McCarthy v Johnson

JurisdictionIreland
Judgment Date11 April 1988
Neutral Citation1988 WJSC-HC 1491
Docket Number[1987 No. 2225P]
Date11 April 1988
CourtHigh Court

1988 WJSC-HC 1491

THE HIGH COURT

No. 2222P/1987
MCCARTHY v. JOHNSON

BETWEEN:

SEAN McCARTHY
Plaintiff

and

ROBERT C.N. JOHNSON
Defendant

Citations:

LOCAL GOVT (SANITARY PROVISIONS) ACT 1948 S44(2)

PUBLIC HEALTH (IRL) ACT 1878 S174

PUBLIC HEALTH (IRL) ACT 1878 S199

CAHILL V SUTTON 1980 IR 269

LYNCH, STATE V COONEY 1982 IR 337, 1982 ILRM 190, 1983 ILRM 89

REPRESENTATIVE CHURCH BODY V CRAWFORD 74 ILTR 49

BOARD OF DEACONS V ASTON 1898 33 ILTR 46

NUGENT V NUGENT 1897 31 ILTR 142

CLEGG V METCALF 1914 1 CH 808

CEMETERY CLAUSES ACT 1947 S10

BURIAL ACT 1852 S25

BURIAL ACT 1854 S12

BURIAL ACT 1855 S9

Synopsis:

CHURCH

Graveyard

Burial ground - Extension - Site bought - Purchase by trustees for parish - Purchased plot within 100 yards of plaintiff's dwelling - Necessity for plaintiff's consent to use of plot as burial ground - The defendant was a churchwarden and one of the trustees of the Church of Ireland parish of Castleknock, Dublin - The defendant and his co-trustees acquired a plot of ground which adjoined the premises on which the plaintiff's house stood - The entire of the defendant's plot was within 100 yards from the plaintiff's house - Pursuant to s.44, sub- s.2, of the Act of 1948, the Minister for the Environment gave his approval to the use of the plot as a burial ground, but the plaintiff objected to the proposed use of the plot and contended that his written permission was required for such use - Section 174 of the Act of 1878 provides:- "A burial ground may be provided under this Act, either within or without the limits of the burial board district, and such burial ground shall, for the purposes of this Act, be considered as if the same was within such limits; but no ground not already used as or appropriated for a cemetery shall be appropriated as a burial ground, or as an addition to a burial ground, under this Act, nearer than one hundred yards to any dwelling-house, without the consent in writing of the owner lessee and occupier of such dwelling-house" - The plaintiff claimed in the High Court a declaration that the defendant and his co-trustees were not entitled to use the plot as a burial ground without the written consent of the plaintiff, and an injunction restraining them from using the plot in that manner - Held, in dismissing the plaintiff's claims, that the plaintiff had ~locus standi~ to maintain his action: ~Cahill v. Sutton~ [1980] I.R. 269 and ~The State (Lynch) v. Cooney~ [1982] I.R. 337; [1983] ILRM 89 considered - Held that the parish graveyard and the proposed new burial ground were private property and were not grounds used as, or appropriated for, a cemetery under the Act of 1878 and that, accordingly, the plaintiff's consent to the proposed use was not required by the defendant and his co-trustees: ~Crawford v. Bradley~ 74 I.L.T.R. 49 and ~Clegg v. Metcalfe~ [1914] 1 Ch. 808 considered - Public Health (Ireland) Act, 1878, s.174 - Local Government (Sanitary Services) Act, 1948, s.44 - (1987/2222 P - Hamilton P. - 11/4/88)

|McCarthy v. Johnson|

GRAVEYARD

Burial ground

Addition - Dwellinghouse - Propinquity - Occupier's objection - Purchase of new plot by parish trustees - Proposed use as burial ground - Ministerial approval obtained by trustees - Whether written permission of adjoining householder required - ~See~ Church, graveyard - (1987/2222 P - Hamilton P. - 11/4/88)

|McCarthy v. Johnson|

1

11th day of April 1988

2

The facts, relevant to this case, are not in dispute and appear from the Plaintiff's statement of claim.

3

The Plaintiff resides at and is the owner of premises known as Whitehall House, which are situate at Main Street, Castleknock in the County ofDublin.

4

The Defendant, Robert C.N. Johnson, is one of the trustees of the lands and property of the Church or Chapel at Castleknock of the Church ofIreland.

5

The Defendant and his co-trustees have recently acquired and now hold the plot of ground adjoining the Plaintiff's lands as trustees for and on behalf of the Church situate at Castleknock.

6

The lands recently acquired by the said trustees are situate within a distance of 100 yards of the Plaintiff's lands and dwellinghouse.

7

At no time prior to hereto have the said recently acquired lands or any portion thereof, been used as a burial ground or appropriated for or as a cemetery.

8

By letter dated the 16th day of February 1987, the Minister for the Environment, pursuant to Section 44(2) of the Local Government (Sanitary Services) Act, 1948gave his approval to the user of the said recently-acquired lands as a burial ground.

9

The Plaintiff has not given his consent in writing to the user of the said lands or that portion of the said lands as is situate within an area of 100 yards of his dwelling-house as a burial ground orcemetery.

10

Section 174 of the Public Health (Ireland) Act, 1878 providesthat:-

"a burial ground may be provided under this Act, either within or without the limits of the Burial Board District, and such burial grounds shall, for the purposes of this Act, be considered as if the same was within such limits; but no ground not already used as or appropriated for a cemetery shall be appropriated as a burial ground, or as an addition to a burial ground, under this Act, nearer than 100 yards to a dwelling-house, without the consent in writing of the owner, lessee, and occupier of such dwelling-house."

11

Section 199 of the said Act provides that:-

12

"the provisions of this part of this Act shall not apply to any private and exclusive family mausoleum or burial place not being within the limits of any public burial ground".

13

Section 44(2) of the Local Government (Sanitary Services) Act, 1948provides that:-

14

"the following (and no other) places shall be burial grounds for the purposes of this Section -

15

(a) A place which is in lawful use as a burial ground and which was, immediately before the commencement of this Section, in lawful use as a burial ground,

16

(b) A place as respects which the Minister has, after the commencement of this Section, given his approval to its being used as a burial ground,

17

(c) A burial ground provided by a Burial Board under theActs."

18

In his defence, the Defendant pleads that:-

19

2 "1. The restrictions in the Public Health (Ireland) Act, 1878 on lands being appropriated as a burial ground nearer than 100 yards to a dwelling-house are not applicable to the additional plot of burial ground sought to be developed by the Defendant by virtue of the fact that same does not constitute a public cemetery or burial ground to which such statutory provisions apply but is a parish church graveyard and is private property and is not under control of any local sanitaryauthority.

20

2. The Plaintiff has no locus standi or cause of action to enforce any restrictive provisions of the Public Health (Ireland) Act, 1878 if applicable at all to the burial ground of the Defendant.

21

3. The Plaintiff has delayed institution and prosecution of these proceedings and has been guilty of laches and has maintained frivolous and vexatious proceedings for the purposes of seeking to obtain a purchase of the said land or portion thereof.

22

4. The Plaintiff has not suffered any distress or inconvenience and his land has not and will not be reduced in value andthe Plaintiff has not and will not suffer any loss ordamage".

23

Having heard the evidence of the Plaintiff and the Defendant, I am satisfied that the Plaintiff has not delayed the institution and prosecution of these proceedings to such a degree that he could be hold guilty of laches and I am satisfied that he has not maintained these proceedings for the purposes of seeking to obtain a purchase of the said lands or portion thereof for himself.

24

I am satisfied that he is motivated solely by a desire not to have a burial ground in the immediate vicinity of his house and lands.

25

The said proposed new burial grounds are well within a 100 yards of the Plaintiff's property and indeed the furthermost part thereof is only 80 feet approximately from the Plaintiff's...

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1 cases
  • McCarthy v Johnson
    • Ireland
    • Supreme Court
    • 5 Mayo 1989
    ...not a public cemetery provided by a local authority under the Act of 1878. The plaintiff's claim was dismissed by the High Court (see [1988] I.R. 23) and he appealed to the Supreme Court. Held by the Supreme Court (Finlay C.J., Walsh and Griffin JJ.), in dismissing the appeal, 1, that the o......

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