The King (Hewson) v The County Council of Wicklow and The Rathdown No. 2 Rural District Council

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 10 June 1907
• Court: King's Bench Division (Ireland)
• Date: 10 June 1907

The King (Hewson)

and

The County Council of Wicklow and The Rathdown No. 2 Rural District Council (1).

K. B. Div.

CASES

DETERMINED BY

THE KING's BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1908.

Local Government — Road — Liability of County Council to repair — Evidence of road being maintainable by county — Presentment for repair by Grand Jury — Resolution for repair by County Council — Expenditure on roads — Authorized limit exceeded — Mandamus — Demand and refusal — County Council — Rural District Council — Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37), ss. 4, 27, 82.

Held, that there had not been such a demand and refusal as would entitle H. to the mandamus sought for.

Held, also, that the mandamus sought against the County Council should be refused on the further ground that no proposal had been submitted, or application made, to them.

Mandamus. The prosecutor was the owner of a house close to Greystones, county Wicklow, known as Jubilee Castle. The only approach to the house was by a road or track (hereinafter referred to as “the road”), about 78 perches in length, leading from a public road to Jubilee Castle. The road ran close to the sea, and was not fenced on the sea side. Both Jubilee Castle and the road were situate in the Rathdown No. 2 Rural District, in the county

of Wicklow. The road was also the only mode of access to some other houses, mostly small cottages. Jubilee Castle had been built in the year 1897 by the prosecutor. He had obtained in December, 1896, a lease of a limekiln and plot of ground adjoining the road, and in the year 1897 had converted the lime-kiln into the house known as Jubilee Castle.

From affidavits filed to obtain the conditional order it appeared that prior to the year 1897 the Board of Guardians of the Rathdown Union had laid a public water main along the road with a public fountain which was kept in repair by the District Council. At the Presentment Sessions held at Enniskerry on the 11th December, 1897, the prosecutor had obtained a presentment to keep the road in repair for one year. At the request of the prosecutor, a Mr. Vandeleur, a member of the Rathdown No. 2 Rural District Council, made an application to the Rural District Council at their meeting held on the 7th January, 1907, to repair and keep in repair the road, and also to build a protective wall at a total cost not exceeding £111 14s. There being no seconder, the application was refused. On the 23rd January, 1907, the prosecutor served notices on the secretary of the Council and the clerk of the Rural District Council, calling on those respective councils to place and keep the road in good condition and repair. It was alleged that as the road was in close proximity to the sea, it was exposed to exceptional wear and tear, and some outlay on a retaining wall was urgently required if the road was not to be severely damaged by the sea, and that unless the road was properly protected a high north-east gale with a high tide would cause the sea to wash away a large portion of the road.

The prosecutor obtained a conditional order for a writ of mandamus, directed to the County Council of Wicklow and the Rathdown No. 2 Rural District Council, commanding them and each of them forthwith to put the road into good condition and repair; and, if necessary for that purpose, that the Rural District Council should formulate a proposal pursuant to the Local Government (Procedure of Councils) Order, 1899; and that the Wicklow County Council should assess and levy a rate upon the owners of all rateable property within the Rathdown No. 2 Rural District, and that they and each of them should take all other steps (if any) necessary for the purpose.

A number of affidavits were filed by way of cause against making the conditional order absolute, made by, amongst others, the secretary to the County Council, who had formerly been secretary to the Grand Jury, the chairman and the secretary of the Rural District Council, and the county surveyor, and the assistant surveyor of County Wicklow, which affidavits contained allegations to the following effect: That the building of Jubilee Castle was completed in the summer of 1897, and that at that time no county money had ever been expended on the road. That the first application ever made to the Grand Jury to repair the road was in the year 1892 by a Mr. Arthur Hughes, and that this application was refused on the ground that the road was only a track along the sea-shore to the unused limekiln. That the application for the presentment made in December, 1897, was an application to have the road repaired and maintained for a period of five years under sections 50 and 52 of the Grand Jury Act, 1836. That the application was treated as an application in reference to a new road and to a contract for one year, but that the requirements of section 55 of the Grand Jury Act, 1836, as to presentments for new roads, had not been complied with. That the Grand Jury did not treat the road as a public road to be maintained, but granted the application as a temporary repair only. That it was only as a compromise it was granted, and that it was arranged that the county would not maintain the road, as it was a private road leading nowhere, and that those interested in it might maintain it. That a contract on this basis was taken to repair the road and keep it in repair for one year. That this was a contract not for the maintenance of the road, but for the purpose of temporary repair. That the abstract of presentments granted at the Spring Assizes, 1897, which included all the public roads then in existence, did not contain any reference to the road in question. That the Grand Jury never looked upon the said road as a necessary or a public road or as one maintainable by them. That in the year 1900 the County Council passed a resolution and entered into a contract for the temporary repair of the road for nine months expiring on the 31st March, 1901. That in the notice to contractors the road was under the heading “special work,” showing that it was not on that occasion treated as a county road, and that the contract was for temporary repair. That in the year 1905 at the request of the prosecutor a proposal for the repair of the road was brought forward at a meeting of the Rural District Council, and was rejected on the ground that the road was not a public road maintainable by the county. That the road was never at any time under maintenance by the Grand Jury or by the County Council; that it was a cul de sac, and had always been a private road for the convenience and use of the owner of the houses, and was not at any time a public road, nor was it ever taken over by any road authority. That it was really part of the La Touche estate and not public property, and was practically a part of the beach; and reference was made to maps and the memorial of a lease in support of these statements. That the waterpipe was laid along the road, and the fountain erected, in consequence of an ad misericordiam appeal made by the prosecutor (who was one of the Poor Law Guardians) on behalf of the fishermen occupying the cottages on the road. That the application made on behalf of the prosecutor to the Rural District Council was made with the object of getting the Council, at the cost of the ratepayers, to build a sea wall to protect his private property from the action of the sea, which was steadily encroaching. That the cost of such a wall would be about £2000 in the first instance, and that the periodical repairs would be a heavy burden on the rate-payers. That the limit of expenditure provided by section 27 of the Local Government Act, 1898, for Rathdown No. 2 District, on road contracts was £1711 5s. per annum; and the actual liability on foot of contracts and works which must be paid for out of funds during the financial year beginning the 1st April, 1907, was £1685 12s. 4d., leaving a balance of £25 12s. 8d., which would be wholly inadequate to repair the road(1); and that the Local Government Board had refused to extend the limit.

Affidavits were filed in reply, alleging that the road had been a county road leading from Greystones to Windgates, until a storm carried away part of it; and denying the alleged arrangement in connexion with the presentment in 1897. It

was also alleged that a sufficient protecting wall could be built for £200.

The fact that a Grand Jury passed a presentment for the repair of a road, or that the County Council passed a resolution for, and expended money on, such repair, is not conclusive evidence that the road is a public road maintainable by the county.

A mandamus will not be granted directing a County Council to expend money on the repair of a road where the effect would be to compel the expenditure on roads of a sum in excess of that permitted by sect. 27, sub-sect. 2, of the Local Government (Ireland) Act, 1898.

An application had been made on behalf of H. to a Rural District Council to repair, and keep in repair, a road, and to build a wall to protect it from the sea, which application had been refused by the Rural District Council. H. subsequently obtained a conditional order for a mandamus, directing the County Council and the Rural District Council to put the road in repair, the claim to have the wall built being abandoned: —

Bourke, K.C., Conner, K.C., and Edward Murphy, for the prosecutor.

Sullivan, K.C., Molony, K.C., Kough and O'Neill, for the Bathdown No. 2 Rural District Council.

O'Brien, K.C., and James O'Connor, for the County Council of County Wicklow.

Lord O'Brien, L.C.J.:—

Mr. Thomas Hewson seeks to obtain a writ of mandamus to compel the County Council of Wicklow, and the Rathdown No. 2 Rural District Council, to put in good condition and repair a certain so-called road in the said county. Mr. Hewson's application has been resisted on many...