The Gazette 1987

MARCH 1987

GAZETTE

sideration and knowledge of the conse- quences. The Court referred to a passage from the Law of Local Government in the Republic of Ireland by Keane at page 198 where the author stated that ("the Bord") should also ensure that the wording of the refusal does not confer a right of compensation where none was intended by the legislature." The Court held that the reason stated by the Planning Authority did not come within the ambit of Section 56(1 )(i)(iii) also in- dicating that it could not equate "overall character" and "amenities". Finally the Court approved the reasoning of Murphy J. that if An Bord Pleanala had wanted to use the appropriate terms it could have done so, it was well aware of the form of wording that would defeat a claim for compensation "it is highly likely that for one reason or another it must have appreciated the desirability, indeed the requirement of precise wording, it did not use such precise wording and the applicants claim was not to be defeated by not merely straining the language but by introducing further and other language into it." The Court dismissed the appeal. XJS investments Ltd. and Dun Laoghaire Corporation Supreme Court (per McCarthy J. nem. diss.) 11 December 1986. John Buckley A dispute arose between the Prosecutors and their clients in respect of a Bill of Costs. They had acted for her in matrimonial pro- ceedings in which she had been successful, and in which her husband had been ordered to pay her costs. The Solicitors had receiv- ed payment on account of costs during the Action. After Judgement, without drawing a party and party bill or seeking to agree a figure for costs with the husband's Solicitors, the Prosecutors sent their client an "up to date Bill of Account". The client requested the Prosecutors to send the bill to her husband's Solicitors. The Prosecutors declined to do this until they had been paid their costs because they anticipated con- siderable difficulty in enforcing the Order for costs because the husband was in England. The client paid the amount of the bill and issued a requisition to tax the bill under Or. 99 Rule 1 5(e) under the 1962 Rules of the Superior Court. The Prosecutors submitted that the Taxing Master had no jurisdiction to tax a bill, after it had been paid, without an order of the Court. The Taxing Master rejected this objection and proceeded to tax a more detailed bill which he had required the Prosecutors to submit. The amount of the bill was reduced and the Prosecutors were disallowed the costs of taxation and directed to take up the Certificate of Tax- ation and to pay the fees thereon. The Prosecutors did not do this but sought an order of certiorari on the grounds: 1. that the Taxing Master had no jurisdiction to tax a Bill of Costs after payment thereof without an order of the Court referring such Bill of Costs to him pursuant to s.6 of the At- torneys and Solicitors (Ireland) Act 1849, 2. that the Taxing Master was functus of- ficio on the date in question. The High Court COSTS Solicitor and Client Bill — Taxation — Jurisdiction of Taxing Master

Claimant appealed against the decision to An Bord Pleanala. An Taisce also appealed against the decision on the grounds that the Planning Authority's decision to refuse was not strong enough. An Bord Pleanala refus- ed to grant the permission for the following reasons: 1. The proposed development would be contrary to the zoning objectives for the area and both the Dun Laoghaire Development Plan 1 976 and Draft Plan 1 983. These zoning objectives are con- sidered reasonable and the development would, therefore, be contrary to the pro- per planning and development of the area. 2. The proposed development, including the access road, driveways, boundary walls, and the considerable excavation, would be seriously injurious to the overall character of the area and contrary to its proper planning and development. The Claimant sought compensation under Section 55 of the Local Government (Plan- ning and Development) Act 1963 measured at the sum of £2,375,000 for the loss of development value. Section 56 of the same Act provides that compensation under Sec- tion 56 is not to be payable . . . "(g) in respect of the refusal of permission for development if the reason or one of the reasons for the refusal is the necessi- ty of preserving any view or prospect of special amenity value or special interest. (h) in respect of the refusal of permission for development in an area to which a special amenity area order relates. (i) in respect of the refusal of permission for development comprising any struc- ture or any addition to or extension of a structure if the reason or one of the reasons for the refusal is that the struc- ture, addition or extension — (i) would infringe an existing building line, or, where none exists, a building line determined by the planning authority or by the Minister, (ii) would be under a public road, (iii) would seriously injure the amenities, or depreciate the value, of property in the vicinity." The Arbitrator appointed to determine the compensation which might be payable stated a case for the opinion of the High Court on the following question: " A. Does Section 56(1)(g) apply on the basis of the refusal given in such a way to preclude compensation being paid pursuant of (sic) Section 55 of the Act. Do the grounds of refusal given com- ply fully with Section 56(1 )(g)(iii) of the aforesaid Act so as to enable compensation to be precluded." The High Court (per Murphy J.) held that neither of the two reasons stated by An Bord Pleanala was such as to defeat the claim for compensation. The Planning Authority ap- pealed to the Supreme Court. That Court held that if a Planning Authority sought to defeat a claim for compensation brought by an individual it must do so within the con- fines of Section 56 and the exclusion must be clearly established and that it must be assumed that An Bord Pleanala in departing from the reasons ascribed by the Planning Authority for refusing permission must be assumed to have done so after due con- B.

Recent

Ed i t ed by Ga r y By r ne

FAMILY HOME PROTECTION ACT 1976

Equitable Deposit of Title Deeds — Consent of Spouse — Prior Consent The Bank took an equitable deposit of the Land Certificate of the Defendant on 14 March 1978, the Defendant having brought his Land Certificate to the Bank with the in- tention of leaving it with the Bank as securi- ty for a loan which they had agreed to give him. The Bank Manager pointed out to the Defendant that his wife, who was not with him at the time, would have to call and give her consent to the transaction. The Defen- dant left the Bank, leaving his Land Cer- tificate in the custody of the Bank and later on the same day his wife called and signed the necessary consent to comply with the provisions of the Family Home Protection Act 1976. The Defendant contended that the consent of his wife was not a prior con- sent in writing as required by Section 3 of the Family Home Protection Act 1976. HELD: "If the attempt by the Defendant to effect a mortgage by equitable deposit of his Land Certificate was already complete before his wife called in to execute the con- sent, then it was not a 'prior consent' as required by the Act, and the transaction should be regarded as void. However, in the particular circumstances of the present case, the Bank and the Defendant implied- ly agreed to the retention by the Bank of the Land Certificate as mere custodians thereof until such time as the Defendant's wife came in to sign the necessary consent, and that a tacit agreement should be implied as between the Bank and the Defendant that as and from the time when Mrs. Hanrahan signed the consent, the character in which the Land Certificate was held by the Bank should change and that from that time for- ward they should be entitled to retain it in the capacity of equitable mortgagees." Governor & Company of the Bank of Ireland -v- John Hanrahan, High Court per O'Hanlon J., 10 February 1987, unreported. Nicholas Comyn PLANNING Compansatlon —Grounds of Rsfussl of Psrmisslon The Claimant lodged an application for per- mission for residential development of lands at Killiney, Co. Dublin. The Planning Autho- rity decided to refuse permission and the