Listowel Urban District Council v McDonagh

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 18 December 1968
• Date: 18 December 1968

Supreme Court.

Listowel Urban District Council v. McDonagh

LISTOWEL URBAN DISTRICT COUNCIL

Complainants

and

MICHAEL McDONAGH, Defendant (1)

Criminal Law - Offence - Order made by sanitary authority in exercise of discretionary statutory power - Contravention of order - Prosecution - Whether defendant entitled to put in issue bona fides of sanitary authority in making order - Local Government (Sanitary Services) Act, 1948 (No.3 of 1948), s. 31.

Case Stated.

The facts appear in the judgment of the Chief Justice,post. The Case was stated by the President of the Circuit Court pursuant to s. 16 of the Courts of Justice Act, 1947. Sect. 31 of the Local Government (Sanitary Services) Act, 1948, came into force on the 26th February, 1948, pursuant to s. 3 of that Act and the provisions of the Local Government (Sanitary Services) Act, 1948 (Date of Commencement) Order, 1948—S. I. No. 72 of 1948. On the 4th August, 1964, the Listowel Urban District Council made an order as a sanitary authority in the following terms:—"The Urban District Council of Listowel being the sanitary authority for the Listowel Urban Area, by virtue of the power conferred on them by Section 31, sub-sections 1 and 2, of the Local Government (Sanitary Services) Act, 1948, hereby prohibit the erection or retention of any temporary dwelling on the following streets (which terms shall include roads and all other cognate words and including the words in the definition of 'street' in the Public Health Act, 1878) namely, . . . (g) Greenville Road from where it enters the Urban Area to where it joins Convent Street . . . being of opinion that any such erection or retention thereof would be prejudicial to public health". Sect. 2 of the Act of 1948 defines the expression "temporary dwelling" as meaning "any (a) tent, or (b) van or other conveyance (whether on wheels or not), or (c) shed, but or similar structure, or (d) vessel on inland waters, used for human habitation or constructed or adapted for such use".

The complainants complied with the provisions of sub-ss. 9 and 10 of s. 31 of the Act of 1948 in relation to the said order but no application for the annulment of the order was made within the prescribed period pursuant to sub-s. 3 of s. 31 of the Act of 1948.

The defendant was convicted, in the District Court, of having contravened an order made by a sanitary authority in exercise of a power conferred by statute, and he was fined. He appealed to the Circuit Court where he sought an opportunity to question the bona fides of the sanitary authority in making the order. At the hearing of a Case stated by the Circuit Court judge, it was

Held by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh and FitzGerald JJ.) 1, that the exercise of a discretionary statutory power, if effected in bad faith, can be condemned as invalid.

Kruse v. Johnson [1898] 2 Q. B. 91 and Smith v. East Elloe Rural District Council[1956] A. C. 736 considered.

2. That no consideration of inconvenience was involved and that there was no principle which would prevent the Circuit Court from deciding, as a preliminary issue, the question raised by the defendant and that he was entitled to put in issue the bona fides of the sanitary authority in making the order.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

Sect. 31, sub-s. 1, of the Local Government (Sanitary Services) Act, 1948, provides that "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."

The complainants are the sanitary authority for the Listowel Urban Area. On the 4th August, 1964, the complainants made a prohibition order under s. 31, sub-s. 1, of the Act of 1948. The order recites that they did so "being of opinion that any such erection or retention thereof would be prejudicial to public health." The order prohibits the erection or retention of any temporary dwellings on a number of named streets including, at item (g), "Greenville Road from where it enters the Urban Area to where it joins Convent Street". This road and the other roads specified in the order comprise roads approaching the built-up area of the urban district of Listowel. On the 26th October, 1967, at a sitting of the District Court in Listowel, the defendant was convicted and fined 10/- with costs for a contravention of the order. The date of the alleged offence was the 26th September, 1967. It appears that on that date the defendant

was the owner and occupier of a temporary dwelling, to wit, a wheeled caravan used for human habitation in which he was living and which he retained at a place commonly known as Greenville Road in the Urban District of Listowel.

The defendant appealed...