Gammell v Dublin County Council

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 28 January 1983
• Neutral Citation: 1983 WJSC-HC 490
• Court: High Court
• Date: 28 January 1983

GAMMELL v. DUBLIN CO. COUNCIL

BETWEEN:

ROSEMARY GAMMELL

PLAINTIFF

AND

THE COUNTY COUNCIL OF THE COUNTY OFDUBLIN

DEFENDANTS

1983 WJSC-HC 490

No. 1547p/1978

THE HIGH COURT

Subject Headings:

LOCAL GOVERNMENT: sanitary services

NATURAL JUSTICE: fair procedures

Cases Cited:

East Donegal Co-Operative .v. The Attorney General 1970 I.S. 317

O'Brien .v. Bord na Mona (Keane, J., 18th March 1981)

Ingle .v. O'Brien 1975 109 I.L.T.R. 7

Moran .v. The A.G. 1976 I.R. 400

Irish Family Planning .v. Ryan 1979 I.R. 295

The State (Muldowney) .v. E.J. Kelleher (Costello, J., 5th February1982)

Ganley .v. The Minister for Agriculture 1950 I.R. 191

Counsel for the Plaintiff:

Hugh O'Flaherty, S.C. and Anthony Kennedy

Counsel for the Defendant:

T.C. Smyth, S.C., and James Mackay

1 Judgment of Miss Justice Carrolldelivered the 28th day of January 1983.

2 The Plaintiff, Mrs. Gammell, owns a caravan park at Malahide which she bought in 1974. It has been used as such since 1959. Following an enquiry by her she received a letter from the Defendant. ("the County Council") dated the 4th July, 1974 to say that if the lands had been used as a caravan park prior to the 1st October, 1964 no action could be taken under the Local Government (Planning and Development) Act 1963in relation to the continuation of use.

3 Mrs. Gammell took this letter to Bean that she had the"all-clear" from the County Council to use the lands as a caravan park.

4 She was informed by letter dated the 20th June, 197S from the County Council that the site was not licensed as a caravan site as required by Section 34 of the Local Government (Sanitary Services) Act 1948("the Act").She did not apply for a licence.

5 During the course of 1977 the persons living in the caravans were re-housed by the County Council. The County Council wished to ensure that no further families would become residents of the caravan park and require re-housing by them. Accordingly an order prohibiting the erection or retention of any temporary dwelling on the caravan site was made on the 12th of September, 1977 to which the seal of the Council was affixed on the 15th of September, 1977. Notice of the making of this order was published in the Irish Press on the 22nd September, 1977 stating that any person aggrieved by the order might within 14 days from the date of publication send to the Minister for the Environment an application in writing for the annulment of the order stating the reasons. No application for the annulment of the order was received within the statutory time limit. On the 10th of October the County Council wrote to Mrs. Gammell saying they were about to house some of the occupants of the site and telling her that the order prohibiting the erection or retention of temporary dwellings on the site had been made and no objections were received within the statutory period. They warned her that if any of the caravan sites were re-occupied, legal proceedings would be taken.

6 Mrs. Gammell gave evidence (which was not controverted) that this was the first she knew of the making of the order. She had no knowledge of any inspectionof the site by Dr. O'Donnell, the Chief Medical Officer of the Eastern Health Board, who certified that the erection or retention of temporary dwellings in the caravan park would be prejudicial to public health and to the amenities of the locality by reason of the inadequacy of the sanitary facilities available for then. Neither had she any knowledge of an inspection by Mr. Kelly, the Dublin Planning Officer, who certified that the erection or retention of temporary dwellings on the site would be prejudicial to the amenities of the area.

7 On the 24th October 1977 notice was published in the Irish Press that the said Order case into force on the 23rd of October, 1977.

8 The relevant portions of section 31 of the Act are as follows:

Sub-section (1)

"A Sanitary Authority may by order prohibit the erection or retention of temporary dwellings on any land or water In their Sanitary district if they are of opinion that such erection or retention would be prejudicial to public health or the amenities of the locality or would interfere to an unreasonable extent with traffic on any road."

Sub-section (3)

9 Where a person is aggrieved by an order under this section

10 (a) such person may, within 14 days after a copy of the order is published pursuant to sub-section (9) of this section send to the Minister an application in writing (which shall include a Statement of the reasons therefor) for the annulment of the order

11 (b) the Minister, after consideration of the application and such representations in regard thereto of the Sanitary Authority concerned may think fit to make, may either annul the order, confirm the order without variation or confirm the order withvariations by way of reduction of the land or water to which itrelates.

Sub-section (8)

12 An order under this section shall come into force -

13 (a) if no application is made for the annulment of the order - 30 days after a copy of the order is published pursuant to sub-section (9) of this section, and

14 (b) if an application is made for the annulment of the order and the order is not annulled thereon - 14 days after the determination of theapplication.

Sub-section (9)

15 Where a sanitary authority make an order under this section, they shall within 14 days after the order is made, cause to be published, in a daily newspaper circulating: in their sanitary district, a copy of the order and a statement of the right conferred by this section to apply for the annulment of the order.

Sub-section (10);

16 Where an order under this section has come into force, the sanitary authority who made the order shall, within 14 days after the order has come into force, cause to be published in a daily newspaper circulating in their sanitary district a copy of the order (as made by the Sanitary Authority or as confirmed by the Minister, whichever is appropriate) and a statement that it has come into force.

17 Under the Local Government Act 1955, section 66, an order made by a Sanitary Authority under section 31 of the Act may be revoked as provided therein, either by order of the Sanitary Authority with the consent of the Minister or by order of the Minister after consultation with the authority, as the case may be.

18 The Plaintiff claims that the Prohibition Order of the 12th September 1977 is void because the requirements of natural justice were not observed by theCounty Council in...