R (Butler) v Navan UDC

• Jurisdiction: Ireland
• Judgment Date: 31 March 1926
• Date: 31 March 1926
• Court: Supreme Court (Irish Free State)

Supreme Court.

The King (Butler) v. Navan U. D. C.

THE KING (BUTLER)

and

NAVAN URBAN DISTRICT COUNCIL (1)

Mandamus - Repair of highway - Retaining wall of burial-ground adjoining highway collapsing - Debris falling on highway - Nuisance - Dispute as to liability for rebuilding wall - Ratepayers applying for the writ - Enforcement of a private right and not of a public duty - Amendment of conditional order on appeal - Practice - No demand for performance of public duty - Discretion of the Court - Discharge of conditional order.

Appeal from an order of the High Court discharging a conditional order for a writ of mandamus directed to the Urban District Council of Navan, commanding them to repair Bridge Street, in the town of Navan, by re-erecting the retaining wall or fence on Bridge Street, abreast of the graveyard attached to the Parish Church of St. Mary's, at Navan, and, if necessary for that purpose, to assess and levy a rate within the said urban district, and to take all other steps necessary for that purpose.

The facts will be found stated in the report of the case in the High Court, ante, p. 92.

The retaining wall of a burial-ground, attached to a church and adjoining the public street, collapsed, and portion of the wall and some of the soil of the burial-ground fell into the street, the burial-ground being much higher than the street. A dispute having arisen between the Select Vestry of the church and the local authority as to the liability for the repair of the wall, the Representative Church Body and the Rector, Churchwardens, and Select Vestry of the church obtained a conditional order for a writ of mandamus to compel the local authority to repair the street by re-erecting the retaining wall. The Rector, Churchwardens, and some of the Select Vestry were ratepayers.

Held (affirming the High Court), that in so far as the application for a mandamus was made by the owners of the churchyard to compel the wall to be rebuilt, it was an attempt to secure the performance of an alleged private right by a public body and not to secure the performance of any public duty, and therefore the conditional order must be discharged.

At the hearing before the Supreme Court it was contended that the member of the Select Vestry on whose affidavit the conditional order had been granted, and who was also a ratepayer, could compel the local authority to maintain and repair the public road, including the foot-path, which was covered with stones and debris, and, as it was not clear that this would necessitate the rebuilding of the wall, the Court was asked to amend the conditional order by striking out the direction to rebuild the wall:

Held, that such a view of the cage was untenable because—1, it was contrary to the practice for a Court of Appeal to alter a conditional order; 2, there had not been any demand by the ratepayer to maintain the road: and 3, the Court would not, in the exercise of its discretion, grant the writ, as the real object of the application was not to make the road safe for the public, but to secure the graveyard from further injury.

Cur. adv. vult.

Kennedy C.J. : The judgment of the Court will be delivered by FitzGibbon J.

FitzGibbon J. :—

This is an appeal from an order of the High Court allowing cause shown against a conditional order for mandamus obtained by the Representative Church Body, and the Rector, Churchwardens, and Select Vestry of the parish church of Navan...