The Gazette 1977

JULY

GAZETTE

LANDLORD AND TENANT Applicants not entitled to new tenancy, as premises are not a "tenement" not being within an "urban area". The applicants applied to the Circuit Court for a new tenancy in respect of premises at Waterstown Avenue, Paimerstown, Co. Dublin, which had been granted for 10 years from 13 August 1966. The respondents contended that the premises were not a "tenement" within the Landlord and Tenant Acts 1931-71. The Circuit Court on 17 January 1977 granted a new lease of the premises for 21 years, and its terms were fixed by the Court. The respondents appealed. The respondents contend that the demised premises do not constitute a "tenement" as they are allegedly not situated in an "urban area". The applicants contend that the premises are situate in the village of Palmerstown, and are therefore in an "urban area". The site of the applicants is however situated just off a private driveway in open fields approximately 175 yards from the nearest habitation, and the mode of access to it does not bring it within a defined "urban area". As the premises are not a "tenement" within the Act, the applicants' claim for a new tenancy must fail, and the decision of the Circuit Court must be reversed. Readymix Ltd. v. Liffey Sandpits Ltd. — Costello J. — unreported — 8 June 1977. PLANNING Application for permission to erect temporary buildings includes an access roadway — Advertisement published gives the plaintiff residents no notice of this — Declaration granted that the permission granted was not a valid permission. Applicant nun, the first defendant, pub l i s h ed an i n a d e qu a te advertisement concerning an application for permission to erect three temporary prefabricated classrooms at a secondary school with more than six acres of ground; this notice did not purport to include a roadway giving access to the schools through a cul-de-sac. It is clear that access from this cul-de-sac to the school generally is not within the nature of an application to erect

p r e f a b r i c a t ed c l a s s r o om s. The grant of permission was not validly granted and the plaintiff re- sidents are entitled to a declaration accordingly. The planning per- mission must specify the exact work to be done. Any person who thinks he is prejudiced by it can appeal because he has before him details of the work to be done. If there were an agreement between the appellants and the planning authority, there would be no way for other residents like the plaintiffs to appeal. Kelleghan, Dodd and O'Brien v. Mary Corby and Dublin Corporation —McMahon J. — unreported — 12 November, 1976. PRACTICE Court says Gardai may use DPP'S name in prosecution The Supreme Court upheld an appeal by the Director of Public Prosecutions from a decision of Mr. Justice McMahon in the High Court in which he dad decided that the District Justice could not hear charges brought by a member of the Garda Siochana in the name of the DPP when no specific authorisation had been obtained from him. Because of the importance of the point of law decided,however, the Court allowed the respondents their costs. The matter arose out of charges against William Roddy, John J. Duff and Edmond Roddy, all of Cloonlumney, Co. Roscommon, in Ballaghadereen District Court in September, 1975. The charges included assault, obstruction of the Gardai in the execution of their duty, using language calculated to lead to a breach of the peace, and being drunk and disorderly. No Authorisation given by DPP District Justice Gilvarry, in a consultative case stated, asked the High Court to say whether he could hear charges brought by a member of the Garda Siochana in the name of the Director when he accepted that no specific authorisation was obtained from the DPP. The District Justice, in his case stated, said that it was conceded by the Superintendent that no such authorisation had been obtained, and it had therefore been submitted on behalf of the defendants that the

charges brought in the name of the DPP were not properly laid against them. Opposite View In the High Court, Mr. Justice McMahon had held that such charges brought in the name of the DPP did require his specific authorisation. In the Supreme Court, the Chief Justice, Mr. Justice O'Higgins, said that no general authorisation given to the Gardai to bring prosecutions in the name of the DPP would suffice. In his view, Mr. Justice McMahon had been correct and the appeal should be dismissed. Mr. Justice Griffin and Mr. Justice Parke, who were the other members of the Court, took the opposite view and in separate judgments said that they would allow the appeal. Mr. Justice Griffin, in his judgment, said it had been conceded in the District Court that the authorisation of the DPP had not been obtained. Reliance, however, was placed on a letter dated January 9th, 1975, from the DPP to the Commissioner of the Garda Siochana asking him to bring to the notice of Gardai that as and from January 19, 1975, the DPP would, pursuant to the provisions of the Prosecutions of Offences Act, 1974, perform all the functions formerly performed by the Attorney-General in relation to all criminal matters defined in the Act. Before the passing of the Criminal Justice (Administration) Act, 1924, all prosecutions were brought in the name of the King unless they were brought by persons authorised by law to do so, including common informers who were always entitled at common law to institute a prosecution. For the purpose of bringing a prosecution in the name of the King it was not necessary to obtain the consent or permission of the King to do so. Existing Rights The 1924 Act substituted the Attorney-General for the King in respect of prosecutions brought in the District Court but continued to preserve existing rights. There seemed to have been no settled rule as to whether such prosecutions should be brought in the name of the Attorney-General, or at the suit of the Superintendent or in the name of the prosecuting Garda. Where the 13