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.
