319 / 346
GAZETTE
JULY/AUGUST
1983
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
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
Edited by Gary Byme
Copies ofjudgments in the above cases are
available to members on request from the
Society's Library.
xvi