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validity
of ministerial
opinions
cannot
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
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
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