The Gazette 1985

JULY/AUGUST

1985

GAZETTE

to another or a group of other develop- ment p r o v i s i on s. The qualified description "a particular permission" gives recognition also to the facts that there may be more than one contem- • poraneous permission granted to one developer for development of the same structure or other lands and that there may be more than one developer to whom permissions had been granted in relation to the same structure or other lands. The expression "particular permission" has significance also for the developer or applicant for a decision under Section 4. It signifies that the permission must be distinguished from other permissions whether relating to the development of the same structures or other land or relating to other developments. Section 4(1) is explicit as to what it requires and the fact that it is included in a section imposing a mandatory function precludes consideration of any other matters. A decision by a Planning Authority to extend, or not to extend, the appropriate period of a particular permission, arrived at without consider-? ing all the specified matters, or upon consideration of other matters, would be ultra vires. Although it may correctly be said that the decision as expressed in the notice does not state that the Planning Authority considered each or any of the matters set out in Section 4(1 Xa), (b) or (c), (i), (ii) or (iii) and in that sense, it may appear to be defective, it cannot be said that in the process of reaching a decision the Planning Authority took into account matters not proper for their considera- tion. They had to consider whether or not the development to which the "particular permission" relates had been commenced to the extent of substantial work done but not completed and whether or not it could be completed within a reasonable time. The facts disclose in this case that a substantial portion of the development to which the "particular permission" relates no longer can be done in accordance with the permission, by reason of the completion of two other developments on two portions of the same property under two other permissions. The Respondent's decision, expressed as given for the reason "the permission for thirty-six semi-detached houses was superceded by permissions for a total of eighteen detached houses on portions of the site" is consistent with consideration of the facts set out in Section 4( l)(c) of the 1982 Act and does not indicate the taking into consideration of matters which do not come within the scope of that section. Accordingly, the decision is not ultra vires and is valid. The State (at the prosecution of Patrick J. McCoy) -v- The Corporation of Dun Laoghaire - High Court (per Gannon J.), 1 June, 1984 - unreported. Sarah Cox

SUCCESSION ACT Rights of Election and Appropriation — Construction of "dwelling" for the purposes of Section 56 of the Succession Act 1965 — Once a spouse has elected in favour of the legal right under Section 115 or has applied for appropriation under Section 56 of the Act, and subsequently dies, this constitutes a claim against the deceased's estate which can be enforced on behalf of the spouse's estate. A Testator died in 1979, by his Will bequeathing three small pecuniary legacies and leaving the residue of his estate upon trust for his wife, the Plaintiff, for life with remainder to fourteen named beneficiaries. Instead of taking the life interest, the Plaintiff exercised her right under Section 115 of the Succession Act 1965 and thereby became absolutely entitled to one half of the Testator's estate, there being no children of the marriage. The Plaintiff further exercised her right under Section 56 of the Act and called on the executors to appropriate in or towards satisfaction of her claim against the estate "the house and land and the household furniture and effects". This was taken as meaning for the purposes of the proceedings, a claim to have appropriated in her favour the dwelling in which, at the time of the Testator's death, the Plaintiff was ordinarily resident, together with the household chattels therein. These proceedings arose out of a disagreement between the Plaintiff and the executors as to the manner in which the expression "dwelling" as used in Section 56 should be construed. "Dwelling" is defined in Section 56(14) as "an estate or interest in a building occupied as a separate dwelling or a part, so occupied, of any building and includes any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling". The Testator and his wife had lived for the last eleven or twelve years of his life in a small bungalow measuring approxi- mately 950 sq ft. situate on a plot of land of about six acres. The bungalow itself and a small garden to front and rere were enclosed with a hedge and a post and wire fence, so that the enclosed plot repre- sented only a very small fraction of the total area of the plot. Access from the bungalow to the field comprising the remainder of the land was through a small wooden gate, suitable only for passage on foot. Access to the field from the adjoining public road was by way of a full size gate suitable as an entrance for any vehicle, livestock or machinery. During the time the deceased was living in the bungalow, he kept a few cattle in the field, selling and replacing them as necessary in order to supplement his income. Usually there would be four to six cattle grazing the field. The septic tank

serving the bungalow was situate in the field whilst the well supplying water was also outside the hedge surrounding the bungalow but within the line of the wire fence preventing cattle from the field coming into the garden of the bungalow. A further issue arose to be decided by reason of the fact that the widow, having elected to take her legal right and having applied to have the dwelling and contents appropriated in satisfaction of her claim, subsequently died after the institution of these proceedings. The proceedings were reconstituted by substituting her acting executor as Plaintiff in her place, but the Defendants queried whether it was open to anyone other than the spouse to maintain such a claim, having regard to the fact that the statutory provisions appear to have been designed to avert hardship in the case of a spouse who might otherwise be deprived of the family home. HELD per O'Hanlon, J.:— Referring to the definition of "dwelling" contained in Section 56 (14), the field could not be considered to be "a garden" and, having regard to the use made of it while the Testator was alive and the use to which it could appropriately be put given the size and nature of the bungalow, nor was it required "for the amenity or convenience of the dwelling". However, the field did consist of "a portion of ground attached to" the dwelling, since it was connected by a gateway leading to the bungalow. The location of the septic tank was well outside the curtilage of the bungalow, but within the field. This supported the view that the field remained "attached" to the bungalow throughout the deceased's lifetime. So, too, did the fact that the deceased, so long as he lived in the bungalow, made constant use of the field for his own purposes. The phrase "usually occupied with" caused more difficulty. If the phrase in the sub-section were to read "usually occupied with a dwelling", the Court would not have considered that the definition covered the field, but when the Act says "usually occupied with the dwelling", the Court took that as referring to the use which had been made in the past of this particular dwelling. The Court's conclusion was that the "dwelling" which the widow was entitled to have appropriated to her own use under the Act included the parcel of land surrounding the bungalow comprising approximately 6 acres. Once the widow has elected in favour of her legal right, this constitutes a claim against the deceased's estate which can be enforced on behalf of her estate and, similarly, once she has applied for the appropriation of the dwelling in satisfac- tion of her claim against the estate, an equity arises in her favour which is enforceable by her personal represen- tatives. This entitlement is of course

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