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GAZETTE
APRIL 1978
RECENT IRISH CASES
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
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