McCarthy v Johnson

• Jurisdiction: Ireland
• Judge: WALSH J.,GRIFFIN J.
• Judgment Date: 05 May 1989
• Neutral Citation: 1989 WJSC-SC 1877
• Court: Supreme Court
• Docket Number: (271/88),[S.C. No. 271 of 1988]
• Date: 05 May 1989

1989 WJSC-SC 1877

THE SUPREME COURT

Finlay C.J.

Walsh J.

Griffin J.

(271/88)

MCCARTHY v. JOHNSON

BETWEEN/

SEAN McCARTHY

Plaintiff

and

ROBERT JOHNSON

Defendant

Citations:

PUBLIC HEALTH ACT 1878 S174

LOCAL GOVT (SANITARY SERVICES) ACT 1948 S44(2)(b)

PUBLIC HEALTH ACT 1878 S160

LOCAL GOVT (SANITARY SERVICES) ACT 1948 S44(1)

PUBLIC HEALTH ACT 1878 S162

GREENWOOD V WADSWORTH 1873 16 LR EQ 288

CLEGG V METCALF 1914 1 CH 808

BROOKE LITTLE'S LAW OF BURIALS

LOCAL GOVT (SANITARY SERVICES) ACT 1948 S44

Synopsis:

GRAVEYARD

Burial Ground

Addition - Dwellinghouse - Propinquity - Householder's objection - Purchase of new plot by parish trustees - Proposed use of plot as burial ground - Ministerial approval obtained by trustees - Householder's consent unnecessary - ~See~ Church, graveyard - (271/88 - Supreme Court - 5/5/89) [1989] IR 691

|McCarthy v. Johnson|

CHURCH

Graveyard

Burial ground - Extension - Site bought - Purchase by trustees for parish - Private property - Purchased plot within 100 yards of plaintiff's dwelling - Approval of Minister of Environment to use of plot as burial ground - Consent of plaintiff to use of plot unnecessary - Held that the provisions of s. 174 of the Act of 1878 were irrelevant as they applied only to a burial ground appropriated under that Act and, therefore, did not apply to the defendant's plot of ground: Greenwood v. Wadsworth (1873) 16 L.R. Eq. 288 not applied - Public Health (Ireland) Act, 1878, s. 174 - Local Government (Sanitary Services) Act, 1948, s. 44 - (271/88 - Supreme Court - 5/5/89) [1989] IR 691

|McCarthy v. Johnson|

1 JUDGMENT delivered on the 5th day of May 1989by WALSH J. [Finlay agr.]

2 This is an appeal against the refusal of the High Court to grant an injunction to prevent Robert Johnston using a piece of property which he has acquired in Castleknock as a burial ground. The plot is situated, but not part of, behind the church-yard which adjoints the church of the Church of Ireland at Castleknock. The church-yard contains a recognised burial ground in which for many many years not only members of the Church of Ireland were interred but also members of the CatholicChurch. The defendant proposes to donate the property to the Representative Church Body for use as a burial ground and it is agreed that when it is so donated it will be used exclusively for the interment of members of the Church of Ireland. That factor is not of any relevance or importance in the present case.

3 The proposed new burial ground comes as close as fourteen feet to the buildings of the plaintiff. The plaintiff has relied upon the provisions of section 174 of the Public Health Act, 1878, which he says provides that no burial ground shall be permitted within one hundred yards of any such house as the plaintiff's without his prior consent. The Minister for the Environment had given his consent under the provisions of section 44 (2) (b) of the Local Government (Sanitary Services) Act, 1948to the plot in question being used as a burial ground. It is contended on behalf of the plaintiff that the power so given must be read in conjunction with section 174 of the Act of 1878 and is subject to that. I do not think that submission is correct.

4 Part III of the Act of 1878 is devoted to burial grounds. Section 160 provides as follows:-

"The sanitary authority of each sanitary district, except towns or townships having commissioners under local Acts, shall be the burial board for such district, and such burial board shall, in carrying into execution the provisions of this part of this Act, be subject to the control and direction of the Local Government Board. In towns or townships having commissioners under local Acts, the guardians of the poor of the poor law union or unions in which the town or township is situated shall be the burial board for the town or township, or the part thereof situated within the union of which they are the guardians, as the case may be".

5 Section 174 is as follows:-

"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".

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