The State (Wood) v West Cork Board of Health and Minister for Local Government

• Jurisdiction: Ireland
• Judgment Date: 01 April 1936
• Date: 01 April 1936
• Court: High Court (Irish Free State)

High Court.

The State (Wood) v. West Cork Board of Health and

THE STATE (at the prosecution of Robert J. Wood)

and

THE WEST CORK BOARD OF HEALTH AND PUBLIC ASSISTANCE and THE MINISTER FOR LOCAL GOVERNMENT AND PUBLIC HEALTH

Local Government - Housing - Plot of land proposed to be acquired by Board of Health - Whether "immediately adjoining and accessible from a road or lane over which a public or private right of way exists for carts or other vehicles" - Labourers (Ir.) Act, 1906, sect. 25 - Housing (Financial and Miscellaneous Provisions) Act, 1932 (No. 19 of 1932), sect. 20 - Compulsory Purchase Order - Validity - Application for conditional order of certiorari to quash Order - Non-compliance with the Rules of the Supreme Court (Ir.), 1905 - Omission to produce copy of Order verified by affidavit as required by Or. LXXXIV, r. 14 - Order in Court on hearing of motion to make absolute the conditional order in compliance with notice to produce - Waiver of irregularity - Housing (Miscellaneous Provisions) Act, 1931 (No. 50 of 1931), sect. 17, sub-sects. 3 and 4 - Whethercertiorari lies, or whether proper procedure by plenary summons - Unsatisfactory evidence as to existence of right of way - Onus of proof - Absence of notice to occupier of plot - Labourers Act, 1883, sect. 6 -Labourers Act, 1886, sect. 3.

Certiorari.

The prosecutor, Robert J. Wood, on the 19th June, 1935, obtained a conditional order for certiorari to quash: 1, the Cork County Board of Public Health Compulsory Purchase (Labourers Acts) (Schull Rural District) Order, 1934, dated 14th day of May, 1934, under which it was proposed to purchase compulsorily part of the lands of Bawnashanaclough, containing one acre and ten perches, being site No. 71 on Ordnance Sheet 131, 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), and on which it was proposed to build one labourer's cottage, and 2, the Order of the Minister for Local Government and Public Health, dated 29th April, 1935, confirming the said Compulsory Purchase Order so far as it included the said plot of land at Bawnashanaclough.

The application for the conditional order was grounded on the affidavit of the prosecutor, and his affidavit stated the facts as follows:—

"1. Under the provisions of the above Acts [the Labourers Acts] on 29th April, 1935, the Minister for Local Government and Public Health confirmed an Order submitted to him by the said Board of Health under which it is proposed to purchase compulsorily part of the lands of Bawnashanaclough, containing 1 acre 0 roods 10 perches, being site No. 71 on Ordnance Sheet 131, on which it is proposed to build one labourer's cottage. [He referred to the printed notice received by him from the said Board and in which he and the Irish Land Commission were described as owners of the said lands and he was described as being the occupier.]

2. A public inquiry under the said Acts was held at Schull, County Cork, on 6th October, 1934. Previous to the Inquiry I informed the said Board that I objected to the taking of the said plot, and I was represented by my solicitor at the Inquiry, who, I am informed, and believe, submitted my objections to the Inspector, as I was unable to attend myself, but, notwithstanding such objection, the said Board insisted on taking the said plot.

3. Up to the year 1921 I resided on my farm at Bawnashanaclough on which there was a gentleman's residence which was occupied by myself and my relatives for generations. During the recent troubles in Ireland my said residence was burned down and in consequence I went to England and have not yet rebuilt my said destroyed residence in County Cork. The only means of access from the public road to the plot proposed to be acquired is through the avenue leading to the ruined residence and this is a private road and my sole property. A gate was formerly maintained where the avenue opens on the public road and a portion of the pillars for the gate are still standing. It will seriously injure the amenity of the residence (if and when reconstructed) to have a labourer's plot so near same.

4. In addition to my lawn adjoining my ruined house I have only three other fields abutting on my avenue and it is from the centre one of these three fields that it is proposed to take the said plot. The field nearest to the residence is a haggard used for storing crops in harvest time but at other times it is used for ordinary agricultural purposes. The field farthest from the residence is marshy and of little value. The middle field on which it is proposed to build the cottage is good land and contains about two acres so the Board proposes to acquire roughly about half of this field. The remainder of my farm at Bawnashanaclough does not adjoin any public road and accordingly it has to be worked through this field. If the plot is taken so as to take the entire frontage on my avenue it will destroy my means of access to the rest of my farm; and, on the other hand, if only about half the frontage is acquired it will render the rest of the field useless for any purpose save as a passage Furthermore, a labourer's cottage built to open on my avenue and facing my lawn will seriously injure the amenity of the residence, if and when rebuilt.

There is no public supply of water near the proposed plot. There is a well adjoining the passage into my farmyard and if the plot is taken I fear it will mean continuous trespass by the labourer thereon trying to obtain water from my well.

6. I am informed and believe that the applicant Timothy Donovan has been for some time residing at Bawnaknockane (adjoining the Townland of Bawnshanaclough) where he has a substantial house and field rented at the rate of £7 4s. 0d. per year, and accordingly that there is no necessity for the erection of a cottage for him as the house he is living in is at least as good, if not better, than any labourer's cottage.

7. I am incorrectly described as the occupier of the land at Bawnashanaclough. It is true that I am the owner, but I am not the occupier, as, during the past three years I have let the entire farm to William Swanton of Gortnagrough for definite periods of eleven months each, and under my agreement with him he pays the rates of the holding and pays me the rent. He is also at liberty to till any portion of the farm and to retain the profits for his own sole use. Accordingly I respectfully submit that the said William Swanton is a tenant in occupation for a period of more than one month necessitating service on him of notices under the said Acts. I am informed and believe that the said William Swanton was not served with any notice of the said Order or of the intention of the said Board to acquire the said plot, and, in consequence, that he was not represented at the said Inquiry.

8. I respectfully submit that the said Compulsory Purchase Order and the Order of the said Minister confirming same in so far as they include the said plot on my said farm have been made without jurisdiction and are not within the powers or provisions of the said Acts on the following grounds:—

(a) That the said plot was not selected with due regard to the general situation and convenience of my property and so as to cause minimum damage and inconvenience to my said tenant and myself, and accordingly that the said plot is excepted and excluded from the lands which may become compulsorily acquired under the provisions of the said Acts.

(b) That there is no means of access to the said plot from any public road and that there is no power under the said Acts to acquire a right of way to the plot over my private road or avenue.

(c) That the occupier of the said plot, namely, the said William Swanton, has not been served with any notice under the said Acts and accordingly is not bound by the Orders, and that the plot cannot be acquired without serving him with the notices required by the Acts.

(d) That there is no necessity for the acquisition of the said plot as a residence for the proposed occupier Timothy Donovan inasmuch as he has already got suitable and ample accommodation elsewhere."

The affidavit, filed on behalf of the Minister for Local Government and Public Health by way of showing cause, was made by Seamus Murphy, Inspector under the Department of Local Government and Public Health, and affidavits showing cause, filed on behalf of the West Cork Board of Health and Public Assistance, were made by James O'Mahony, their Secretary, and by James Joseph O'Crowley, their Architect.

The affidavit of Seamus Murphy was as follows:—

"1. I have fourteen years' experience as an Inspector under the Department of Local Government and Public Health. I have conducted numerous Inquiries in connection with the Labourers Acts.

I have read a copy of the affidavit filed by the prosecutor on the 19th of June, 1935.

3. On the 6th of October, 1934, I held a public Inquiry at Schull, in the County of Cork, in relation to the Cork County Board of Public Health Compulsory Purchase (Labourers Acts) (Schull Rural District) Order, 1934, and heard evidence upon the several objections made thereto.

4. Mr. Jasper T. Wolfe appeared as solicitor for the objector, Robert J. Wood, the prosecutor herein, who had duly made the following objections in respect of the plot, site No. 71 in the schedule to the said Order:—

• 1. That the said plot is not required for the purposes of the said Acts. 2. That the Order was made without and in excess of jurisdiction. 3. That the statutory requirements under the said Acts have not been complied with. 4. That the site is unsuitable and there is not a convenient supply of water adjacent thereto. 5. That the holding, on which the plot proposed to be acquired is situate, is too small to allow of the plot being taken. 6. That the plot has not been selected so as to cause minimum damage and inconvenience to the...