Dublin Corporation v. O'Callaghan [2001] IEHC 22 (13th February, 2001)

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1. This is a Consultative Case Stated by Michael O’Leary, a Judge of the District Court, pursuant to Section 52 of the Courts (Supplemental Provisions) Act, 1961, seeking the opinion of the High Court on a question of Law which has arisen in the above entitled proceedings.

“Where any development of land, being neither exempted development nor development commenced before the appointed day, has been carried out after the appointed day without the grant of permission required in that behalf under this Part of this Act, .......... the Planning Authority may if they decide that it is expedient to do so, and shall, if they are directed by the Minister so to do serve on the owner, and on the occupier of the land a Notice under this Section.”

2. In this case the relevant Planning Authority, having regard to the provisions of Section 2(2) of the Local Government (Planning and Development) Act, 1963, is the Corporation of the City of Dublin, bearing by virtue of Section 12 of the Municipal Corporations (Ireland) Act, 1840, the name of the Complainant in these proceedings. The Defendant is alleged to have constructed, without the necessary grant of planning permission, a balustrade surrounding the flat roof of a single storey rear return at the dwelling house, 108, The Stiles Road, Clontarf, Dublin, 3, together with a steel staircase giving access to the flat roof from the garden of the said premises.

4. This Notice was signed by Mr. Christopher Geoghegan, to whom by an Order of the Dublin City Manager and Town Clerk, dated 22nd June, 1998, the powers, functions and duties of the Dublin City Manager and Town Clerk in relation to the provisions of the Local Government (Planning and Development) Act, 1963, in the County Borough of Dublin as regards the control of development were delegated, (subject to certain specified exceptions which it is admitted on all sides have no relevance to these proceedings).

5. It was in my judgment correctly conceded by both parties at the hearing before me that the taking of a decision to serve, and the service of such an Enforcement Notice was an Executive Function of the Complainant to be exercised and performed by the Dublin City Manager and Town Clerk who had in turn lawfully delegated the exercise of this function to Mr. Geoghegan by the Order to which I have referred made pursuant to the provisions of Section 17(1) of the City and County Management (Amendment) Act, 1955 as amended by Section 52 of the Local Government, Act, 1994.

“...........the Planning Authority for the area comprising the County of the Borough of Dublin considering the proper planning and development of the said area (including the preservations and improvement of the amenities thereof) regard being had to the provisions which have been included in the Development Plan, in exercise of the power conferred on it by Section 31 of the Local Government (Planning and Development) Act, 1963 and every other power in that behalf it enabling, has decided that it is expedient to serve this Enforcement Notice on the hereinafter described owner(s) and occupier(s) of the premises at 108 The Stiles Road, Clontarf, Dublin 3.”

7. The net issue for determination by this Court is whether the decision to serve an Enforcement Notice must be in the form of an Order of the City Manager and Town Clerk or his duly Delegated Officer, or may be taken informally by such Manager and Town Clerk or Delegated Officer.

“Every act or thing done or decision taken by the Manager which, if done or taken by the council of a county or other borough or urban district, would be required by law to be done or taken by resolution of such council shall be done or taken by the Manager by Order in writing signed by him and containing a statement of the date of the day on which it was so signed.”

“A provision made by or under this or any other Act which vests functions in the Manager or regulates the manner in which any function is to be performed shall, if and in so far as it is applicable to the designated function, have effect, for the purpose of the performance of that function by the officer, with the substitution of the officer for the Manager.”

8. It was submitted by Counsel for the Defendant and accepted by Counsel for the Complainant that the need for Mr. Geoghegan to comply with the provisions of Section 60(1) of the Local Government (Dublin) Act, 1930, was preserved by Section 8(2) of the Local Government Act, 1991 which statute otherwise brought about a significant relaxation in the doctrine of Ultra Vires as expounded in the decision in Ashbury Railway Carriage and Iron Company-v-Riche , (1875) L.R., 7. H. of L., 663.

9. Counsel for the Complainant contended that the decision to serve an Enforcement Notice, if it had been taken by the City Council exercising on its behalf the powers of the Corporation of the City of Dublin, would not be required by Law to be taken by a resolution of that Council. Accordingly, Counsel argued, no Order in writing of the duly delegated Officer, Mr. Geoghegan, signed by him and dated, was necessary in order to validate his decision to serve the Enforcement Notice. Counsel for the Complainant submitted that as the decision of Mr. Geoghegan to serve the Enforcement Notice was expressly recited in the Notice itself, it therefore constitutes a written record of that decision signed by Mr. Geoghegan and is therefore a sufficient compliance with the provisions of Section 31(1)(a), of the Local Government (Planning and Development) Act, 1963, without the necessity for any prior record of that decision.

10. Counsel for the Defendant argued that such a decision, if taken by the City Council exercising by virtue of Section 30(9) of the Local Government (Dublin) Act, 1930, the powers, functions and duties of the Corporation of the City of Dublin, was an expression of the will of a corporation aggregate, non trading, and in the absence of some express statutory authority must at common law be taken by a resolution of the City Council. In such circumstances, Counsel submitted, a prior Order in writing of Mr. Geoghegan signed by him and dated, setting out his decision to serve an Enforcement Notice was necessary before such a Notice could lawfully be served.

In my Judgment, Section 31(1)(a), of the Local Government (Planning and Development) Act, 1963, having regard to the clear and unambiguous words used, envisages two separate and distinct steps being taken by a Planning Authority in relation to an Enforcement Notice: the making of a decision that it is expedient to serve such a Notice followed then by the preparation and service of that notice.

11. In determining whether or not it is expedient to serve such a Notice, the Planning Authority is not at large, but is restricted by the provisions of Section 24 and Section 31(2) of the Local Government (Planning and Development) Act, 1976 and Section 7 of the Local Government (Planning and Development) Act, 1982, to considering the proper planning and development of the area of the Planning Authority including the preservation and improvement of the amenities of the area; the provisions of the Development Plan; any Special Amenity Area Orders relating to the area; any relevant Ministerial Directives; the terms of the planning permission (if any) and the probable effect which the decision might have on any place which is not within or is outside the area of the Planning Authority.

12. In my Judgment the Oireachtas in enacting Section 31(1)(a), of the Local Government (Planning and Development) Act, 1963, must clearly have intended that the making of a decision by a Planning Authority that it was expedient to serve an Enforcement Notice must be attended by some formality, by some recording of the fact that a decision to serve such a Notice had been taken and of the basis upon which it had been determined that it was expedient so to do. In the absence of such a record it would be impossible, for example, to ensure that the Planning Authority did not have regard to matters other than those authorised. In the absence of such a record the Courts would find it difficult if not entirely impossible to review a decision of a Planning Authority to serve an Enforcement Notice as the Planning Authority is not required to set out such particulars on the face of the Enforcement Notice itself. (See O’Connor-v-Kerry County Council , (1988), I.L.R.M., 660). It is equally clear, in my judgment that this formal record must have come in to existence prior to the Enforcement Notice being signed or served on the relevant owner and occupier. The Enforcement Notice cannot itself constitute this record which must both ante date it and be entirely separate from it.

13. Section 1 of the Municipal Corporations (Ireland) Act, 1840, repealed all laws, statutes, usages and so much of all royal and other charters grants and letters patent, rules orders and directions relating to the Borough of Dublin as were inconsistent with the said Act. Section 12 of the same Act provided that the boroughs named in the Schedule (A), to the Act, which included Dublin, should continue to be towns corporate. By Section 21(1) of the Local Government (Ireland) Act, 1898 the Borough of Dublin became an administrative county in itself, to be called a County Borough. Section 21(2), of that Act provided that the Mayor Aldermen and Burgesses of each County Borough should with certain exceptions, (which are not relevant to the issue before the Court), have the powers and duties of a County Council. By the provisions of Section 33(3) of the Local Government (Dublin) Act, 1930, all these powers, functions and duties became vested in the City Corporation. Section 30(9) of the Local Government (Dublin) Act, 1930, provides that:-

“All and every of the powers, functions and duties of the City Corporation shall be exercised and performed for and on behalf of the City Corporation by the City Council or the City Manager (as the case may require) subject to and in accordance with the provisions of this Act.”

“Though the Council is not the Corporation yet it represents the Corporation and as appears is the only representative of it and the only mode or channel through which it can act, ........ Hence it seems a just conclusion that the meetings of Council are the Corporate Meetings”.

15. The learned author was commenting upon the provisions of Section 69 of the Municipal Corporations Act, 1835, which did not apply to Ireland, but so far as the issues in this case are concerned is the same terms as Section 92 of the Municipal Corporations (Ireland) Act, 1840.

16. I was referred by Counsel for the Defendant to page 398 of , “The Law Relating to Local Government” (1955), by the late Howard A. Street, where the learned author in a note to Section 15(1) of the Cork City Management Act, 1939 states as follows:-

“At common law the will of the Council can be expressed only by resolution. No statute prior to the Management Acts expressly requires such a resolution, and the effect of such requirement by certain sections of the County Management Act, (see Sched), II (22), is to reserve powers to the Council......”.

In Section 60(1) of the Local Government (Dublin) Act, 1930 the wording is changed to read, “ would be required by Law ”, and this is repeated in the Limerick City Management Act, 1934 and in the Waterford City Management Act, 1939. In Section 19(1) of the County Management Act, 1940 the wording is changed and reads, “ would be required by Law (other than this Act)”.

20. Various Sections of the City and County Management (Amendment) Act, 1955 provide that the Local Authority, by resolution, may do and direct and require various things to be done and not to be done and shall by resolution do other things. Section 19 of that Act provides that:-

21. The word, “law” is not defined in any of these Acts and does not find a definition in the Interpretation Act, 1937. In the case of Reg., (Taylor) -v- Darlington Local Board of Health, (1865) 6. Best and Smith’s Reports, 562, it fell to the Court to construe Section 73 of the Local Government Act, 1858, (England), whereby a Local Authority was prohibited from doing any act injuriously affecting any reservoir river or stream, (etc.), in cases where any company or individuals would, if the Act had not been passed, have been entitled by law to prevent (etc.). In the course of his judgment at page 569 of the Report, Erle, C.J., stated as follows:-

22. In a similar vein, in my judgment, “law” as used in Section 60(1) of the Local Government (Dublin) Act, 1930, was used in a wide sense as including both statutory and non statutory law which had “crossed the constitutional divide”, by virtue of Article 73 of the Constitution of the Irish Free State, 1922. This would include Common Law insofar as it was not inconsistent with the provisions of Article 73 of the 1922 Constitution, (and now with Article 50 of the Constitution of Ireland, 1937).

23. The term, “resolution” though used extensively is not defined in any of the Management Acts as listed by Mr. Street, or in any of the subsequent Acts of the Oireachtas amending extending or repealing any part or parts of those statutes. The term is not defined in the Interpretation Act, 1937, in the Interpretation Act, 1923, or in the Interpretation Act, 1889. Having regard to the definitions expressed in, Jowitt, “A Dictionary of English Law”, (1959), vol., 2, p. 1540; The Oxford English Dictionary, vol., 8 p. 722 Section 11(b); Osborn’s, “Concise Law Dictionary”, (8th Edition), (1993), p. 290 and Murdoch, “Dictionary of Irish Law”, (3rd Edition), (2000) p. 687, a. “Resolution” is a formal decision arrived at by vote at a meeting.

24. There can be no doubt but that the Corporation of the City of Dublin is a corporation aggregate, non trading. A, “Corporation Aggregate”, was defined in the following manner in, “a Treatise on the Law of Corporations”, (1792), Stewart Kyd, vol., 1 p. 13, and this definition is cited in, “The Law of Local Government in the Republic of Ireland”, (1982), Keane, p. 37, and in vol. 9 Halsbury, “Laws of England”, (4th Edition), p. 718, 719, par. 1204, the latter with the note that some or all of the members of a corporation aggregate may be other corporations rather than individuals:-

“A corporation aggregate has been defined as a collection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property of contracting obligations and of suing and being sued, of enjoying privileges and immunities in common and of exercising a variety of political rights, more or less extensive, according to the design of its institution, or the powers conferred upon it, either at the time of its creation, or at any subsequent period of its existence.”

“Every corporate act must be done at a meeting either of the whole body politic or of such select body as may have confided to it by the constitution, the performance of such act, which meeting must be duly convened by proper summons, and must be held in the usual place of meeting, the question (in all cases not expressly provided for by the constitution of the corporation) to be decided by a majority of those present at the meeting and voting on the question.”

27. In the course of his Judgment in the case of Reg. -v- John Kendall, Clerk , (1841), 1. Q.B. n.s., 366, (an issue relating to Mandamus), Lord Denman in the course of his Judgment at pages 383, 384 of the report says as follows:-

“Another passage of the return appeared to question the fact of the prosecutor’s presentation having been duly resolved upon by the majority of the corporation. This is the statement in the writ: the return alleges that no presentation has being made as a corporate act. This alone would be undoubtedly bad, for uncertainty what it might mean when he spoke of a corporate act. But he goes further, detailing what in truth was done. The vacancy was declared; the question of presenting it was put to the vote by the Master himself, every brother being separately asked, at a meeting held for the purpose, for whom he voted. Nine voted for the prosecutor: the Master and two brethren for another candidate: and one brother was absent. The vote so taken was recorded in the book in which acts of the Hospital were preserved. After this solemn proceeding, it was plain that nothing remains to put Mr. Morris in the proper course of being instituted and inducted, but that his presentation should be sealed. The resolution is a corporate act, if the body can act by a majority...........”

28. In my Judgment what was stated by Lord Denman in that case encapsulates the necessity at common law for a corporation aggregate to come to a decision by a corporate act in the form of a resolution and the matters necessary to constitute a valid resolution.

29. Counsel for the Defendant referred the Court to the report of the decision of the Court of Appeal in the case of The Mayor Constables and Company of Merchants of the Staple of England -v- Governor and Company of the Bank of England , (1887), 21., Q. B. D., 160, where Wills, J., in the course of his Judgment at page 165 of the report stated as follows with regard to corporations which were not trading bodies:-

“The acts of a corporation are those of the major part of the corporators, corporately assembled: Com. Dig. tit. Franchise, F. 11; and, omitting the words “corporately assembled” this is declared by 33 Hen. VIII., c. 27, to be the common law. This means that, in the absence of special custom, the major part must be present at the meeting, and of that major part there must be a majority in favour of the act or resolution. It was so decided in Easter Term, 1693: Hascard -v- Somany, Frcem, 504, quoted in Viner’s Abridgment, tit. Corporations, G. 3, pl. 7; and it was said by Lord Mansfield in Rex. -v- Monday, Cowp . 530 at 538 to be undoubted law. By ”corporately assembled” it is meant that the meeting shall be one held upon notice which gives ever corporator the opportunity of being present: see Smyth -v- Darley , 2., H. of L.C., 789. The notice need not necessarily be special, but there must be such knowledge, or such means of knowledge, as to give each corporator the opportunity of attending.

31. Dublin City Council is not the Corporation of the City of Dublin nor is it itself a corporation aggregate. In the absence of some clearly expressed statutory power in that behalf it may only act in the same manner in which the body it represents could itself lawfully act.

32. It was submitted by Counsel for the Defendant that the provisions of Section 92 of the Municipal Corporations (Ireland) Act, 1840 as amended by the Local Government (Ireland) Act, 1898, the Local Government (Dublin) Act, 1930 and the Local Government Act, 1941, did no more than give statutory form to the common law position that the will of a corporate aggregate can be expressed only by way of resolution. This section as amended provides as follows:-

“All acts whatsoever authorised or required by virtue of this Act to be done by the council of any borough and all questions of adjournments or others that may come before such council may be done and decided by the majority of the members who shall be present and vote at any meeting held in pursuance of this Act and at all such meetings the mayor, if present, shall preside; and the mayor, or, in case of his absence, such alderman or councillor as the members then assembled shall choose to be the chairman of that meeting, shall have a second or casting vote in all cases of equality of votes; and minutes of the proceedings of all such meeting shall be drawn up, and fairly entered into a book to be kept for that purpose, and shall be signed by the mayor, alderman or councillor presiding at such meeting; and the said minutes shall be open to the inspection of any burgess or voter at all reasonable times, on the payment of a fee of one shilling and any burgess or voter shall be at liberty at all reasonable times to make a copy or to take any extract from such book; provided always, that previous to any meeting of the council held by virtue of this Act a notice of the time and place of such intended meeting shall be given three clear days at least before any such meeting, by fixing the said notice on or near the door of the town hall of the borough; ..........etc.”

33. This Section has now been repealed by the Local Government Act, 1994 Section 4(1), Schedule I part 1, and replaced by Section 30 of that Act which became operative on 13th May, 1999, (S.I.128 of 1999). Under this Section the Minister for the Environment and Local Government may by regulations make provision in respect of all or any local authorities with respect to meetings and procedures or to any matter arising in connection therewith or related matter. The Local Authority (Interim) Regulations, 1999 (S.I.No., 129 of 1999), became operative on 13th May, 1999. The Regulations and the Act define, “Local Authority ”, as meaning a county council, a county borough corporation, a borough corporation, an urban district council or the commissioners of a town.

34. In my judgment Section 92 of the Municipal Corporations (Ireland) Act, 1840 must be read in the context of Section 12 of the same Act which having provided that the borough of Dublin, (amongst other boroughs named), should continue to be a town corporate bearing the name of the Right Honourable Lord Mayor Alderman and Burgesses of Dublin, and with perpetual succession in that name, went on to provide that it should be capable in law:-

36. In my judgment Section 92 of the Municipal Corporations (Ireland) Act, 1840 is a procedural section only which merely applied to the Council the same obligations to act by way of resolution as had applied for the previous three centuries at least to the corporation aggregate on behalf of which and in the name of which it was given statutory authority to act. The Section makes no reference to, “a resolution”, and the word “”resolution” is not used anywhere in the Section. However, subsequently in the same Act, in Section 140, repealed in part by the Local Government (Repeal of Enactments) Act, 1950, the term does appear. The relevant part of Section 140 provides as follows:-

“It shall not be lawful for the body corporate of any borough named in Schedule (A) (which includes Dublin), at any time after the passing of this Act, to sell, mortgage or alienate the lands tenements and hereditaments of the said body corporate or any part thereof [except in pursuance of some covenant contract or agreement bona fide made or entered into on or before the 20th day of August (1836), by or on behalf of the body corporate of any borough or of some resolution duly entered in the corporation books of such

37. In my judgment this shows that the framers of this Legislation and Parliament in enacting it were fully aware of the term and of its import in the context of decisions taken by bodies corporate. In my judgment there is no material difference between the requirements of Section 92 of the Municipal Corporations (Ireland) (Act 1840) as to the procedures to be observed by the Council and the pre-existing Common Law requirements as to the taking of decisions by the corporation aggregate which the council now represents.

In the case of In Re. Audit (Local Authorities) Act 1927 and In Re. A Decision of H. W. Magrath (1934) 2., K.B., - page 415 which was an Appeal to the Court of Appeal from a Divisional Court, Greer, L. J., in the course of his judgment at page 431 of the report said:-

“There is no decision by the Council that the consideration of paying him something additional in respect of the past years was postponed for further consideration, and the fact that some members of the Council had discussed such an intention is entirely irrelevant to the questions we have to consider. The Council could only act by a resolution duly proposed and passed and no discussion between the members of the Council either in Council or otherwise can properly be treated as a decision of the Council, .......................etc.”

40. Counsel for the Defendant furnished to the Court a checked and approved copy of a Judgment of the late Chief Justice O’Dalaigh, delivered on the 14th of May, 1970 in a case of Thomas Relihan-v-Kerry County Council . The other members of the Court were the late Mr. Justice Brian Walsh and the late Mr. Justice McLoughlin. I am unable to ascertain from the Judgment whether the Judgment of the late Chief Justice O’Dalaigh was a minority Judgment or whether one or both of the other members of the Court concurred with his decision. As appears from the Judgment the Plaintiff’s claim in that case was for a declaration that he held, under the Defendants, the permanent office of Clerk of Works. The Defendant/Appellant contended that the employment of the Plaintiff was in the nature of a temporary office only. In the course of his Judgment at page 21 the late Chief Justice O’Dalaigh, whose opinion must in any circumstances be regarded with the greatest respect, said:-

“But in any event where do we find an order by the deputy county manager appointing Mr. Relihan to an office on those terms?. There is none. The whole basis of the appointments system set up by the County Management Act, 1940, is that appointments are placed in the hands of the County Manager (Section 16) and that the county manager in making appointments can act only by order (Section 19). The contract purported to have been created by the county engineer’s offer on behalf of the deputy county manager and Mr. Relihan’s acceptance, in the absence of a managerial order, is a nullity.”

44. In the circumstances, I must answer in the negative the question submitted by for the opinion of the High Court by the learned Judge of the District Court as to whether he was correct in Law in holding that the Enforcement Notice dated 26th June, 1998 in this Case was valid and lawful notwithstanding that no Manager’s Order, (and for clarity, I should add, or Order of a duly Delegated Officer), was made sanctioning the decision of the Planning Authority that it was proper to serve the said Enforcement Notice on the Defendant.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Dublin Corporation v. O'Callaghan [2001] IEHC 22 (13th February, 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/22.html Cite as: [2001] IEHC 22

High Court of Ireland Decisions

Dublin Corporation v. O'Callaghan [2001] IEHC 22 (13th February, 2001)