The Gazette 1983

GAZETTE

JULY/AUGUST 1983

ing & Development) Act 1976 most of the powers of the Minister exercisable under the 1963 Act had been transferred to An Bord Pleanala ("The Board") and the Developers asked the Board to carry , out the assessment reserved to the Min- ister by the condition. The Board made an Order on 23 December 1980 determining the contribution at £1,500 per acre and that it was to be paid to the Defendants as the Sanitary Authority. On 19 January 1981 the Developers sent the Defendants a cheque for the amount payable in accordance with the Board's Order. The Defendants refused to accept the cheque or the accompanying letter. The Developers applied for and obtained an Order of Mandamus from the High Court which commanded the Defendants to accept the cheque. The Defendants appealed to the Supreme Court from that Order. The Defendants argued that the Order of the Board could not be questioned having regard to Section 82 (3A) of the 1963 Act as inserted by Sect- ion 40 (2) of the 1970 Act which provides as follows:— "A person shall not by prohibition, Certiorari or in any other legal proceedings whatsoever question the validity of:— (a) a decision of a planning authority for permission or approval under Part IV of the Principal Act (i.e. the 1963 Act). (b) a decision of the Board on any appeal or on any reference. (c) a decision of the Minister on any appeal, unless the proceedings are instituted within the period of two months commencing on the date on which the decision was given". The Court held that the Order of the Board did not come under:— (a) because it was not a decision of a Planning Authority or; (b) because it was not a decision o f the Board on any Appeal or reference or; (c) because it was not a decision of the Minister on Appeal but only a matter in- cluded in a condition attached to such decision and that the Defendants were therefore entitled to argue that the Order of the Board was a nullity. The Court noted that the provision of the 1976 Act which affected the transfer to the Board of the Minister's powers to assess or arbitrate on the amount of con- tributions, only related to agreements between the Developers and the Planning Authority. The Minister had provided for payment to the Defendants and / or Dublin Corporation. If the Defendants had granted Permission subject to such condition they would have been acting ultra vires, for the statute did not provide for a condition as to payment to another Planning Authority either primarily or in the alternative. Since the Defendant as xxvi

Planning Authority had no power to grant such a Permission the Minister in exercising Appellate jurisdiction was no less bereft of such a power. The Court went on to say that even if the Board had the power to fix the amount, the time, and the method of payment it would have had to be held that the effect of their Order was merely to determine the nature and extent of the financial duties that fell on the Developers. Mandamus could not issue to compel the Defendants to accept the amount tendered. The Developers might have had other remedies open to them, such as a declaratory action as to their rights, or a claim for a mandatory In- junction but no valid argument had been advanced to show that there was a public duty, at common law or under Statute on the Defendants to accept the cheque tendered by the Developers. A Public Authority cannot be compelled by Mandamus to accept money tendered to it unless there was a public duty to accept it. The duties and obligations of Sanitary Authorities to permit connections to their sewers are governed by Sections 23 and 24 of the Public Health (Ireland) Act 1878. These sections appear to deal with the right of the owner/occupier of premises to cause his drains to empty into the sewers of the Sanitary Authority and therefore presuppose the existence of these sewers at a point where a connection may be made from the premises in question to the sewers. TTiey do not appear at first sight to deal with the more knotty problem of what is to be done where there are no sewers in the locality. If there be any legal obligation on the Sanitary Authority to provide a sewage system where none exists, or to permit a connection to an existing sewage system it is not to be found in the Planning Acts. In this case the Court was not called upon to make any com- prehensive ruling on that question. It 1 was sufficient to say that the condition as to financial contribution imposed by the Minister must be construed as referring to a contribution towards the cost of providing public water supply or pipe sewage facilities in the area only if the Council were either willing or legally bound to make such provision.

the evidence were relevant to each Count. The Court found that there was nothing in the evidence relating to the first count which was prejudicial to the accused on the second count, except that Count one was included in the first in- stance, and the Jury were quite entitled to come to the verdict they did come to on the second count. Director of Public Prosecution v. Patrick Wallace and Gerard Wallace, Court of Criminal Appeal (Per McWilliam J. With O'Higgins C.J. and Ellis J.) - 22 November 1982 - unreported. Felicity Hogan PLANNING Condition in permission requiring contribution to services — payable to more than one local authority — valid- ity of condition — duty of local authority. Application for Permission to develop land at Finglas County Dublin was submitted to the Defendants on be- half of the Developers (Finglas Industr- ial Estates Limited) in 1975. The Defendants refused the application giving five reasons, the most important being that facilities for the disposal of pipe sewage and service water were not available because the only sewer in the vicinity was in the functional area of Dublin Corporation and was already being used to full capacity. The Developers appealed to the then Minister for Local Government against the refusal and on 17 February 1977 the Minister by Order granted the Permission sought subject to the following condition:— "The Developer shall pay a sum of money to the Dublin County Council and/or to Dublin Corporation, as may be appropriate as a contribution towards the provision of a public water supply and pipe sewage facilit- ies in the area. The amount to be paid and the time and method shall be agreed between the Developers and the said Council and/or the said Corporation before the development is commenced or failing agreement shall be as determined by the Minister for Local Government". The Court noted that the Permission had been granted to Developers who had no existence for they were not in- corporated until April of 1981, and said that if that were the only issue in the Appeal it would hold the Ministerial Permission invalid for having been granted to a nonexistent person. The Developers' offer to meet the financial requirements of the condition failed primarily because in the opinion of the Defendants the required facilities could not be made available within the legal lifetime of the Permission. Under the Local Government (Plann-

The State (Finglas Industrial Estates Ltd.) v. Dublin County Council - Supreme Court (per Henchy J.) 17 Feb- ruary 1983. — unreported.

John F. Buckley