The Gazette 1978

to

GAZETTE

JUNE 1*71

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

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