State, The (Nangle), v Sligo County Council

JurisdictionIreland
Judgment Date26 February 1931
Date26 February 1931
CourtHigh Court (Irish Free State)
The State (Nangle) v. Sligo Co. Council
THE STATE, at the Prosecution of JOHN NANGLE
and
SLIGO COUNTY COUNCIL, and the DISTRICT JUSTICE FOR DISTRICT No. 4
and in the MATTER of the COURTS OF JUSTICE ACT, 1924 (1)

High Court.

Local Government - Roads - Materials for repair - Order of District Justice authorising entry on lands - Jurisdiction of District Justice - What constitutes the order of the District Justice - Whether summary jurisdiction includes applications for liberty to enter lands - Order bad on its face - Facts necessary to give jurisdiction not stated - Decision of Justice on questions of fact not reviewable by the Court - Conditional order for certiorari - Grounds relied on to be stated in conditional order - Grand Jury (Ir.) Act, 1836 (6 & 7 Wm. 4, c. 116), sect. 162 -District Justices (Temporary Provisions) Act, 1923 (No. 6 of 1923),sect. 2, sub-sects. 2 and 4 - Courts of Justice Act, 1924 (No. 10 of1924), sect. 78 - Local Government Act, 1925 (No. 5 of 1925), sect. 32 - District Court Rules, 1926, Rules 2, 37, 50.

Sect. 32, sub-sect. 1, of the Local Government Act, 1925, provides that the council charged with the maintenance of any road shall, subject to the provisions of the section, have power to dig for, raise and carry away in or out of any land to which the section applies, any material required for the maintenance of such road, and to enter, subject to the provisions of the section, an any land to which the section applies in order to do anything which they are empowered to do by the sub-section. Sub-sect. 2 provides that it shall not be lawful for any such council to enter on any land for the purpose of exercising their powers under the section, "except with the consent of the occupier thereof or under the authority of an order of a Justice of the District Court, which order any Justice of the District Court is hereby authorised and required to grant on being satisfied that the exercise of the powers proposed is reasonable, having regard to the convenience and cost of any alternative method of obtaining the material, access, or facilities sought . . . the character of the land, and all the circumstances of the case." Sub-sect. 7 provides that the section "applies to all land except land bona fide used as a garden, orchard, pleasure or recreation ground, or for the amenity or convenience of a dwellinghouse."

Held by the High Court (Sullivan P. and Hanna J.) that applications for orders under the section are "cases of summary jurisdiction" as defined by Rule 2 of the District Court Rules, and therefore come within Part I of those Rules; it followed, therefore, from the decision in Tangney v.District Justice for County Kerry, [1928] I.R. 358, that the note in the Justice's Minute Book, prescribed by Rule 50, is the record of the order made by the Justice, and that it must contain all the essentials of a valid order.

An order made by a District Justice under the section, authorising a council to enter a quarry on defendant's lands to obtain road materials, was quashed on certiorari as being bad on its face:

Sullivan P. so holding because, apart from the objection that there was no statement in the order that the defendant was the occupier of the lands, the Justice had omitted to state: 1, that he was satisfied that the exercise of the powers proposed was reasonable; and 2, that the land was not within the exceptions mentioned in sub-sect. 7 of the section;

Hanna J. so holding because the order did not sufficiently indicate the powers proposed to be exercised, the place of entry, the lands that were to be worked, their boundaries, or the occupancy thereof.

R. (Murphy) v. Wexford JJ., [1894] 2 I.R. 81, followed.

Per Hanna J.: Whether the exercise of the powers proposed was reasonable, and whether the order would allow entry on lands bona fideused for the amenity or convenience of a dwellinghouse, were questions of fact; and, if the District Justice had not misdirected himself in law, and if there was evidence upon which he could decide as he did, the Court ought not to interfere with his order.

Certiorari.

The prosecutor, John Nangle, applied to make absolute, notwithstanding cause shown, a conditional order for certiorari to bring up, for the purpose of being quashed, an order made by the District Justice for District No. 4 under sect. 32 of the Local Government Act, 1925 (No. 5 of 1925) (1), authorising the Sligo County Council to enter on the prosecutor's lands in order to obtain road materials from a quarry situated thereon. The conditional order directed the said District Justice "to return to the High Court all and singular the orders and adjudications

made by the said District Justice at Ballyfarnon District Court (District No. 4) on the 1st day of July, 1930, on the hearing of an application by summons, wherein the County Council of the County of Sligo were complainants and John Nangle, of Carrowdargney, Geevagh, in the County of Sligo, was defendant, for an order to enter a quarry at Carrowdargney, County Sligo, to procure materials for the construction or maintenance of a public road from Conway's Cross to Coal Pits, granting the aforesaid application, subject to the proviso that 'no quarrying be done within 30 feet of pass and 200 feet of house,'" the conditional order being based on the following grounds:—that the said order was made without, and in excess of jurisdiction, in that:— 1, the said order is bad on its face, and does not show jurisdiction; 2, that it does not define the place where the said County Council are to enter on the said lands, or the area over which they are to be at liberty to work; 3, that no case was made on the evidence that it was reasonable to make such an order in respect of the defendant's lands, regard being had to the convenience, cost of any alternative method of obtaining the required material, the character of the lands, and the circumstances of the case; and, 4, that the evidence shows that the lands in respect of which the order was made are used for the convenience of the defendant's dwelling-house.

The prosecutor, in an affidavit in support of his application for the said conditional order, stated that, being served with a summons to attend the District Court to show cause why an order should not be made giving the County Council of Sligo liberty to enter upon and take materials from his lands, he attended the District Court at Ballyfarnon on 1st July, 1930. The County Surveyor and the Assistant County Surveyor gave

evidence to the effect that explosives, if used, would not endanger his house or pass, and that materials could not be conveniently procured from any other source. The road from Sligo to Ballyfarnon was being widened...

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