Hendron v Dublin Corporation
Jurisdiction | Ireland |
Judgment Date | 11 August 1943 |
Date | 11 August 1943 |
Court | High Court |
Local Government - Housing - Compulsory purchase order - Validity - Power of local authority to acquire compulsory land for the housing of workers - Necessity for land to be immediately required for housing purposes - Housing (Miscellaneous Provisions) Act, 1931 (No. 50 of 1931), ss. 17, 37, 38 and 40 - Town and Regional Planning Act, 1934 (No. 22 of 1934),s. 57.
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Sects. 37 and 38 of the Housing (Miscellaneous Provisions) Act, 1931, provide:—
"37.—(1) A local authority may for the purposes of Part III of the [Housing of the Working Classes] Act, 1890, as amended by any subsequent enactment including this Act be authorised to purchase land compulsorily by means of a compulsory purchase order made by the local authority and submitted to and confirmed by the Minister [for Local (Government] in accordance with the provisions contained in the Second Schedule to this Act.
(2) The provisions of this Act with respect to the validity and date of operation of compulsory purchase orders shall apply to compulsory purchase orders made under this section.
(3) Section 57 of the Act of 1890 is hereby repealed in so far as it relates to the acquisition of lands, otherwise than by agreement.
38.—A local authority may with the consent of and subject to any conditions imposed by the Minister, acquire land by agreement (but not otherwise) for the purposes of Part III of the Act of 1890 as amended by any subsequent enactment, including this Act, notwithstanding that the land is not immediately required for those purposes."
Accordingly, if land proposed to be required under the Housing Acts by a local body be not immediately required for the purposes of Part III. of the Act of 1890, s. 38 of the Housing (Miscellaneous Provisions) Act, 1931, confers upon the local authority a right to acquire it, but only on the condition that it shall be taken by agreement; therefore no compulsory order can be made under s. 37 unless the land comprised in the order is immediately required for housing purposes.
The plaintiffs had carried on business for a number of years in certain premises and had submitted plans and specifications to the Dublin Corporation for the erection upon the site of a large factory. The plans were approved of by the Corporation, and work had been commenced when a notice was served upon the plaintiffs prohibiting them from proceeding with the work, and, later, a compulsory purchase order was made by the Corporation in pursuance of their powers under s. 37 of the Housing (Miscellaneous Provisions) Act, 1931 providing for the compulsory acquisition of the premises. The plaintiffs objected to the said order in so far as it affected their premises, and sought to have it quashed to that extent. They contended that the order was ultra vires the powers of the Corporation under the said Act.
Held that the order was not within the powers of the local authority under the Act of 1931 and that it must be quashed so far as it affected the plaintiffs' premises as it had not been shown that the said property was immediately required for housing purposes when the order was made.
Summary Summons.
The plaintiffs carried on the business of machinery merchants at 9 Little Denmark Street in the City of Dublin. The plaintiffs had purchased a large block of property in Little Denmark Street and Denmark Place at a cost of £3,500 in October, 1936, and the said premises were vested in them in fee simple. The plaintiffs contemplated the erection upon the site of a large factory at a cost of between £5,000 and £6,000, and plans and specifications of the proposed building were lodged with the Dublin Corporation for approval in January, 1937. On the 27th day of February, 1937, the Town Planning Department of the Dublin Corporation granted permission for the erection of the said building subject to certain minor modifications of the plans to which the plaintiffs agreed. Portion of the site had been cleared and temporary accommodation had been prepared pending the rebuilding of the main portion of the premises, when, on the 29th day of July, 1937, a notice was served upon the plaintiffs by the Dublin Corporation purporting to prohibit them from proceeding with the proposed reconstruction of the premises under the provisions of the Town and Regional Planning Act, 1934, and on the 30th day of April, 1938, an order entitled the"Denmark Street and Moore Street Area Compulsory Purchase Order, 1938," was served upon the plaintiffs giving notice that the Dublin Corporation intended to acquire compulsorily certain premises for the purposes of the Order including those of the plaintiffs. The said Order was confirmed by the Minister for Local Government and Public Health on the 9th day of July, 1941. The plaintiffs had served a notice of objection to the compulsory acquisition of their premises on the said Minister on the 16th day of May, 1938.
The plaintiffs then brought an action against the Dublin Corporation, their claim being "for an order under s. 17 of the Housing (Miscellaneous Provisions) Act, 1931, that the 'Denmark Street and Moore street Compulsory Purchase Order, 1938,' be quashed generally, or in so...
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