Nolan v Irish Land Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 15 December 1978
• Neutral Citation: 1983 WJSC-HC 1504
• Court: High Court
• Docket Number: No. 7158 P. 1978
• Date: 15 December 1978

1983 WJSC-HC 1504

THE HIGH COURT

No. 7158 P. 1978

Nolan v. Irish Land Commission

BETWEEN:

KEVIN NOLAN

Plaintiff

and

IRISH LAND COMMISSION

Defendants

1 Judgment of Mr. Justice Costello delivered the 15th day of December 1978.

Judgement

2 The plaintiff is the owner of lands in the townland of Kilcarry, in Co. Carlow which the Land Commission wishes to acquire. In accordance with the procedures laid down in the Land Acts the machinery for their compulsory acquisition was set in motion. Two Commissioners of the Land Commission certified on the 21st of July, 1978 that the plaintiff's lands were required for the purpose of resale to the persons or bodies mentioned in Section 31 of the Land Act 1923as extended by Section 30 of the Land Act 1950. This certificate was published in Iris Oifigiuil, and objection to the acquisition was lodged by the plaintiff.

3 Prior to the prescribed oral hearing the plaintiff's solicitor requested an inspection of the documents on which the certificate was based. This request was refused and at the hearing on the 30th November his counsel asked for an order to permit inspection of the pre-certification documents. This was also refused and the Commissioners” adjourned the hearing until the 13th December. Immediately after the adjournment these proceedings were instituted. The plaintiff claims that he is entitled to inspect the documentation and data considered by the Lay Commissioners prior to their certification on the 21st of July, 1978; he seeks a declaration to that effect; and pending the trial of this issue he asks for an interlocutory injunction restraining the defendants or the Lay Commissioners from hearing or determining the proceedings now pending before the Lay Commissioners. The plaintiff's right to interlocutory relief is the issue I must now determine.

4 Briefly, the plaintiff's case is this. The rules relating to the hearing before the Lay Commissioners (Land Purchase Act Rules 1936; S.I. No. 361of 1936) provide that evidence at the hearing is to be given orally, (save by leave of the Lay Commissioners) but contain no provision for pre-hearing discovery of documents. The defendant has refused to make available for inspection by the Plaintiff the "documentation and data" which were considered by the Lay Commissioners when they issued their certificate and without an inspection of this documentation, it is said, the plaintiff cannot adequately prepare and present his case at the hearing. The Plaintiff is therefore faced with a hearing which is basically unfair and amounts to a denial of natural justice. The Court should declare his right to a pre-hearing discovery of documents and meanwhile prohibit the holding of the hearing.

5 The defendants, on the other hand, deny that the plaintiff's rights would be in any way infringed by the proposed hearing; deny his claim to discovery of documents; and submit (a submission which I will examine in greater detail later in this judgment) that the plaintiff has failed to bring himself within the principles on which the Court grants Interlocutory relief.

6 In the light of the submissions made it is necessary to draw attention to the nature of the issues to be determined in the proceedings which are now pending before the Lay Commissioners. The Supreme Court has adverted to the distinction between acquisition proceedings in which lands are required for the relief of "congestion" in the "immediate neighbourhood" and acquisition proceedings (which these are) in which lands are required for the purpose of resale to the persons or bodies mentioned in Section 31 of the Land Act 1923as extended by Section 30 of the Land Act 1950(see Ulster Bank Ltd. & Others .v. Irish Land Commission;unreported - 16th December, 1977). As pointed out by Mr. Justice Henchy,

"when the compulsory acquisition is for the relief of congestion in the immediate neighbourhood, the owner of the lands is not allowed any statutory ground for resisting the acquisition if in fact the lands are necessary for the "relief of congestion" in the "immediate neighbourhood" in the sense in which those expressions are used in the Land Acts. Regardless of the fact that he may live on the lands, and regardless of how well he may be working them (in terms of employment given and agricultural products produced), the statutory scheme does not recognise the objector as having any right to defeat the acquisition if the position is that the lands are required for the relief of local congestion.... The legal position is essentially different if the lands are certified to be required for the purpose of resale to the persons or bodies mentioned in Section 31 of the Land Act, 1923, as extended. Here there is not the single, specific, identifiable, local purpose of augmenting uneconomic holdings within a radius of three miles. On the contrary, the purposes are diverse, they are not necessarily local, no one or other of them has to be chosen in advance, and they are identified by reference to the persons or bodies to whom the lands are to be resold. Further, the objector in this class of compulsory acquisition is given an absolute defence to the acquisition if, despite the fact that the lands are required for the purpose of resale to the specified persons or bodies, the Lay Commissioners are satisfied, on the hearing of an objection, of each of the following three matters:

(1) that the objector has not offered the land for sale within one year before the publication of the certificate and of the provisional list:

(2) that there has been compliance with the residence test during that period of twelve months; and

(3) that there has been compliance during that period with a specified test related to the provision of employment and the production of agricultural products on the lands" (see pages 3–5

7 Mr. Justice Henchy then went on to point out that when a hearing is considering an objection to a proposed acquisition which has been certified to be for the purpose of resale to the persons or bodies permitted by Statute there are two questions to be considered:

8 2 "(1) whether the lands are required for the certified purposes The certificate made under Section 25 of the Land Act, 1936will be prima facie evidence of this, but it is open to the objector to establish, by cross-examination or otherwise, that the purpose of the proposed acquisition is otherwise. If he succeeds in doing so, the objection must be allowed.

9 (2) Whether the objector is entitled to the benefit of a combination of the three tests set out in Section 35 (1) of the Land Act 1965. If he is so entitled i.e. if he (a) has not offered the lands for sale during the qualified period, and (b) has complied with the residence test during the qualifying...