The Gazette 1980

MAY1980

GAZETTE

contain any power to grant a wayleave or any other easement. The three Defendants were appointed the new trustees of the deed of trust of 1943 by the Commissioners of Charitable Donations and Bequests ("the Commissioners") by deed dated 28 October 1977 and on 7 February 1978 the Commissioners authorised the sale. The title being then in order on 9 March 1978 the Purchaser's Solicitors sent their requisitions. No special requisition was made regarding the extension to the public sewer. The usual formal requisition regarding rights or agreements relating to the laying of wires, cables, pipes or poles under or over the property was included — to which the answer was: "Yes". There is reserved the right to extend the town sewer from the rear of the premises across the Thurles road to the land at the west side of the Thurles road." The Purchaser made no further requisition on this matter. In September or October 1976, because the Vendor had been unable to complete without the intervention of the Commissioners, the Purchaser had been let into possession under a caretaker's agreement and the purchase money had been put on joint deposit. In May 1978 a draft conveyance and engrossment, which made no reference to the permission to extend the sewer, were sent by the Purchaser's Solicitors to the Vendor's Solicitor. Later that month the Vendor's Solicitor wrote enquiring either that the conveyance should contain a reservation of the right to extend the sewer or that there should be a grant of such a right by another deed and for the first time the Vendor's Solicitor disclosed that the permission was in favour of his (the Vendor's Solicitor's) wife. No further information was given as to the agreement for the extension of the sewer. The Purchaser refused to comply with this requirement and the Vendor claimed to be entitled to have such a grant or reservation made to the wife of his Solicitor. The Purchaser issued a summons in June 1978 to determine whether he was bound to give effect to the agreement with regard to the extension of the sewer in this manner or not and also whether he was liable to pay interest to the Vendor (or to the Trustees) at a rate higher than that payable on the joint deposit, and, if so, in respect of what period he must pay it. By a deed of 8 September 1978 the Defendants

Section 15 was to prevent appeals or references which were without reality or substance, that the amount of the deposit was not so high as to prevent genuine appeals being brought; that, in addition, it was a deposit which was returnable when the appeal was heard, withdrawn or determined; that a similar provision was made under the Electoral Acts in relation to candidates standing for Dail and other elections; and that there was no unconstitutional discrimination involved in the Section. With regard to Section 16, the Plaintiff submitted that giving the discretion to the Board as to whether an appeal should be heard orally or otherwise was an unconstitutional interference with certain constitutional rights of citizens and particularly that as such a citizen bringing a planning appeal under the 1963 (Planning) Act had an absolute right to an oral hearing and that the change in the law by the 1976 (Planning) Act was an unconstitutional deprivation of that right. That this decision was fallacious and that it was open to the Oireachtas in providing for this type of appeal to alter the law in the manner provided for in Section 16. With regard to Section 18, the Plaintiff submitted (without going into detail) that such wide powers ought not to have been given to the Board. That the Section enjoyed a presumption of constitutionality and that it was also to be presumed that it would be operated without violating constitutional rights; that while Section 18 gave to the Board power to determine an appeal notwithstanding the fact that it had heard no submission from the appellant, it had to be assumed that the notice provided for in the Section would be accompanied by an opportunity given to the appellant to put forward his case; that the powers given to the Board by the Section could only be exercised under the Section after an opportunity is so afforded; and, that the Section

did not infringe the Constitution in the manner submitted. Flnnegan v. An Bord Pleanala and Industrial Development Authority and Raybestos Manhattan (Ireland) Limited — Supreme Court (per O'Higgins C.J., giving the opinion of the full Court, with Henchy, Griffin, Kenny and Parke JJ.) — 27 July 1979 — unreported. CONTRACT — Special Condition Where the Vendor fails to make clear provision in a Special Condition for what the Purchaser is to be bound to do Purchaser is not bound by that condition. The Plaintiff was the Purchaser from the third Defendant ("the Vendor") who was Parish Priest of Templemore, of a dwellinghouse ("the premises") at Templemore under a written contract dated 13 August 1976, containing the following special condition; "The public sewer which serves the said premises at present terminates in the garden of the said premises. Permission has been granted to extend this sewer so that it will cross the Templemore-Thurles road and extend into the property at the west side of (that) road, and for that purpose permission was given to enter in the said garden at all reasonable times and do all work that is necessary or expectant in connection with the said extension. Any damage to the said garden or to the premises in the making of the said extension will have to be made good to the satisfaction of the Vendor. The premises are being sold subject to the reservation in this respect and no obligation or requisition will be made by reason thereof." The Vendor occupied the premises by virtue of his office under a deed of trust of 3 December 1943 whereby the property had been conveyed to trustees. At the date of the contract, the Vendor was not a trustee and all the trustees thereby appointed were dead. The contract provided that the conveyance to the Purchaser would be made by the personal representative of the last surviving trustee. The deed of trust did not contain any power of sale, nor did it

(2) Held: (per O'Higgins C.J.)

(3) Held: (per O'Higgins C.J.)