The State (Healy and Others) v Sligo Board of Health

• Jurisdiction: Ireland
• Judgment Date: 18 March 1935
• Date: 18 March 1935
• Court: High Court (Irish Free State)

High Court.

The State (Healy and Others) v. Sligo Board of Health.

THE STATE (CANON HEALY AND OTHERS)

Applicants

and

THE SLIGO BOARD OF HEALTH AND PUBLIC ASSISTANCE, Respondents (1)

Local Government - Housing - Labourers (Ireland) Acts, 1883 to 1931 -Housing (Financial and Miscellaneous Provisions) Act, 1932 (No. 19of 1932), sect. 20 - Plot of land proposed to be acquired by Board of Health - Not "immediately adjoining and accessible from a road or lane over which a public or private right of way exists for carts or other vehicles"- Compulsory purchase order - Validity - Non-compliance with provisions of the Labourers Acts - Whether Housing (Financial and Miscellaneous Provisions) Act, 1932, provides a new code or merely an alternative method of procedure - Restrictions imposed by Labourers Acts still operative even when new procedure adopted - Labourers Act, 1883,sect. 6 - Labourers Act, 1886, sect. 3 - Labourers Act, 1906, sect. 25.

Certiorari.

The prosecutors, viz.: The Rev. Canon Healy of Oghill, Cullens, in the County of Sligo, Michael Coggins of Kinnard, Enniscrone, and John Maughan of Enniscrone, in the County of Sligo, obtained on the 16th March, 1934, a conditional order for certiorari to quash an order, dated the 7th May, 1933, made by the Sligo Board of Health and Public Assistance authorising the said Board to purchase compulsorily, for the purposes of the Labourers (Ireland) Acts, 1883 to 1931, as amended by the Housing (Financial and Miscellaneous Provisions) Act, 1932 (No. 19 of 1932), portion of the lands of Carrowhubbuck South,

containing 3 acres and 2 roods, described in the notice of the said order, and the order made by the Minister for Local Government and Public Health, dated the 15th February, 1934, confirming, with modifications the said order of the Sligo Board of Health and Public Assistance.

The application for the conditional order was grounded on the affidavit of the said John Maughan and his affidavit set out the facts as follows:—

"1. By an agreement in writing, dated the 14th day of April, 1926, and made between the Irish Land Commission and the Rev. Canon Healy of Oghill, Cullens, in the County of Sligo, Michael Coggins of Kinnard, Enniscrone and me, the said Canon Healy, Michael Coggins and I took the parcel of land set out in the schedule to the said agreement, more commonly known as 'The Castle Field,' at Enniscrone, containing in or about 39 acres 1 rood and 5 perches, as tenants from year to year at the annual rent of thirty-nine pounds thirteen shillings and fourpence.

2. The said Canon Healy, Michael Coggins and have been in possession and occupation of the said lands from the 14th day of April, 1926, to the present time, and hold the same, and have since the said 14th day of April, 1926, held the same, for and on behalf of the householders of Enniscrone for the purpose of grazing cows and other stock thereon or for such other use as the said householders may think fit.

3. By advertisement published in the Sligo Championnewspaper on the 14th day of October, 1933, notice was given that the Sligo Board of Health and Public Assistance for the County Health District of Sligo, in pursuance of the powers vested in them by the Labourers (Ireland) Acts, 1883 to 1931, as amended by the Housing (Financial and Miscellaneous Provisions) Act, 1932 (No. 19 of 1932), on the 7th day of October, 1933, had made an order which was to be submitted to the Minister for Local Government and Public Health, purporting to authorise them to purchase compulsorily for the purposes of the said Acts, inter alia,portion of the aforesaid lands of Carrowhubbuck South, our property, more commonly called 'The Castle Field,' containing 3 acres 2 roods and 0 perches, described in the schedule to the said notice. In or about the 14th day of October, 1933, I received a letter from the Secretary of the said Board of Health and Public Assistance notifying me that the said Board proposed to purchase the said lands compulsorily.

4. By letter, dated the 19th October, 1933, and addressed to the Secretary of the said Board of Health and Public Assistance, our solicitors, Messrs. Bourke, Carrig and Loftus, Ballina, objected on our behalf to the compulsory acquisition of the said lands, and, in reply thereto, the said Secretary requested that the objection be sent to the Minister for Local Government and Public Health.

5. By letter, dated the 31st day of October, 1933, addressed to the Secretary of the Department of Local Government, the said solicitors on behalf of the said Reverend Canon Healy, Michael Coggins and myself, objected to the compulsory acquisition of the said lands.

6. A local inquiry was held at Sligo on the 28th and 29th days of November, 1933, to consider any objections to the said order. The said Reverend Canon Healy, Michael Coggins and myself were represented at the said inquiry by our said solicitors and objected to the said order so far as it proposed the compulsory acquisition of the aforesaid part of our said lands. In particular our solicitors objected that there was and is not any power or authority given by the said Acts to the said Board of Health and Public Assistance to acquire the said lands for the reasons set forth in paragraph 8 hereof. At the inquiry the Inspector noted the said legal objection of our solicitors and stated that he would have it ruled upon by the legal adviser of the Department of Local Government and Public Health, but, save as hereinafter appears, no notice of any such ruling has been given to us or to our solicitors.

7. On the 27th day of February, 1934, our solicitors received notice, dated the 24th day of February, 1934, and signed by the Secretary of the Board of Health and Public Assistance to the effect that the Minister for Local Government and Public Health had confirmed, on the 15th day of February, 1934, the said order submitted to him by the said Board of Health and Public Assistance in so far, inter alia, as the same purported to authorise the compulsory purchase of the said part of 'The Castle Field,' containing 3 acres 2 roods and 0 perches, referred to in paragraph 3 hereof.

8. The lands selected by the said Board of Health and Public Assistance, and set out in the Schedule to the said order, and therein described as part of Carrowhubbuck South, containing 3 acres 2 roods and 0 perches, being that part of 'The Castle Field' which we (Canon Healy, Michael Coggins and myself) object to the said Board of Health and Public Assistance acquiring compulsorily, do not adjoin and are not accessible from any existing public road nor do they adjoin nor are they accessible from any road or lane over which a public or private right of way exists for carts and other vehicles (1). The nearest portion of any public road is at a distance of one hundred yards from the said lands proposed to be acquired compulsorily, and the said public road is divided from same by land in the occupation of Thomas Kennedy of Enniscrone aforesaid. There is not any public or private right of way giving access to the lands proposed to be acquired from us across the lands of the said Thomas Kennedy or otherwise."

The grounds on which the conditional order was obtained were set out in the conditional order as follows:—

"1. That the said order and confirmation of same were made without and in excess of jurisdiction so far as they affect or purport to affect any property of the prosecutors.

2. That the said order and confirmation of same in so far as they, or either of them, purport to authorise the compulsory acquisition of lands, the property of the prosecutors, which do not adjoin and are not accessible from any public road or any road or lane over which a public

or private right of way exists for carts or other vehicles are not within the powers of the above mentioned Acts or any of them."

Affidavits showing cause were made by Nicholas O'Dwyer, Consulting Engineer to the Board of Health and Public Assistance for the County Health District of Sligo, in connection with the scheme for the erection of labourers' cottages (in pursuance of which the compulsory purchase order was made by the said Board on the 7th October, 1933, and the order confirming it was made by the Minister for Local Government and Public Health on the 15th February, 1934), and by Eamonn Hannan, a member of the Sligo County Council and Board of Health and Public Assistance. The affidavit of Eamonn Hannan, was as follows:—

"1. I am a member of the Sligo County Council and the Board of Health and Public Assistance for the County Health District of Sligo and I reside at Muckduff which is about half a mile from the Townland of Carrow-hubbuck South in the County of Sligo.

2. The plot, containing three acres, two roods and no perches, which is included in the compulsory purchase order made by the said Board on the 7th day of October, 1933, and the confirming order, dated the 15th day of February, 1934, and which is the subject of these proceedings, forms part of the large field (part of the lands of Carrowhubbuck South) locally known as 'The Castle Field.' The said plot is fenced on the West and South sides but not on the North and East sides where it adjoins the remainder of the Castle Field.

3. There is a laneway over twelve feet wide leading from the public road from Enniscrone to Easkey. Said laneway and the adjoining lands on both sides were formerly portion of said 'Castle Field,' which was part of the estate known as the 'Orme Estate.' The lands on the East side thereof, which are separated therefrom by a stone wall, were acquired in the year 1909 by the late Dromore West Rural District Council who erected labourers' cottages thereon. The lands on the West side thereof, which are separated therefrom by a wire fence, were purchased from said Orme Estate in or about the year 1921 by one, Matthew Cawley, who has since erected buildings...