Corrigan v Irish Land Commission

• Jurisdiction: Ireland
• Judge: Henchy J. O'Higgins C.J. and Griffin JCommission
• Judgment Date: 29 July 1977
• Neutral Citation: 1975 WJSC-SC 656
• Date: 29 July 1977
• Docket Number: (68-1977),[S.C. No. 68 of 1977]
• Court: Supreme Court

Corrigan v Irish Land Commission

AFFIRMING HIGH - 7.3.77

Laurence Corrigan

v.

Irish Land Commission

1975 WJSC-SC 656

O'Higgins C.J.

Henchy J.

Griffin. J.

Kenny J.

Parke J.

(68-1977)

THE SUPREME COURT

1 Judgment of Henchy J. O'Higgins C.J. and Griffin JCommissiondelivered the 29th July 1977

2 Dr. Laurence Corrigan is an Irish doctor practising in Canada. In April 1974 he contracted to buy a farm of 110 acres in Co. Meath for£87,500. His intention was to give up his practice in Canada, to build a house on this farm, and to come to live there with his wife and children. A history of coronary illness in his family had persuaded him that the less stressful life of a farmer would suit him better than the practice of medicine.

3 He completed the purchase of the lands in December 1974. Before doing so he had caused inquiries to be made in the Land Commission by telephone, as a result of which he was of the belief that the Land Commission would have no objection to his acquiring the lands. It turned out to be an ill-founded belief. The reply to his inquiry transpired to have been unauthorised andincorrect. Within a matter of days after the completion of the purchase the Land Commission served a statutory notice of inspection. This meant that a Land Commission inspector would inspect the lands for the purpose of reporting as to their compulsory acquisition.

4 The inspector must have reported in favour of compulsory acquisition, for on the 28 May 1975 two Lay Commissioners certified under s.25 of the Land Act, 1936, that the lands were required for the relief of congestion in the immediate neighbourhood. There followed, on the 3 June 1975, the issue of a provisional list of the lands, which meant that the lands would vest in the Land Commission on the appointed day unless excluded in consequence of a valid objection. Dr. Corrigan duly entered an objection. In consequence, the Land Commission's right to acquire the lands compulsorily had to be decided in a quasi-judicial hearing before the Lay Commissioners.

5 That hearing took place on the 21 July 1976. Dr.Corrigan was represented by senior and junior counsel. The Land Commission was represented by junior counsel. Dr. Corrigan himself returned from Canada for the hearing. He gave evidence as to the circumstances in which he had bought the lands: as to how he had been led to think that the Land Commission had no objection to his purchasing the lands; and as to his intention to return to Ireland to live on the lands as soon as his wife's health would permit, which he hoped would be on the birth of their third child in January 1977. Apart from admisericordiam considerations (which are not good grounds for allowing an objection), the case made on behalf of Dr. Corrigan, by evidence of witnesses and in crossexamination, was to the effect, not that there was no congestion in the immediate neighbourhood of the lands, but that even if there was, there were other holdings in the vicinity which might equally, or more fairly, be acquired compulsorily for the relief of that congestion. However, the Land Commission inspector disposed of that suggestion. He testified as to anumber of local congests and stated that there were no other acquirable holdings adjacent to the specified congests. Faced with that uncontroverted evidence, the Lay Commissioners had no option but to hold that the lands were required for the relief of congestion in the immediate neighbourhood. The objection was therefore disallowed.

6 One would have thought that Dr. Corrigan's resistance to the compulsory acquisition of the lands would have ended there. It has never been suggested that the hearing was other than a full and fair one. The evidence that the lands are required for the relief of congestion was uncontroverted, and is apparently uncontrovertible. The only appeal allowed from a decision of the Lay Commissioners is to the Appeal Tribunal, and such appeal is confined to questions of law. There would seem to have been no point of law available to Dr. Corrigan on which to found an appeal. Nevertheless, a notice of appeal was lodged on his behalf on the 5 August 1976. The grounds set out inthat notice might be summarised thus: (1) that the Lay Commissioners were wrong in law in holding that the lands are required for the relief of congestion; (2) that the Lay Commissioners acted contrary to law and to natural justice in failing to give Dr. Corrigan an opportunity of residing on and working the lands; and (3) that, having regard to the property rights guaranteed by Art. 43 of the Constitution, the Lay Commissioners could not have been satisfied that the exigencies of the common good justified the compulsory acquisition of the lands.

7 I should point out that, of those grounds, only the first could be held valid. In a case such as this, as the statute law stands, the only ground for allowing an objection is that the lands are not required for the relief of congestion in the immediate neighbourhood. And, as I have pointed out, the evidence was such that the Lay Commissioners had no option but to make a finding adverse to Dr. Corrigan on thatground.

8 The appeal came before Butler J., sitting as theAppeal Tribunal, on the 7 March 1977. When the case was called, a counsel other than either of the two counsel who had appeared for Dr. Corrigan before the Lay Commissioners stated that he had been instructed on behalf of Dr. Corrigan that morning. He said he was abandoning all the grounds in the notice of appeal, and sought an amendment of that notice by striking out all the stated grounds and substituting for them a new and single ground: that the hearing before the Lay Commissioners was invalidated by the fact that the two Lay Commissioners who conducted that hearing were the two Lay Commissioners who had earlier certified under s.25 of the Land Act 1936that the lands were required for the relief of congestion in the immediate neighbourhood. Over the objection of counsel for the Land Commission, Butler J. allowed that amendment and, having heard argument, ruled that notwithstanding that the two Commissioners who heard the objection had also given the certificate under s.25 which initiated the acquisition proceedings, the hearing before the LayCommissioners was not thereby invalidated. He accordingly dismissed Dr. Corrigan's appeal. It is against that ruling that Dr. Corrigan has carried the present appeal to this Court.

9 There are at present four Lay Commissioners. Their function may be exercised by a quorum of at least two. When, as happened here, two of them sign a certificate under s.25 of the Land Act, 1936, to the effect that specified lands are required for the relief of congestion in the immediate neighbourhood, they are recording an administrative decision, reached ex parte on a consideration of internal Land Commission material. That decision is in the nature of an order nisi. It expresses the opinion that on an exparte view of the situation a prima facie case has been made out for acquisition. That provisional or conditional stage of acquisition will mature into an absolute or final acquisition if a valid objection is not lodged: see s.40 of the Land Act, 1923. If, however, a valid objection is lodged, the decision nisimade by the LayCommissioners is deprived of its capacity to generate the finality of full acquisition, and the right of the Land Commission to acquire the lands is required to be determined, not as a matter of ex parteadministrative decision, but by way of a plenary hearing in which all the essential legal requirements of the determination of a lis interpartes have to be observed: see s.25 of the Land Act, 1936, and In re Estate of Roscrea Meat Products Ltd.1958 I.R.47.

10 Counsel for Dr. Corrigan expressly disavows any suggestion that the two Lay Commissioners who heard the objection in this case acted unfairly or improperly in any way in their conduct of the hearing, or that they were in any way actuated by bias, or that they went outside the evidence given at the hearing. He confines his argument to saying that the two Lay Commissioners left themselves open to the suspicion of bias in the mind of a reasonable man, that is to say, a suspicion that they might have brought to the hearing opinions or preconceptions unfavourable to the landowner, which theymay have formed when dealing with the material on which they had formed the provisional and ex parte decision to acquire the lands. What is complained of, therefore, is not actual bias but a situation in which actual bias might reasonably be suspected.

11 The propriety of one or more of the Lay Commissioners who signed the certificate sitting later at the hearing of the objection has not been specifically ruled on in any recorded judgment. We have been told that Teevan J., sitting as the Appeal Tribunal, approved of the practice, but his judgment is not extant in written form. The practice was adverted to in Fisher v. Irish Land Commission1948 I.R. 3 at p.15, by Gavan Duffy P. and in In re Estate of Roscrea Meat ProductsLtd.1958 I.R. 47 by Maguire C.J. (at p.58) and by O'Daly J. (at p.64), without, in any of those instances, any suggestion that the practice had any invalidating taint. But it is right to say that there appears to be no considered judgment on the specific point - or, I might add, no Irish decision on whether persons or bodiesauthorised by other statutory provisions to make a preliminary decision to acquire property compulsorily are thereby debarred from making a final decision, after a quasi-judicial inquiry, to acquire theproperty.

12 For my part I find it neither necessary nor desirable to decide the main point argued in this case. For one thing, the practice has been discontinued. So the point is only of retrospective interest in Land Commission...