Attorney-General v Bray Township Commissioners and The Bray Pavilion Company Ltd

• Jurisdiction: Ireland
• Judgment Date: 07 August 1879
• Date: 07 August 1879
• Court: Chancery Division (Ireland)

CHANCERY DIVISION.

ATTORNEY-GENERAL

and

BRAY TOWNSHIP COMMISSIONERS AND THE BRAY PAVILION COMPANY (LIMITED).

Attorney-General v. Corporation of Sunderland 2 Ch. Div. 634.

Attorney-General v. Sheffield Gas Consumers' CompanyENR 3 De G. M. & G. 304.

Attorney-General v. Cambridge Consumers' Gas CompanyELR L. R. 4 Ch. App. 71.

Ryde Commissioners v. Isle of Wight Ferry CompanyENR 30 Beav. 616.

Wilson v. Furness Railway CompanyELR L. R. 9 Eq. 28.

West v. DobbELR L. R. 5 Q. B. 460.

Hyde v. Warden 3 Ex. Div. 72.

Doe v. MarchettiENR 1 B. & Ad. 715.

Mayor of Colchester v. LowtenENR 1 V. & B. 226.

Evan v. Corporation of AvonENR 29 Beav. 144.

Tweddle v. AtkinsonENR 1 B. & S. 393.

Eley v. Positive Government Security Life Assurance Company 1 Ex. Div. 20.

Doe v. GodwinENR 4 M. & S. 265.

Doe v. SmithENR 5 Taunt. 795.

Paul v. NurseENR 8 B. & C. 486.

West v. DobbELR L. R. 5 Q. B. 460, per Pollock, C. B., and Channell, B.

Hyde v. Warden 3 Ex. Div. 72.

Palk v. MarchettiENR 1 B. & Ad. 715.

Township Commissioners — Lands held for public recreation and exercise on foot — Dedication of portions of the ground for the erection of Floral Hall and bathing-place —— Breach of trust to the public — Lease — Covenant not to build without consent — Clause of re-entry not applicable to negative covenants — Forfeiture — Information by inhabitant and ratepayer of township — Mandatory injunction.

Va. III.] CHANCERY DIVISION. 345, ATTORNEY-GENERAL v. BRAY TOWNSHIP COMMIS- v. C. SIONERS AND THE BRAY PAVILION COMPANY 1879. (LIMITED). June 5, 6, 7, 11, 12. Township Commissioners-Lands held for public recreation and exercise on foot August 7. -Dedication of portions of the ground for the erection of Floral Hall and bathing-place-Towns Improvement Clauses Act, 1847, sect. 136-Breach of trust to the public-Lease-Covenant not to build without consent-Clause of re-entry not applicable to negative covenants-Forfeiture-Information by inhabitant and ratepayer of township-Mandatory injunction. Land adjoining the seashore at the town of B. was demised to the Township Commissioners, subject to a covenant by them to keep the same in order and. repair as a place of recreation and exercise on foot for the inhabitants of B. ; and the lease also contained a covenant by the Commissioners against assignÂing, subletting, disposing or parting with the possession of, or erecting or perÂmitting to be erected any building on, the premises, or any part thereof, without the consent of the lessor ; and a proviso for re-entry in case the Commissioners should not observe, perform, fulfil and keep all the covenants in the lease. By Act of Parliament, incorporating the Towns Improvement (Ireland) Act, 1854, the Commissioners of B. were incorporated, and the land so demised was vested in them for the interest of the original lessees, subject to the liabilities of the latter under the lease. The Commissioners agreed to make a sub-demise of two small pieces of the land to a Company, for the purpose of erecting a Floral Hall or Pavilion, and ladies' bathing-place. After the buildings had been comÂmenced, an information was filed by an inhabitant and ratepayer of B. against the Commissioners and the Company, for an injunction to restrain the CommisÂsioners from permitting, and the Company from proceeding with, the erection of the buildings, and to compel the removal of such portions of the buildings as had been constructed : Held, 1st. That the erection of the proposed Floral Hall or Pavilion, and bathing-place, was a proper and allowable use of part of the premises as a place of recreation ; and that the Commissioners were justified, in the exercise of their discretion as trustees for the inhabitants of B., in allocating, with the consent of the lessor, a sufficient part of the ground for these structures. 2ndly. That the Commissioners, instead of themselves erecting the hall and bathing-place, were justified in sub-demising, with the consent of the lessor, the portions of ground required as sites to a Company formed for the purpose of erecting them, although it was in contemplation that the Company should be entitled to make charges for admission to the hall and bathing-place, in order to defray the expenses and afford a profit to the shareholders. .346 LAW REPORTS (IRELAND). [L. R. V. C. 3rdly. That the clause of re-entry was not applicable to the negative cove 1879. nants in the lease. ATTY.-GEN. Tins was an action, by way of information, instituted at the BBATVTowN relation of Robert Henry Davis, an inhabitant of the Town of CO MM. Bray, and a ratepayer of the township, to restrain the Bray TownÂship Commissioners from building or allowing to be built upon the Esplanade at Bray a Pavilion or Floral Hall, and a bathing-place, or any other building, erection, or work not necessary for, nor inciÂdental to, the maintenance or use of the Esplanade for the recreation and exercise on foot of the inhabitants of Bray and its vicinity, and the other persons resorting thereto. It also sought to restrain them from leasing or otherwise parting with the possession of any part of the Esplanade as a site for the Pavilion and bathing-place, or any other work not necessary or incidental to the purposes aforÂsaid. It further prayed an injunction against the Defendants, the Bray Pavilion Company (Limited), from further proceeding in the erection of the buildings and works already commenced by them at the Esplanade, and a mandatory injunction, requiring them to remove the same, and an injunction restraining them from appropriating any portion of the Esplanade as a site for any buildÂing or work, or from commencing or continuing any building or work, not necessary or incidental to the maintenance or use of the Esplanade for the purposes mentioned. The Relator was seised of a plot of ground on which three houses were erected, adjoining the Esplanade, under a grant in fee-farm from Edward Breslin, dated the 9th July, 1877, with power to purchase by instalments the fee-farm rent reserved. The grantor, Breslin, held in fee-farm under the Earl of Meath, who was the owner in fee. By deed dated the 21st October, 1861-made between the Earl of Meath of the first part, William Dargan of the second part, and Peter Warburton Jackson, Thomas Darley, Henry Kingsmill, Edward Breslin, and Andrew Kehoe, therein described as five of the Bray Commissioners, appointed under the provisions of the Towns' Improvement (Ireland) Act, of the third part-the Earl of Meath demised to the said five Commissioners part of the sea beach at Bray known as the Esplanade, for the term of 99 years. The deed contained a covenant by William Dargan to Not. III.] CHANCERY DIVISION. 347 paint, repair, and preserve the paling or fence on the land side of V. C. the demised premises, to keep the ground within the fence down to 1879. the sea beach laid down and sown in grass seed, and all the roads, Arryv.-GEN. walks, and footpaths thereon in order and repair, as a public BRAY TowN place of recreation and exercise on foot for the inhabitants of Bray Commas. and its vicinity, and of other persons resorting thereto ; a covenant by the five Commissioners, for themselves and their successors, Commissioners as aforesaid, that after the decease of William Dargan they would paint, preserve, and keep the paling, and also keep the ground within the fence, sown in grass seed, and all the walks and paths in good order and repair as a place of recreation and exercise on foot for the inhabitants as aforesaid; and a covenant by the said five Commissioners, for themselves and their successors, that they would not let, alien, underlet, sell, assign, or in any manner dispose of, or part with the possession of, the demised premises, or any part thereof, and that they would not during the term build or erect, or cause or permit to be built or erected, any building on the premises or any part thereof, without the consent in writing of the lessor, his heirs or assigns. The deed contained a proviso for re-entry in case Mr. Dargan or the Town Commissioners should not faithfully observe, perform, fulfil and keep all and singular the covenants, conditions and agreements contained in the deed. By " The Bray Township Act, 1866 " (29 & 30 Viet. c. cclxi.), the town of Bray, with certain lands and villages in the vicinity thereof, including the aforesaid portion of the sea beach, were created a township, called the Bray Township ; and by sec. 16 it was provided that the Commissioners appointed under the Towns' Improvement Act, 1854, should cease to be Commissioners, and their property should be vested in fifteen new Commissioners, and their successors, appointed by sec. 11, who were by sec. 7 incorÂporated under the name of the Bray Township Commissioners, but subject to all debts, liabilities and engagements affecting the same, or affecting the Bray Commissioners in respect thereof. By the said Act the Corporation were empowered to collect certain tolls therein mentioned, and to levy and raise certain taxes on the owners and occupiers of houses and premises within the township, for the purpose of carrying out the provisions of the 348 LAW REPORTS (IRELAND). [L. R. I. V. C. Act ; and. by sec. 51 it was enacted that the Commissioners 1879. appointed under the Act should have all the interest in the Any.-GEN. Esplanade, and all powers and authorities over the same which V. BRAY Towx were at the commencement of the Act vested in the five Com:rms. Commissioners, and should be subject to all the liabilities of the five Commissioners to keep the same in repair, under the provisions of the aforesaid deed, and should have all such powers for the preservation of the same, for the abatement of nuisances, and for the general management and control over the sea beach or Esplanade, as were at the commencement of the Act vested in the five Commissioners, but no greater or other powers. Under the provisions of this statute the present...