The Attorney-General v The Bray Township Commissioners and The Bray Pavilion Company Ltd

JurisdictionIreland
CourtCourt of Appeal (Ireland)
Judgment Date27 February 1880
Date27 February 1880

Appeal.

Before BALL, C., MAY, C. J., and DEASY, L. J.

THE ATTORNEY-GENERAL
and

THE BRAY TOWNSHIP COMMISSIONERS AND THE BRAY PAVILION COMPANY (LIMITED)

The Attorney-General v. HeelisENR 2 Sim. & St. 76.

The Trustees of the British Museum v. White Ibid. 596.

Evan v. The Corporation of AvonENR 29 Beav. 149.

The Attorney-General v. The Corporation of Cashel 3 Dr. & War. 294, 314.

The Attorney-General v. The Corporation of Limerick Beatty, 563.

The Attorney-General v. HungerfordENR 2 Cl. & Fin. 374.

The Mayor, Aldermen, and Burgesses of Gloucester v. WoodENR 3 Hare, 131.

The Attorney-General v. The Corporation of Sunderland 2 Ch. Div. 634.

The Attorney-General v. The Great Eastern Railway Company 11 Ch. Div. 449.

West v. DobbELR L. R. 5 Q. B. 460.

Hyde v. Warden 3 Ex. Div. 72.

Bish v. KeelingENR 1 M. & S. 95.

Antrobus v. JepsonENR 3 B. & Ad. 402.

Evans v. Davis 10 Ch. Div. 747, 757.

Dimes v. The Proprietors of the Grand Junction CanalENR 3 H. L. C. 759.

Greenlaw v. KingENR 3 Beav. 49.

The Attorney-General v. The Great Eastern Railway Company 11 Ch. Div. 482.

The Attorney-General v. The Sheffield Gas Consumers Company 3 D. M. & G. 304, 311, 319.

Wilson v. Furness Railway CompanyELR L. R. 9 Eq. 28, 34.

Colyear v. The Countess of MulgraveENR 2 Keen, 81.

Tweddle v. Atkinson 1 B. & Sm. 393.

Eley v. The Positive Government Security Life Assurance Company (Limited) 1 Ex. Div. 88.

The Ryde Commissioners v. The Isle of Wight Ferry CompanyENR 30 Beav. 616.

The Attorney-General v. The Cockermouth Local BoardELR L. R. 18 Eq. 172, 178.

The Attorney-General v. The Mayor of Liverpool 1 Myl. & Cr. 171.

Township Commissioners — Lease of grounds to, at nominal rent, for public "recreation and exercise on foot" — Covenants against building or subletting without consent — Clause of re-entry for breach — Sub-demise of small portion of premises for erection of Floral Hall and bathing-place — Information by inhabitant and ratepayer of township — Alleged public trust.

THE ATTORNEY-GENERAL v. THE BRAY TOWNSHIP COMMISSIONERS AND THE BRAY PAVILION COMÂPANY (LIMITED) (1). Township Commissioners-Lease of grounds to, at nominal rent, for public " recreation and exercise on foot "-Covenants against building or subletting without consent-Clause of re-entry for breach-Sub-demise of small portion of premises for erection of Floral Hall and bathing-place-Information by inhabitant and ratepayer of township-Alleged public trust. Land adjoining the seashore at the town of B. was demised for ninety-nine years, at a nominal rent, to the Township Commissioners, subject to a covenant by them to keep the same in order and repair " as a public place of recreation and exercise on foot" for the inhabitants of B. ; the lease also contained a coveÂnant against assigning, subletting, disposing of or parting with the possession of, or erecting or permitting to be erected any building on, the premises, or any part thereof, without the consent of the lessor ; and a proviso for re-entry in case the Commissioners should not observe, perform, fulfil and keep all the covenants. By statute, incorporating " The Towns Improvement (Ireland) Act, 1854," the Commissioners were incorporated, and the land so demised was vested in them for the interest of the original lessees, subject to the liabilities of the latter under the lease. The Commissioners agreed to make a sub-demise of two small pieces of the land to a Company for the purpose of erecting thereon a Floral Hall or Pavilion, and a ladies' bathing-place. After the buildings had been commenced, an information was filed by an inhabitant and ratepayer of B. against the Commissioners and the Company, for an injunction to restrain the Commissioners from permitting, and the Company from proceeding with, the erection of the buildings, and to compel the removal of such portion of them as had been constructed : Held (affirming the decision of Chatterton, V. C.), 1st. That the erection of the proposed Floral Hall or Pavilion, and bathing-place (being, upon the eviÂdence, advantageous to the locality), was a proper and allowable use of part of the premises as a place of recreation ; and that the Commissioners were justified, in the exercise of their discretion as trustees for the inhabitants of B., in alloÂcating, with the consent of the lessor, a sufficient part of the ground for these structures. 2ndly. That the Commissioners, instead of themselves erecting the Hall and bathing-place-to which purpose there were no funds of the township applicable-were justified in sub-demising, with the consent of the lessor, the (1) Before BILL, C., MAY, C. J and DEASY, L. J. VOL. V.] CHANCERY DIVISION. 2:55 portions of ground required as sites to a Company formed for the purpose of Appeal. erecting them, although it was in contemplation that the Company should make 1880. charges for admission to the Hall and bathing-place, in order to defray expenses ATTY.-GEN. and afford a profit to the shareholders. v. The lessor not being a party to the suit, and there being no averment in the BRAY TowN . information, nor evidence to establish, that the property was in danger of being COXMRS evicted by him under the clause of re-entry-although the fact of his consent was disputed-THE Couar OF APPEAL declined to express any opinion as to whether that clause was applicable to the negative covenants in the lease. APPEAL by the sole Relator, Robert Henry Davis, from a decree of the Vice-Chancellor of the 7th August, 1879, dismissing the information with costs. The material facts are sufficiently stated in the LORD CHANCELLOR'S judgment, and are fully set out in the report of the hearing below, 3 L. R. Ir. 345. Mr. O'Hagan, Q. C. (with him Mr. Campion, Q. C., and Mr. John Atkinson), for the Appellant, the Relator: We contend (1) that, irrespective of Lord Meath's consent-as to which see 23 & 24 Viet. c. 154, ss. 10 and 18,-and if there were no clause in the lease requiring it before alienation, it was a breach of public trust for the Commissioners to grant away any part of their premises to the Pavilion Company ; (2) that it is all the more a breach of public trust to do so without Lord Meath's consent, thus exposing the trust property to forfeiture ; (3) that the objects for which the property has been assigned are outside the purview of the trusts, and are unauthorised, according to the express terms of the lease of 1861; (4) that once it is established to be a breach of public trust, the power of the...

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