was unsatisfactory, in that, when the Special Criminal Court had decided to admit the statements, the Court did not proceed to hear the same evidence. S.41(4) of the Offences against the State Act, 1939, provides that the practice and procedure applicable to the trial of a person in indictment in the Central Criminal Court shall, so far as practicable, apply to the trial of a person before the Special Criminal Court. It was contended that if subsequently evidence had been tendered as to the making of the statement, and the circumstances in which it was made, counsel for the accused could have cross-examined the Garda on the accuracy of the matters stated therein. It is clear from the transcript that the usual procedure was followed, whereby the admissibility of statements would be determined by the Court. At the special request of counsel for the defence, prosecuting counsel recalled each witness who had previously given evidence in regard to the taking of statements, and each of these witnesses re-affirmed that the evidence already given was true and

LOCAL GOVERNMENT PLANNING Plaintiffs claim for a declaration that Ministerial permission given for housing development to a development company was null and void rejected. Plaintiffs claim a declaration that permission given to Templefinn Estates by the Minister for Local Go v e r nme nt f or h o u s i ng development at Hackettsland, Killiney, is invalid and void, and made in disregard of the principles of constitutional justice. The plaintiff's case is based on a consideration of an imposed condition to the effect that no houses were to be constructed on the part of the site to the south of the culverted stream before the expiration of 3 years from the Order, in order to control and regulate developments. Throughout the long proceedings, the plaintiff has made the case that the provision for sewerage disposal is inadequate. A previous order of the Minister granting permission for this development was declared invalid by Finlay J. on other grounds in March, 1974, (see Gazette, 1974, p. 79). As there has been a delay of 3 years so as to ensure that sewage disposal facilities are satisfactory, the plaintiffs contend that, at the time of the making of the Order, the Minister decided that these sewage facilities were not satisfactory, and that consequently the whole ministerial permission was bad on its face. Having referred to Sections 19 and 26 of the Planning and Development Act, 1963, the Judge stated that it must be obvious to any responsible person that adequate sewage disposal facilities should be provided before a new housing development is occupied. However desirable such a provision might be, neither Section 26 nor Section 19 require a Planning Authority to impose conditions regarding sewage disposal or pollution. It follows that the plaintiff's proposition is that a condition is bad unless it necessarily ensures the accomplishment of the reason for imposing it. S. 26(8) of the Act states that "the notification of the Ministerial decision shall comprise a statement specifying the reasons for the refusal or the imposition of conditions". The Judge can see no reason for the justification for the approach that the stated reason for -

RECENT IRISH CASES PRACTICE - TRANSFER TO CIRCUIT COURT A claim for damages for assault was remitted to the Circuit Court, as a jury in a High Court action would be unlikely to award more than £2,000 damages. Claim for damages for asssault and battery by defendant on plaintiff in drawing room of defendant's house in February, 1970. The plenary Summons was issued on 26th March, 1975, and an appearance was entered on 2nd July, 1975. The injuries sustained are described as pain, shock and humiliation, but no special damages are claimed. This is a motion to have the case remitted to the District Court or Circuit Court. It is contended by the defendant that, as the statement of claim does not disclose any injuries, such an assault would be fully compensated by £250, the limit of the District Court jurisdiction, and that in any event, damages of more than £2,000 would be excessive. The plaintiff contends that, by remitting the case to the Circuit Court, he would be deprived of his right to trial by jury. The plaintiff also contends that he has a constitutional right of access to the High Court, and that, if this right is exercised, he has a right to trial by jury, and cannot be deprived of it. The question is whether the plaintiff has an absolute right to a jury which he can enforce by starting his action in the High Court, or whether he has only got a right to a jury if his action goes to trial in the High Court. The Judge is not satisfied that there is any absolute right in the form claimed. It follows that, in accordance with the Supreme Court decision in Ronayne v. Ronayne-{1910) I.R. 15 - there is no alternative but to remit the case to a lower Court, as the Judge is not satisfied that a High Court jury in this case would award more than £2,000. The defendant was a wealthy man and in a dominant position as regards the plaintiff, and the incident was most humiliating, but there were no injuries sustained. In the circumstances, it is reasonable to remit the case to the Circuit Court. McDonald v. Galvin - McWilliam J. — unreported — 23rd February, 1976. 8