Blascaod Mor Teo., an v Commissioners of Public Works (No. 3)

• Jurisdiction: Ireland
• Judge: Barrington J.
• Judgment Date: 27 July 1999
• Neutral Citation: [1999] IESC 4
• Date: 27 July 1999
• Docket Number: [S.C. Nos. 100 & 149 of 1998]
• Court: Supreme Court

AN BLASCAOD MOR TEORANTA v. COMMISSIONER OF PUBLIC WORKS & ORS

Between

AN BLASCAOD MOR TEORANTA, PETER CALLERY, JAMES CALLERY, KAY BROOKS

and

MATHIAS JAUCH

Plaintiffs/Respondents

and

THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND, THE MINISTER FOR THE GAELTACHT IRELAND

and

THE ATTORNEY GENERAL

Defendants/Appellants

AND BY ORDER

THE MINISTER FOR ARTS, HERITAGE, GAELTACHT and THE ISLANDS (SUBSTITUTED DEFENDANT FOR THE FIRST AND SECOND NAMED DEFENDANTS/APPELLANTS)

[1999] IESC 4

Hamilton C.J.

Denham J.

Barrington J.

Keane J.

Lynch J.

Rec. No. 100/1998

(1991 No. 6620P

THE SUPREME COURT

Synopsis

Constitutional Law

Constitutional; validity of Act of Oireachtas; appeal by State of High Court decision that An Blascaod Mór National Park Act, 1989, is invalid having regard to provisions of the Constitution; respondents had acquired land on Great Blasket Island since it became uninhabited; 1989 Act provides for the establishment and maintenance of a National Park on An Blascaod Mór and confers powers on Commissioners of Public Works in Ireland; under the 1989 Act the Commissioners can compulsorily acquire lands belonging to respondents but cannot so acquire lands owned or occupied by any person who was ordinarily resident on the Island before 17th November, 1953, or land owned or occupied by a relative of such a person; whether this distinction serves a legitimate legislative purpose; whether 1989 Act is unconstitutional; s.4, An Blascaod Mór National Park Act, 1989.

Held:Distinction serves no legitimate purpose; as distinction drawn is central to the Act, the Act must fall in its entirety; appeal dismissed.

An Blascaod Mór Teoranta v. Commissioners of Public Works in Ireland - Supreme Court: Hamilton C.J., Denham J., Barrington J.*, Keane J., Lynch J. (*Decision of the Court delivered by Barrington J.) - 27/07/1999 - [2000] 1 IR 6 - [2000] 1 ILRM 401

The plaintiffs were a group of persons who owned lands on the Blaskets Islands. The government passed legislation dealing with ownership of the Blaskets Islands. The plaintiffs challenged the legislation on the basis that it was unconstitutional in the manner that it dealt with their property rights. Budd J accepted their arguments and held that the legislation was repugnant with regard to the Constitution. The respondents appealed against the decision. The Supreme Court held that the legislation in question was discriminatory in the way in which it distinguished between persons who held land on the Blaskets Islands before 1953 and those who acquired landholdings after that date. To discriminate in such a fashion was not legitimate and was unconstitutional. Accordingly the legislation was repugnant to the Constitution, the decision of the High Court would be affirmed and the appeal would be dismissed.

Citations:

BLASCAOD MOR NALIONAL HISTORIC PARK ACT 1989 S1

BLASCAOD MOR NALIONAL HISTORIC PARK ACT 1989 S2

BLASCAOD MOR NALIONAL HISTORIC PARK ACT 1989 S4

BLASCAOD MOR NALIONAL HISTORIC PARK ACT 1989 S4(2)(a)

BLASCAOD MOR NALIONAL HISTORIC PARK ACT 1989 S4(4)

BLASCAOD MOR NALIONAL HISTORIC PARK ACT 1989 S4(3)

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

BLASCAOD MOR NALIONAL HISTORIC PARK ACT 1989 S3

BLASCAOD MOR NALIONAL HISTORIC PARK ACT 1989 S5

CONSTITUTION ART 40

IRELAND/USA TREATY 1950

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

BLAKE V AG 1982 IR 117 1981 ILRM 34

CONSTITUTION ART 15.4

MURPHY V AG 1982 IR 241

QUINNS SUPERMARKET V AG 1972 IR 1

BRENNAN V AG 1983 ILRM 449

O'BRIEN V MANUFACTURING ENGINEERING CO LTD 1973 IR 334

1 JUDGMENT of the Court handed down by Barrington J. on the 27th day of July, 1999.

2 This is the State's Appeal from the Judgment and Order of Budd J. delivered and made herein on the 27th day of February, 1998 whereby he ruled that An Blascaod Mór National Park Act, 1989was invalid having regard to the provisions of the Constitution.

3 The Plaintiffs/Respondents (hereinafter referred to as the Plaintiffs) are five in number. The first-named Plaintiff is a Company incorporated under Irish Law and has its registered office at the Great Blasket Island, Dunquinn, Co. Kerry. The entire issued share capital of the Company is owned beneficially by the second, third and fourth named Plaintiffs. The said Company is the registered owner of certain properties on the Great Blasket Island.

4 The second and third named Plaintiffs are both citizens of Ireland and are also entitled to be jointly registered as owners of certain properties on the Great Blasket Islands. They are also entitled to be registered as owners of all the undivided share or commonage registered in Folio 12252 Co. Kerry and part of the lands registered in Folio 12253 Co. Kerry. The fourth named Plaintiff is a citizen of the United States of America and a shareholder in the first named Plaintiff.

5 The fifth named Plaintiff is a German citizen. His claim to a parcel of lands on the Great Blasket arises out of the death of his brother Arne Jauch who died intestate, unmarried and without issue. Arne Jauch was, at the time of his death an Irish citizen, domiciled in Ireland. Dr. Jauch has not yet raised representation to the Estate of his deceased brother so that, at all material times, it would appear that the lands which the late Arne Jauch owned on the Great Blasket were part of the estate of a deceased Irish citizen.

BACKGROUND.

6 It is common case that the Great Blasket Island is a place of great natural beauty. It is also important in the cultural history of Ireland because of the writers it produced and because of the record which they left of the dying days of an island community and of the effects of emigration. But the Island has been uninhabited since 1953. The islanders departed leaving their houses unoccupied and their lands untended.

7 The history of what happened since the last inhabitants were evacuated from the Island in 1953 is set out in some detail in the Judgment of the learned trial Judge. It is unnecessary to repeat it here. Suffice it to say that the Plaintiffs, over the course of the years, have acquired many of the plots and dwellinghouses in the village on the Great Blasket and that the first four Plaintiffs, between them, are entitled to 17/25ths of the great commonage which comprises 1,060 acres out of a total acreage of 1,132 acres for the entire Island.

8 The Plaintiffs - and their predecessors in title - were largely inspired by interest in the Great Blasket and by its history and traditions. They have probably done more than anyone else to preserve some of the houses in the village on the Island but the village, as a whole, is suffering from neglect and is in danger of collapse.

9 In or about 1986 a private association of persons interested in the Great Blasket was formed. This was known as "Fonduireacht An Bhlascaoid - The Blasket Island Foundation". The professed objective of the Association was to turn the Great Blasket Island into a National Historic Park. The said Association was later incorporated in the State as a Company limited by guarantee without share capital on the 4th day of November, 1987.

AN BLASCAOD M ÓR NATIONAL HISTORIC PARK ACT, 1989.

10 In 1989 the Oireachtas passed An Blascaod Mór National Historic Park Act, 1989.In this bitterly fought case no-one seriously questioned the power of the Oireachtas to acquire an uninhabited island such as the Great Blasket for the purpose of establishing a National Park. It is the form which the Act took which has created all the controversy.

11 The long title to the Act reads as follows:-

"AN ACT TO PROVIDE, IN THE INTERESTS OF THE COMMON GOOD, FOR THE ESTABLISHMENT AND MAINTENANCE ON AN BLASCAOD M ÓR OF A PARK TO BE KNOWN AS AN BLASCAOID MOR NATIONAL HISTORIC PARK AND FOR THOSE PURPOSES TO CONFER APPROPRIATE POWERS (INCLUDING THE POWER TO ACQUIRE LAND), FUNCTIONS AND DUTIES UPON THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND AND TO A UTHORISE THE DELEGATION OF CERTAIN OF THOSE POWERS , FUNCTIONS AND DUTIES TO FOND ÚIREACHT AN BHLASCAOID TEORANTA AND TO PROVIDE FOR CONNECTED MATTERS. [7th June, 1989]"

12 It defines the "Minister" as being the "Ministerfor the Gaeltacht".

13 Section 1 defines "the Foundation" as follows:-

14 "the Foundation" means Fonduireacht An Bhlascaoid Teoranta, being the body incorporated for the purpose, inter alia, of preserving, and promoting the knowledge of, the historic heritage, culture, traditions and values of An Blascaod Mór and Corca Dhuibhne generally;"

15 Section 2 provides:-

"The land on the Island vested in the Commissioners upon the passing of this Act together with the land acquired by the Commissioners under this Act shall be known as An Blascaod Mór National Historic Park".

16 Section 4 provides that the Commissioners may, for the purposes of the Act, acquire by agreement or compulsorily, any land situated on the Island.

17 Section 4 s.s. (2) (a) provides as follows:-

18 (2) (a) "The power conferred on the Commissioners by subsection

19 (1) to acquire land compulsorily does not apply to-

20 (i) land that is owned or occupied by a person who has owned or occupied it since the 17th day of November, 1953, and was ordinarily resident on the Island before that date,

21 or,

22 a (ii) land that is owned or occupied by a relative of a person, where that person owned or occupied it and was ordinarily resident on the Island before that date".

23 Section 4 s.s. (4) defines "relative" in reference to any person as meaning "parent, lineal ancestor, spouse, widow, widower, child, lineal descendant, uncle, aunt, brother, sister, nephew or niece."

24 Section 4 s.s. (3) provides that the provisions of the Schedule to the Act, which incorporates the Acquisition of Land (Assessment of Compensation) Act, 1919 are to apply...