State (Modern Homes (Ireland) Ltd), The v Dublin Corporation

• Jurisdiction: Ireland
• Judgment Date: 01 January 1954
• Date: 01 January 1954
• Docket Number: [1951. No. S.S. 12.]
• Court: Supreme Court

High Court

Supreme Court

[1951. No. S.S. 12.]

The State (Modern Homes (Ireland) Ltd.) v. Dublin Corporation

THE STATE (at the Prosecution of MODERN HOMES (IRELAND) LIMITED)

and

THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMEN AND BURGESSES OF DUBLIN (1)

Town planning - Resolution by planning authority to make a planning scheme for planning district - Failure to prepare planning scheme - Demand upon, and refusal by, planning authority to make planning scheme - Statutory obligation to make planning scheme with "all convenient speed" - Mandamus to compel planning authority to prepare and adopt planning scheme and to make and submit such scheme to the proper Minister for his approval - Town and Regional Planning Act, 1934 (No. 22 of 1934),s. 29, sub-s. 1 - Town and Regional Planning Regulations, 1934 (Stat. R. & Or., 1934, No. 334), Art. 12, para. 1.

Mandamus.

On the 6th January, 1936, the Corporation of Dublin, as planning authority for the County Borough of Dublin, by resolution passed pursuant to s. 26 of the Town and Regional Planning Act, 1934, resolved to make a planning scheme for their planning district. Notice of the passing of the resolution was duly given and published by the Corporation in accordance with Art. 10 of the Town and Regional Planning Regulations, 1934. By virtue of the provisions of Art. 12 of the said Regulations, on the expiration of the period of three months specified in such notice for the sending of suggestions to the planning authority, the planning authority is required with all convenient speed to prepare and adopt a draft scheme, and by s. 29, sub-s. 1, of the Act of 1934, a planning authority, on deciding to make a planning scheme, is required with all convenient speed to give effect to such decision and to make a planning scheme in accordance therewith and to submit such scheme to the Minister for Local Government for his approval. No such planning scheme or draft scheme was prepared by the Corporation. Subsequent to the passing of the resolution and pending the making of a planning scheme (called the"interim period") interim powers of control were granted by Part VII of the Act of 1934 under which the Corporation were enabled to control private development in their planning district. Any person who executed any work in the planning district during the "interim period," other than in accordance with the permission of the Corporation, might, on the coming into force of the planning scheme, be required to have the structure removed or altered at his own expense and without compensation. The prosecutors, a limited company, incorporated on the 9th December, 1944, carried on the business of erecting dwelling-houses, shops and other buildings, in the City of Dublin, and they found, in the course of their business, that by reason of the powers given to the Corporation during the "interim period" they had been unable to erect any structure in the planning district otherwise than in accordance with a special permission granted by the Corporation, because of the risk that such structure might contravene the planning scheme, whenever such scheme should come into operation, and that they were prejudiced in their business by the present uncertain position. On the 8th May, 1950, the prosecutors' solicitor wrote, on behalf of the Company, to the Dublin City Manager and Town Clerk requesting that the Corporation should give an undertaking to prepare and adopt a draft planning scheme in compliance with the provisions of the said Act and Regulations within three months of the next meeting of the City Council and that thereafter they would proceed with due diligence to the submission of a final planning scheme to the Minister. The Corporation, by their Law Agent, in a letter of the 21st July, 1950, stated that there was no obligation on them to give the requested undertaking and added that it would be impossible for the Corporation to bind themselves to produce even a draft planning scheme within the stipulated time, and mentioned certain matters as reasons for further postponing the making of the planning scheme. On several other occasions the prosecutors, by letters to the Corporation, called for the production of a scheme. On the 4th May, 1951, the prosecutors applied for, and obtained, in the High Court a conditional order of mandamus whereby it was ordered"that an order of mandamus do issue directed to The Right Honourable Lord Mayor, Aldermen and Burgesses of Dublin, commanding them according to their duty and authority in that behalf to prepare and adopt a draft planning scheme with all convenient speed pursuant to Article 12 of the Town and Regional Planning Regulations, 1934, and to proceed with due diligence pursuant to section 29 of the Town and Regional Planning Act, 1934, to make with all convenient speed a planning scheme and to submit such planning scheme to the Minister for Local Government for his approval." On the 6th September, 1951, an affidavit showing cause was filed on behalf of the Corporation. On the 22nd February, 1952, the cause shown against the conditional order of mandamus being made absolute was disallowed and the conditional order of the 4th May, 1951, was made absolute.

From the above judgment the Corporation appealed to the Supreme Court (1).

Sect. 29 of the Town and Regional Planning Act, 1934, provides that when a planning authority resolves to make a planning scheme it becomes their duty "with all convenient speed" to give effect to that decision and to make a planning scheme and submit it to the Minister for Local Government for his approval, and by virtue of the Town and Regional Planning Regulations, 1934, Art. 12, para. 1, on the passing of the planning resolution and the giving of notice thereof, on the expiration of the period of three months specified in such notice, the planning authority should "with all convenient speed" prepare and adopt "a draft scheme." The Corporation of Dublin, as planning authority for the County Borough of Dublin, which was a planning district for the purposes of the Town and Regional Planning Acts, 1934 and 1939, by resolution passed pursuant to s. 26 of the Act of 1934, resolved to make a planning scheme for their planning district. No planning scheme and no draft scheme was, however, prepared by the Corporation. The prosecutors, a company carrying on the business of erecting dwelling-houses, shops, and other buildings in the City of Dublin and engaged in the development of property within the area, made representations to the Corporation, contending that the failure to prepare a planning scheme, in accordance with the provisions of the Act, was detrimental to their business. On the 8th May, 1950, and on various dates thereafter, the prosecutors' solicitor wrote, on behalf of the Company, to the Dublin City Manager and Town Clerk requesting that the Corporation should prepare and adopt a draft planning scheme in compliance with the Acts. On the 4th May, 1951, the prosecutors obtained in the High Court a conditional order of mandamus directed to the Corporation "commanding them according to their duty and authority in that behalf to prepare and adopt a draft planning scheme with all convenient speed pursuant to Article 12 of the Town and Regional Planning Regulations, 1934, and to proceed with due diligence pursuant to section 29 of the Town and Regional Planning Act, 1934, to make with all convenient speed a planning scheme and to submit such planning scheme to the Minister for Local Government for his approval." On the application to make absolute the conditional order, notwithstanding cause shown, the cause shown was disallowed and the conditional order was made absolute. On appeal by the Corporation it was

Held, by the Supreme Court 1, that the order of the High Court that an order of mandamus should issue should be affirmed, but that that part of the order of the High Court which declared the prosecutors to be entitled to their costs must be set aside and the order made in R. (Westropp) v. Clare County Council [1904] 2 I. R. 569 followed;

2, that demand having been made upon the appellants to carry out their statutory duty, the appellants, by their decision to continue "interim control,"had refused to comply with the demand;

3, that the prosecutors had a sufficient interest to entitle them to apply for an order of mandamus;

4, that the Court could compel compliance with its order of mandamus;

5, that the words, "convenient speed," meant that there should be no unreasonable delay. The adjective, "convenient," qualifies the speed at which the planning authority is required to act only to the extent that immediate action is not called for. This is an issue which must be determined as an issue of fact by a jury, and the prosecutors had made a sufficient case to have the issue so decided.

Reg. (Wright) v. Eastbourne Corporation 83 L. T. 338 and Re The Bristol and North Somerset Railway Co.3 Q. B. D. 10 distinguished.

Cur. adv. vult.

Maguire J.:—

This is an application to make absolute, notwithstanding cause shown, a conditional order of mandamus, dated the 4th May, 1951, whereby it was ordered that an order ofmandamus do issue, directed to the respondents, "commanding them according to their duty and authority in that behalf to prepare and adopt a draft planning scheme with all convenient speed pursuant to Article 12 of the Town and Regional Planning Regulations, 1934, and to proceed with due diligence pursuant to section 29 of the Town and Regional Planning Act, 1934, to make with all convenient speed a planning scheme and to submit such planning scheme to the Minister for Local Government for his approval."

The Town and Regional Planning Act, 1934, makes provision for the orderly and progressive development of cities, towns, and other areas and to preserve and improve the amenities thereof and for other matters connected therewith. Extensive and far-reaching powers, within the Act...