O'Brien v Bord na Móna


[1982] IESC 1


O'Higgins C.J.

Finlay P.

Walsh J.

Henchy J.

Griffin J.

(201 & 205/81)




Affirming High 18.3.81

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 30of the Turf Development Act 1946(No. 10 of 1946) are invalid having regard to the provisions of theConstitution. Against that declaration both the Defendants have appealedto this Court.


The Turf Development Act 1946is the statute setting up Bord na Mona. Section 29 provides that theBoard of Bord na Mona for the purpose of exercising or performing any ofits functions may do all or any of a number of things including theacquiring of any landeither permanently or temporarily and either by agreement orcompulsorily and also the acquisition of various rights in or over land.Section 30 provides that any time before conveyance or ascertainment ofprice of compensation the Board may, subject to provisions with regardto notice and to the eventual payment of compensation, and, for thepurpose of exercising or performing all or any of its functions, enteron and take possession of any land or exercise any right in land orterminate, 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 theBoard and


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


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

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


The Plaintiff is the owner of a farm of land containing approximately376 acres in Co. Westmeath which includes an area of bogland.


In November 1978 Bord na Mona published an advertisement in thenewspapers indicating their intention to acquire certain lands scheduledto the advertisement, including approximately 132 acres of bogland theproperty of the Plaintiff. In pursuance of that advertisement and of aright of objection indicated in it, the Plaintiff objected and hadmeetings and correspondence through a Solicitor with the officials ofBord na Mona. On the 21st March 1980 the Board of Bord na Mona resolvedcompulsorily to acquire the bogland, the property of thePlaintiff, and in June 1980 Bord na Mona served on the Plaintiff anotice of their intention to enter and take possesion of the landoccupied by him the subject matter of the decision to acquire pursuantto section 30 of the Act.


The Plaintiff in these proceedings firstly sought a declaration thatsection 29 and section 30 of the Act of 1946 were repugnant to Articles40 and 43 of the Constitution and further claimed a series ofdeclarations that steps taken or purported to be taken by Bord na Monato acquire compulsorily the said lands and to enter on or takepossession of the said lands were unlawful and in excess of their powersunder the Act of 1946 and were taken or purported to be taken in breachof rules of natural and Constitutional justice.


This judgment of the Court is concerned only with the claim for adeclaration as to the invalidity of the two sections haveing regard tothe provisions of the Constitution and individual judgments in relationto the other claims will be delivered. The grounds on which thePlaintiff in his pleadings alleged the invalidity of the sections werefirstly that they failed to respect, defend and vindicate the personalrights of the Plaintiff as guaranteed by Article 40, section 3, andsecondly that they contravened the Plaintiff's right to privateownership of his lands as guaranteed in Article 43.


It is clear from the Judgment of the learned trial Judge that thesubmissions made on the facts in the High Court on behalf of thePlaintiff with regard to the allegation that the sections wereunconstitutional were firstly, that the absence in the statute of anexpress provision requiring Bord na Mona to give notice of theirintention to make a compulsory acquisition order was a failure toprotect and vindicate the property rights of the Plaintiff in breach ofArticle 40, section 3, and constituted an interference with thePlaintiff's right of ownership of his property not required and beyondthe requirements of the common good in breach of Article 43. Secondlyand in the alternative it was submitted that the absence of anyprocedure contained in the Act of 1946for appeal against the making of a compulsory acquisition order or forthe confirmation by an external authority or outside tribunal of themaking of a compulsory acquisition order constituted a breach of boththe Articles concerned.


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


The learned trial Judge did, however, hold that the act of Bord na Monain making a compulsory acquisition order was a judicial and not anadministrative act and that the power contained in the Act of 1946enabling them so to decide without any form of appeal or confirmation byan external tribunal or authority violated the maxim of natural justiceand 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 thestatute that the appeal to this Court on this issue arises. The Act of1946 having been enacted by the Oireachtas subsequent to theConstitution is of course entitled to a presumption of constitutionalityin 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 of1946 were inconsistent with the Constitution depends upon his conclusionas a matter of law having regard to the terms of the statute that Bordna Mona in making a decision to acquire these lands was performing ajudicial rather than an administrative act. In the case of Murphy v.The Corporation of Dublin 1972 I.R. the issue which was before theCourt was the right of the Minister for Local Government (as therelevant Minister then was) to claim an executive privilege in relationto the report of an Inspector submitted to him pursuant to theprovisions of the Housing Act, 1966as the result of a public enquiry into objections made against theconfirmation of a compulsory purchase order.


The decision in that case was to the effect that the Minister inexercising his powers under the Housing Act of 1966was doing so as a persona disignata under that Act and that he thereforewas not exercising one of the executive powers of the State and couldnot accordingly claim an executive privilege in relation to the reporton foot of which he exercised the power. In the judgment in the HighCourt in this case, particular reliance was placed upon the portion ofthe judgment of Walsh J. with whose judgment all the other members ofthe 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 andwithin the bounds of constitutional justice."


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