The Gazette 1983

JULY/AUGUST

1983

GAZETTE

does not vest in BNM an arbitrary or capricious power. The power is subject to review by the Courts should it in any particular instance act from an indirect or improper motive or without due fairness of procedures or without proper consideration for the rights of others. 3. The making of or refusal to make an Order for compulsory acquisition is essentially an administrative act. 4. Neither the absence of arightof appeal (as distinct from aright of review) nor the absence of a confirming external authority constitutes a breach of the Plaintiffs constitutional rights. 5. Sections 29 and 30 of the Turf Development Act, 1946 are not invalid having regard to the provisions of the constitution. 6. In this case fair procedures, natural and constitutional justice required three necessities: Firstly, that the Plaintiff should have ample and sufficient notice of the intended compulsory acquisition; Secondly, that he be given ample and sufficient opportunity of making objections or representations and; Thirdly, that the objections and representations should be adequately communicated to the Board and con- sidered before the decision is made. 7. In this case the first and second re- requirements were fulfilled but the third requirement was not fulfilled because there was a failure by the Board to properly hear the objections and representations of the Plaintiff in that they did not consider the Plaintiffs specific representations relating to the possibility of an acquisition for such period only as was necessary for the extraction of the peat and thereafter a reversion to the Plaintiff. 8. The Plaintiff is entitled to a Declaration that the procedures were not in accordance with natural justice and the purported resolution to acquire the lands is therefore null and void. Richard O'Brien v. Bord Na Mona and the Attorney General. Supreme Court (per O'Higgins C. J. and Finlay P., two issues nem diss) —9 December 1982 — unreported. Eugene O'Sullivan

meeting on 15 February, 1979 between the Plaintiff and BNM the Plaintiff made it clear that he objected in principle to his lands being acquired but stated that if they had to be so acquired it was his desire that he should not lose the ownership of his lands but rather at the end of the period necessary for the removal of the peat the land should revert to him. Representatives of BNM indicated that their policy was to acquire the freehold to land. On 21 March, 1980 the Managing Director of BNM submitted a report to the Board, which contained the objections contained in the letter sent by the Plaintiff and others on 1 December, 1979. No reference was made in the Report to the particular objection to the acquisition ofthe fee simple ofthe lands made at the meeting on 15 February, 1979. The Board purported to pass a resolution compulsorily purchasing the Plaintiffs lands in fee simple. The Plaintiffbrought an action in the High Court claiming that: 1. Sections 29 and 30 of the Turf Development Act, 1946 were invalid having regard to the provisions of the constitution in that firstly the Sections failed to respect, defend and vindicate the personal rights of the Plaintiff as guaranteed by Article 40, Section 3, and secondly that they contravened the Plaintiffs right to private ownership of his lands as guaranteed in Article 43. 2. BNM had acted in excess of their powers and otherwise than in accordance with natural and con- stitutional justice in the procedures which they had adopted prior to the making of the decision to acquire the Plaintiffs land. It was held in the High Court on 18 March, 1981 that Sections 29 and 30 of the Act were invalid having regard to the provisions of the Constitution in that the act of BNM in making a Compulsory Purchase Order was a judicial and not an administrative act and that the power contained in the Act, enabling them so to decide without any form of appeal or confirmation by an external Tribunal violated the maxim of natural and constitutional justice that no man should be a judge in his own cause. While not making an Order on the second claim the Court expressed the view that on the facts BNM had made the "Order" without having considered the substance of the Plaintiffs objection and in so doing had acted in breach of natural and constitutional justice and in particular the Rule Audi Alterem Partem. On appeal to the Supreme Court it was Held: 1. The act must be viewed as constituting a decision that the common good requires that bog land be available for compulsory acquisition. The Act vests this decision in BNM. 2. This purpose and effect of the Statute

Edited by Gary Byme

Copies ofjudgments in the above cases are available to members on request from the Society's Library.

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