Thomas Reid v Industrial Development Agency (Ireland) and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 19 June 2013
• Neutral Citation: [2013] IEHC 433
• Court: High Court
• Date: 19 June 2013

[2013] IEHC 433

THE HIGH COURT

[No. 16 JR/2013]

Reid v Industrial Development Agency (Irl) & Ors

BETWEEN

Thomas Reid

Applicant

V.

The Industrial Development Agency (Ireland), Ireland and Attorney General.

Respondents

INDUSTRIAL DEVELOPMENT ACT 1986 S16

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

INDUSTRIAL DEVELOPMENT ACT 1995 S3(2)

INDUSTRIAL DEVELOPMENT ACT 1986 S16(1)

INDUSTRIAL DEVELOPMENT ACT 1986 S21(3)

INDUSTRIAL DEVELOPMENT ACT 1986 S21(4)

INDUSTRIAL DEVELOPMENT ACT 1986 S25(2)

INDUSTRIAL DEVELOPMENT ACT 1986 S16(1)(A)

INDUSTRIAL DEVELOPMENT ACT 1986 S21

PLANNING & DEVELOPMENT ACT 2000 S213(3)

DEERLAND CONSTRUCTION LTD v AQUACULTURE LICENCES APPEALS BOARD & MIN FOR COMMUNCIATIONS 2009 1 IR 673 2008/11/2331 2008 IEHC 289

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

REFUGEE ACT 1996 S5

CONSTITUTION ART 40.3

CONSTITUTION ART 40.5

CONSTITUTION ART 43

O'BRIEN v BORD NA MONA & AG 1983 IR 255

DONEGAN v DUBLIN CITY COUNCIL & ORS; DUBLIN CITY COUNCIL v GALLAGHER 2012 2 ILRM 233 2012/9/2558 2012 IESC 18

HOUSING ACT 1966 S62

DAMACHE v DPP & ORS 2012 2 IR 266 2012 2 ILRM 153 2012/9/2413 2012 IESC 11

OFFENCES AGAINST THE STATE ACT 1939 S29(1)

DPP v BARNES 2007 3 IR 130 2007 1 ILRM 350 2006/17/3410 2006 IECCA 165

CLINTON v BORD PLEANALA & ORS (NO 2) 2007 4 IR 701 2007 2 ILRM 81 2007/9/1805 2007 IESC 19

EEC DIR 92/43 ART 6(3)

EEC DIR 92/43 ART 6(4)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS PROTOCOL 1 ART 1

LITHGOW v UNITED KINGDOM 1986 8 EHRR 329

YORDANOVA & ORS v UNITED KINGDOM UNREP 24.4.2012 2012 ECHR 758 (APPLICATION NO 25446/06)

BJEDOV v CROATIA UNREP 29.5.2012 2012 ECHR 886 (APPLICATION NO 42150/09)

BUCKLAND v UNITED KINGDOM 2013 56 EHRR 16 2013 HLR 2 2012 ECHR 1710

PLANNING & DEVELOPMENT ACT 2000 S213

INDUSTRIAL DEVELOPMENT ACT 1986 S25

CROSBIE v CUSTOM HOUSE DOCK DEVELOPMENT AUTHORITY & ORS 1996 2 IR 531 1996/2/569

INDUSTRIAL DEVELOPMENT ACT 1986 S16(1)(i)

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD & CMSR OF AN GARDA SIOCHANA 1997 2 IR 489 1997 2 ILRM 321 1997/4/1431

SOUTH BUCKINGHAMSHIRE DISTRICT COUNCIL v PORTER (NO 2) 2004 1 WLR 1953 2004 4 AER 775 2005 1 P & CR 6 2004 AER (D) 09 (JUL) 2004 UKHL 33

INDUSTRIAL DEVELOPMENT ACT 1993 S8

BULA LTD & ORS v TARA MINES LTD & ORS (NO 6) 2000 4 IR 412 2000/3/925

O CLEIRIGH v MIN FOR AGRICULTURE & ORS 1998 4 IR 15

BALLYEDMOND v CMSN FOR ENERGY REGULATION & WARD UNREP CLARKE 22.6.2006 2006/5/905 2006 IEHC 206

ALBERT & LE COMPTE v BELGIUM 1983 5 EHRR 533

R (ALCONBURY DEVELOPMENTS LTD & ORS) v SECRETARY OF STATE FOR THE ENVIRONMENT 2003 2 AC 295 2001 2 WLR 1389 2001 2 AER 929 2001 UKHL 23

BRYAN v UNITED KINGDOM 1996 21 EHRR 342 1996 1 PLR 47 1996 2 EGLR 123

CHAPMAN v UNITED KINGDOM 2001 33 EHRR 18 10 BHRC 48

ZUMTOBEL v AUSTRIA 1994 17 EHRR 116

KENNY v TRINITY COLLEGE DUBLIN & DUBLIN CITY COUNCIL 2008 2 IR 40 2007/32/6662 2007 IESC 42

MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD & CMSR OF AN GARDA SIOCHANA 1997 2 IR 489 1997 2 ILRM 321 1997/4/1431

CARMODY v MIN FOR JUSTICE & ORS 2010 1 IR 635 2010 1 ILRM 157 2009/8/1838 2009 IESC 71

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

PLANNING AND ENVIRONMENTAL LAW

Compulsory purchase order

Judicial review - Power of Industrial Development Authority to compulsorily acquire land - Development will or likely to occur - Positive evidence - Environmental impact assessment - Objective bias - Duty to give reasons - Nemo iudex in causa sua - Property rights - Proportionality - Whether there must be positive evidence that development will or likely to occur before respondent could move to acquire - Whether objective bias - Whether applicant suffered detriment as a result of failure to give reasons - Whether entitled to independent arbiter - Whether disproportionate interference with property rights - O'Brien v Bord na Mona [1983] IR 255; Donegan v Dublin City Council [2012] IESC 18, (Unrep, SC, 27/2/2012); Damache v DPP & Ors [2012] IESC 11, [2012] 2 IR 266; The People v Barnes [2006] IECCA 165, [2007] 3 IR 130; Paul Clinton v An Bord Pleanála (No 2) [2007] IESC 19, [2007] 4 IR 701; Lithgow v UK (App no 9006/80, 9262/81, 9263/81, 9265/81, 9266/81, 9313/81 and 9405/81), (1986) 8 EHRR 329; Yordanova & Ors v Bulgaria (App No 25446/06), (Unrep, ECHR, 24/4/2012); Bjedov v Croatia (App No 42150/09), (Unrep, ECHR, 29/5/2012); Buckland v United Kingdom (App No 40060/08), (Unrep, ECHR, 18/9/2012); Henry A Crosbie v Custom House Dock Development Authority [1996] 2 IR 531; Mc Cormack v An Garda Siochana Complaints Board [1997] 2 ILRM 321; South Bucks DC v Porter [2004] UKHC 33; O'Cleirigh v Minister for Agriculture [1998] 4 IR 15; Ballyedmond v Commissioner for Energy Regulation [2006] IEHC 206, (Unrep, Clarke J, 22/6/2006); Albert and Le Compte v Belgium [1983] 5 EHRR 533; Alconbury Developments Ltd v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23; Bryan v United Kingdom (App no 19178/91), (Unrep, ECHR, 9/9/1997); Chapman v United Kingdom (App no 27238/95), (Unrep, ECHR, 18/1/2001); Zumtobel v Austria (App No 12235/86), (Unrep, ECHR, 21/9/1993); Deerland Construction Ltd v Aquaculture Licences Appeals Board [2008] IEHC 289, (Unrep, Kelly J, 9/9/2008); Meadows v the Minister for Justice, Equality and Law Reform [2010] IESC 3, (Unrep, SC, 21/1/2010); Kenny v Trinity College [2007] IESC 42, [2008] 2 IR 40; Carmody v Minister for Justice and Equality [2009] IESC 71, [2010] 1 IR 635 considered - O'Keeffe v An Bord Pleanála [1993] 1 IR 39; Bula Ltd v Tara Mines Ltd & Ors (No 6) [2000] 4 IR 412; McCormack v An Garda Síochána Complaints Board [1997] 2 ILRM 321 and O'Brien v Bord na Mona [1983] IR 255 applied - Industrial Development Act 1986 (No 9), s 16, 21 and 25 - European Convention on Human Rights Act 2003 (No 20), s 3 - Industrial Development Act 1995 (No 28), s 3 - Planning & Development Act 2000 (No 30), s 213 - Constitution of Ireland 1937, arts 40.3, 40.5 and 43 - Directive 92/43/EC, art 6 - European Convention on Human Rights 1950, arts 6, 8, 13 and Protocol 10, art 1 - Reliefs refused (2013/16JR - Hedigan J - 19/9/2013) [2013] IEHC 433

Reid v Industrial Development Agency (Ireland)

Facts: These judicial review proceedings concerned a challenge by the applicant to the validity of a decision of the first named respondent, made on 23rd November 2012, to compulsorily acquire the applicant's lands and home at Blakestown, Maynooth, Co.Kildare under s.16 of the Industrial Development Act 1986 (‘the 1986 Act’). The applicant also argued that the 1986 Act was unconstitutional and in breach of s.3 of the European Convention on Human Rights Act 2003 (‘the ECHR Act’). The applicant was a farmer and landowner; the first named respondent was a statutory body that was set up to encourage and enhance foreign investment in Ireland, which was the reason it wished to acquire the applicant”s lands.

The first named respondent had statutory powers to compulsorily acquire lands if it considered that industrial development was or was likely to occur on them. The applicant argued that the evidence the first named respondent relied upon when deciding whether to compulsorily acquire his lands did not support the idea that development was likely to occur there. Further, it was said that the first named respondent decided to purchase the lands first and then sought an evaluation of the site directed at justifying this decision. The applicant also alleged that the decision was invalid as no reasons (or no proper reasons) were given.

In terms of the 1986 Act, the applicant argued that the legislation was unconstitutional because it allowed the first named respondent the freedom to decide to compulsorily acquire land without any judicial oversight. It was accepted that where a landowner refused to sell land to the first named respondent and compulsory acquisition was sought, an inquiry had to be set up to investigate the proposed acquisition. However, it was said that the inquiry”s role was only to gather information with the decision making function remaining with the first named respondent. The applicant averred that this was in breach of Article 40.3 and/or Article 40.5 and/or Article 43 of the Constitution of Ireland. Finally, it was argued that the applicant”s rights under the European Convention in Human Rights had not been properly considered by the first named respondent when the decision was made; therefore, s.3 of the ECHR Act had been breached. It was said that the compulsory acquisition was a disproportionate decision in light of those rights.

Held by Hedigan J that in terms of the applicant”s first argument, the Court was satisfied from the wording of s. 16 of the 1986 Act that the first named respondent”s power to compulsorily acquire lands was not limited to situations where a particular enterprise had been identified. Indeed, it was said that the acquisition itself would increase the likelihood of industrial development, which was said to be sufficient for the purposes of the legislation. In regards to the allegation that the lands were not properly evaluated prior to the decision to compulsorily purchase the lands being made, it was said that because the first named respondent clearly had expertise in determining whether industrial development was likely or not, the Court could not invalidate a decision unless it was clear that there was no relevant information available prior to the decision being made. It was not argued that that was the case. In terms of...