Spencer v Kinsella
| Jurisdiction | Ireland |
| Judge | Barron J. |
| Judgment Date | 12 March 1996 |
| Neutral Citation | 1996 WJSC-HC 2469 |
| Docket Number | 821Sp/1993 |
| Court | High Court |
| Date | 12 March 1996 |
BETWEEN
AND
1996 WJSC-HC 2469
THE HIGH COURT
Synopsis:
TRUSTS
Trustee
Removal - Application - Grounds - Property - Mismanagement - Showground held in trust for use of local inhabitants as sports field, park or pleasure grounds - Power of appointment of new trustees - Power vested in Minister of State - Proceedings adjourned to allow Minister and trustees to reconstitute management structure of trust property - Irish Land Act, 1903 (3 Edw. 7, c.37), ss. 4, 20 - Land Act, 1923 (No. 42), s. 69 - Land Act, 1950 (No. 16), s. 30 - (1993/821 Sp - Barron J. - 12/3/96)1996 2 ILRM 401
|Spencer v. Kinsella|
Citations:
LAND ACTS
LAND ACT 1903 S4
LAND ACT 1903 S20
LAND ACT 1923 S69
LAND ACT 1933 S33
LAND ACT 1923 S69(3)
ARNOTT V ARNOTT 58 ILTR 145
Judgment of delivered the 12th day of March, 1996 Barron J.
These proceedings relate to the showgrounds, Gorey. These grounds comprise an area of some eleven acres near the centre of the town. They were acquired in the 1940's under the provisions of the Land Acts. Their use is governed by the terms of a Trust Deed dated the 5th August 1943 made pursuant to a scheme under Sections 4 and 20 of the Irish Land Act, 1903, as amended by Section 69 of the Land Act, 1923and Section 33 of the Land Act, 1933.
Under the terms of the Deed, the grounds are vested in Trustees upon trust "to permit such persons, organisations or clubs as the Trustees shall select in manner hereinafter appearing to use the same as a sports field, park or pleasure ground subject to such conditions as to payment or otherwise as the Trustees may from time to time prescribe.
Clause 3 of the Deed deals with finance. The Trustees are required annually to determine how much finance will be required for:
(a) any Land Commission annuity;
(b) all rates and taxes;
(c) management expenses;
(d) costs of improvement and development of the property;
(e) such other purposes connected with the purposes of the scheme as the Minister for Lands may from time to time direct.
Clause 4 requires the Trustees to find the necessary funds from charges made to those given the right to use the property. By the same clause those to be selected to use the property are to be "persons, organisations or clubs being inhabitants of the town of Gorey or organisations or clubs comprised mainly of such inhabitants as may apply to use the property as a sports field, park or pleasure ground".
Clause 5 gives the Trustees a discretion to allow the grazing of animals so as to supplement their income but not so as to interfere with the user of the lands as a sports field, park or pleasure ground. Clause 6 (c) gives the Trustees power to appoint a Committee to be chosen from the inhabitants of the town of Gorey to manage the grounds under their direction and subject to their approval. The power of appointing new Trustees and of removal is given to the Minister. The Trustees have a power to act by a majority of the Trustees existing at a particular time.
Clause 11 provides as follows:-
2 "11. No person, organisation or club selected by the Trustees as aforesaid shall enter on the trust estate to engage in games or sports or to graze animals thereon until he or they shall execute such agreement as the Trustees may prescribe".
Clause 12 provides:-
12. Save as provided in any agreement issued pursuant to the terms of this scheme, no person, organisation or club selected by the Trustees shall have any rights or interests over or in respect of the trust estate or the rents or profits thereof or the proceeds of the sale thereof or over or in respect of any part of the same respectively."
That is the legal framework against which the grounds should have been used. Unfortunately, over the years, little or no attention seems to have been paid to these provisions. The grounds were used by various sporting clubs for varying periods. The G.A.A. and a local rugby club used the grounds for a while, but moved on to other grounds. The athletic club did so also. The soccer club and the coursing club have remained on. Other lesser uses have been made of the grounds by other organisations.
Up to 1978, there was an annual show and the Show Committee appears to have taken on the role of the Management Committee. In 1976, complaints surfaced and the Irish Land Commission became involved. A letter dated the 11th of October, 1976 was sent by the Irish Land Commission to each of the Trustees. The matters of complaint which had been raised as set out in the letter included the following:-
i "(i) Failure to maintain in good order the surrounding walls and the dressing rooms, toilets etc. on the trust lands;
(ii) Failure to devote the proceeds of lettings of the trust lands to the improvement and proper maintenance of the trust property;
(iii) Severe damage to the surface of the playing area arising from excessive use of the trust lands for horse and pony riding, jumping etc. Such damage makes it hazardous and at times impossible to play football games on this sports field;
(iv) Complete exclusion from the trust lands of other sporting bodies for terms of up to three months each year while the coursing interests are in possession of the field, buildings etc;
(v) Failure to cater adequately for the legitimate recreational needs of youths clubs and organisations in Gorey town."
The letter also pointed out that the right of the Trustees to admit persons to graze animals existed only so long as this was done in a manner so as not to interfere with the user of the field as a sports field. The letter further pointed out that it was necessary to impress on the Trustees that a major re-assessment of the entire running and management of the sports field was then unavoidable.
Little could have been done to deal with the matters contained in that letter because in 1978 proceedings were taken in the Circuit Court by in effect the Football Club, the Athletics Club, and the Boys" Club against the Show Committee claiming that the latter was acting as if it owned the grounds. The result of those proceedings was that the Show Committee moved on but nothing else was done. The soccer club and the coursing club remained as virtually the sole users of the grounds. Their interests conflict to some extent because when the latter club uses the grounds no one else can do so nor may anyone else enter onto them. This use has been reduced over the years and whereas the grounds were originally used by the coursing club for seven weeks in the year this use is now down to three.
Some effort was made in 1984 to iron out problems between the two clubs and a Management Committee operated successfully for some months. It failed however, because the Trustees maintained that any matters in contention were for them.
Over the years little was done to the grounds or its perimeter walls or buildings. As a result the walls deteriorated and some rudimentary changing rooms collapsed. These latter were replaced in or around 1980 by the football club at its own expense. Later with the consent of the Trustees the same club spent money on repairing part of the perimeter walls. A major problem from the time the Show Committee left until recently was the inability of the Trustees to obtain public liability insurance.
Since the collapse of the Management Committee, few meetings of the Trustees were held and those that were, involved disputes between the representatives of the two clubs.
The dispute came to a head at the beginning of 1993 when a number of complaints were made on behalf of the football club against the Trustees. These are set out in a letter from its Solicitor dated the 30th of April, 1993 and are as follow:-
a "(a) The showgrounds are presently uninsured in respect of public liability and occupiers liability or at all.
(b) The perimeter walls are decaying and falling down and are a hazard and a source of danger.
(c) The playing surface of the football pitches is being damaged by overgrazing by sheep.
(d) No written agreements as to user of the trust lands have ever been executed.
(e) The Trustees have refused to permit users of the trust lands to effect improvements to the playing surfaces of the football pitches.
(f) Wexford County Council has been obliged to serve a derelict site notice on the Trustees in respect of the dangerous condition of parts of the trust lands.
(g) The Trustees have held only six meetings in the last eight years.
(h) The Trustees have failed to consider the proper funding of the trust lands the income to be derived therefrom or the necessity to maintain the trust lands from such funding or income.
(i) The Trustees have permitted the grazing of sheep on the said lands to continue at ridiculously low rentals and to be arranged on a personal basis between one Trustee and the owner of the grazing animals without any written agreement.
(j) The Trustees have sought from the funds of Gorey Rangers A.F.C. payment in advance in lieu of rent so as to fund the rebuilding of the perimeter walls found to be in the worst condition which said rent is now paid up until 1999/2000.
(k) The Trustees have compelled the majority of users of the trust land to vacate same so as...
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