The Gazette 1983

GAZETTE

N O V E M B E R

1983

deficiency could not be established in that the main sewer would have been capable without difficulty of taking the hypothetical sewerage from Mrs. Shortt's development so that in the event of a refusal issuing from Dublin County Council such refusal would not be within the provisions of Section 56(1) (b) (i) of the 1963 Act. The County Council of the County of Dublin -v- Nora Teresa Shortt - The Supreme Court (O'Higgins, C.J., Henchy J., Henderman J.)per O'Higgins C.Jfnem. diss.). [1983] ILRM 377. John Gore-Grimes NATURAL JUSTICE Reports of the Army Pensions Board and decisions as a consequence made by the Minister for Defence are invalid as being in breach of natural justice where the reports are based on evidence which the applicant had no opportunity of examining, or rebutting. Mrs. Bemadette Williams, on her own behalf and that of her family, applied under the Army Pensions Acts, 1923 and 1958, for several allowance and gratuities arising out of the death of her husband, an army officer, Sergeant Williams. S. 11 of the Army Pensions Act, 1968, specifies the conditions for entitlement. The first two requirements were met: Sergeant Williams died while serving in the forces and was a soldier in receipt of marriage allowance. The factual issue for deter- mination by the Army Pensions Board was whether his death was due to disease aggravated, accelerated or excited by — (1) a wound or desease attributable to service with a United Nations force, or (2) service with a United Nations force. Mrs. Williams, in her claim form, said that he had been admitted to hospital in Cyprus while on U.N. duties suffering from a suspected tropical virus. She could also give the place of death and the cause of same as recorded in the Death Certificate. Sergeant Williams was flown home from Cyprus for medical attention. From then until his death, eleven years later, he was in receipt of regular medical treatment. The army authorities provided hospital treatment in Dublin at different times for him. As a result, the army authorities had considerable medical evidence available for presentation to the court in reporting on the application of Mrs. Williams. This evidence was not however made available to her. When her claim was turned down, Mrs. Williams applied for re-consideration by the Board under Article 10 of the Army Pensions (Investigations of App l i c a t i on s) Regulations, 1928, which empowered the Board to re-consider the application in the light of "any additional evidence" submitted to it. Mrs. Williams sought access to the medical evidence, presented by the army authorities. This was rejected

words "particular purpose" in Section 19 of the 1963 Act. In that section the words are used to mean purposes which are residential, commercial, industrial, agricultural or otherwise. Mr. Justice McMahon felt that the same words used in Rule 11 must be given a different meaning for if they were not the Arbitrator would have to disregard all zoning with the result that his valuation would exceed the market value which is largely based on zoning. The learned High Court Judge had ruled that in the context of Rule 11 the words "reserved" means set apart and "particular purpose" means a purpose distinct from the purpose for which the land in the area is zoned. HELD: that designations "to preserve an area of high amenity" and " to provide for recreational open space and ancillary structures" amounts to a reservation for a particular purpose within the meaning of Rule 11. The Arbitrator had raised two further questions in his case stated namely: 1. Whether the County Council as Sanitary Authority could in the event of housing development taking place on the subject land, refuse a connection to its main sewer, such sewer then being capable of absorbing such sewerage. 2. Whether Section 56(1) (b) (i) of the 1963 Act would debar Mrs. Shortt from recovering compensation under Section 55 of that Act if Planning Permission were refused on the grounds that the capacity of the Dodder Valley main sewer was pre-empted to provide capacity for schemes of development on the lands some of which might be under- taken by the Local Authority. Section 56(1) (b) (i) refers to a refusal of a planning application on the basis that it is premature in that there is an existing deficiency in the provision of water supplies or sewerage facilities. If a refusal is properly made on such grounds, compensation under the provisions of Section 55 is not payable. The Property Arbitrator's questions raised a hypothetical problem in Mrs. Shortt's case because of course the 1972 Development Plan had precluded the possibility of building on her lands. HELD: as to (1) that the County Council cold not refuse a connection for sewerage and that Section 23 of the Public Health (Ireland) Act 1878 obliges the Sanitary Authority to receive into its sewers the sewerage of all premises within its district provided proper notice is given and the appropriate regulations observed. The Chief Justice agreed with the learned High Court Judge that the provisions of Section 23 are not repealed by implication by the provisions of the 1962 Act. As to (2) the Chief Justice found on the evidence before him that an existing

by the Army Pensions Board because it was not its practice to make such evidence available. Again, the Board made a report adverse to her claim, on the grounds that no additional evidence had been received on her behalf. HELD: The reports of the Army Pensions Board and the decisions made as a result by the Minister for Defence would have to be quashed because Mrs. Williams was unfairly and unjustifiably prevented from rebutting, if that was possible the conclusion reached by the Board. This one-sideness amounted to a breach of natural justice. The functions of the Army Pensions Board are judicial in nature because it makes an adjudication after consideration of evidence tendered in relation to an application. The terms of Section 11 of the 1968 Act are that the Minister "may" grant certain allowances and gratuities on satisfying the conditions specified. The Minister's function is administrative and is confined to acting in accordance with the findings of the Board. If the findings are favourable to an applicant, the Minister has no option but to grant the allowances and gratuities provided. Dictum cited by Walsh J. in application ot Dunne [1968] I.R. 105, at p. 116 approved. The original application to the High Court for relief by way of certiorari (which was refused) was on notice to the respondants and because of that, and the appeal being allowed, an Order, of Certiorari would issue in absolute form. Stale (Williams) -v- Army Pensions Board and Minister for Defence - Supreme Court (per Hency J. and McCarthy J. per Hederman J. concurring). [1981] ILRM 379. Joseph P. Mannix

Edited by Gary Byrne

Copies of judgments in the above cases are available to members on request from the Society's Library.

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