|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> An Blascaod Mor Teoranta v. The Commissioners Of Public Works (No.3)  IESC 4;  1 IR 6;  1 ILRM 401 (27th July, 1999)
Cite as:  1 ILRM 401,  IESC 4,  1 IR 6
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
is the State’s Appeal from the Judgment and Order of Budd J. delivered
and made herein on the 27th day of February, 1998 whereby he ruled that An
Blascaod Mór National Park Act, 1989 was invalid having regard to the
provisions of the Constitution.
Plaintiffs/Respondents (hereinafter referred to as the Plaintiffs) are five in
number. The first-named Plaintiff is a Company incorporated under Irish Law
and has its registered office at the Great Blasket Island, Dunquinn, Co. Kerry.
The entire issued share capital of the Company is owned beneficially by the
second, third and fourth named Plaintiffs. The said Company is the registered
owner of certain properties on the Great Blasket Island.
second and third named Plaintiffs are both citizens of Ireland and are also
entitled to be jointly registered as owners of certain properties on the Great
Blasket Islands. They are also entitled to be registered as owners of all the
undivided share or commonage registered in Folio 12252 Co. Kerry and part of
the lands registered in Folio 12253 Co. Kerry. The fourth named Plaintiff is
a citizen of the
States of America and a shareholder in the first named Plaintiff.
fifth named Plaintiff is a German citizen. His claim to a parcel of lands on
the Great Blasket arises out of the death of his brother Arne Jauch who died
intestate, unmarried and without issue. Arne Jauch was, at the time of his
death an Irish citizen, domiciled in Ireland. Dr. Jauch has not yet raised
representation to the Estate of his deceased brother so that, at all material
times, it would appear that the lands which the late Arne Jauch owned on the
Great Blasket were part of the estate of a deceased Irish citizen.
is common case that the Great Blasket Island is a place of great natural
beauty. It is also important in the cultural history of Ireland because of the
writers it produced and because of the record which they left of the dying days
of an island community and of the effects of emigration. But the Island has
been uninhabited since 1953. The islanders departed leaving their houses
unoccupied and their lands untended.
history of what happened since the last inhabitants were evacuated from the
Island in 1953 is set out in some detail in the Judgment of the learned trial
Judge. It is unnecessary to repeat it here. Suffice it to say that the
Plaintiffs, over the course of the years, have acquired many of the plots and
dwellinghouses in the village on the Great Blasket and that the first four
Plaintiffs, between them, are entitled to 17/25ths of the great commonage which
comprises 1,060 acres out of a total acreage of 1,132 acres for the entire
Plaintiffs - and their predecessors in title - were largely inspired by
interest in the Great Blasket and by its history and traditions. They have
probably done more than anyone else to preserve some of the houses in the
village on the Island but the village, as a whole, is suffering from neglect
and is in danger of collapse.
or about 1986 a private association of persons interested in the Great Blasket
was formed. This was known as
An Bhlascaoid - The Blasket Island Foundation”.
professed objective of the Association was to turn the Great Blasket Island
into a National Historic Park. The said Association was later incorporated in
the State as a Company limited by guarantee without share capital on the 4th
day of November, 1987.
1989 the Oireachtas passed An Blascaod Mór National Historic Park Act,
1989. In this bitterly fought case no-one seriously questioned the power of
the Oireachtas to acquire an uninhabited island such as the Great Blasket for
the purpose of establishing a National Park. It is the form which the Act took
which has created all the controversy.
4 s.s. (4) defines
reference to any person as meaning
lineal ancestor, spouse, widow, widower, child, lineal descendant, uncle, aunt,
brother, sister, nephew or niece.”
4 s.s. (3) provides that the provisions of the Schedule to the Act, which
incorporates the Acquisition of Land (Assessment of Compensation) Act, 1919 are
to apply to land acquired compulsorily under the section.
effect of these provisions is that the Commissioners can acquire compulsorily
the lands of any of the Plaintiffs but cannot acquire compulsorily lands owned
or occupied by any person who was ordinarily resident on the Island before the
17th day of November, 1953. Nor can it acquire compulsorily land that is owned
or occupied by a relative of a person, where that person owned or occupied it
and was ordinarily resident on the Island before that date. As the term
lineal descendants of any person who owned or occupied land on the Island and
was ordinarily resident on it throughout any time prior to the 17th day of
November, 1953 the number of persons whose lands are excluded from the
compulsory provisions of the Act is potentially very large and virtually
indeterminate. The number of persons whose lands are subjected to the compulsory
is very small and consists principally, if not exclusively, of the Plaintiffs.
Under these circumstances the Plaintiffs might be excused for assuming that the
Act was aimed at them.
Act was passed on the 7th June, 1989. The Plaintiffs, as already noted had
been for some years the largest owners of land and buildings on the Great
Blasket. In March 1991 the first four Plaintiffs were served with Compulsory
Purchase Orders. On the 7th May, 1991 the first four Plaintiffs instituted
proceedings in which they sought,
a declaration that the Act was invalid having regard to the provisions of the
Constitution. Mr. Jauch was joined as a Plaintiff at a later stage.
action was bitterly fought and was at hearing in the High Court for some 48
days. The Plaintiffs complained
of (a) infringements of their property rights (b) infringements of the
equality guarantee in Article 40 of the Constitution (c) unfair procedures and
breach of constitutional justice in the enactment of the legislation (d) the
incorporation into the 1989 Act of the Acquisition of Lands (Assessment of
Compensation) Act, 1919 (e) the allocation to the Foundation of certain
functions under the Act and the power of the Minister to amend, by Order, the
Act in any way he considered expedient (f) discrimination by impact or
indirectly against E.U Nationals (g) lack of fair procedures in respect of
compulsory acquisition (h) discrimination in respect of the administration of
the Compulsory Purchase Orders (i) breach of the Ireland/USA Treaty, 1950 and
of the European Convention of Human Rights.
Defendants, in the High Court, challenged the
of the Plaintiffs to bring the proceedings. It appears to this Court, however,
that the Plaintiffs - being persons whose lands stood to be acquired
compulsorily under the Act - had sufficient
to bring the proceedings.
Plaintiffs submit that the 1989 Act is peculiar in that - while it is a public
general act - it deals with one particular island. It has the laudable aim of
establishing a National Park but instead of acquiring all the land on the
Island or even a particular portion of the Island it distinguishes between
owners of land and subjects some owners to compulsory purchase while exempting
other owners from that process. The distinction is not based on any difference
of capacity in the owners or even on the basis of their being or not being
Irish citizens. The Plaintiffs include citizens and non citizens but they all
have shown their interest in the Blasket Island and its traditions. The
exempted owners, on the other hand, may include people who are not even Irish
residents or citizens and who have never set foot on the Blasket Islands or in
Kerry. They are to be exempted, it is alleged, on the basis of their lineage
or pedigree. This discrimination in favour of a
is, they suggest, unacceptable in a democratic society, contravenes the
equality guarantee and is, at the very least, a suspect method of
distinguishing between citizens outside the normal law of succession.
for the State submitted that people who lived on the Island prior to November
1953 have a particular contribution to make in relation to the history and
culture of the Island. But it is now 46 years - and at the time of the
enactment of the Act it was 36 years - since the final evacuation of the
Island. Besides, the exemption from compulsory purchase is not merely in
favour of people who were living on the Island up to November 1953, but is in
favour of their lineal descendants and also of the lineal descendants of anyone
who resided and owned lands on the Island at any time prior to November 1953.
It is hard to see any justification for the exemptions sweeping so widely.
for the State has also submitted that the mere fact that it may not be possible
compulsorily to acquire lands now owned by the descendants of emigrants from
the Island will itself tend to emphasise the reality of emigration and to make
the Island a monument to our emigrants. The Commissioners or the Foundation
might well decide to preserve some homes or holdings to show a former way of
life or they might decide to let some homes or holdings fall into dereliction
to emphasise emigration but they should have at least some control over what
they are doing and not have it dictated to them by the chance of whether a
particular holding was or was not owned by a descendant of someone who owned or
occupied and resided on lands on the Island prior to November, 1953.
for the Appellants submitted that the exemption from compulsory purchase
granted by Section 4 s.s. 2 applied only to persons living at the time of the
passing of the Act or, alternatively, at the time of the serving of the CPO
Notices. It is impossible to accept this interpretation in view of the clear
wording of the Section. Alternatively, Counsel submitted that, with the
passage of time, and with the lands descending to ever more remote issue the
Act - though constitutional at present - might be affected by a creeping
unconstitutionality. But both the meaning and the impact of this Act are
clear and the effects are clearly foreseeable. If these effects are
unconstitutional that is the end of the matter. Legislators are not entitled
to enact legislation in the hope that the clearly foreseeable effects of what
they are doing will, with the passage of time, make what they are doing
unconstitutional and therefore invalid.
for the Appellants relied, in this context, on the Judgment of the High Court in
v. The Attorney General [ 1982] IR 117
which it was said that legislation which was constitutional at the time of its
enactment could become unconstitutional by reason of subsequent changes in
circumstances. For the reason already given, that cannot be of any assistance
to the Appellants in the present case.
this context reference should be made to Article 15.4 of the Constitution and
the subsequent decision of this Court in
v. The Attorney General  IR 241.
for the purposes of this case, it is sufficient to say that the Court expressly
reserves for a future occasion the question as to whether the passage cited
from the Judgment of the High Court in
v. The Attorney General
states the law.
the learned trial Judge has pointed out, Section 4 s.s. 2 of the Act creates
two categories of land owners. The first category comprises those owners who
were ordinarily resident on the Great Blasket before the 17th November, 1953,
and their relatives, including their lineal descendants for all time. The
second category includes any person who is not a native resident or relative of
a native resident who has bought land on the island, for example the
Plaintiffs. This introduces an unusual and dubious classification with ethnic
and racial overtones.
the present case the classification appears to be at once too narrow and too
wide. It is hard to see what legitimate legislative purpose it fulfils. It is
based on a principle - that of pedigree - which appears to have no place
(outside the law of succession) in a democratic society committed to the
principle of equality. This fact alone makes the classification suspect. The
Court agrees with the learned trial Judge that a Constitution should be
pedigree blind just as it should be colour blind or gender blind except when
those issues are relevant to a legitimate legislative purpose. This Court can
see no such legitimate legislative purpose in the present case and has no doubt
but that the Plaintiffs are being treated unfairly as compared with persons who
owned or occupied and resided on lands on the Island prior to November 1953 and
Court agrees with the learned trial Judge that the Act is invalid having regard
to the provisions of the Constitution. The Court agrees moreover that as the
distinction between persons whose lands can be acquired compulsorily and
persons whose lands cannot be acquired compulsorily is central to the Act, the
Act must fall in its entirety.