The Gazette 1978

APRIL 1978

GAZETTE

RECENT IRISH CASES

agricultural products produced) the statutory scheme docs not rccognise the objectors as having any right to defeat the acquisition if the position is that the Lands are required for relief of congestion. The onus is on the Land Commission to prove that the lands are so required. It is up to the objcctor to establish by cross examination or otherwise that such is not the case. The protection against compulsory acquisition given by the Land Acts is much greater when the lands are required for resale to classes of persons mentioned in Section 31 of the Land Act 1923 than it is when the lands are being compulsorily acquired for relief of congestion in the immediate neighbourhood. Held: (1) (per Henchy, J.) Where the Land Commission acquire property for the purpose of resale to classes of persons or bodies permitted by statute, it is not necessary for the Land Commission before instigating acquisition proceedings to opt for some one permitted person or body to whom the lands are to be resold. Such a pre-condition would offend against the spirit if not the letter of the Land Acts. (2) (per Kenny, J.) Judicial remarks which relate to compulsory acquisition for relief of congestion have no relevance when the declared purpose of compulsory acquisition is resale to classes of persons mentioned in Section 31 of the Land Act 1923. Estate of A. J. Hirschberg, Ulster Bank Limited & Ors. v. Irish Land Commission — Supreme Cou rt (Henchy J., Kenny, J. and Parke, J.) — unreported — 16 December, 1977. CONST I TUT IONAL LAW Se c t i on 2 21 of the F i s he r i es ( C o n s o l i d a t i o n ) A c t 1 9 5 9 Un c o n s t i t u t i o n a l—O f f e n ce not minor offcnce and therefore not triable summarily in the District Court. The Plaintiff sought and was granted a declaration that Scction 2 2 1 ( 2 ) o f t h e F i s h e r i e s ( Co n s o l i d a t i o n) Act 1959 was repugnant to the provisions of the Constitution, invalid and of no effect in law on the grounds that the penalty provided for therein was so great that the offence could not be a minor offence within the meaning of Articlc 38 of the Constitution, and therefore could not be. tried in a summary manner in the District Court. The Plaintiff, the Master of the

Bulgarian Fishing Vessel "Aurelia" was convicted summarily of the offence under the above section and fined the maximum fine of £100 and the District Justice, in accordance with the mandatory provisions of the section, ordered the forfeiture of the fish and fishing gear estimated to be worth £102,040. Held: (per McWilliam, J.) 1. Following Melling — v. — 0*Mathghamhna (19601 I.R. 1, and Re Haughey [ 19711 I . R. 2 4 7, the mo st i m p o r t a n t c o n s i d e r a t i on in determing whether or not an offence was a minor offence was the severity of the punishment; 2. Punishment involving the loss of property to the value of £100,000 was severe; 3. The only issue thus to be decided was wh e t h er the f o r f e i t u re provided for in Section 221 was a primary punishment or a more r emo te c o n s e q u e n ce of t he conviction; 4. Considering Conroy—v.—The Attorney General & Keavcney [19651 Í.R. 411, and in particular the observations of Walsh J. (at p 4 4 l ) , the forfeiture required under Section 221 was intended to be a penalty and was a direct consequence of a conviction underthe Section; 5. Accordingly, the offence was not a minor offence. Jordan Kostan —v .— Ireland and the Attorney General—The High Court (per McWilliam J . ) - 10 Feb. 1978—Unreported. NEGLIGENCE A skilled employee is responsible for his own ii\)uries when he- uses a ladder, supplied by his employer and which he, the employee, has erccted with the inner legs on a flower bed and the outer ones on a grass lawn and is ii\jurcd in falling from the ladder when it slips. The Plaintiff was a carpentcr by trade and, according to evidence, was a skilled and experienced workman. The Defendant had previously hired the Plaintiff and now wanted him to do some work, which included cutting or lopping trees, growing in the defendant's garden. The plaintiff arrived at the defendant's premises on a very dry day with an electric saw for the purpose of cutting and lopping the trees. To undergo this 1

COMPULSORY ACQU I S I T I ON

Grounds for compulsory acquisition by the Land Commission where land required Tor relief of congestion contrasted with when required for resale to classcs of persons specified in Section 31 of the Land Act 1923 (as extended). Under the Land Acts the Land Commission are entitled to compulsorily acquire property for the ' purpose of either (a) relieving congestion in the immediate neighbourhood, or, (b) for resale to the persons or bodies mentioned in Section 31 of the Land Act 1923 as extended by Section 30 of the Land Act 1950. These classes of persons include (inter alia) a person being the tenant or the proprietor of a holding which in the opinion of the Land Commission is not. an economic holding or a person who has entered into an agreement with the Land Commission for the exchange of his holding. The right of the Land Commission to acquire property for each of the above grounds differed considerably and in this regard the Supreme Court considered the case of Roundtrce, Cassclls v. Irish Land Commission 119761 I.R. 382 and distinguished it from the case of Clarke v. Irish Land C o mm i s s i on [ 1 9 7 6 ] I . R . 3 75 Cassell's and Clarke's cases cach dealt with acquisition for relief of congestion in the immediate neighbourhood while the present case related to lands acquired for the purpose of resale to persons or bodies of persons permitted by statute. Where acquisition is for the purpose of resale a valid objection can be lodged on the basis that, (a) the property has not been offered for sale within a year of the date of the publication of the Commissioners' Certificate that the lands are required for resale; (b) it is part of a residential holding; and , (c) it produces an adequate amount of agricultural products and provides an adequate amount of employment. Acquisition for relief of congestion cannot be resisted on these grounds. The only defence available to the objector is to show that there is no congestion in the immediate neighbourhood. ' Regardless of the fact that he may live on the land and regardless of how well lie may be working the land (in terms of employment given and