The Gazette 1978

APRIL 1978

GAZETTE

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 in 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

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) H .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

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