State (Cork County Council) v Fawsitt

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon,Gannon J.
• Judgment Date: 18 December 1981
• Neutral Citation: 1981 WJSC-HC 143,1982 WJSC-HC 440
• Docket Number: No. 272 S. S./1980,No. 272 S.S./1980
• Court: High Court
• Date: 18 December 1981

1981 WJSC-HC 143

THE HIGH COURT

No. 272 S.S./1980

STATE (CORK CO. COUNCIL) v. JUDGE McDERMOT FAWSITT

IN THE MATTER OP THE LOCAL GOVERNMENT (SANITARY SERVICES) ACT 1878 TO 1964

BETWEEN:

THE STATE AT THE PROSECUTION OF THE COUNTY COUNCIL OF THE COUNTY OF CORK

Applicants

and

HIS HONOUR JUDGE SEAN McDERMOT FAWSITT, MICHAEL COLLINS, ANN COLLINS, ARTHUR O'LEARY, CATHERINE O'LEARY, GEORGE KINGSTON, MICHAEL MURPHY, TIMOTHY KIELY, DENIS P. COLLINS, ELLEN COLLINS AND MICHAEL T. COLLINS

Respondents

Mr. Justice McMahon

1 The County Council of the County of Cork is the sanitary authority for the county and the respondents other than His Honour Judge Sean McDermot Fawsitt (the "landowners") are the owners of lands at Nohoval in the County comprising approximately 315 acres.

2 When it becomes necessary for a sanitary authority for the purpose of doing works which it has a statutory power to do to enter and examine and lay open any lands and the owner will not permit the authority to do so it can apply in the District Court under section 271 of the Public Health (Ireland) Act 1870 for an order authorising the sanitary authority to enter, examine and lay open the lands. The County Council has statutory power to provide facilities for the disposal of waste and in recent times the development of new industries in the County of Cork has created an urgent need for facilities for the disposal of waste, including toxic substances (hazardous waste) in order to avoid danger to public health and the environment and to attract new industrial development. The County Council made an extensive survey of possible locations for a waste disposal site in the county and decided that the lands at Nohoval seemed to be the most suitable. The County Council then wanted to enter the lands and test them for suitability by means of trial holes and test bores, but the landowners refused their permission. Applications were brought by the Council under section 271 in the District Court against the landowners and the District Justice made orders authorising the County Council to enter the lands for the purpose of making plans surveying, measuring, taking levels and making works thereon to wit the making of trial holes and test bores on the said lands for the purpose of ascertaining if the said lands are suitable for "acquisition by the applicants as a controlled waste disposal site".

3 The landowners appealed against these orders and the first-named respondent who is the Circuit Court Judge for the County of Cork allowed the appeals and refused the applications to enter. The County Council then obtained a Conditional Order of Certiorari dated the 23rd June 1980 from Mr. Jusice Doyle to quash the orders of the learned Circuit Court Judge on the grounds that the orders allowing the appeals were not responsive to the judgment delivered by the learned Circuit Court Judge and were made without jurisdiction. The case now comes before this Court on an application by the County Council to make absolute the Conditional Order notwithstanding cause shown by the landowners.

4 The proper scope of the enquiry before the Circuit Court Judge was stated by Channel, J., inRobinson .v. Sunderland Corporation( 1899 1 Q.B. 751 at p.756:-

"The result is that the Justices having to enquire whether preliminary matters have been complied with may enquire into the necessity for an order for entry and into the purposes for which it is sought to enter in order to see whether that purpose is a purpose in respect of works which the local authority have statutory "authority to do. Then if "no sufficient cause" be shown against the application the Court of summary jurisdiction may make an order for entry".

The landowners did not dispute that the preliminary matters had been complied with or that the County Council had statutory power to set up a waste disposal site and wished to enter to ascertain if the lands were suitable for that purpose. The land owners contested the claim on the ground that the entry was not necessary to ascertain the suitability of the lands because it was manifest from a superficial examination that they were unsuitable. The County Council called expert witnesses who gave evidence that after an extensive survey of the lands in the county nine possible locations for a hazardous waste disposal site were selected and that of these the lands at Nohoval seemed the most suitable but that it would be necessary to enter the lands to investigate the sub-soil and underlying rock by means of trial holes and test bores in order to determine whether the lands were in fact suitable.

Expert witnesses for the land owners said that it was obvious from what could be seen of the underlying rock where it was exposed in a river bed and in some cliffs that the lands were not suitable for a waste disposal site and that no trial pits or test bores were necessary to establish the unsuitability.

The learned Circuit Court Judge should have considered the issue raised by this evidence. If he accepted that the lands were manifestly unsuitable he should have refused the application to enter but if he was not satisfied that the claim of manifest unsuitability was made out he should have granted the County Council liberty to enter since it was not disputed that the making of trial holes and test bores was necessary where the suitability of the lands was in question.

Instead of doing this the learned Circuit Court Judge thought that the issue he had to decide was the suitability of the lands. He said in his judgment:-

"The way the case went before me it appeared to me at any rate that the question left to me to say in the end was whether these particular holdings belonging to the appellants would be suitable to contain a dump for this type of waste."

5 The Judge then referred to the evidence which had been given and said:-

"Having considered the whole matter since the evidence was given in the present case I am left in the position "that I am not sure myself. Accordingly in my view the appeals should succeed and I am refusing the County Council's application to enter upon these lands for the purpose of surveying, making tests and borings."

6 This decision is based on a mistake of law in the interpretation of the Statute upon which the jurisdiction of the Circuit Judge depended. In holding that the County Council had failed to show that entry was necessary because the Judge was not satisfied that the lands were not manifestly unsuitable the right of the County Council to obtain an order under section 271 was made subject to a condition of negativing manifest unsuitability which is not warranted by the section. The error is more than a mere error in interpretation. As a result of the mistake of law in the interpretation of the Statute by which jurisdiction is conferred the Judge stepped outside his jurisdiction.

7 A Court or Tribunal exceeds its jurisdiction if it addresses itself to the wrong question (Board of Education .v. Rice 1911 A.C. 179)or takes irrelevant considerations into account (R. .v. Vestry of St. Pancras 24 Q.B.D. 371) or makes an Order without deciding the issues which it is required to decide before an Order can validly be made (The State (Crowley .v. Irish Land Commission 1951 I.R.250). In the case of Anisminic Limite .v. Foreign Compensation Commission ( 1969 2 A.C. 147) the Commission was a statutory Tribunal constituted for the purpose of adjudicating claims on funds paid by foreign governments to the Government of the United Kingdom in compensation for the expropriation or destruction of British property abroad. The qualifications required of claimants against the fund were laid down by an order in council. The Commission as a result of what the Courts held to be a misconstruction of the order held that Anisminic Limited was not qualified to claim compensation from the fund. The House of Lords held that the decision of the Tribunal rejecting the claim vas in excess of jurisdiction and a nullity. Lord Reid said at p. 174:-

"But if on a true construction of the order a claimant who is an original owner does not have to prove anything about successors in title then the Commission made an enquiry which the order did not empower them to make and they based their decision on a matter which they had no right to take into account."

"If they base their decision on some matter which is not prescribed for their adjudication they are doing something which they have no right to do and if the "view which I have expressed earlier is right their decision is a nullity."

"There was no discretion in the Commission no jurisdiction to put further hurdles other than those listed in the path of the appellant's claim or to embark on enquiries other than those which the order in council directed."

"The Commission by seeking to impose another condition not warranted by the order was acting outside its remitted powers and made no determination of that which alone it could determine."

And later on the sane page he said:-

Lord Pearse said (p.201):-

Lord Wilberforce said (p. 214):-

8 Counsel for the landowners submitted that since the order of the Circuit Court was good on its face it could not be reviewed on certiorari and relied on the decision inR. (Martin) .v. Mahony (1910) 2 I.R.695. It is well settled that the principle of that case is limited to errors within jurisdiction and the jurisdiction of the High Court to deal with jurisdictional errors by way of certiorari is not ousted by an order of the inferior Court good on its face. See the Judgment of the Supreme Court delivered by Lavery, J., in The State (O'Sullivan) .v. D.J. Buckley and another ( 101 I.L.T.R. 152) and cases where orders of the District Court made without evidence have been quashed as in The State (Holland) .v. Kennedy 1977 I.R. 193 in which Henchy, J., said (p. 201):-

"In the present case the certificate having been made without evidence is as...