The Gazette 1981

JANUARY/FEBRUARY 1981

GAZETTE

principle laid down in Byrne v. Loftus. HELD (per O'Higgins CJ. with Kenny and Parke J J. concurring, and with separate concurring judg- ments from Henchy and Griffin J J.). That on the facts as found by the President of the Circuit Court it was simply not possible to have regard to a rent which would be reserved (with no provision for periodic rent reviews) by a reversionary lease for ninety-nine years of the premises the subject matter of the application as such a rent was not capable of being ascertained. Accordingly the Court answered the first question "no" ana also held that the determination of the County Registrar was governed by the statutory requirements con- tained in Section 17 (2) (b) of the Act of 1978 and accordingly answered the second question "no" also. In his concurring judgment Henchy J. stated: "If computation by reference to the gross rent were merely directory, the position would be different. But it is a prerequisite to the exercise of jurisdiction to fix the purchase price. The rule to be applied, therefore, is that stated as follows in Maxwell on The Interpretation of Statutes , 12th edition, p. 328: 'Where an act or thing required by the statute is a condition precedent to the juris- diction of a tribunal, compli- ance cannot be dispensed with and, if it be impossible, the jurisdiction fails. It would not be competent to a Court to dispense with what the legis- lature has made the indis- pensible foundation of its juris diction.'" In concluding his concurring judg- ment Henchy J. stated: "The way out of the unfortunate impasse disclosed by this case stated is for Parliament to enact, in placc of the existing method of ascertaining the purchase price of a ground rent, a method which will not depend on an unworkable element. It is unfor- tunate that, pending such a statutory change, a ground rent can be bought out by a tenant only when the parties agree to the amount of the purchase price." Seán Gilsenan v. Foundary House Investments Ltd. and Rathmincs

leases in respect of premises of the type the subject matter of the application are unknown in the property world and in view of the evidence that it would be pure speculation to try and endeavour to determine the inflationary trends (if any) over a ninety-nine year period. The President of the Circuit Court had accepted the following matters as being established by the evidence: (a) The sum of £10,000 determ- ined by the County Registrar as the purchase price was so determined without regard to inflation. (b) If inflation was to be ignored this sum of £10,000 was reasonable. (c) Over the past ten years infla- tion had shown an average (annual) increase of 12.2%. (d) The Respondents would not be willing to grant a ninety-nine year lease of the premises without a provision for rent reviews. A ninety-nine year lease of premises similar to the subject matter of the application was something which would now be unknown in the property world. It would be impossible to predict the rate of inflation for a ninety-nine year period. The supreme Court was referred to its decision in Byrne v. Loftus [1978] I.R. 211, in which it had held that if there was evidence to support such a course, a Court could (in granting a twenty-one year lease approval) fix a rent which would provide an aggre- gate amount of rent over twenty-one years equal to the total of the rents a willing landlord would obtain by granting a lease for twenty-one years with a clause providing for rent reviews. The Court stated that it found it difficult, if not impossible, to imagine credible evidence being adduced which would indicate a likely or possible rent to be determ- ined now which would on aggre- gation over more than ninety-nine years equate to what an imaginary lessor would be willing to take and an equally imaginary lessee would be willing to give for a ninety-nine year lease subject to rent reviews. The Court could therefore not apply the (e) (0

Properties Ltd. Supreme Court (per O'Higgins CJ .) with concurring judgments of Henchy and Griffin JJ.) - 14 November 1980 unreported. LOCAL GOVERNMENT- SANITARY SERVICES ACT 1964 Section 3 (8) (a) of Sanitary Services Act 1964 — prohibiting the repair or letting of premises ("structure") or the carrying out of works on the site unto payment to the sanitary authority of sums expended by the authority on carrying out of speci- fied works in default of owner doing so pursuant to District Court Order — applied to the premises and site in question and not only to the then owner of the site; and a person subse- quently purchasing the premises or site took subject to and affected by the District Court Order. Who was "owner" at the time of the Order also considered on the facts. The Prosecutor (F. & C. Limited) bought the fee simple in the four premises numbers 1-4 Roby Place, Dun Laoghaire, by indenture of conveyance dated 9 June 1978 from Rochford Holdings Limited ("Roch- ford"). Rochford had owned the property from prior to 31 May 1976. In 1974 and 1975 applications for planning permission in respect of the premises had been made by archi- tects on behalf of T. & J. Nolan Buil- ders Limited ("T. & J. Nolan") stating that T. & J. Nolan were the owners of the fee simple. There was an identity of directors in both Roch- ford and T. & J. Nolan. On 31 May 1976 Dun Laoghaire Corporation ("the Corporation") served Notice on T. & J. Nolan pursuant to Section 3 of the Local Government (Sanitary Services) Act 1964 ("the 1964 Act") of the fact that the Corporation were of the opinion that the floors and ceiling of the four premises was a "dangerous structure" within the meaning of Section 1 of the 1964 Act and requiring T. & J. Nolan to carry out certain works specified in the Notice. On 29 June 1976 further Notice was given by the Corporation to T. & J. Nolan of an application to the District Court in accordance with Section 3 (5) of the 1964 Act for an Order requiring T. & J. Nolan to carry out the work specified in the Notice and in default for an Order

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