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Topic 13- Property Rights (Compensation (In PQ- may be told how much money…
Topic 13- Property Rights
Dual Protection
Any disucssion on right of property should begin with the difficulty posed by the twin references in the Constitution
Article 43.1: private ownership of external goods
no law attempting to abolish right or private ownership
Article 43.2.1/2:
rights may be regulated by principles of social justice or common good
Article 40.3.2: The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
Harmonious Protection
Hogan and White- 'When considering constituional protection of property rights, these Articles mutually inform each other'
Dreher v Irish Land Commission
: Two articles should be read harmoniously
Re Article 26 and the Health Amendment Bill 2004:
Sets out the sequence of reasoning or analysis that the court should engage in as follows
Examine the
nature
of the property right in issue
Consider whether the Bill consists of a regulation of thos righs in accordance with principles of
social justice
and whether the Bull is required so as to delimit those rights in accordance with the exigencies of the
common good
In the light of its conclusions on these issues, to consider whether the Bill constitutes unjust attack on those property rights
Unjust Attack and Proportionality
Daly v Revenue Commissioners
Facts: Finance Act 1987 introduced 'withholding tax'
Issue: Finance Act 1990 provided tax became chargeable on the profits and gains of the year of assessment, instead of the year proceeding teh year of assessment
In order to prevent windfall benefits resulting from amendments
Issue: Effect of this was that money withheld was greater than tax actually paid e.g. for applicant 69,000 withheld where tax only 42,500
Had to borrow money, stop practice to find employment as a locum doctor
HELD: Breached applicant's property rights
effect was to reduce funds available to tax payer
Applied Heany proportionality test- FAILED: PRODUCED MANIFESTLY UNFAIR RESULTS e.g. paying double tax upfront
Re A26 and The Health Amendmen Bill 2004:
Facts: Some nursing home residen wrongly charged
Bill proposed to
a) make those charges lawful in future
b) Validate any past charges
Issue: retrospective validation
Held: this was unjust attack on property right to sue to recover unlawful charges
'Substantial encroachment on rights, without compensation, will rarely be justified;
Noted:
Property rights of persons of modest means deserve partiuclar attention
Expropriating property solely in State's financial interest is justified only in exceptional fiscal emergency
Brennan v AG
Facts; Rathes on agricultural land had no been updated since mid-19th century
Issue: argued did not reflect true value of land
Held: Courts should be slow to interfere with taxaion issues
BU: ppropery axes must have 'reasonably uniformity of valuation'
= UNJUST ATTACK due to arbitrary and irrational rules
people with poor land coud pay higher rates than people with good land
Rateable valuation was 'arbitrary and irrational'
Gilligan v CAB:
Court upheld constitutionality of Proceeds of Crime Acs
provided for confiscation of property if the Court was satisfied property= proceeds of crime
Issue: Presumption of constitutionality required fair procedures
Held: noted- preliminary freezing order, hen full hearing later, compensation available if order wrongly made
Issue Was this a criminal Issue: to justify burden of proof on individual to show his property was not proceeds of crime
Civil procedure, no problem w reversed burden
3.Issue: Whether it was an unjust attack on property rights
Held: Court appealed Heany proportionality test
Not an unjust attack as
Cour mus be firs sisfied it is proceeds of crime
Common good prevented accumulation of wealth from crime
J and J Haire and Co v Minister for Health:
Facts: Minister reduced payment ot pharmacists under HSE contracts in context of economic downturn under Financial Emergency Measures in teh public Interest Act 2009
Held: The only right at play was the 'right' under contract- this not breached by reduction pursuant to stat power
Two significant holdings
AS best it may- must be read in light of economic situation
Court must consider constittuional duties
Signals what amounts to bread ofproperty rights could be different during a time of recession than during more favourable economic times
Unjust attack
retrospectivity (Re A26)
lack of fair procedures
unreasonableness and irrationality (Brennan/Daly)
discrimination
lack of proportionality (Healy Test)
lack of compensation (see compensation branch)
Unite the Union v Minister for Finance:
Example of 'as best it may'
Facts: Challenge to government decision not to exempt certain employees of central bank from pension levy
Issue: argued because they had their own pension scheme should be exempt
Held: Court side stepped qu of whether property rights engaged
Sated assuming such rights engaged interference was clearly in public interest give 'dire financial circumstances' of country
Compensation
In PQ- may be told how much money person stands to lose by an interference with their rights
Should give you opportunity to discuss issues of compensation
Be careful to note compensation does not 'cure' what would have been an otherwise unconstitutional interference
First ask whether there is a justified interference- if answer yes, then issue of compensation arises
Usually at market value but not absolute
Dreher v Irish Land Commission:
Facts: P land worth 30,000 compulsorily acquired
-Paid compensation in bonds valued at 29,400
Issued- Argued entitled to full 30,000
Held: no violation of property rights
bond calculation had gone as far as was reasonably poss to take account of market fluctation
Held: THere may be cases where market value is not equivalent to just compensation
Or cases where no compensation required at all
O'Callaghn v Commissioner for Public Works
Facts: P bought land which contained a prehistoric fort
Wanted to plough through it, preservation order placed preventing him
Issue: In absence of compensation, he argued breached hsi property right
Held; lack of compensation here was not unconstitutional
The common duty of all citizens to preserve such monuments
P aware of monument on land when he purchased it
Useful case- 2 factual issues- one required compensation, other didn't
ESB v Gormley
Facts: Challenge to Electricity Supply Act 1927
s53 provided for power to place power lines across property
s98 provided for power to cut any tree or shrub that was in the way
Act provided for notice but not compensation
Held:
s53= unconstitutional for failing to provide compensation
creating power network = in public interest and part of common good
BUT compensation required
s98- constitutional
relatively minor burden of cutting trees away from power lines was not an 'unjust attack'
Re A26 and the Planning and Development Bill 1999
Facts: Challenge to scheme whereby property developments had to reserve 20% of its land for social housing
Issue: compensation provided but was well below market value
Held: Court applied Heaney proportionality tes
Noted- aim of providing affordable accomodation was legitimat
Confirmed that generally a person entitled to market value BUT THIS WAS NOT ABSOLUTE
Any person who inhereited or acquired land took it subject to general law of planning imposed by public interest
= not unconstitutional
Clinton v An Bord Plenala
: Finnegan P agreed with following from Kelly on Constitution:
' AS an important preliminary point, it is submitted that it follows from A43.1 that compensation
CANNOT VALIDATE AN INTERFERENCE WITH PROPERTY RIGHTS THAT IS NOT JUSIFIED BY THE EXIGENCIES OF THE COMMON GOOD
Property rights cannot be reduced to right to compensation
Compulsion to acquire must also be justified in common good
Level of Compensation
Rafferty v Minister for Agriculture
Facts: P suffered a compulsory depopulation of his sheep due to foot and moutn disease outbreak
Issue: Statutory right to compensation
Hwever P claimed for comsequential loss
-HELD: SC- compensation implies compensation for the TOTAL LOSS
included consequential loss
May be circumstances where less justified but such circumstnaces would be subject to
strict scrutiny
Property Rights of Companies
Iarnrod Eireann v Ireland
: HC held property rights could be invoked by companies
Distinction between property rights and right to equality
Latter expressly limited by A40 to 'human persons'
Eylewood ltd v Companies Act
: Company Shares hve been held to constitute property
Article 40.5- Protection of the Dwelling
A40.5: Provides that a citizen's dwelling is inviolable and shall not be forcibly entered save in accordance with law
Typically fell for consideration in cases where house searched unlawfully and issue for consideration= exclusionary rule
However, recent cases, A40.5 considered in civil context
Wicklock CC v Fortune
: Employed as defence to an application by County Council to demolish a house which had been built in breach of planning law
Hogan J relied Heavily on A40.5- relied on Damche to find A 40.5 operated outside of teh criminal sphere and created a free standing right such that a dwelling enjoyed the 'highest possible level of legal protection
Held; the mere non-compliance with planning law could not justify an order for demolition
Council would have to show cont occupation and retention of dwelling would be so manufestly at odds w important public policy objectives that demolition =
only fair, realisc and proportionate response
Wicklow CC v Kinsella
Councul sought order directing respondents to remove timber chalet erected without PP
Held: disagreed with approach taken by Hogan J
Noted huge public and community interest in protecting environment and integrity and efficacy of planning law
Held: Would be inappropriate for court to step on shoes of planning officials
Sceptical of role of A40.5
Meath County Council v Murray
Facts: SC addressed what it termed Fortune/Kinsella A40.5 debate
Building of fam home by Ds, refused PP, built house x2 size of one applied to build
HELD: HC- order house be demolished
HELD SC: Hogan J had elevated the protection of teh dwelling to too high a position
To require council to estab an objective justification for demolition went too far
Proper focus should be on asking why a demolition should not follow
Directed Property be demolished
Did recognize role of A40.5 could be developed in future jurisprudence