Supreme Court of Ireland Decisions

O'Brien v. Bord na Mona & Anor [1982] IESC 1; [1983] IR 255 (9 December 1982)
 
THE SUPREME COURT

1980 No. 6760P

O'Higgins C.J.

Finlay P.

Walsh J.

Henchy J.

Griffin J.

BETWEEN

RICHARD O'BRIEN

PLAINTIFF

AND BORD NA MONA AND THE ATTORNEY GENERAL

DEFENDANTS

[The decision of the Supreme Court on the constitutionality of ss.29 and 30 of the Turf Development Act, 1946 was delivered by O'Higgins CJ. The members of the court delivered separate judgments on the other issues.]

JUDGMENT of the Court delivered by O'Higgins C.J. on the 9th day of December 1982.

By order dated the 18th March, 1981, made in these proceedings by Mr. Justice Keane in the High Court, it was declared that ss.29 and 30 of the Turf Development Act, 1946 are invalid having regard to the provisions of the Constitution. Against that declaration both the defendants have appealed to this Court.

The Turf Development Act, 1946, is the statute setting up Bord na Mona. Section 29 provides that the board of Bord na Mona, for the purpose of exercising or performing any of its functions, may do all or any of a number of things including the acquiring of any land either permanently or temporarily and either by agreement or compulsorily and also the acquisition of various rights in or over land. Section 30 provides that at any time before conveyance or ascertainment of price or compensation Bord na Mona, subject to provisions with regard to notice and to the eventual payment of compensation, and for the purpose of exercising or performing all or any of its functions, may enter on and take possession of any land or exercise any right in land or terminate, restrict or interfere with interests in land.

The duties of Bord na Mona, as set out at s.17, sub-s.1, of the Act of 1946 are:—

"(a) To produce and market turf and turf products, and

(b) to foster the production and use of turf and turf products, and

(c) to acquire bogs and other lands, and

(d) to manage, develop and work bogs and other lands vested in the Board, and

(e) generally to do all such other things as arise out of, or are consequential upon, the duties mentioned in the preceding paragraphs of this section."

The long title to the Act of 1946 is as follows:-

"An Act to make better provision for the development in the national interest, of the production, distribution and supply of turf in the State, and for this purpose to establish a Board to be called Bord na Mona, to define its powers and duties, to dissolve the Turf Development Board, Limited and to transfer its property and liabilities to Bord na Mona, and to provide for certain other matters connected with the matters aforesaid."

The plaintiff is the owner of a farm of land containing approximately 376 acres in the county of Westmeath, including an area of bogland. In November, 1978, Bord na Mona published an advertisement in the newspapers indicating its intention to acquire certain lands scheduled to the advertisement, including approximately 132 acres of bogland being the property of the plaintiff. In pursuance of that advertisement and of a right of objection indicated in it, the plaintiff objected and had meetings and correspondence, through a solicitor, with the officials of Bord na Mona. On the 21st March, 1980, the board of members of Bord na Mona resolved to acquire compulsorily the bogland, the property of the plaintiff, and in June, 1980, Bord na Mona served on the plaintiff a notice of its intention to enter and take possession of the land occupied by him (being the subject matter of the decision to acquire) pursuant to s.30 of the Act.

The plaintiff in these proceedings first sought a declaration that ss.29 and 30 of the Act of 1946 were repugnant to Articles 40 and 43 of the Constitution; he further claimed a series of declarations that steps taken, or purported to be taken, by Bord na Mona to acquire compulsorily the said lands and to enter on or take possession of the said lands were unlawful and in excess of their powers under the Act of 1946, and that they were taken, or purported to be taken, in breach of rules of natural and constitutional justice.

This judgment of the Court is concerned only with the claim for a declaration as to the invalidity of the two sections having regard to the provisions of the Constitution; individual judgments in relation to the other claims will be delivered.

The grounds on which the plaintiff in his pleadings alleged the invalidity of the sections were, first, that they failed to respect, defend and vindicate the personal rights of the plaintiff as guaranteed by Article 40, s.3, of the Constitution and, secondly, that they contravened the plaintiff's right to private ownership of his lands as guaranteed in Article 43.

It is clear from the judgment of the learned trial judge that the submissions made on the facts in the High Court on behalf of the plaintiff with regard to the allegation that the sections were unconstitutional were, first, that the absence in the statute of an express provision requiring Bord na Mona to give notice of its intention to make a compulsory acquisition order was a failure to protect and vindicate the property rights of the plaintiff in breach of Article 40, s.3, and constituted an interference with the plaintiff's right of ownership of his property not required and beyond the requirements of the common good in breach of Article 43. Secondly, and in the alternative, it was submitted that the absence of any procedure contained in the Act of 1946 for appeal against the making of a compulsory acquisition order, or for the confirmation by an external authority or outside tribunal of the making of a compulsory acquisition order, constituted a breach of both the Articles concerned.

The learned trial judge rejected the first of these submissions, basing his decision on the principles laid down by this Court in East Donegal Co-Operative v. The Attorney General [1970] I.R. 317. In that case it was held that it is to be presumed that it was intended that proceedings, procedures, discretions and adjudications which were permitted, provided for or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. The learned trial judge found that there was nothing in the Act of 1946 which prevented Bord na Mona, in proceeding to acquire lands compulsorily, from giving due notice of its intention so to do and from creating a machinery for the proper making and consideration of objections or representations concerning such proposed acquisition. Accordingly, he held that the Act could not be found to be unconstitutional on those grounds. Against that portion of his judgment and that decision there has been no cross-appeal in this case, nor indeed in the view of this Court could one have been sustainable.

The learned trial judge did, however, hold that the act of Bord na Mona in making a compulsory acquisition order was a judicial and not an administrative act and that the power contained in the Act of 1946 enabling Bord na Mona so to decide, without any form of appeal or confirmation by an external tribunal or authority, violated the maxim of natural justice and constitutional justice that no man should be a judge in his own cause. It is against that decision on the facts proved and on the terms of the statute that the appeal to this Court on this issue arises. The Act of 1946, having been enacted by the Oireachtas subsequent to the Constitution, is, of course, entitled to a presumption of constitutionality in accordance with the principle repeatedly laid down by this Court.

The correctness of the decision of the learned trial judge that ss.29 and 30 of the Act of 1946 were inconsistent with the Constitution depends upon his conclusion, as a matter of law having regard to the terms of the statute, that Bord na Mona, in making a decision to acquire these lands, was performing a judicial rather than an administrative act. In Murphy v. Corporation of Dublin [1972] IR 215 the issue which was before the Court was the right of the Minister for Local Government (who was then the relevant Minister) to claim an executive privilege in relation to the report of an inspector submitted to him pursuant to the provisions of the Housing Act, 1966, as the result of a public enquiry into objections made against the confirmation of a compulsory purchase order. The decision in that case was to the effect that the Minister, in exercising his powers under the Act of 1966, was doing so as persona designata under that Act and that, therefore, he was not exercising one of the executive powers of the State and, accordingly, could not claim an executive privilege in relation to the report on foot of which he exercised the power. In the judgment in the High Court in this case, particular reliance was placed upon the portion of the judgment of Mr. Justice Walsh (with whose judgment all the other members of the Court agreed) where, at pp. 238-9 of the report, he stated:- "By statute the Minister is the one who has to decide the matter — not the inspector. In doing so, the Minister must act judicially and within the bounds of constitutional justice."

In the context of the issues which arose for determination before the Court in Murphy v. Corporation of Dublin [1972] IR 215, this Court is satisfied that the statement quoted decided that the Minister for Local Government, in confirming a compulsory purchase order, was bound to act judicially. It was not an expression of opinion that the confirmation was a judicial rather than an administrative act.

In a great number of instances, persons carrying out acts which are clearly in their essence administrative (and, particularly, in cases where such acts affect property rights) have under our law an obligation to act fairly and, in that sense, judicially in the carrying out of those acts and in the making of the decisions involved in them. They can and will be reviewed, restrained and corrected by the Courts if they act in a manner which is considered to be arbitrary, capricious, partial or manifestly unfair. In that sense it can be said that such persons carrying out administrative acts have an obligation to act judicially; but so to say does not determine the question as to whether, within the category of different functions, they are administrative actions or judicial actions: cf. Fisher v. Irish Land Commission [1948] I.R. 3; McDonald v. Bord na gCon [1965] I.R. 217 and Loftus v. The Attorney General [1979] I.R. 221.

In the view of the Court it is necessary in this case to examine and consider the structure and intention of the Act of 1946 in order to determine whether Bord na Mona, in making a decision to acquire land or property rights compulsorily, is exercising a function or power of a judicial nature. If it is, then it cannot be a judge in its own cause. But on the other hand, if it is acting in discharge of an administrative function, it would have an obligation to act fairly and properly but would not necessarily be inhibited from deciding the question as to whether or not to acquire.

The long title of the Act of 1946 and the provisions of s.17 of the Act, which have already been quoted, make it clear that the purpose of the statute was to make available the considerable natural resource of turf in this State in the best possible fashion for the use of the nation. Both on the terms of the statute itself and, indeed, on the events which have since occurred in the development of the activities and work of Bord na Mona, it is clear that the dominant method by which that overall purpose was to be achieved, and has been achieved, was by the acquisition of boglands and other ancillary lands by Bord na Mona and the working of them by Bord na Mona itself so as to produce turf and turf products. It seems clear that it was by this procedure that a major source of energy was intended to be, and has been, harnessed for the use of society in general. The control of this operation and, specifically, the decision as to whether any particular piece of land should or should not be acquired vests ultimately under the terms of the statute in Bord na Mona. Its members, chairman and its managing director are appointed by the Government and hold office at the will of the Government.

The statute must, therefore, be viewed as constituting a decision that the common good requires that bogland should be available for compulsory acquisition. The task of securing that objective was vested in Bord na Mona, a statutory corporation.

Viewed in that light, it would appear clear that the decision as to whether or not any particular area of land should be acquired for the attainment of that objective should be effectively vested in Bord na Mona. There is not any other authority of the State, executive or judicial, which should make the decision in principle as to whether, balancing the desirability of the production of turf on the one hand and the interests of an individual owner of land on the other, the production of turf or the agricultural interests of the landowner should prevail.

Such a view of the purpose and effect of the statute does not vest in Bord na Mona an arbitrary or capricious power. Nor is it exempt in any way from review by the Courts should it, in any particular instance, act from an indirect or improper motive or without due fairness of procedure or without proper consideration for the rights of others.

This Court is satisfied that, subject to these very considerable restrictions, the making of, or refusal to make, an order for compulsory acquisition is essentially an administrative act.

Having reached that conclusion, the Court is further satisfied that neither the absence of a right of appeal from the decision of Bord na Mona to acquire a particular area of land or property right, as distinct from the right to review the exercise of that right, nor the absence of a scheme for a confirming external authority constitutes a breach of any of the plaintiff's constitutional rights.

Therefore, the decision of the Court is that ss.29 and 30 of the Turf Development Act, 1946, are not invalid having regard to the provisions of the Constitution on the grounds relied upon, and that the declaration made in the High Court to the contrary effect must be set aside.

JUDGMENT of Finlay P. delivered on the 9th day of December 1982.

In addition to the plaintiff's claim that the impugned sections of the Turf Development Act, 1946, are inconsistent with the Constitution (which claim has been dealt with in the judgment of the Court) the plaintiff also claimed in the alternative that, even assuming the constitutionality of those provisions, Bord na Mona on the facts of this case acted in excess of its powers and otherwise than in accordance with natural and constitutional justice in the procedures which it adopted prior to the making of a decision to acquire his land compulsorily.

Although the learned trial judge (having declared the sections to be inconsistent with the Constitution) did not make any order on this claim, he expressed the view in his judgment that, on the facts proved in this case, the board of members of Bord na Mona had made the compulsory purchase order without having considered the substance of the plaintiff's objection to it and that, in so doing, they acted in breach of natural justice and constitutional justice and, in particular, in breach of the maxim audi alteram partem.

Bord na Mona, in its notice of appeal, appealed against that finding by the learned trial judge on the grounds that he erred at law or on the facts or on a mixed question of law and fact: against that finding of the learned trial judge no appeal was submitted on behalf of the Attorney General. Although the appeal by Bord na Mona against this finding is stated to be on the grounds that the learned trial judge erred on the law and on the facts, it seems clear that individual findings of fact which were made by him are not seriously challenged on behalf of Bord na Mona. On a consideration of the transcript, the judge's findings of fact could not be held to be unsupported by the evidence. Those facts may thus be shortly summarised.

1. Bord na Mona published a notice in the local and in the national press in October, 1978, stating its intention to consider making an order to acquire permanently and compulsorily certain lands and stating that a map showing the lands proposed to be acquired, together with a book of reference containing the names of the owners, had been deposited in its head office and at the Garda Siochána station in Athlone where they were available for inspection. The advertisement informed persons, wishing to make representations or objections of this right, to do so in writing to the secretary of Bord na Mona on or before the 4th December, 1978.

2. The plaintiff, having seen a copy of that advertisement, instructed his solicitors to write to the secretary of Bord na Mona on the 30th November, 1978, simply objecting to the proposed compulsory acquisition.

3. The plaintiff subsequently summoned a meeting of other persons affected by the notice and formed a body called the Fardrum I.F.A. Bog Committee, on whose behalf a different firm of solicitors wrote to the secretary of Bord na Mona on the 1st December, 1978, objecting to the compulsory acquisition. This letter stated that, strictly without prejudice to the right of the committee and its individual members to outline and put forward further detailed grounds of objection, the solicitors were indicating the general grounds of objection. Those grounds of objection, which were set out in five paragraphs, were general in nature and applicable to all the owners of the lands proposed to be acquired.

4. As a result of that letter, a meeting took place on the 14th February, 1979, at which the plaintiff and one other member of the committee, together with their solicitor, Mr. Egan, were present and at which Bord na Mona was represented by Mr. Huggard, a senior land-purchase officer and by Mr. Canny.

5. At that meeting the plaintiff made it clear to the representatives of Bord na Mona that, while he fundamentally objected to his lands being acquired at all, if they had to be acquired he objected to their acquisition in fee simple. He gave reasons why it was his desire that he should not lose his ownership of the lands but that, at the end of whatever period was necessary for the removal of peat by Bord na Mona, the land in a cutaway condition should revert to him. He was informed by Mr. Huggard at that meeting that it was the policy of Bord na Mona to acquire the fee simple of boglands and reasons were given for that policy; but Mr. Huggard agreed to refer the matter to his principals.

6. Mr. Huggard subsequently ascertained from the managing director of Bord na Mona that its policy of only acquiring the fee simple in bogland (which policy had been operated for some time) was unchanged.

7. On the 21st March, 1980, Bord na Mona's board of members met and there was submitted to them a report from the managing director dated the 11th February, 1980, setting out the lands proposed to be acquired, stating that he had considered each of the objections to the making of a compulsory purchase order, and recommending that the board of members make an order for the permanent and compulsory acquisition of the lands delineated on a map annexed to that report. Accompanying the report was a schedule setting out the names of the occupiers and the particulars of the objections.

8. The objections thus notified to Bord na Mona's board of members were the objections contained in the letter written on behalf of the committee on the 1st December, 1978, and no reference was made to the particular objection to the acquisition of the fee simple of the lands made by the plaintiff at the meeting with Mr. Huggard and Mr. Canny.

9. Bord na Mona's board of members decided that the recommendation of the managing director should he accepted and that Bord na Mona should purchase compulsorily the plaintiff's lands in fee simple.

I am satisfied that the requirement for fairness of procedure and compliance with the rules of natural and constitutional justice in relation to the exercise of a power to acquire land compulsorily falls into two separate categories.

First, before deciding to acquire any particular piece of property, the acquiring authority must give ample and fair notice to the owner of such property of its intention so to do; it must give him an ample opportunity to make representations or objections and then consider such representations or objections in a judicial manner; finally, it must reach a decision whether to acquire or not upon the basis of that consideration. The second category of requirement is that the acquiring authority, having decided to acquire compulsorily, must (with like reasonable notice and opportunity to be heard and make representations) arrive by a fair procedure at a proper compensation for the acquisition.

A consideration of the terms of ss.30-36 of the Turf Development Act, 1946, makes it clear that the provisions with regard to notice and the making of objections or representations contained in those sections are referable to the second of the categories which I have outlined above, and are clearly designed towards the ascertainment of fair compensation. The Act of 1946 does not appear to contain any set or fixed procedure for the giving of notice and the hearing of objections or representations concerning the decision to acquire. In accordance with the principles laid down by this Court in the judgment concerning the constitutionality of the sections (and previously laid down by this Court in Loftus v. The Attorney General [1979] I.R. 221 and East Donegal Co-Operative v. The Attorney General [1970] I.R. 317) it is necessary for Bord na Mona to create and carry out procedures, in relation to the decision to acquire, which are fair and in accordance with natural and constitutional justice.

In my view, it is clear that the decision as to whether or not to acquire land compulsorily is a decision to be made by Bord na Mona's board of members and that it is not a function which may be delegated by Bord na Mona to the managing director or any other of its officers or servants under s.16 of the Act. This interpretation of the statute appears to have been accepted by Bord na Mona for it was by a decision and resolution of its board of members that the acquisition was ordered.

In the light of that conclusion, what was necessary for compliance with fair procedure and natural and constitutional justice was, first, that the plaintiff (as the owner of land affected) should have ample and sufficient notice of the intention or proposal to make a compulsory acquisition. Secondly, that he be given an ample and sufficient opportunity of making objections or representations to that proposal and, thirdly, that the objections and representations, if any, made by him (or on his behalf) be communicated adequately to the board of members of Bord na Mona and judicially considered by them before they made a decision.

On the facts proved in this case, the first of these requirements was complied with when the plaintiff noticed and reacted to the advertisement published in the press. I would point out, however, that this view does not mean that the publication of an advertisement in the press would be a sufficient notification in every case without, in addition, the service of an individual notice on the owner or reputed owner. Again on the facts of this case, the plaintiff was given a sufficient opportunity of making his objections and representations known to the servants of Bord na Mona.

However, I would agree with the learned trial judge in his finding that the precise objection of the plaintiff was never brought to the notice of the board of members of Bord na Mona prior to their deciding to acquire these lands; that objection being that the plaintiff's lands should be acquired for such period only as was necessary for the extraction of the peat from his lands and that, thereafter, his lands should revert to him or his successors.

It is clear from the transcript that evidence was given in the High Court of the unchanged and, apparently, unchanging policy of Bord na Mona to acquire the fee simple of boglands, and that reasons of substance were given for the existence of that policy. It is not part of the function of this Court nor was it part, as was properly decided in the High Court, of the function of the High Court to decide on the wisdom of such a policy. However, in my view, it is equally clear that, where (as occurred in this case) there is a failure by the deciding authority properly to hear the objections and representations of the owner of the land before deciding to acquire it, the deficiency cannot be repaired by subsequent proof that it is improbable that a different decision would have been reached even if such representations and objections had been heard and considered. A necessity for the observance of fair procedure and natural justice in the process of the compulsory acquisition of property is too fundamental and important to be supplied by proof that objections would have been rejected if they had been entertained.

Whilst, therefore, it may be true (as was contended on behalf of Bord na Mona) that, if the present acquisition order is set aside and a further acquisition process instigated, the result will be the same as far as the plaintiff is concerned, I am satisfied that the plaintiff is nonetheless entitled to a declaration that the procedures were not in accordance with natural justice and that, accordingly, the purported resolution to acquire the lands is null and void. Unless Bord na Mona gives acceptable undertakings to this Court regarding its intention not to proceed further with either the acquisition based on the order made in March, 1980, or with an entry upon the lands of the plaintiff pursuant to that order, the plaintiff would also appear to be entitled to ancillary injunctions. Therefore, I would dismiss the appeal of Bord na Mona on this aspect of the case and vary the order of the High Court accordingly.

JUDGMENT of O'Higgins C.J. delivered on the 9th day of December 1982.

I have had an opportunity to read the judgment which the President of the High Court is about to deliver on the issue of the procedures adopted by Bord na Mona and I agree with that judgment.

JUDGMENT of Walsh J. delivered on the 9th day of December 1982.

I agree with the judgment which has been delivered by the President of the High Court.

JUDGMENT of Henchy J. delivered on the 9th day of December 1982.

I also agree with the judgment of the President of the High Court.

JUDGMENT of Griffin J. delivered on the 9th day of December 1982.

I also agree with that judgment.