O'Brien v Bord na Móna

JudgeFinlay P.,O'HIGGINS C.J.
Judgment Date01 January 1983
Neutral Citation[1982] IESC 1
CourtSupreme Court
Docket Number[1980 No. 6760P],(201 & 205/81)
Date01 January 1983




Affirming High 18.3.81

[1982] IESC 1

O'Higgins C.J.

Finlay P.

Walsh J.

Henchy J.

Griffin J.

(201 & 205/81)



JUDGMENT OF THE COURT delivered the 9th day of December1982by O'HIGGINS C.J.


By Order dated the 18th March 1981 made in these proceedings by Mr. Justice Keane in the High Court, it was declared that sections 29 and 30 of the Turf Development Act 1946(No. 10 of 1946) are invalid having regard to the provisions of the Constitution. Against that declaration both the Defendants have appealed to this Court.


The Turf Development Act 1946is the statute setting up Bord na Mona. Section 29 provides that the Board of Bord na Mona for the purpose of exercising or performing any of its functions may do all or any of a number of things including the acquiring of any landeither permanently or temporarily and either by agreement or compulsorily and also the acquisition of various rights in or over land. Section 30 provides that any time before conveyance or ascertainment of price of compensation the Board may, subject to provisions with regard to notice and to the eventual payment of compensation, and, for the purpose of exercising or performing all or any of its functions, enter on and take possession of any land or exercise any right in land or terminate, restrict or interfere with interests in land.


The duties of the Board as set out at section 17 of the Act of 1946are:


a "(a) To produce and market turf and turf products and


(b) to foster the production and use of turf and turf productsand


(c) to acquire bogs and other lands and


(d) to manage, develop and work bogs and other lands vested in the Board and


(e) generally to do all such other things as arise out of or are consequential upon the duties mentioned in the preceding paragraphs of this section."


The long title to the Act of 1946 is as follows:

"An Act to make better provision for the development in the national interest of the production, distribution and supply of truf in the State and for this purpose to establish a Board to be called Bord na Mona, to define its powers and duties, to dissolve the Truf Development Board Limited and to transfer its property and liabilities to Bord na Mona and to provide for certain other matters connected with the mattersaforesaid."


The Plaintiff is the owner of a farm of land containing approximately 376 acres in Co. Westmeath which includes an area of bogland.


In November 1978 Bord na Mona published an advertisement in the newspapers indicating their intention to acquire certain lands scheduled to the advertisement, including approximately 132 acres of bogland the property of the Plaintiff. In pursuance of that advertisement and of a right of objection indicated in it, the Plaintiff objected and had meetings and correspondence through a Solicitor with the officials of Bord na Mona. On the 21st March 1980 the Board of Bord na Mona resolved compulsorily to acquire the bogland, the property of thePlaintiff, and in June 1980 Bord na Mona served on the Plaintiff a notice of their intention to enter and take possesion of the land occupied by him the subject matter of the decision to acquire pursuant to section 30 of the Act.


The Plaintiff in these proceedings firstly sought a declaration that section 29 and section 30 of the Act of 1946 were repugnant to Articles 40 and 43 of the Constitution and further claimed a series of declarations that steps taken or purported to be taken by Bord na Mona to acquire compulsorily the said lands and to enter on or take possession of the said lands were unlawful and in excess of their powers under the Act of 1946 and were taken or purported to be taken in breach of rules of natural and Constitutional justice.


This judgment of the Court is concerned only with the claim for a declaration as to the invalidity of the two sections haveing regard to the provisions of the Constitution and individual judgments in relation to the other claims will be delivered. The grounds on which thePlaintiff in his pleadings alleged the invalidity of the sections were firstly that they failed to respect, defend and vindicate the personal rights of the Plaintiff as guaranteed by Article 40, section 3, and secondly that they contravened the Plaintiff's right to private ownership of his lands as guaranteed in Article 43.


It is clear from the Judgment of the learned trial Judge that the submissions made on the facts in the High Court on behalf of the Plaintiff with regard to the allegation that the sections were unconstitutional were firstly, that the absence in the statute of an express provision requiring Bord na Mona to give notice of their intention to make a compulsory acquisition order was a failure to protect and vindicate the property rights of the Plaintiff in breach of Article 40, section 3, and constituted an interference with the Plaintiff's right of ownership of his property not required and beyond the requirements of the common good in breach of Article 43. Secondly and in the alternative it was submitted that the absence of any procedure contained in the Act of 1946for appeal against the making of a compulsory acquisition order or for the confirmation by an external authority or outside tribunal of the making of a compulsory acquisition order constituted a breach of both the Articles concerned.


The learned trial Judge rejected the first of these submissions basing his decision on the principles laid down by this Court in the EastDonegal Co-Operative v. The Attorney General 1970 I.R. In that case it was held that it is to be presumed that it was intended that proceedings, procedures, discretions and adjudications which were permitted, provided for or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. The learned trial Judge found that there was nothing in the Act of 1946 which prevented Bord na Mona in proceeding compulsorily to acquire lands to give due notice of their intention so to do and to create a machinery for the proper making and consideration of objections or representations concerning such proposed acquisition. He accordingly held that the Act could not be found to be unconstitutional on thosegrounds. Against that portion of his judgment and that decision there has been no cross appeal in this case not indeed in the view of this Court could one have been sustainable.


The learned trial Judge did, however, hold that the act of Bord na Mona in making a compulsory acquisition order was a judicial and not an administrative act and that the power contained in the Act of 1946 enabling them so to decide without any form of appeal or confirmation by an external tribunal or authority violated the maxim of natural justice and constitutional justice that no man should be a judge in his owncause.


It is against that decision on the facts proved and on the terms of the statute that the appeal to this Court on this issue arises. The Act of 1946 having been enacted by the Oireachtas subsequent to the Constitution is of course entitled to a presumption of constitutionality in accordance with the principle repeatedly laid down by thisCourt.


The correctness of the decision of the learned trialJudge upon which he based his view that sections 29 and 30 of the Act of 1946 were inconsistent with the Constitution depends upon his conclusion as a matter of law having regard to the terms of the statute that Bord na Mona in making a decision to acquire these lands was performing a judicial rather than an administrative act. In the case of Murphy v. The Corporation of Dublin 1972 I.R. the issue which was before the Court was the right of the Minister for Local Government (as the relevant Minister then was) to claim an executive privilege in relation to the report of an Inspector submitted to him pursuant to the provisions of the Housing Act, 1966as the result of a public enquiry into objections made against the confirmation of a compulsory purchase order.


The decision in that case was to the effect that the Minister in exercising his powers under the Housing Act of 1966was doing so as a persona disignata under that Act and that he therefore was not exercising one of the executive powers of the State and could not accordingly claim an executive privilege in relation to the reporton foot of which he exercised the power. In the judgment in the High Court in this case, particular reliance was placed upon the portion of the judgment of Walsh J. with whose judgment all the other members of the Court agreed where at page 238 he stated:

"by statute the Minister is the one who has to decide the matter - not the Inspector. In doing do the Minister must act judically and within the bounds of constitutional justice."


In the context of the issues which arose for determination before the Court in Murphy v. The Dublin Corporation this Court is satisfied that the statement quoted decided that the Minister in confirming a...

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