The Gazette 1983

GAZETTE

N O V E M B E R

1983

innocent circumstance as a ground for re-imposing prison conditions upon him and for the Director of Public Prosecu- tions successfully to oppose an application for bail made on two occasions in the High Court. On any view, justice was neither done or seen to be done". The Court dismissed the appeal. The State (Murphy) -v- The Governor of St. Patrick's Institution -Supreme Court (per O'Higgins C.J., Griffin J.. McCarthy J.), 30 June. 1983 - unreported. Damien McHugh BANKRUPTCY Charge on Bankrupt's Licensed premises did not secure priority over the Intoxica- ting Liquor Licence an apportionment of the proceeds of sale ought not be taken. The bankrupt was the Registered Owner of a small plot of ground on which a Licensed premises stood and was the holder of the intoxicating liquor licence in respect thereof. After the Bankrupt's adjudication permission was given by the Judge to sell the Licensed premises as a going concern and assent to this was given by the Official Assignee and by the interested parties who appeared in the proceedings, without prejudice to any claim they might subsequently make against the purchase money. The premises were sold and the Bankrupt endorsed over the Licence to the Purchaser. The Official Assignee asked the High Court for directions as to the correct distribution of the proceeds of sale and contended that four Burdens registered against the property did not capture the excise Licence as none of the charges expressly professed to affect it. The Court held that as the Assignee had agreed to the sale of the Licensed premises as a going concern, he was estopped from questioning its validity or propriety. From that decision the Assignee appealed. The Supreme Court held that in this case the Licensed premises with the benefit of the licence had been validly sold to the Purchaser. It is well established that the premises could not have been sold for a particular figure to the Purchaser and the licence for a further figure to another person. The Court in Macklin -v- Greacen [1982] I.L.R.M. 182, held that an intoxicating liquor licence could not be sold as an item of property with a viable existence separate from the premises. If the point had been taken before the sale was completed then the decision may have been different. In Irish Industrial Building Society -v- O'Brien [1941] I.R. 1, it was held that in the absence of any statutory or contractual duty on the part of the Judgment Mortgagor to endorse or to hand over the Licence on a sale by the Court, the sale would have to be confined

to the premises without the Licence. However, since all interested parties agreed to the sale, the Court would not now overthrow the basis of that sale and replace it with a hypothetical and unreal sale which would assume a Purchaser of the premises and a separate Purchaser of the licence. In the matter of Brendan J. Sherry -v- Brennan, Bankrupt - Supreme Court (per Henchy J.. 26th July 1983 - unreported. Donal O'Sullivan PLANNING Rule 11 of the Fourth Schedule to the Local Government (Planning 8l Development) Act, 1963 is inserted into Section 2 of the Acquisition of Land (Assessment of Compensation) Act, 1919, by Section 69 of the 1963 Act. The rule provides that "Regard shall not be had to any depreda- tion or increase in the value attributable to (a) the land or any land in the vicinity thereof being reserved for any particular purpose in a development plan; (b) inclusion of the land in a Special Amenity Area Order. This case arose from a case stated by the Property Arbitrator concerning 18 acres of land lying between the Dodder River on the north and Firhouse Road on the south in County Dublin. The land was zoned under the County Dublin Development Plan 1972 to preserve an area of "high amenity" and the permitted use of the land was "primarily agricul- tural". A small portion of the land was zoned under the Development Plan, "to provide for recreational open space and ancillary structures" and the permitted use was stated as "solely recreational use". The case stated to the High Court had asked the question as to whether these designations amounted to a reserva- tion for a particular purpose within the meaning of Rule 11. Dublin County Council argued that the objectives "to preserve an area of high ame n i t y" and " to provide for recreational open space and ancillary structures" were not particular purposes but general objections and that particular purposes referred to specific uses such as burial grounds set out at paragraphs 2,3 and 4 of Part IV of the 3rd Schedule to the 1963 Act. Mrs. Shortt argued that a designation for a public purpose is a reservation for a particular purpose and that the limitation of the use to the uses for purposes compatible with the preservation of high amenity or use as a recreational open space, destroyed any market for the land and the Arbitrator must therefore be entitled to ignore the particular purpose and ascertain what the value would be if there was no reservation. O'Higgins C.J. accepted Mr. Justice McMahon's interpretation of Rule 11 where the learned High Court Judge had referred to the meaning given through the

October, 1981 and it also failed but, since the original sentence had expired on 22 October, 1981, an application was successful when made on the following day. A conditional Order of Certiorari was granted by the President of the High Court on September 23, 1981, on the grounds "that the decisionof the said Respondent (the Governor) to terminate the temporary release was reached otherwise than in accordance with natural justice". Cause having been shown on behalf of the Respondent, the conditional Order of Certiorari was made absolute by BarTon J. on 21 May, 1982, holding that there was no basis upon which the Governor could fairly hold in favour of the accusation made against Murphy at that time. The Respondent appealed the decision to the Supreme Court. The question arising in the appeal was whether, on the facts, the temporary release of Murphy has been at any time validly terminated. Barron J. had held that it had not, although the question was, by the time the matter came before him, essentially moot, as Murphy had by then already been released from custody. O'Higgins C.J. said "The facts of this case show that the Governor treated the arrest on these serious charges as termina- ting the temporary release. In so doing he was probably acting in a common sense manner. "I doubt, however, whether he could lawfully do so without it being clearly established that a breach of the peace had occurred. This was a matter which in the circumstances of this case fell to be decided by the courts. An assumption of guilt on the charges preferred could not be made." Griffin J. stated "The Governor did not consider any factor other than that the Prosecutor had been charged with these serious offences. The fact that he had been charged with an offence is in my opinion an insufficient reason for the revocation of temporary release. Charges are frequently dropped or not proceeded with, and if the temporary release can be revoked merely or solely because the person was charged with an offence, what of the apparent injustice done to such person who, in the time intervening between the charge and the dropping of the charges, has lost the liberty to which he would otherwise have been entitled under the Act and the Rules?" Finding that the situation in the instant case was not analogous to that in The State (Duffy) -v- The Minister for Defence 9 May 1979 — Supreme Court — unreported) McCarthy J. said that here the Prosecutor was merely notified of the action of the Governor based, not upon an established static position "but, rather, upon the bringing of certain charges against the Prosecutor, charges of which he was and is presumed by law to be innocent, and using that wholly

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