Corporation of Dublin v Flynn

JurisdictionIreland
JudgeHenchy J.
Judgment Date01 January 1980
Neutral Citation1980 WJSC-SC 209
CourtSupreme Court
Docket Number[S.C. No. 136 of 1978]
Date01 January 1980
DUBLIN CORPORATION v. FLYNN
DUBLIN CORPORATION
v.
FRANCIS FLYNN
Affirming High - 13/6/78
(bound in 1979 Pt. 1)

1980 WJSC-SC 209

No. 60 SS/1978
No. 136/1978

THE SUPREME COURT

1

Judgment of Henchy J. delivered the 20th December 1979 [nem Diss]

I THE ISSUES
2

The defendant, without having got the required planning permission, erected a factory/warehouse on his land at South Circular Road, Dublin. In 1973 Dublin Corporation, as the planning authority, served an enforcement notice on him under s. 31 of the Local Government (Planning and Development) Act, 1963("the Act") requiring him within one month to take down the building. He failed to comply with that notice, thereby committing an offence under s. 34(1) of the Act. Dublin Corporation then served him with a summons in respect of that offence. He was duly convicted and fined in the Dublin District Court in June 1973.

3

In spite of that conviction he refused to remove the building. He thus made himself liable to further prosecution under s. 34(5) of the Act. That subsection provides that if a person who has been convicted under the foregoing provisions of the section "does not as soon as practicable do everything in his power to secure compliance with the enforcement notice", he shall be guilty of a further offence and shall be liable to a fine not exceeding £20 for each day following his first conviction on which any of the requirements of the enforcement notice (other than the discontinuance of any use of land) remain unfulfilled.

4

The defendant was duly prosecuted under s. 34(5). Not once, but four times. On each occasion - in November 1973, June 1974, October 1974 (when the conviction was affirmed in the Circuit Court) and October 1976 - he was convicted and fined. In none of those prosecutions was any question raised by the defence as to the validity of the enforcement notice or as to its service.

5

Now he has been prosecuted again under the same s. 34(5). The summons alleges that, notwithstanding the previous convictions, he has again failed to do everything in his power to secure compliance with the enforcement notice. When this prosecution came on for hearing in the District Court, a defence was put forward, at the end of the prosecution case, which had not been raised in any of the four previous prosecutions under s. 34(5). This was that no evidence had been given to prove the enforcement notice or its service. The reply made by the prosecution was that they had put in evidence a certified copy of the conviction in June 1973, in which service in February 1973 on the defendant of the enforcement notice is recited; that, the District Court being a court of record, this establishes that the District Justice who made the conviction in June 1973 found as a fact that the enforcement notice had been duly served on the defendant; that the issue as to service of that document was now res judicata; and that the defendant, not having raised a question in any of the five previous prosecutions as to the contents or validity of the enforcement notice or as to the service of it, should be held estopped from raising such question now.

6

The points taken on behalf of the defendant did not impress the District Justice. He proceeded to convict the defendant. However, at the request of the defendant he stated a case under s. 2. of the Summary Jurisdiction Act, 1857 (as amended) in which he asks for a ruling as to 1) whether, on the evidence, he was bound to convict the defendant, and 2) if not, whether on the hearing of such a charge it is necessary for the prosecution to prove the making and service of the enforcement notice.

7

On the hearing of the case stated in the High Court, the judge raised a further question: whether s. 34(5) creates a continuing offence or a single non-continuing offence. Having heard legal argument on this and on the two questions raised in the case stated, he ruled that

8

1) the type of offence charged is not a continuing offence, so that the prosecution did not lie;

9

2) the District Justice was not bound, on the evidence, to convict the defendant; and 3) while it is not necessary to prove the making and service of an enforcement notice, it is necessary to prove the contents thereof.

10

It is from that order that this appeal is taken.

II Is the offence a continuing one?
11

In the High Court the judge reached the conclusion that an offence under s. 34(5) of the Act is not a continuing offence - just as, admittedly, an offence under s. 34(1) of the Act is not a continuing one. His rationale in coming to that conclusion derives from the absence from s. 34(5) of any specific nomination of the offence as a continuing one. He thought it significant that whereas Parliament, having in s. 24(2) made it an offence to carry out development of land without the required permission, provided in s. 24(3) of the Act that "if in the case of a continuing offence the contravention is continued after conviction", there is to be a further offence, no similar express nomination of the offence as a continuing one is to be found in the text of s. 34(5). Because of the absence of any use of the expression "continuing offence" in s. 34(5), the judge felt bound to conclude that an offence under s. 34(5) was not intended to be a continuing offence.

12

I fear I am unable to reach the same conclusion. Whether a statute has made an act or default a continuing offence, meriting repeated prosecutions, depends not on the use of a special verbal formula but on whether the statutory provision properly interpreted indicates an intention to that effect. It is not necessary that the offence be expressly designated a continuing offence. It will usually be sufficient if (as is the case in s. 34(5)) a penalty is provided for each day on which the prohibited act or default takes place. It is true that in s. 24(3) Parliament both designated the contravention a continuing offence and provided for a recurring penalty for each day's contravention. But a continuing offence would have been done the less created if the express nomination of a continuing offence had been omitted from s. 24(3)— as it has been, not alone from s. 34(5), but also from other sections, such as s. 31(8) and s. 35(8) of the Act and s. 26(5) of the amending Act of 1976.

13

The judge considered that an offence under s. 34(5) is a "once and for all offence". I do not think so. The characteristics of such an offence is...

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