Property Rights

Question 1

what articles in the constitution reference property rights?

Answer 1

Both Article 40.3 and Article 43 reference property

Question 2

what is the difference between the two property rights

Answer 2

In Blake v Attorney general article 43 deals with property as an institution, whereas 40.3.2 deals with ownership over a particular piece of property.

Question 3

which case gave a summary of property and what did it say?

Answer 3

Dellway v. National Asset Management Agency

• Not just land or money.
• It is more extensive and extending to established contractual rights,
• to the right to earn a living, to the right to one’s entitlement under an appointment to an officer or under contract of employment, and to the rights to pensions, gratitudes,
• or other emoluments for which one has contracted or earned.

Question 4

what was held in the case of Re Eylewood Ltd?

Answer 4

Finlay Geoghan J held that the general right of the state to regulate property rights is of course governed by Article 43. However it is now well established that the
protection of an individual in the exercise by him of his own property rights is protected by Article 40.3.2.

Question 5

Article 44.2.6

Answer 5

It is suggested that the seizure of property without compensation would, in almost every other case, constitute an “unjust attack”

Question 6

what was held in Central Dublin development Association v AG

Answer 6

Kenny J held that the absence of compensation for a restriction or abolition will make the act which does this invalid if it is an unjust attack on property rights

Question 7

what is the test for unjust attack and compensation

Answer 7

This is tested by the Heaney test

a. Be rationally connected to the objective and not arbitrary, unfair or based on irrational considerations
b. Impair the right as little as possible
c. Be such that their effect on rights are proportional to the objective

Question 8

what does Unjust attack mean?

Answer 8

This means that the property rights of an individual cannot ordinarily be taken away in a manner that is objectively unreasonable, unfairly discriminatory or arbitrary

Question 9

what was ruled in the case of Brennan v Attorney General?

Answer 9

Barrington J ruled that a system for the collection of rates from land owners amounted to an unjust attack

Question 10

what has property been defined as?

Answer 10

Land: O’Callaghan v. Commissioner of Public works
Movable property and money: AG v. Southern Industrial Trust 1960
Intangible rights: Photographic Performance (Ireland) ltd v. Cody

Question 11

what are the facts of ESB v Gormely

Answer 11

The supreme court ruled that a property owner had to be compensated by ESB for the routing of large electricity pylons through his land. Although the court agreed that the ESB could undertake this work without the owner’s consent, it is concluded that their refusal to compensate the defendant constituted a breach of his property rights

Question 12

what does compensation do?

Answer 12

Compensation does not cure what would have been an otherwise unconstitutional interference. Instead compensation is due to a person having had a permissible interference with their property rights as established in the case of Clinton v An Bord Pleanala

Question 13

what are the facts of Dreher v Irish Land Commission?

Answer 13

The plaintiff wanted cash rather than bonds. the court held that no violation of property rights had taken place. The bond calculation had gone as far as was reasonably possible to take into account market fluctuation. The court stated that there may be cases where market value is not equivalent to just compensation and there may be cases where no compensation is required at all

Question 14

what are the facts of O’Callaghan v. Commissioner of Public Works

Answer 14

Pl purchased lands which contained a historic fort listed for preservation. He could not interfere with the site without prior notice to the commissioner, and they gave a preservation order when they learned he was ploughing the land.

There was no provision for compensation in the legislation.
He was on notice of the limitation before the purchase and subject to the common duty of all citizens to ensure
preservation of such sites – lack of compensation was not grounds for challenge.

Question 15

what are the facts of Re Article 26 and the Planning and Development Bill.

Answer 15

SC held that where the state compulsorily acquires land for of what are deemed by the legislature to be important
social objectives, there is a general right to compensation at market value, but it is not absolute.

In this case, the
owner was required to cede some of his land for social housing in order to get planning permission for residential housing.

The scheme passed the Heaney (proportionality) test – it was rationally connected to the objective which was of sufficient
importance, related to a pressing and substantial concern. It impaired the right as little as possible.

Question 16

double protection of property

Answer 16

Article 40.3 protects citizen’s rights to ownership of particular property which has been bought or had been given while article 43 prohibits abolition or private property as an institution

Per Hogan & White – “when considering constitutional protection of property rights, these Articles mutually inform each other”

Question 17

is property an absolute right?

Answer 17

Property is not an absolute right. It can be limited by requirements of social justice and the common good article 43 which is a matter for the courts in consideration in light of the principles of proportionality

Question 18

According to Re Article 26 and the Health Amendment Bill 2004 - what is the 3 step process in deciding if any bill is repugnant to the Constitution?

Answer 18

First – Examine nature of property right at issue;
Second – Consider whether law regulates in accordance in social justice or common good (Article 43);
Third – Does it constitute an unjust attack (Article 40.3) (ie. does in pass the proportionality test)

Question 19

property rights of companies

Answer 19

Iarnrod Eireann v Ireland
- HC held that prop rights could be invoked by companies. Keane J drew distinction between property rights and right to equality -> latter is expressly limited by art 40 to ‘human persons’

Company shares can be property -> Eylewood Ltd v Companies Act

Question 20

where in the constitution does it provide for protection of the dwelling?

Answer 20

Article 40.5 - The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.

Question 21

what are the facts of Meath CC v Murray?

Answer 21

Family built home despite planning permission being refused

HC – Ordered demolition

Argued – HC failed to consider Article 40.5

Held (SC) – Article 40.5 did not apply Importance of upholding the planning laws
But, Article 40.5 could have a role to play in civil law, but would be developed on a case-by-case basis.

Question 22

what are the facts of CA v Minister for Justice ?

Answer 22

MacEochaidh J referred to the fact that it had not been argued before him that the unannounced search of the ‘home’ of a person in direct provision could breach Article 40.5.