Property Flashcards
Article 40.3.2
Protection from unjust attack on property rights
Article 43
Allows state to regulate property rights based on social justice
Curtailing property rights on basis of common good
Blake v AG
‘double-protection’
Re Article 26 and the Health (No. 2) (Amendment) Bill 2004
Courts need to
1) examine the nature of the property right at issue
2) is regulation of these rights in line with common good?
3) does it constitute as an ‘unjust attack’?
Dellaway v NAMA
property extends to contract rights, right to earn a living, right to one’s entitlements under an appointment to an office etc.
Pine Valley Developments v Minister for the Environment
Enhancement is not considered a property right
Sister Mary Christian
Far-reaching uncompensated restrictions could be constitutionally legitimate in some circumstances
Hampenstall
Court held that licences were created under law and could be handed out in accordance with this law
Held that a change in conditions which diminishes their commercial value cannot be regarded as an attack on property rights
Hygeia
Where a licence is needed, such as in marketing, taking it away would only be permissible for common good reasons
Where a product would be worthless without a licence
Haire & Company v Minister for Health
Pharmacists were under a scheme where they got financial backing from the state
Reduced after economic downturn
Court held that the legislation and regulations were a proportionate and well-tailored response to an exceptional situation
Minister for Social, Community and Family Affairs v Scanlon
Welfare benefits derive from statute, so do not constitute as personal rights
However, wrongful charges are protected
Clinton v Quirke
There must be a ‘sufficient and proper public purpose for the acquisition and which purpose cannot be achieved by lesser means’
Blake v Attorney General
Cap was put on payable rent
Court held that it was unconstitutional
One group carrying burden
Health Amendment Bill
Asked patients to contribute to costs for hospital
Held that financial cost was not a justification under social interest
Employment Equality Bill
Challenge made to an employer’s responsibility to adapt their premises to accommodate workers with disability
Not constitutional
Heaney
Proportionality test:
1) Be rationally connected to
the objective and not be
arbitrary, unfair or based on
irrational considerations
2) Impair the right as little as
possible
3) Be such that their effects on
rights are proportional to the
objectives
O’Callaghan
P bought land with pre-historic promontory fort
Knew he could not interfere with it, then argued unjust attack
Court held not entitled to compensation as he knew when he bought the land
Barry v Ennis Property Finance
‘there are simply some infringements of those rights which money cannot compensate for.’
Clinton v An Board Pleanala
Court held there was no doubt what the idea was for the future when it came to the CPO
No argument
Egan
Discussions that the land was derelict and a public health hazard
Court held enough information present
Reid v IDA
Held that a particular industrial endeavour did not need to be specified
COA overturned and said that there was not enough information
Article 40.5
‘The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law’
AG v O’Brien
‘in any event the dwelling of the citizen is inviolable save where entry is permitted by law and that, if necessary, such law may permit forcible entry
DPP v Gaffney
Under law, implied invitation to enter through gate and up driveway, not through hall/door
Sullivan v Boylan
Actions that make people feel unsafe in their own home will be a breach
Injunction granted to stop debt collector parking outside a woman’s house
DPP v Delaney
Police not in breach when they entered to save child
O’Brien
When family members live together - whole house is the dwelling
Where one person clearly occupies a definite potion - separate dwelling
Simple Imports v Revenue Commissioners
‘Search warrants…entitle police and other officers to enter the dwellinghouse or property of a citizen, carry out searches…and remove any material which they find on the premises’
DPP v McCarthy
Principles of error in search warrant:
i) Documents such as search warrants need to be carefully prepared, particularly as they involve the rights of entry, search, and seizure in relation to the property of a citizen
ii) This ‘cautionary approach’ is more important where the warrant is in respect of the dwelling house of a citizen.
iii) Although care is needed, ‘not every error in such a warrant will, by virtue of the same, lead automatically to the invalidation of a warrant.’
iv) ‘In particular, where the substance of the warrant, as opposed to its form, is not open to objection, the invalidation of the warrant will not necessarily ensue.’
v) ‘The nature of the error, or omission, must be scrutinised by the courts to see whether it is of a fundamental nature, including whether the error is a mere misdescription, whether it is likely to mislead, whether it undermines the apparent jurisdiction to issue it…’
vi) It is not possible that non-substantive errors (errors which do not affect the substance of the legislative requirements for a warrant) will never lead to the invalidation of the search warrant due to the wide variety and nature of the errors that occur
DPP v Mallon
Warrants should be ‘clear and capable of being understood by the person to whom it I granted, and by the occupier of the premises when it is presented to him or her’
