Enniscorthy Urban Distriot Council, Appellants; Field, Respondent

• Jurisdiction: Ireland
• Judgment Date: 01 February 1904
• Date: 01 February 1904
• Court: King's Bench Division (Ireland)

Enniscorthy Urban District Council

Appellants

and

Field

Respondent (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1904.

Local government — By-law — Reasonableness — Whirligigs and swings — Public Health Acts Amendment Act, 1890 (53 54 Vict. c. 59), s. 38.

An urban district council, purporting to act under the powers conferred by sect. 38 of the Public Health Acts Amendment Act, 1890, made a by-law, subsequently confirmed by the Local Government Board for Ireland, that no person should cause or suffer any whirligig or swing to be set in motion or driven on any land immediately adjoining or abutting upon any street or road within the district, unless such whirligig or swing was placed at a distance of not less than 20 yards from any road or street, and separated from any street or road by a wall not less than 14 inches in thickness, and carried up to a height of not less than 4 feet above the level of the street or road:—

Held, that the by-law was unreasonable and void, inasmuch as it required a structure of a permanent character, involving large expense, to provide against a temporary danger, which could as effectively be provided against by a temporary structure.

Case Stated under 20 & 21 Vict. c. 43.

A by-law had been made by the Enniscorthy Urban District Council under section 38 of the Public Health Acts Amendment Act, 1890, and duly confirmed by the Local Government Board, to the following effect:—“No person shall cause or suffer any whirligig or swing to be set in motion or driven on any land immediately adjoining or abutting upon any street or road within the district, unless such whirligig or swing be placed at a distance of not less than 20 yards from any road or street, and be separated from any street or road by a wall not less than 14 inches in thickness, and carried up to a height of not less than 4 feet above the level of the street or road.” “The district” was defined by the by-law to mean the urban district of Enniscorthy. The respondent was charged before the Justices of the Peace at Petty Sessions on a summons containing counts inter alia charging

him with having, contrary to the by-law, caused or suffered certain whirligigs and swings driven by steam power, of which he was the proprietor, to be set in motion and driven on land immediately adjoining or abutting upon a street or road within the urban district of Enniscorthy at a distance of less than 20 yards from such road or street, and also with having caused or suffered such whirligigs to be set in motion and driven on land immediately adjoining or abutting upon a street or road within the said district, without the said land being separated from the said street or road by a wall not less than 14 inches in thickness, and carried to a height of not less than 4 feet above the level of said street or road. The majority of the Justices were of opinion that there had been in fact contraventions of the by-law as regards the...