The Gazette 1967/71

validity be questioned in any Court, does not extend to planning authorities. Nevertheless this power of acquisition v/as deemed the most efficient and economic way of developing and con trolling an area and was consequently valid. (b) The contention that owners of prosperous businesses in the area have no right to re instatement in the same premises is not an unjust attack on property, in-as-much as the owners are entitled to compensation for dis turbance in the value of the property under the Compensation (Acquisition of Land) Act 1919. (c) Sections 19 to 21 of the Act compel the planning authority to make a development plan and to review it. The contention that it is left to the arbitrary discretion of the authority without a right of appeal to the Court, to in effect substantially reduce the value of the property in the area is rejected, as (1) a plan of development is necessary for the connom good, and (2) the Development Plan is only prepared after the authority have heard and considered objections. (d) Part IV requiring permission of the planning authority to any development is constitutional, because Town and Regional Planning does vindicate the rights of the citizen. (e) The fact that compensation may be refused under certain circumstances such as inadequate water and sewerage facilities—or to preserve a view—is not an attack on property rights. (f ) The additional rules set out in Section 69 about the payment of compensation, together with those in the Act of 1919 do not conflict with Article 43 in regard to private property. (g) Section 77, which gives a general power to a planning authority to develop land—and to carry out the renewal of obsolete areas— compulsorily, is not an unjust attack on pro perty rights. (h) As some notice must be given the alleged effect of the definition of "Exempted Develop ment" giving power to the planning authority to carry out any development arbitrarily with out giving affected persons an opportunity to object, is rejected, as not being an unjust attack on property rights. 2. It is contended that the following are contrary to Constitutional Justice: (a) It is contended that the definition of "Obsolete area" does not conform with Constitutional Justice, because it is alleged it does not give the right of the owner of property in any area to a hearing, nor does it require the authority to state what case is being made against the owner. This objection fails. (b) The Act does not make it possible to have any decision of the planning authority reviewed by any tribunal or court. It was held that there was no rule of constitutional justice which compels the authority to give the owner an opportunity to correct a statement made by planning officers, if the person objecting to the statutory boundaries of an obsolete area has been given an opportunity to inspect the draft development plan, and to make objections, and of ministerial opinions cannot

that those objections have been fairly con sidered. (c) The contention that if the planning authority serves notice requiring discontinuance of a specified use of land or imposing conditions on that use, with a statutory appeal to the Minister, is repugnant to Articles 34, 40 (3) and 43 of the Constitution is rejected because if the development plan is to be effective, it must give the planning authority power to control the land. (d) by Section 56 (3), every dispute whether a new structure replaces substantially a des troyed structure, is to be determined by the Minister. The Contention that the Minister's decision is final is rejected, as the High Court can intervene if he has taken a wrong view of the law, or if the requirements of Constitu tional justice have not been observed. (e) If, in an appeal to the Minister, he is merely exercising an administrative function, he need not apply the rules of natural justice, nor decide the case in accordance with any known legal principle. 3. Section 37 of the Constitution allows administra tors other than Judges to exercise limited judicial functions in defined circumstances. (a) Section 29 of the Act accords fully with the Constitution. This section provides that, when permission to develop has been refused by the Minister, the owner may serve on the authority a notice requiring them to purchase his in terest in the land. A second copy of this notice must be sent to ihe Minister who, if satisfied that the specified conditions have been ful filled, may confirm the Purchase Notice sanc tioned by the authority, and this will have the effect of a compulsory purchase order. The Minister, in exercising these functions, is only carrying out a limited judicial function. (b) Section 30 deals with the revocation and modification of a permission previously granted by the planning authority, and subsequently revoked by a notice. The person affected may appeal to the Minister, who, in determing it, ii only carrying out an administrative function. (c) Section 33 required the planning authority to serve notice on the owner requiring him to alter under specified conditions any unauthor ised structure in accordance with proper town planning. If the Minister considers this an appeal, he is only acting as an administrator. In comparing the two Supreme Court decisions as to the rights of property—i.e. Buckley v. Attorney General— (1950) I.R.—as against Attorney General v. Southern Industrial Trust (1960) I.L.T.R.—Kenny J. agreed with the Buckley case, and disagreed in the latter case with Lavery J. when he states that the Courts have no right to question the constitutional validity of laws passed by the Oireachtas which restrict the exercise of property rights. In each case the Courts must determine whether the legislation has been passed with a view to re conciling the exercise of property rights with the exigencies of the common good and whether the restric tions would be unjust without compensation. In the Southern Industrial Trust case, it was hard to see how the existence of the section authorising forfeiture or seizure compelled the Supreme Court to recognise that 121