Smeltzer v Fingal County Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello.
• Judgment Date: 01 January 1998
• Neutral Citation: [1997] IEHC 223
• Docket Number: [1997 No. 7737P]
• Court: High Court
• Date: 01 January 1998

[1997] IEHC 223

THE HIGH COURT

No. 7737P/1997

SMELTZER v. FINGAL COUNTY COUNCIL

BETWEEN

GWEN SMELTZER

APPLICANT

AND

THE COUNTY COUNCIL OF THE COUNTY OF FINGAL

RESPONDENT

Citations:

LOCAL GOVT (DUBLIN) ACT 1993

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S74

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S77

BLAKE V HENDON CORPORATION 1961 3 AER 601

PUBLIC HEALTH ACT 1875 S164

LOCAL GOVT ACT 1933 S64

AG V CORPORATION OF SUTHERLAND 1876 2 CH 434

PUBLIC HEALTH ACT 1848 S4

LOCAL GOVT (NO 2) ACT 1960 S10

HOUSING ACT 1966 S86

PUBLIC HEALTH (IRL) ACT 1878

STREET LAW RELATING TO LOCAL GOVT 29

OPEN SPACES ACT 1906 S10

OPEN SPACES ACT 1906 S71(d)

OPEN SPACES ACT 1906 S20

HALSBURYS LAWS OF ENGLAND 4ED V34 PARA 500

AG V AUTROUBUS 1905 2 CH 188

GIANTS CAUSEWAY CASE 5 IJ 301

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994

ROADS ACT 1993 S73

DUBLIN DEVELOPMENT PLAN 1985

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S78

Synopsis:

Local Government

Injunction; extinguishment of public rights of way; plaintiff seeking to restrain construction of a county hall in town park; whether defendant held site on trust for the public's benefit; whether public right of way existed over paths in the park; whether defendant had notified and consulted public as required by s.73 Roads Act, 1993 Held: Defendant prohibited from effecting proposed development pending compliance with s.73 High Court: Costello P. 13/08/1997

Smeltzer v. Fingal County Council - [1998] 1 IR 279 - [1998] 1 ILRM 24

1 Judgment of Mr. Justice Costello. Delivered the 13th day of August, 1997.

INTRODUCTION

2 This action relates to the Town Park situated just off the Main Street in Swords, North County Dublin. For centuries this land had been in private hands and Swords House built on it in the 19th century was a well known landmark in the area. Originally attached to Swords House had been a large estate but by the time the Dublin County Council compulsorily acquired. Swords House and its gardens in 1978 the area of the site only comprised 1.75 acres(0.71 hectares).

3 Having acquired Swords House in 1978, in circumstances to be described in greater detail later, the house was demolished and the lands were opened as a public park in 1986 and have since been enjoyed as such by the local residents. That enjoyment is, the plaintiff claims, now under serious threat. By the Local Government (Dublin) Act 1993the Dublin County Council was divided into three local authority areas, that of Dun Laoghaire/ Rathdown, South Dublin, and Fingal. Each of the three newly created County Councils decided that they should have new administrative offices. At a meeting of the Fingal Area Committce of the Dublin County Council on the 19th January 1993 it was decided that Swords should be the County Town and on the 11th September 1995 the Council decided that the County Hall should be located on the Town Park in Swords. After an open competition plans were adopted for what is, in effect, the administrative offices of the County Council of the County of Fingal (the defendants herein). The new offices are shortly to be erected on the site of the Town Park. There is some conflict as to the extent which the new offices will encroach on the existing park; in the view of the Council's architect there will still be one third of the existing park available for use by the public after the offices are built. But even if this is so, it is obvious that the new offices will (a) deprive the residents of Swords of the Town Park and most, if not all of the amenities which were opened in 1986 and (b) deprive the public of the use of the pathways which have existed in the town park since that year. It goes without saying that this court is concerned with the legal validity of, and is not weighing the benefits to be derived from, the decision to build a County Hall on the Town Park. I should now indicate the nature of the legal challenge which the plaintiff advances.

The Plaintiff's case.

4 There can be no doubt that the County Council of the County of Fingal propose to change the use to which the Dublin County Council had put the land it had compulsorily acquired. They say (and their claim has not been denied) that they are legally entitled to do so. Section 74 of the Local Government (Town and Regional Planning) Act, 1963 gives power to Planning Authorities to appropriate land vested in it for purposes other than their functions under the 1963 Act, and section 77 empowers Planning Authorities to develop or secure the development of any land. Section 78 requires Planning Authorities to give public notice of any development it is proposing if obliged to do so by by Regulations made under the Act. None of these statutory provisions are challenged by the plaintiff. What the plaintiff says is that in undertaking this new development the Council and in exercising their statutory powers the Council must have regard to acquired rights (including public rights) over the land they propose to develop and this they have failed to do.

5 The plaintiff is a resident of Swords and a regular user of the Park. She claims the public enjoys rights over the Town Park which are about to be infringed. She accepts that these rights can be lawfully extinguished but urges that until they are the proposed development infringes them. She claims that there exists two discrete public rights in the Town Park deriving from two different sources. The first right she asserts is a public right of access to the lands as a public park, a right which arises from a trust created by the acquisition by the Council of Swords House under under its statutory powers. The second is a claim to a public right of way over the paths created in the Town Park, a right arising by the application of common law principles when rights of way are dedicated to the public.

6 The proceedings were commenced by plenary summons of the 4th of July, 1997. By a motion on the same day the plaintiff injunction prohibiting the Council from carrying out any development on the Town Park unless and until all necessary statutory procedures relating thereto had been complied with and, further, an injunction requiring the Council to comply with all statutory procedures relating to the extinguishment of all public rights relating to the lands. I was asked to deal with this application as a matter of extreme urgency as it was pointed out that the tendering process had all but been completed, that the tender price was in excess of £10,000,000, that any postponement of the date of commencement of the development might not only affect the validity of the tender but would also lead to a significant increase in the cost of the project. There was some misunderstanding between counsel as to whether there had been agreement to treat the motion as a trial of the action but it was eventually agreed at the hearing before me that I should do so. I fully appreciate that this caused concern to the plaintiff's legal advisers but as the matter is a very urgent one and as I was satisfied that it could adequately be dealt with on affidavit evidence I do not think that any injustice arises from the procedures adopted. There is one further point to which I should advert. It has long been established that only the Attorney General or a person specially injured can sue in respect of an obstruction to a public right of way. This rule can be overcome by an aggrieved member of the public obtaining the leave of the Attorney to institute in the Attorney's name a Realtor action. This has not been done in this case but the defendants have not raised any question of the plaintiff's locus standi to institute these proceedings (probably to avoid the delay which such a plea might produce) and in the absence of objection I am prepared to determine the legal issues which have been argued before me.

The First Issue.

7 The first issue which I will examine is the plaintiff's claim that there exists in the Town Park a public right arising from a trust created at the time the lands were acquired to enjoy the land as a public park. The claim is based on principles established in two English authorities to which I was referred. Blake -v- Hendon Corporation (1961) 3 All E.R. 601 was a case concerned with the effect of land purchased by a Local Authority under section 164 of the Public Health Act, 1875 which empowered an urban authority to "purchase or take on lease, lay out, improve, and maintain...