The Gazette 1985

JULY/AUGUST 1985

GAZETTE

the 1970 Act and the High Court upheld his contention and dismissed the Plaintiffs claim. On appeal to the Supreme Court it was HELD:— 1. Under the Rules of construction, Statutes ought to be construed so as to carry out the object sought to be accomplished by them and a reasonable construction of a Statute should, if possible, prevail. Thus, whilst there is no definition of the word "provide" in the 1970 Health Act, the object of the Health Act section 6 is to make further and better provision in relation to the health of the people and this object would certainly not be achieved if the constructions contended by the Plaintiff prevailed. The word "provide" should be given its wider meaning of supplying, not only a structure, but also all the services normally catered for in a hospital and furthermore, the phrase "provide and maintain" applies to hospitals and institutions erected prior to the passing of the Act of 1970 as well as subsequent to it. 2. The correct interpretation of Section 38(2) of the Health Act, 1970 empowered the Minister to require the Board to provide or to maintain existing premises or services but does not empower the Minister to direct the Board to discontinue existing services. Accordingly the Plaintiffs second contention must succeed and the appeal be allowed. Margaret Rose McMeel and Others -v- The Minister for Health and the North Eastern Health Board — Supreme Court (per O'Higgins C.J., Hederman J. concurring and Griffin J.), 19 December, 1984 — unreported. Eugene O'Sullivan ARBITRATION Case stated by Arbitrator arising out of a Compulsory Purchase Order — whether arbitrator entitled to value lands on the valuation date, 11 March, 1977 on the assumption that parts II and IV of the Rent Restrictions Act 1960 as amended were invalid. Limerick Co r p o r a t i on made a Compulsory Purchase Order (The Thomondgate No. 1 Area C.P.O., 1975) which was confirmed on 21 December, 1975. A claim for compensation was made by Ellen Read in respect of her fee simple interest in nine separate plots the subject matter of the C.P.O. Notice to Treat was served on 11 March, 1977 and the date of the Arbitration hearing was 9 March, 1982. At the date of the Notice to Treat the premises on five of the plots were held from the claimant on tenancies controlled under part II and part IV of the Rent Restrictions Acts 1960 to 1967 as amended. It was admitted as a fact at the

Arbitration that on 11 March, 1977, (being the valuation date for the purpose of valuing the premises acquired under the C.P.O. having regard to sections 79 and 84 of the Housing Act 1966) it was not generally known or appreciated by Auctioneers, Valuers or the general public that the constitutionality of parts II and IV of the Rent Restrictions Act 1960 as amended was likely to be called in question and that sales and purchases as of that time would have been conducted on the assumption that the entire of the Rent Acts were valid and operative. The Arbitrator determined that if the claimant's interest in the five premises referred to on the valuation date was to be valued as though parts II and IV of the Rent Act 1960 were valid and in force as of that date, the total valuation of the five premises would have been £7,250.00. The Arbitrator also determined that if he was to value the same premises on the assumption that the premises were not subject to parts II and IV of the Rent Restrictions Act 1960 as amended they would have an additional total value of £10,250.00. On these findings the precise question raised for determination by the High Court was as follows:— "Whether in respect of the relevant premises I ought to value the claimant's interest therein on the valuation date as though parts II and IV of the Rent Restrictions Act 1960 as amended, were valid and in force at that date." The assessment of compensation in the case fell to be decided in accordance with the rules contained in section 2 of the Acquisition of Land Assessment of Compensation Act 1919. It was agreed by Counsel that the only relevant or applicable rule on the facts of the case was rule (2) which is as follows:— "The value of land shall subject as hereinafter provided be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realise. Provided always that the Arbitrator shall be entitled to consider all returns and assessments of capital value for taxation made or acquiesced in by the claimant." It was submitted on behalf of the acquiring authority that the sole function of the Arbitrator having regard to the provisions of the Act of 1919 was to ascertain as a matter of fact what price these lands would fetch if placed on an open market by a willing seller on 11 March, 1977. The determination of that fact, it was contended, would depend on many factors, the demand for land in the particular area, beliefs or speculations in the minds of prospective purchasers as to the future value of the land having regard to development or expansions of agriculture or building requirements and

the common conception of people as to legal restrictions or qualifications which applied to the ownership of the land. Having regard to that function it would, it was submitted, be wholly artificial for the Arbitrator to assume that prospective purchasers would have foreseen in 1977 the eventual decision of the Supreme Court that parts II and IV of the Rent Restrictions Act 1960 were unconstitu- tional. To do so, it was urged, would be to value the land not as was provided by the statutory provision as of 11 March, 1977, but rather as of and in the conditions prevailing at the date of the hearing of the Ar b i t r a t i o n. In support of this submission reliance was placed on the judgment of the Supreme Court in Re: Murphy [1977] I.R. 243 where Henchy J., at page 249 stated ( inter alia): "The date on which compensation is to be assessed for land compulsorily acquired under the Housing Act 1966 is the date of the service of the Notice to Treat, under section 84(1) of that Act." Reliance was also placed on the decision of Kenny J. in Dolan -v- Neligan [1967] I.R. 247 where at page 260 he stated inter alia, "In the Kiriri Cotton case Lord Denning who gave the advice of the Privy Council said at page 246 of the report, 'It is not correct to say that everyone is presumed to know the law. The true proposition is that no man can excuse himself from doing his duty by saying he did not know the law on the matter. Ignorantia juris neminem excusat." This statement of the law in the instant case was accepted as being correct and in the context of the issues before the Court indicated that for the Arbitrator to value the lands as of 11 March, 1977 without regard to the fact as conceded at the Arbitration that all material people then believed the Rent Act of 1960 to be operative and valid would be to presume a knowledge of the law in general which is inconsistent with this principle. The submissions on behalf of the claimant relied on the case of Blake and Ors. -v- Madigan and Ors. [1982] I.R. 117, in which the Supreme Court held that the entire of parts II and IV of the Rent Restrictions Act 1960 were invalid as being repugnant to the Constitution. It was further submitted that in the reference of the Housing (Private Rented Dwellings) Bill, 1981, reported in [1981] I.L.R.M. at page 246 judgment of the Court delivered by the Chief Justice referring to the decision in Blake and Ors. -v- Madigan and Ors. at page 252 of the report expressly states that it was a finding that parts II and IV of the Rent Restrictions Act 1960 were void ab initio. The argument continued that in the decision of the majority of the Court on the second issue arising in Murphy -v- The Attorney General [1982], I.R. page 241, it was clearly held that the finding of invalidity in regard to a statute held by

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