High Court

Smeltzer v County Council of County of Fingal 

1997 No 7737P 

13 August 1997 

COSTELLO P: 

INTRODUCTION 

This action relates to the Town Park situated just off the Main Street in Swords, North County Dublin. For centuries this land had been in private hands and Swords Mouse built on it in the 19 century was a well known landmark in the area. Originally attached to Swords House had been a large estate but by the time the Dublin County Council compulsorily acquired Swords House and its gardens in 1978 the area of the site only comprised 1.75 acres (0.71 hectares). 

Having acquired Swords House in 1978, in circumstances to be described in greater detail later, the house was demolished and the lands were opened as a public park in 1986 and have since been enjoyed as such by the local residents. That enjoyment is, the plaintiff claims, now under serious threat. By the Local Government (Dublin) Act 1993 the Dublin County Council was divided into three local authority areas, that of Dun Laoghaire/Rathdown, South Dublin, and Fingal. Each of the three newly created County Councils decided that they should have new administrative offices. At a meeting of the Fingal Area Committee of the Dublin County Council on the 19 January 1993 it was decided that Swords should be the County Town and on the 11 September 1995 the Council decided that the County Hall should be located on the Town Park in Swords. After an open competition plans were adopted for what is, in effect, the administrative offices of the County Council of the County of Fingal (the defendants herein). The new offices are shortly to be erected on the site of the Town Park. There is some conflict as to the extent which the new offices will encroach on the existing park; in the view of the Council's architect there will still be one third of the existing park available for use by the public after the offices are built. But even if this is so, it is obvious that the new offices will (a) deprive the residents of Swords of the Town Park and most, if not all, of the amenities which were opened in 1986 and (b) deprive the public of the use of the pathways which have existed in the town park since that year. It goes without saying that this court is concerned with the legal validity of, and is not weighing the benefits to be derived from, the decision to build a County Hall on the Town Park. I should now indicate the nature of the legal challenge which the plaintiff advances. 

The Plaintiff's case. 

There can be no doubt that the County Council of the County of Fingal propose to change the use to which the Dublin County Council had put the land it had compulsorily acquired. They say (and their claim has not been denied) that they are legally entitled to do so. Section 74 of the Local Government (Town and Regional Planning) Act, 1963 gives power to Planning Authorities to appropriate land vested in it for purposes other than their functions under the 1963 Act, and section 77 empowers Planning Authorities to develop or secure the development of any land. Section 78 requires Planning Authorities to give public notice of any development it is proposing if obliged to do so by by Regulations made under the Act. None of these statutory provisions are challenged by the plaintiff. What the plaintiff says is that in undertaking this new development the Council and in exercising their statutory powers the Council must have regard to acquired rights (including public rights) over the land they propose to develop and this they have failed to do. 

The plaintiff is a resident of Swords and a regular user of the Park. She claims the public enjoys rights over the Town Park which are about to be infringed. She accepts that these rights can be lawfully extinguished but urges that until they are the proposed development infringes them. She claims that there exists two discrete public rights in the Town Park deriving from two different sources. The first right she asserts is a public right of access to the lands as a public park, a right which arises from a trust created by the acquisition by the Council of Swords House under under its statutory powers. The second is a claim to a public right of way over the paths created in the Town Park, a right arising by the application of common law principles when rights of way are dedicated to the public. 

The proceedings were commenced by plenary summons of the 4 of July, 1997. By a motion on the same day the plaintiff injunction prohibiting the Council from carrying out any development on the Town Park unless and until all necessary statutory procedures relating thereto had been complied with and, further, an injunction requiring the Council to comply with all statutory procedures relating to the extinguishment of all public rights relating to the lands. I was asked to deal with this application as a matter of extreme urgency as it was pointed out that the tendering process had all but been completed, that the tender price was in excess of £10,000,000, that any postponement of the date of commencement of the development might not only affect the validity of the tender but would also lead to a significant increase in the cost of the project. There was some misunderstanding between counsel as to whether there had been agreement to treat the motion as a trial of the action but it was eventually agreed at the hearing before me that I should do so. I fully appreciate that this caused concern to the plaintiff's legal advisers but as the matter is a very urgent one and as I was satisfied that it could adequately be dealt with on affidavit evidence I do not think that any injustice arises from the procedures adopted. There is one further point to which I should advert. It has long been established that only the Attorney General or a person specially injured can sue in respect of an obstruction to a public right of way. This rule can be overcome by an aggrieved member of the public obtaining the leave of the Attorney to institute in the Attorney's name a Realtor action. This has not been done in this case but the defendants have not raised any question of the plaintiff's locus standi to institute these proceedings (probably to avoid the delay which such a plea might produce) and in the absence of objection I am prepared to determine the legal issues which have been argued before me. 

The First Issue. 

The first issue which I will examine is the plaintiff's claim that there exists in the Town Park a public right arising from a trust created at the time the lands were acquired to enjoy the land as a public park. The claim is based on principles established in two English authorities to which I was referred. Blake v Hendon Corporation [1961] 3 All ER 601 was a case concerned with the effect of land purchased by a Local Authority under section 164 of the Public Health Act, 1875 which empowered an urban authority to "purchase or take on lease, lay out, improve, and maintain lands for the purpose of being used as public walks or pleasure grounds". The Local Authority had applied to the Minister of Health for loan sanction to purchase lands for the purpose of an open space and sanction for this loan had been granted, as had sanction for a loan to carry out works on the lands acquired for the purpose of laying the lands out as a public park. The park was officially opened as a park and for many years thereafter used for this purpose. The question of the legal status of the park was raised in rating proceedings in which the Hendon Corporation argued (with success) that rateability depends on beneficial occupation by some legal entity, be it an individual or corporation, that if the corporation were merely custodians and trustees of the park for the benefit of the public then there was no beneficial occupation by them, and occupation by the public is not rateable. The corporation accepted that if it was the full owner of the park, beneficial as well as legal, and the public were admitted not as beneficiaries but as licensees then the park was "occupied" by the corporation and it must pay rates. It argued, however, and the Court of Appeal agreed with it, that where lands had been acquired under section 164 of the 1875 Act and was being used by the public for the purpose set out in the section then the inference was that the beneficial ownership had passed to the public and occupation of the land by the authority had been negatived. In deciding in favour of the corporation the Court of Appeal rejected an argument made on behalf of the Valuation Officer that a power contained in a later Act (section 164 of the Local Government Act, 1933) which permitted a local authority to let any land which it might possess did not mean that the corporation had wrongfully disabled itself from exercising this power in the future when it used the lands as a public park. 

The decision in the Hendon Corporation Case was clearly based on the fact that the Corporation had exercised its powers under section 164 of the 1875 Act and the legal consequences which flowed from such an exercise. I was also referred by the plaintiff to Attorney General v Corporation of Sunderland (1876) 2 Ch Div 634, a case in which the defendant corporation had applied to the Treasury for a grant of money for purchasing land to be used as a park for public recreation. Sanction for payment was granted "on the usual condition, namely that the money will be issued if the ground when purchased is legally and permanently saved as a place of recreation for the people". Whilst it was pointed out that Parliament had conferred powers on corporations to build offices it was also pointed out that Parliament did not give powers to build offices upon other peoples lands (p 639). As the Corporation was in the position of a trustee (p 642) in regard to the lands and as the land was purchased for the purposes of section 4 of the Public Health Act 1848 the Corporation could only use the lands for the purposes authorised by the Act (p 642). The court had no difficulty in finding that a trust in favour of the public had been created when the lands were acquired. 

The present case is much less clear. The compulsory purchase order was made on the 20 January 1975 and declared that it had been made "pursuant to section 10 of the Local Government (No 2) Act 1960 as substituted by section 86 of the Housing Act 1966". The section (as substituted) provides that where a Local Authority intends to acquire compulsorily any land for the purpose for which they are capable of being authorised by law to acquire land compulsorily and the local authority decides to effect the acquisition it may be authorised to acquire the lands compulsorily under the statutory provisions referred to in the section. In this case the compulsory purchase order provided that the Local Authority "are hereby authorised to acquire compulsorily for the purpose of providing Town Square development" the land described in the schedule. It is important to note that it was not argued that the Dublin County Council lacked statutory power to acquire land compulsorily for the purpose of providing "Town Square development". Whilst the 1875 Public Health Act did not apply to Ireland and whilst the Public Health (Ireland) Act 1878 did not contain a section similar to section 164 of the English 1875 Act it would appear that the Dublin County Council had acquired express statutory powers by the circuitous statutory route set out at p 29 of Street "The Law Relating to Local Government" to acquire land for recreational purposes and public walks. The Council however acquired Swords House not under any express statutory power relating to acquisition for the purpose of establishing a public park but under section 10 of the 1960 Act. Furthermore, the compulsory purchase order declared that the purpose of the purchase was to develop a "town centre", and did not specify that it would be a public park. I do not think therefore that the plaintiff has been able to establish that when acquiring the lands under statutory powers a trust in favour of the public was thereby created. Nor by the expenditure of public money on their acquisition did such a trust come into existence. 

It was also suggested on the plaintiff's behalf that statutory public rights were, in this case, derived from the Open Spaces Act 1906. Section 10 of that Act provided that where an agreement had been entered into by a Local Authority by which the Local Authority acquired an "open space" and undertook the management and control of the open space the Local Authority holds the land in trust for the public to enjoy it as an open space. But in its application to Ireland the Act does not apply to County Councils (Section 71 (d)); there was no agreement in this case by which the Local Authority acquired the "open space" and agreed to manage it as laid down in the section; and it has not been proved that the land acquired was an "open space" as defined in section 20. I must therefore hold that no public rights were acquired under the 1906 Act. 

It was also urged on behalf of the plaintiff that public rights arose under common law in the park (as distinct from rights of way over the pathway in the park). But it is well established that there can be no common law right in the public or customary right in the inhabitants of a particular place to stray over an open space -- that is there is no jus spatiendi. (See Halsbury (4 Ed) Volume 34 paragraph 500 and Attorney General v Autrobus (1905) 2 Ch 188). I do not think that the Giants Causeway Case Volume 5 The Irish Jurist and Local Government Review (p 301) is an authority to the contrary. In that case the court expressly held that no jus spatiendi existed and decided, on the facts established before it, that a public right of way over a road to the Giants Causeway existed, and not over certain pathways. 

The Second Issue. 

The second issue that arises is an entirely different one. It is claimed that the County Council as owners of the lands dedicated public rights of way over them to the public when they laid out and opened the park to the public in 1986. The Council did not argue that a Local Authority was not competent to dedicate public rights of way over its own land. What is in dispute in this case is the question of fact; was there a dedication to the public of rights of way over the land it had acquired or was merely a permission granted to the public to enter and traverse the Council's lands? 

The law relating to highways and the creation of public rights of way is a very ancient one and the relevant principles are well established. A distinction is made between a permission granted by an owner of land to members of the public to walk on pathways on his land and the dedication to the public of those pathways. To establish a public right of way what has to be proved is an intent on the part of the owner to dedicate his land to the public, an actual dedication, and acceptance by the public of the dedication. 

The relevant facts in this case are not in dispute. The Manager's order was dated the 20 of January 1975. Following a public enquiry the order was confirmed in 1978. The land was allowed to lie derelict and the house on the land was destroyed by fire in 1982. As a result of pressure from local residents the Council decided to develop the lands as a Public Park. The management of the lands was taken over by the Parks Division of the Council who demolished the remains of Swords House laid out the site in 1985 and the beginning of 1986. The public park was officially opened on the 8 June 1986. 

There have been produced no minutes of the meetings of the Council or its Committees concerning the development of the site but it is agreed that the Council had decided that the site should be used as a public park. An official brochure produced by the Parks Department of the Dublin County Council was produced in evidence. This referred to "The Swords Town Park" and attached to the brochure was a map showing the parks and the pathways in it and the entrances to the park. There was an entrance into the park from the Main Street, from North Street (at its junction with Seatown Road) and from Chapel Street and quite clearly members of the public could enter the park by these entrances and traverse these pathways to and from North Street to Chapel Street as well as from Main Street. The brochure contained a short history of the property and then went on to state; 

"Dublin County Council, Parks Department, took possession of the property in late 1985 and began transforming it into the Town Park. Regrettably Swords House was beyond repair and had to be demolished. The Elm trees were removed and a variety of replacement trees and shrubs, including evergreen Oaks, were planted. When Spring eventually arrived the lawn areas were also prepared and sown. 

The boundary wall which for so long isolated Swords House from the town was lowered and replaced with an ornamental railing in order to enhance the views from the Main Street and North Street. A pedestrian path system was developed to link the Main Street entrance with the new entrances on Chapel Lane and North Street. Wrought iron gates and railings, based on the design of the original gates, have been provided to enhance the entrance to the Town Park. 

It is appropriate that the last remnant of the large estate, Swords Demesne should be developed as a Town Centre park for the use and enjoyment of all the people of Swords. What was a derelict site six months ago, has now been transformed into the Town Park which will mature with time to become a very special amenity in the heart of Swords". 

Conclusions. 

The Council can, of course, extinguish the public rights of way which it created. It has adopted the statutory procedures required by SI No 86 of 1994 requiring the Council to give notice of the proposed development on the site and making development plans available for inspection and requiring the Council to report to members of the Local Authority. But these procedures are laid down where the Council proposes to carry out "development" under the 1963 Act. Completely different statutory procedures exist for the extinguishment of public rights of way. The Council accepts that these are contained in section 73 of the Roads Act 1993 which requires notification in a newspaper of the proposed extinguishment, considerations of objections to the proposed extinguishment and, should the Council consider it appropriate to do so, the giving of an opportunity to persons making objections or representations and who so request it in writing, an oral hearing to be conducted by a person appointed by the Local Authority. Only after the consideration of the Report (should a public hearing be held) can the Local Authority make an order extinguishing the public right of way. 

The evidence in this case establishes in my opinion that the Council was doing a lot more than give the public a mere license to enter their land. The 1985 Development Plan for the area provided that this site was zoned as an amenity open space (and I assume that the development now being proposed does not materially contravene the current Development Plan). The lands were acquired for the purpose of the development of a public amenity, namely a town square. The Council decided that the lands would be used as a public park. The Council had, of course, statutory powers to manage public parks but such powers would not prohibit the creation of public rights in the park or the dedication of public rights of way over the lands within them. Without deciding the question whether the lands became vested in the public as beneficial owners, if not by their acquisition then by the creation of the public park on them, it seems to me that the Council intended that the pathways would be dedicated to the public in the sense that the public (and not the local authority) would enjoy their use indefinitely into the future. I think the evidence must be construed as establishing (a) an intention to dedicate public rights of way over the lands in the park on the pathways laid out on them (b) actual dedication, and (c) acceptance by the public of the rights so dedicated by the use of the park. The evidence also establishes beyond controversy that these rights are about to be infringed. 

I propose therefore to make an order in the terms of paragraph 1 of the Notice of Motion prohibiting the defendants from carrying out the proposed developments until the necessary statutory proceedings relating to the extinguishment of a public right of way have been complied with.