Bradshaw and Falconer v Urban District Council of Bray

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 31 July 1906
• Court: Chancery Division (Ireland)
• Docket Number: (1906. No. 515.)
• Date: 31 July 1906

Bradshaw and Falconer

and

The Urban District Council of Bray.

Barton, J.

(1906. No. 515.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1906.

Housing of the Working Classes Act, 1890 — Public Health (Ireland) Act, 1878 — Local Act — Purposes of — Deposit of plans — Extent of incorporation — Basis of compensation — Modification of plans — Injunction — 53 & 54 Vict. c. 70, Part III. — 41 & 42 Vict c. 52 — 63 & 64 Vict c. cxcii (L. & P.) — Compulsory purchase.

Held, that the deposited plans were incorporated in the Act only for the purpose of identifying the lands to be compulsorily acquired; that the defendants were, therefore, not bound to adhere to the representation of intention shown on the plan as to the proposed number of cottages, playground, and approach; and that the defendants could not be enjoined while they kept within the purposes mentioned in the Act.

Injunction Motion.

Motion for an interlocutory injunction which, by consent, was taken as the trial of the action. The plaintiffs in the writ of summons claimed: (1) An injunction restraining the defendants from deviating from the plans lodged by them with the Local Government Board prior to the passing of the Local Government Board (Ireland) Provisional Orders Confirmation (Housing of the Working Classes) No. 2 Act, 1900 (63 & 64 Vict. c. 192), and referred to in said Act, by building more houses on the property taken under said Act, and by virtue of an award dated 5th March, 1901, than the number of houses set out on the said plans, or by altering the plans in any way. (2) An injunction restraining the defendants from leaving a narrower approach to the property in Purcell's field and Purcell's Terrace, or an approach in any way different from that set out on said plans, or from in any way changing or altering the plans of the houses to be built from the plans lodged when said Act of Parliament was being passed.(3) An injunction restraining the defendants from permitting to remain erected a concrete wall or any wall other than the wall described in said award. From the evidence given it appeared that under the Act referred to in the statement of claim the defendants compulsorily acquired from the plaintiffs a large field called Purcell's field, with two small plots adjoining, and a lane, 9 feet wide, leading from Main-street to Purcell's field, with some adjacent cottages. One of the deposited plans showed a ground-plan of 45 cottages round three sides of Purcell's field, the centre of which was marked “playground,” and a proposed approach, 50 feet wide, from Main-street to Purcell's field. It was alleged that this plan was before the arbitrator appointed by the Local Government Board, under the Public Health and Lands Clauses Acts, to assess compensation, and he awarded the plaintiffs £1489 8s. 1d. £1129 8s. 1d. of which was for the lands taken, and £360 for damage by severance and injuriously affecting other lands of the plaintiffs. The award provided for the erection, by the defendants, upon the north and east sides of one of the plots, of a stone wall 5 feet high, which was the subject of the third claim endorsed on the writ. The houses intended to be built by the defendants were one-story cottages which would let at from 3s. 6d. to 6s. a week; but, in 1905, the defendants, finding that these rents were too high for many of the respectable poor of Bray to pay, submitted modified plans to the Local Government Board (from whom they were obtaining sanction for a loan for carrying out the work), which provided for the erection of a larger number of two-story houses which would let at about 2s. 6d. a week each, and the using up for the purpose of the portion of the field marked “playground.” The modified plans were approved of by the Local Government Board, through whom the defendants were borrowing the money for the works. The defendants proposed to build fifty-two houses, and reserved to themselves the right to build more, as shown on the modified plans; and they had decided, for the present at all events, to widen the approach from Main-street to Purcell's field to 20 feet instead of the 50 feet shown on the original plans. The plaintiffs are the owners of a considerable number of cottages and of land, which they proposed to use for building purposes, adjoining Purcell's field, and the evidence on their behalf tended to show that the modification of the plans would decrease the benefit to the cottages and increase the injury to the building-land which would result from the defendants' scheme, while they alleged that the arbitrator had awarded compensation upon the basis of the original plans. The Act of 1900, mentioned in the statement of claim, empowered the defendants to compulsorily acquire certain lands and premises for the purposes of Part III. of the Housing of the Working Classes Act, 1890, and also for the purpose of widening, opening, and enlarging, and otherwise improving certain streets or roads. Section 1 of the Provisional Order, No. 2, in giving the compulsory power to acquire lands, described them as “the lands, easements, rights of way, and other premises described in the deposited plans and book of reference” and referred to the plans as “the plans showing the lands and premises required for the purposes aforesaid.” The deposit of the plans was recited in the Provisional Order. The Act did not further or otherwise refer to the plans, and did not contain any provision requiring the Council to carry out the works according to the representation of intention shown on the plan.

Matheson, K.C., Jellett, K.C., and Dickie, for the plaintiffs:—

The plan of the proposed cottages lodged with the Local Government Board and in Parliament, must be regarded as incorporated in the Act of 1900, and the change of plan is a departure from the purposes of the Act. To hold otherwise, would permit the procedure of the Lands Clauses Act with reference to compensation to be used to work injustice. In this case the compensation awarded for injury to other property of the plaintiffs was based on the original plans. The lands taken for widening of streets and approaches, and for making the playground, were taken under sect. 38 of the Public Health Act, as amended, and could not be used for the purposes of Part III. of the Housing of the Working Classes Act: North British Railway Co. v. Tod (1); Attorney-General v. Hanwell Urban Council (2); Attorney-General v. Pontypridd Urban Council (3); Bostock v. North Staffordshire Railway Co. (4); Simpson v. South Staffordshire Waterworks Company (5); Herron v. Rathmines Commissioners (6); Attorney-General v. Teddington Urban District Council (7); Glossop v. Heston and Isleworth Local Board (8); Mayor of Manchester v. New Moss Colliery (9); Attorney-General v. Mayor, &c., of Southampton (10); Fletcher v. Great Western Railway Co. (11); Parliamentary Standing Orders as to deposit of plans; Public Health Act, 1878 (41 & 42 Vict. c. 52), sections 38, 203; Vanston's Public Health Act, Supplement, p. 271; Housing of the Working Classes Act, 1890 (53 & 54 Vict. c. 70); Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37), sect. 36; Lands Clauses Consolidation Act, 1845 (8 Vict. c. 18).

S. L. Brown, K.C., Ignatius J. O'Brien, K.C., and P. A. O'C. White, for the defendants:—

If the Court yielded to the argument of the plaintiffs, it would have to decide that where an Act provided that lands might be taken compulsorily under Part III. of the Housing of the Working Classes Act, there must be incorporated the words

“and to build upon it houses according to the plans deposited with the Local Government Board.” But the plans were incorporated merely for the purpose of showing the lands to be taken; and the defendants, if they had built cottages all over the lands taken, would have been complying with the Act. The plan of cottages in the deposited plans was merely a ground-plan; and the defendants, if they had chosen, might have built houses six or seven stories high. They had to find out what was the Parliamentary contract; but there was no contract to make an approach of any particular width, or to build any particular number or style of houses. [Counsel referred (in addition to the cases cited for the plaintiffs) to The Attorney-General v. Great Eastern Railway Co. (1) and Tucker v. Vowles (2).]

Prior to the passing of a Provisional Orders Confirmation Act, empowering the defendants to acquire compulsorily, from the plaintiffs and from others, certain lands for the purposes of Part III. of the Housing of the Working Classes Act, 1890, and for the purposes of the widening and improving of streets and roads, plans of the lands to be taken, one of which showed a ground-plan of forty-five cottages proposed to be built, a proposed “play-ground,” and a proposed approach 50 feet wide, were duly deposited with the Local Government Board and in Parliament. Section 1 of the Provisional Order in question, which recited the deposit of the plans, described the lands to be compulsorily acquired as “the lands, easements, rights of way, and other premises described in the deposited plans and book of reference”; and the plans were referred to as “the plans showing the lands and premises required for the purposes aforesaid.” The Act did not further or otherwise refer to the plans, and did not contain any provision requiring the defendants to carry out the works according to the plan. After the passing of the Act the arbitrator appointed by the Local Government Board assessed the compensation to be paid to the plaintiffs for purchase-money and for injury to adjoining lands, and the amount awarded was paid. Subsequently, modified plans for the building upon the acquired lands of a larger number of cottages, the use for that purpose of part of the space marked “playground,” and the making of a 20-foot instead...