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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Reid -v- Industrial Development Agency (Ireland) & ors [2013] IEHC 433 (19 June 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H433.html Cite as: [2013] IEHC 433 |
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Judgment Title: Reid -v- Industrial Development Agency (Ireland) & ors Neutral Citation: [2013] IEHC 433 High Court Record Number: 2013 16 JR Date of Delivery: 19/06/2013 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 433 THE HIGH COURT [2013 No. 16 JR] BETWEEN Thomas Reid Applicant v.
The Industrial Development Agency (Ireland), Ireland and Attorney General. Respondents Judgment of Mr. Justice Hedigan delivered on the 19th of June 2013. Application 1. The applicant in these proceedings is seeking an order of certiorari quashing the decision of the first named respondent to compulsorily acquire the applicant's home and lands. The applicant also seeks various declaratory reliefs together with damages for breach of his constitutional rights and rights under the European Convention on Human Rights arising from the proposed compulsory acquisition. Parties Factual background 3.2 The lands the subject matter of these proceedings are adjacent to Carton Demesne and comprise 72 acres of farmland together with the applicant's family home known as Hedsor House. The Rye Valley directly north of the lands at Blakestown is designated as a candidate Special Area of Conservation (hereinafter "cSAC") therefore the lands are directly adjacent to a Natura 2000 site. Hedsor House is a protected structure and dates to circa 1760. The lands although unzoned for industrial use are of interest to the IDA as the Intel campus is nearby. 3.3 The IDA was established under the Industrial Development Act 1993. Section 3(2) of the Industrial Development Act 1995 expressly provides that the IDA "shall have the power to acquire, hold and dispose of land and other property or any interest therein.". Under s.16 of the Industrial Development Act 1986 the IDA is given power to provide or facilitate the provision of sites or premises for the establishment, development or maintenance of an industrial undertaking. These powers include the power to acquire lands, to construct, adapt and maintain buildings and other works, to provide services and facilities in connection with land and to sell or lease lands. 3.4 The IDA has statutory functions vested in it to secure foreign direct investment (hereinafter "FDI") and under s.16 the 1986 Act has the power to compulsorily acquire lands. The IDA's powers under the 1986 Act differ from the powers of local authorities under the Planning and Development Act 2000, under which a County Council seeks to compulsorily acquire land and An Bord Pleanala hears arguments for the acquisition and agrees or refuses to grant a compulsory purchase order (hereinafter "CPO"). Under the 1986 Act the IDA satisfies itself that it can make a CPO. It does this by deciding to acquire the lands, formalising the decision in a "record of decision" and then notifying the party concerned. So unlike local authorities it does not have to go through the CPO process. 3.5 The IDA wishes to acquire the applicant's lands to provide or facilitate the provision of sites or premises for the establishment and development of industrial undertakings in the advanced manufacturing sector. This is the first time that the IDA has sought to exercise its power under s.16 of the 1986. 3.6 On the 7th March, 2012, the IDA entered into the CPO process. It had previously requested to purchase the lands from the applicant and he refused to sell. On the 8th March, 2012, the IDA served him with a Notice of Intention to Acquire. As the applicant was unwilling to sell a form of inquiry was established to look into the IDA's proposed acquisition, which was presided over by Mr. Conleth Bradley S.C. This inquiry ran for five days with the Reid family making representations. The preliminary hearing was held on the 21st May, 2012 at which the applicant was not present. A second preliminary hearing took place on the 5th June, 2012, at which the applicant was legally represented. The substantive hearing began on the 4th July, 2012, wherein the applicant made objections and observations which formed part of the report of the independent adjudicator. Applicant's Submissions It is submitted that the decision to compulsorily acquire the applicant's lands is unsound and exceeds the statutory authority of the respondent. Section 16 of the 1986 Act permits the IDA to compulsorily acquire the applicant's lands or to acquire the lands by agreement. The power to compulsorily acquire exists in respect of lands where the IDA considers that industrial development will or is likely to occur. However, s.l6 is not a standalone test. The first named respondent must be satisfied that industrial development within the meaning of s.l6(1) will or is likely to take place but also must be satisfied that the industrial undertaking conforms or will conform to the criteria set out in s.21(3) and (4) or s.25(2) of the Act. Although the IDA seeks to rely on s.25(2) in addition to or by way of alternative to s.21(3) and (4) it is submitted that this section has no application at all to the power to acquire under s.l6(l)(a) referring as it does to the circumstances in which an employment grant may be given. The applicant argues that to satisfy s.21 of the Act the IDA must know that an industrial undertaking is going to occupy the land being purchased. Section 21(3) provides:-
(a) will produce products for sale primarily on world markets, in particular those products which will result in the development or utilisation of local materials, agricultural products or other natural resources; or b) will produce products of an advanced technological nature for supply to internationally trading or skilled sub-supply firms within the State; or (c) will produce products for sectors of the Irish market which are subject to international competition; or (d) is a service industry as specified by the Minister by order under section 3." The applicant submits that an analogy may be drawn with s.213 (3) of the Planning & Development Act 2000 which deals with the acquisition of land by a local authority for future as opposed to immediate use. Section 213(3) states:-
(b) The acquisition may be effected by agreement in respect of any land which, in the opinion of the local authority, it will require in the future for the purposes of any of its functions notwithstanding that the authority has not determined the manner in which or the purpose for which it will use the land. (c) Paragraphs (a) and (b) shall apply and have effect in relation to any power to acquire land conferred on a local authority by virtue of this Act or any other enactment whether enacted before or after this Act." If anything, the IDA's powers are more curtailed then the powers vested in local authorities given that local authorities are authorised in express terms to acquire land for a future purpose. No such authorisation has been given to the first named respondent. The applicant argues that he is not advocating a higher threshold than development is "likely" to occur. If the IDA had obtained expert studies indicating the probability of obtaining zoning, as well as ecology reports and conservation reports indicating there were no problems then the applicant could understand how it came to conclude that development would occur. However, the applicant argues, the evidence the IDA relied on did not support the idea that development was even likely to occur and it should have had positive evidence of development being likely before approaching the applicant to acquire his lands. Moreover, applicant argues that the IDA in its decision did not give the reasons for concluding that industrial development was or is likely to occur as a result of the acquisition of the lands in question. Thus, the applicant submits the respondent failed to reach a reasoned decision as required by the requirements of fair procedures and/or constitutional justice. In this regard the applicant relies on Deerland Construction Ltd. v Aquaculture Licences Appeals Board [2008] IEHC 289. This case is authority for the proposition that the mere recital of matters before an adjudicator is insufficient. That reasons should be given for a body's decision was noted in Meadows v. the Minister for Justice, Equality and Law Reform [2010] IESC 3 wherein Murray J. in the Supreme Court commented under the heading "Section 5" of the judgment that:-
Unless that is so then the constitutional right of access to the Courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective." The applicant contends that the Industrial Development Act 1986 is unconstitutional (being a breach of Article 40.3 and/or Article 40.5 and or Article 43 of the Constitution) in that it enables a body seeking to compulsorily acquire lands to make its decision to do so without judicial oversight rendering it essentially an arbiter in its own cause. The applicant argues that it should provide for a legitimate contradictor i.e. an objective third party to validate the decision of the authority and in this case make the decision if the project should go ahead at all. The applicant accepts that an independent adjudicator Mr. Bradley S.C. was appointed however he had no decision making function and therefore could not affirm, vary or set aside the respondent's decision. His role was confined to information gathering and the decision-making power continued at all times to reside in the respondent. The applicant refers to the case of O'Brien v. Bord na Mona [1983] IR 255. In that case the applicant challenged the respondent's powers to compulsorily purchase bog land arguing that it was unfair that there was no third party adjudication. The High Court agreed however the Supreme Court overturned its decision finding that the exercise of the power is constitutional and not judicial, nemo judex in causa sua did not prevent it from making a decision to compulsorily purchase and there was no need for a third party. The applicant argues that the authorities and the view of the Oireachtas have progressed since that case and points to the Planning & Development Act 2000 in this regard. This Act makes a third party mandatory for local authorities and the applicant argues that the same should apply to the IDA. The applicant relies on the case of Donegan v. Dublin City Council [2012] IESC 18. Under s.62 of the Housing Act 1966 Dublin City Council can apply summarily for possession and this was found to be in breach of the ECHR. The Court found that where there is a dispute on the merits which cannot be resolved then judicial review is not an adequate remedy and adjudication by a third party is needed. This is since the courts cannot look at the merits in judicial review. The judge held at para.129 that:-
That case related to an administrative act so was similar to the present case. However, the applicant argues that case merely involved an interference with the applicant's home. In the present case the complete removal of the applicant's home is at stake. As Hardiman J. put it in The People v. Barnes [2007] 3 IR 130 at p.144:-
'The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.' This is the modern Irish formulation of a principle deeply felt throughout historical time and in every area to which the common law has penetrated. This is that a person's dwelling house is far more than bricks and mortar; it is the home of a person and his or her family, dependants or guests (if any) and is entitled to a very high degree of protection at law for this reason." The fact that the applicant may appeal or object to the planning application is inadequate as at that stage he will no longer be in possession of his home. He argues that there is a dispute on the merits in relation to planning and environmental issues like in Donegan. These matters will still remain unresolved following judicial review. He argues if he had a chance to ventilate the issues before an independent body such An Bord Pleanala and it was to find that the CPO could go ahead he would have to comply with that decision and could not now make the case that he is making. However, he was never given this opportunity. The words of Geoghegan J. in Paul Clinton v. An Bord Pleanála (No. 2) [2007] 4 IR 70 I in the context of the consideration of the lawfulness of a decision to exercise a power to compulsorily acquire are of some of force in the present case. At p. 723 of his judgment he stated:-
Articles 6(3) and (4) of Directive 92/43/EC (hereinafter the "Habitats Directive") require that where lands are adjacent to a cSAC an appropriate assessment or study be undertaken to assess the environmental impact of any acquisition for development or any project where development is likely to have an effect on the site. The project can only proceed if, on the basis of the appropriate assessment, it is concluded that it will have no adverse effects on the integrity of the site, unless the project is necessary for reasons of overwhelming public importance. Mr O'Leary, the Chief Executive Officer of the IDA, concedes that such a study is required but argues that it is only required at the date the respondent applies for planning permission. The applicant argues that a report commissioned by the respondent and drawn up by the Project Management (PM) Group advised that a study was required to confirm the site's suitability for the purpose envisaged by the respondent and that such report should be completed at the outset i.e. at the time the decision to acquire was taken. Thus, the applicant submits in failing to conduct this study the respondent did not have enough information to be able to assert that it was likely that industrial development would take place on the lands and it appears that it did not have regard to its own expert's opinion. The applicant contends that in the absence of evidence that the lands will be or are likely to be developed for industrial purposes the respondent's decision to acquire is ultra vires. The applicant asserts that the IDA's belief that the lands will be developed is peculiar since the lands are zoned agricultural which means that in their present state they cannot be acquired for the establishment, development or maintenance of an industrial undertaking. The applicant submits that this cannot be ignored in considering if the lands will or are likely to be developed for industrial purposes. The applicant notes that the respondent's assertion that such development would not be a contravention of Kildare County Development Plan is contrary to the advice of its own planner (Mr Brogan's) report. Mr.O'Leary's argues at para. 41 of his affidavit that the valuation consultant on behalf of the late Mrs Catherine Reid, the applicant's mother, Mr. Kevin Me Entaggart, indicated that the lands were of sufficient size to enable potential purchasers to seek rezoning on the basis of a comprehensive development plan. The applicant however argues that any valuer may make similar statements but this is entirely different to relying on a planning proposition by the IDA The respondent also relies on a statement of Mr John O'Malley, planning consultant for Mrs Reid who indicated that the existence of advanced manufacturing in the region give the lands significant planning potential. The applicant argues that Mr O'Malley never addressed the local/Kildare planning context or issues raised by Mr. Brogan regarding the fact it is an unzoned area. The applicant submits that it is clear from the site selection process reported upon that the lands at Blakestown are far less suitable than the next favoured site assessed in circumstances where the second site is already within the development plan for industrial development and raises none of the planning and environmental concerns which arise in connection with the development of the lands at Blakestown for industrial purposes. 4.4 Pre-determination; The applicant contends that the respondent pre-determined the outcome by identifying the site to be compulsorily acquired first and then engaging in an evaluation and site selection process directed at justifying this decision. The applicant submits that the IDA may argue that no formal decision had been made which may have technically been correct regarding the CPO. However, there was a decision to acquire voluntarily at least as of December, 2011. This is evident from correspondence and contact with the Reid family from which it was clear that the respondent had decided to buy the lands which said correspondence and contact predated the formulation of "selection criteria" and the conclusion of the selection process. 4.5 Breach of the European Convention on Human Rights; Aside from Constitutional rights the applicant relies on rights under the ECHR. The first named respondent's decision to compulsorily acquire the lands is subject to the requirements of s.3 of the ECHR Act 2003.This section provides:-
The European Court of Human Rights (hereinafter "ECtHR") has ruled that there must be a reasonable relationship of proportionality between the means employed and the aim to be realised in "the public interest" in interfering with rights protected under the Convention (Lithgow v.UK). It is submitted that this Court must determine whether due to the state's interference or passivity a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. It is the applicant's contention that the acquisition of lands for development for industrial purposes now, in circumstances where grave and substantial questions arise in relation to whether the land could ever be lawfully developed for these purposes, does not strike a fair balance between the competing interests of the applicant and the common good. The essential object of article 1 of protocol 1 of the Convention is to protect individuals against unjustified interference by the State with the peaceful enjoyment of their possessions. In particular the state is under an obligation to provide judicial procedures that offer the necessary procedural guarantees and therefore enable the domestic courts and tribunals to adjudicate effectively and fairly any cases concerning property matters. This is more so in cases involving an interference with rights in the home (article 8) such as this one. In this regard the court is referred to various cases of the EctHR. In Yordanova & Ors .v. Bulgaria (Application No. 25446/06) the ECtHR ruled at para. 118 (vi):-
The applicant submits that there is an issue of objective bias. The chairman of the first named respondent Mr. Liam O'Mahony took part in the original decision to proceed with the site on Hedsor lands based on a selection process which had been carried out by a firm of which he is director, namely the PM Group. The applicant contends that key selection criteria identified on behalf of the respondent as underpinning the site selection process and the evaluation of the five short listed sites assessed for selection were not properly applied in the selection of the lands by the PM Group in arriving at their recommendation that the lands be selected. The site was not objectively the most suited of the sites assessed for industrial development. The test for objective bias is what would the reasonably well informed ordinary person think. The IDA states that Mr O'Mahony had no part in the selection process or obtained no advantage from the selection of the site. The applicant argues that this is irrelevant as he alleges objective bias. The manner in which the selection was conducted is enough to lead to a suspicion on the part of the applicant that the selection was done unfairly and leave him with a reasonable apprehension of bias. First named respondent's Submissions The first named respondent contends that it did not have to identify or assess a specific project or particular industrial entity before deciding to acquire the lands. It contends its purpose in making the CPO is to acquire the lands for later use. It is important to have a land bank so when a foreign enterprise seeks to establish itself in Ireland the IDA can indicate to them that it may have suitable land. It is submitted that the appropriate test is that set out in s.l6 of the Industrial Development Act 1986 Act which is a different test to that set out in s.213 of the Planning and Development Act 2000.The IDA submits that the 2000 Act has no application to the exercise by the first named respondent of its powers under s.16 That section provides:-
(a) acquire (either permanently or temporarily and either by agreement or compulsorily) any easement, way-leave, water-right or other right whatsoever over or in respect of any land or water; (b) terminate, restrict or otherwise interfere with (either permanent}y or temporarily and either by agreement or compulsorily) any easement, way leave, water-right or other right whatsoever over or in respect of any land or water; (c) construct, adapt and maintain buildings and other works; (d) provide services and facilities in connection with land; (e) sell, lease or otherwise dispose of land vested in it; (g) make grants to aid persons to- (i) acquire land, (ii) construct and adapt buildings and other works, and (iii) provide services and facilities in connection with land; (h) do any act or thing which may be necessary for or incidental to the doing of anything which the Authority is by the preceding paragraphs authorised to do, if the Authority- (i) considers that industrial development will or is likely to occur as a result, and (ii) is satisfied that the undertaking conforms or will conform to the criteria set out in subsections (3) and (4) of section 21 or section 25 (2). 2) The provisions of the Second Schedule shall apply to the exercise by the Authority of its powers under this section. (3) Nothing in subsection (1) shall be construed as affecting the operation of section 130 of the Transport Act, 1944."
(2) An employment grant may be made where, in the opinion of the Authority, the service industry would contribute significantly to regional and national development and, in particular- (a) would be commercially viable, (b) would have good prospects for growth, and (c) would not be developed in the absence of an employment grant. (3) The amount of an employment grant shall be subject to such financial limits as may be fixed from time to time by the Minister with the concurrence of the Minister for Finance. (4) The Authority shall not, without the prior permission of the Government, give in respect of a particular undertaking an employment grant or grants exceeding in the aggregate £1,250,000." In Henry A. Crosbie v. Custom House Dock Development Authority [1996] 2 IR 531 the planning application was meant to be for the National Sports Centre. This was later changed to a waste management centre. The CPO for the applicant's lands was quoted at p.536 of Costello P.'s judgment, and it stated:-
The respondent also points to the case of Clinton v An Bord Pleanala [2007] 4 IR 701.1n that case the applicant was the owner of land in O'Connell Street, Dublin. He challenged a CPO on the grounds that the statutory requirements in relation to the CPO (being s.213 of the Planning & Development Act 2000) made it necessary for the order to specify the particular development for which the required site was to be compulsorily acquired. Geoghegan J. in the Supreme Court observed at para. 43 of the judgment that in a case where property was or was not "immediately required for a particular purpose" but it was intended for the purpose of future development, "There would be no basis, however, for declaring the Compulsory Purchase Order void for lack of particularity". 5.2 Development likely to occur; In making its decision on the 23rd November, 2012, the respondent contends that there was more than ample evidence before it to justify it concluding that industrial development will or is likely to occur on the applicant's lands following the compulsory acquisition of the lands by it as provided under s.16 (1) (a) (i) of the Industrial Development Act 1986. In O'Keeffe v. An Bord Pleanala (1993) 1 IR 39 in the Supreme Court at p.72 Finlay J. observed:-
The acquisition of the applicant's lands for the purposes of a land bank for future development is not in itself ultra vires under the powers of the IDA provided that there are good reasons for the IDA determining that such acquisition is for the purpose of the provision of a particular site and where it considers the industrial development will or is likely to occur as a result of the acquisition of the land. The fact that the lands are not zoned is not crucial to the decision made by the first named respondent and statute does not require that present zoning be changed before the IDA can decide that industrial development will take place. While there is statutory protection for environmental sites in the vicinity of the lands at issue this does not mean that planning cannot take place. The IDA could buy a site and then decide how it is to be dealt with. For example it could choose to facilitate the provision of a site by allowing the site to be used in different ways which do not require planning permission i.e. exempted developments. This could arise when a body has planning permission to carry out industrial development and requires an additional site for a period of time for use ancillary to the development. No planning permission will be required for the ancillary land e.g. a storage area for materials in the main site is exempt. In that situation planning permission is not the be all and end all. The respondent argues therefore that the decision to acquire without planning permission is reasonable and rational. 5.3 Lack of reasons given; The respondent submits that the process adopted and agreed by it far exceeds any legislative requirements in respect of other legislation pertaining to the procedure to be adopted for landowner's consultation in respect of the compulsory acquisition of land. The applicant was appropriately represented at the earliest possible stage and all documentation, transcripts, legal and technical reports and submissions were circulated to him, therefore he was privy to the reasoning of the IDA. Moreover, he fully took part in the oral hearing wherein he tested the information, presented his own evidence and heard the IDA's experts. The reasoning behind the decision making of the IDA is readily to be ascertained from the decision made by the board on the 23rd November, 2012, which identified all of the material and processes which informed its decision making including material comprising evidence in the submissions presented to the adjudicator prior to and during the oral hearing. This was then considered by the first named respondent's board, and is recorded in the decision itself. Therefore, from the outset it is argued, the applicant knew why the respondent wished to purchase the land and it was unnecessary for the respondent to explicitly state its reasons. The respondent relies on various authorities which have dealt with the issue of reasons. In Mc Cormack v. An Garda Siochana Complaints Board [1997] 2 ILRM 321 Costello P. addressed the issue of failure to state reasons at p.331. He found that:-
In South Bucks DC v Porter [2004] UKHC 33 the House of Lords held at para. 36 that:-
The court found that there was not much difference between the Council's and An Bord Pleanala's wording ("necessary for the purposes of facilitating the implementation of the Dublin City Development Plan") and although the wording of Dublin City Council was more terse it was regarded as acceptable by the Court since although there was no immediate need for regeneration this would be the ultimate need. It was clearly the reason for the CPO and therefore the purposes set out in the CPO by Dublin City Council were adequate. At Para. 43 the Court held:-
Thus, the respondent contends that the applicant cannot have been in any doubt as to the underlying reasons of the board in arriving at its conclusion. It submits that the applicant is only raising an argument now regarding the reasons given to seek to have a decision that he does like quashed. 5.4 Proportionality; The respondent contends that it fully considered the proportionality of seeking to CPO the applicant's lands. The Industrial Development Act 1993 sets out the functions of the IDA. Section 8 provides that:- "The functions of the IDA shall be, as an agency of Forfás
(b) to make investments in and provide supports to industrial undertakings which comply with the requirements of the enactments for the time being in force".
Yordanova related to circumstances in which a house was taken by way of repossession without facility being given to the homeowners to make a compassionate plea against it. The first named respondent argues that unlike that case it gave the applicant every chance to make his case. Para.18(v) of the ruling in Yordanova stated:-
In Buckland where a gypsy had been disposed of her home the court found at para. 70:-
5.5 Allegation of Bias; The chairman of the IDA Mr O'Mahony was appointed as such in February 2010 and at that stage he was already a non-executive director of the PM Group but he had no role in the preparation of the PM report which advised on the merits of the relevant lands intended for acquisition. The test, the first respondent, submits is not if Mr Reid thinks there is something wrong with the process undertaken or even if the court does. The test for objective bias is if the reasonable man who is properly informed of all the circumstances of the matter would have any apprehension of an unfair process of decision-making rising from the business connection of Mr O'Mahony with the PM Group. It is submitted that no apprehension in the instant case would arise on the part of the reasonable man. The case law does not envisage a flawed process arising from such a business connection In Bula Limited v. Tara Mines Limited & Ors (No.6) [2000] 4 IR 412 the issue at hand was the possible bias on the part of members of the Supreme Court because of previous legal advice given by them to the parties some years earlier. No bias was found in that case. At para. 49 of his affidavit Mr.O'Leary's states in relation to the allegation:-
2nd named respondent's submissions The second named respondent argues that the provisions of the Industrial Development Act 1986 (as amended) enjoy a presumption of constitutionality and the onus lies fairly with the applicant in seeking to demonstrate that the provisions are unconstitutional. It is submitted that the applicant's case is based on a mischaracterisation of the nature of the decision making process under s.l6 of the 1986 Act. The applicant seeks to portray the decision as a judicial or quasi-judicial decision and then argues that the decision must meet the strict requirement for independence which is applicable to a judicial decision. He contends that it is unfair that there is no independent arbiter appointed with the power to confirm, amend or refuse the first named respondent's decision to acquire his lands. The respondent notes that this very issue has been settled by previous judgments. In O'Brien v. Bord na Mona the applicant sought to challenge the constitutionality of a statutory power of compulsory acquisition vested in Bord na Mona under the Turf Development Act 1946. The grounds for the challenge were summarised by O'Higgins J. at p.280/281:-
Similarly, the respondent argues that its decision is an administrative one and does not attract the same requirement for independence and impartiality as attends a judicial decision. The respondent refutes the notion that O'Brien is old law and submits that the principle in that case was more recently stated by the Supreme Court in O'Cleirigh v. Minister for Agriculture [1998] 4 I.R. 15 which concerned the assessment of compensation for the loss of public office. More recently in Ballyedmond v. Commissioner for Energy Regulation [2006] IEHC 206 Clarke J. discussed the nature of the consideration relevant to a decision to acquire land compulsorily. He described the role of the Commission for Energy Regulation as follows at para. 3.2:-
6.2 Availability of judicial review is sufficient; The respondent argues that if this Court was to find any shortcomings in its role as an in impartial decision-maker such are remedied by the existence of judicial review before the High Court which has the power to correct any error made. This, the respondent submits, operates as a safety mechanism ensuring that affected persons are afforded fair procedures/constitutional justice. The applicant seems to have overlooked this fact and the role of judicial review in general. In Clinton the Supreme Court emphasised the right of a landowner affected by compulsory acquisition to make an application for judicial review with Geoghegan J. holding at para. 46:-
A similar question to that raised by the applicant in this case was rejected in the UK House of Lords in R (Alconbury Developments Ltd. v. Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23- namely whether a decision to acquire land compulsorily may only be made by an administrative body which is independent and impartial. The House of Lords found that the Secretary of State's jurisdiction to make compulsory purchase orders was consistent with article 6 of the ECHR. The House placed emphasis on the fact that the Secretary of State's decision is amenable to judicial review before the courts and this was sufficient to constitute "full jurisdiction" for the purposes of article 6. 6.3 Article 6 of ECHR; The respondent denies that an independent correct procedure capable of meeting the requirements of article 6 of the ECHR has not been adopted by the state. It relies on Alconbury wherein Lord Slynn at paras. 40-50 stated:-
The ECtHR in Bryan v. United Kingdom (App no.19178/91) at paras. 44-45 found that full jurisdiction does not mean a full appeal is necessary to be present and judicial review is sufficient.
Therefore the respondent submits that it fulfils requirements under the ECHR as the applicant has recourse to judicial review.
If the applicant can show that the test under s.l6 is not satisfied the CPO will fail. However the respondent contends that he has failed to do so and the Court should therefore dismiss his application. 6.4 Reliance on other case-law is misplaced; The applicant relies on Damache and concedes that if he was only relying on 0'Brien he would lose the constitutional argument. He argues that the law has moved on since O'Brien. The respondent denies this is the case and submits that O'Brien and Damache have the same legal principles and are in fact reconcilable. The respondent contends therefore that the applicant is incorrect to rely on Damache. The circumstances in that case are not analogous to the type of decision at issue in the present case. Damache related to the issuing of a search warrant, which by definition must have some element of surprise. The person affected has no opportunity to seek judicial review in advance of the execution of the warrant, the only safeguard being the person who signs the warrant. In contrast a CPO is not self-executing and the person affected has an entitlement and an effective chance to take judicial review proceedings before the decision is implemented. Moreover, the IDA has no vested interest in the decision to make a CPO since it is not buying the land for itself. This is in marked contrast to Damache where the Gardaí had a real interest in an investigation. Decision
(b) The IDA failed to evaluate the site before deciding to acquire. There was no sufficient evidence before it upon which it could make this decision, (c) The decision was vitiated by objective bias due to the presence of Mr. Liam O'Mahony on the Board as Chair and his position as an nonexecutive director of PM, (d) There were no reasons or no proper reasons given by the IDA in its decision, (e) The constitutional case- nemo iudex in causa sua, (f) The European Convention on Human Rights issue- the action of the IDA was disproportionate- judicial review does not provide an independent tribunal capable of independently evaluating the fairness and proportionality of the decision made. This power is provided by s. 16 of the Industrial Development Act 1986. This provides as follows:-
(a) acquire any land either permanently or temporarily and either by agreement or compulsorily; if the Authority - (i) considers that industrial development will or is likely to occur as a result, and (ii) is satisfied that the undertaking conforms or will conform to the criteria set out in subsections (3) and (4) of section 21 or section 25 (2)."
(a) will produce products for sale primarily on world markets, in particular those products which will result in the development or utilisation of local materials, agricultural products or other natural resources; or (b) will produce products of an advanced technological nature for supply to internationally trading or skilled sub-supply firms within the State; or (c) will produce products for sectors of the Irish market which are subject to international competition; or (d) is a service industry as specified by the Minister by order under section 3." (4) The industrial undertaking shall also satisfy the Authority that- (a) financial assistance is necessary to ensure the establishment or development of the undertaking; (b) the investment proposed is commercially viable; (c) it has an adequate equity base; (d) it has prepared a suitable company development plan; and (e) it will provide new employment or maintain employment in the State that would not be maintained without assistance given under this Act and increase output and value added within the economy."
(a) would be commercially viable; (b) would have good prospects for growth, and (c) would not be developed in the absence of an employment grant." 7.2 Failure to evaluate the site The applicant's case in this regard seems based upon certain evidence he provided to the hearing as to the unlikelihood of industrial development on his lands due to certain planning and environmental issues. Yet the IDA is clearly the expert body nationally to determine whether industrial development is likely or not. It must classically be a function of its own expertise. Thus, the jurisdiction of the Court to intervene is very limited. It must be satisfied that there was no relevant material before the Board when it made its decision to acquire these lands. See O'Keeffe v. An Bard Pleanala [1993] 1 I.R. 39. In this regard it should first be noted that s. 16 and s. 25 cited above require substantial criteria to be fulfilled before the IDA can exercise its power of compulsory purchase. As is clear therefrom, the IDA must satisfy itself of matters that are almost exclusively within its own particular area of expertise. Here there appears in the transcript of the oral hearing, in the extensive written evidence, in the submissions made by the parties and in the adjudicator's report, all of which was before the Board of the IDA when it decided to invoke its power of compulsory purchase, an amplitude of evidence upon which the Board could rely to reach its decision. I do not believe it was seriously argued that this was not so. Thus the Court cannot intervene on this ground. 7.3 Objective bias The test is well known. It involves questions of perception of a likelihood of bias as opposed to actual bias. It is set out by Denham J., as she then was, in Bula Ltd. v. Tara Mines Ltd. & Ors. (No.6) [2000] 4 I.R. 412 at p. 441:
7.4 Failure to give reasons for its decision The obligation on an administrative body to give reasons for its decision is very limited. In McCormack v. An Garda Siochana Complaints Board [1997] 2 ILRM 321, Costello P. stated as follows (at p. 331):
The applicant's case must therefore be that the Board had a duty to provide reasons for its opinion that no breach of discipline and no offence had been disciosed."
[It] is not the law of this country that procedural fairness requires that in every case an administrative decision-making authority must give reasons for its decisions. It seems to me that that issue can largely be determined by considering whether some detriment is suffered by the applicant by the failure of the Board to give reasons for the opinion which it reached because if no detriment is suffered then no unfairness can be said to exist." 7.5 The constitutional issue- nemo iudex in cause sua The applicant raises claims under the Constitution and the European Convention on Human Rights. This Court must first address the constitutional issues before turning, if necessary, to the Convention issue. See Carmody v. Minister for Justice and Equality [2010] 1 IR 635 at 650. The applicant's case is that his right to constitutional justice is breached herein because there exists no independent arbiter with the power to amend, confirm or quash the IDA's decision to acquire his lands. Clearly the onus lies on the applicant to rebut the presumption of constitutionality of the Industrial Development Act set out above. In this case what is challenged is not the power of the State to compulsorily acquire land. This power exists beyond doubt in Irish law- see O'Brien v. Bard na Mona [1983] IR 255. The applicant argues that there should, however, be some form of independent arbiter to determine whether this should be permitted in individual cases. It seems to me, however, that the judgment in O'Brien deals squarely with this claim where (at p. 281) O'Higgins C.J. states as follows:-
In the view of the Court it is necessary in this case to examine and consider the structure and intention of the Act of 1946 in order to determine whether Bord na Mona, in making a decision to acquire land or property rights compulsorily, is exercising a function or power of a judicial nature. If it is, then it cannot be a judge in its own cause. But on the other hand, if it is acting in discharge of an administrative function, it would have an obligation to act fairly and properly but would not necessarily be inhibited from deciding the question as to whether or not to acquire."
Viewed in that light, it would appear clear that the decision as to whether or not any particular area of land should be acquired for the attainment of that objective should be effectively vested in Bord na Móna. There is not any other authority of the State, executive or judicial, which should make the decision in principle as to whether, balancing the desirability of the production of turf on the one hand and the interests of an individual owner of land on the other, the production of turf or the agricultural interests of the landowner should prevail. Such a view of the purpose and effect of the statute does not vest in Bord na Móna an arbitrary or capricious power. Nor is it exempt in any way from review by the Courts should it, in any particular instance, act from an indirect or improper motive or without due fairness of procedure or without proper consideration for the rights of others. This Court is satisfied that, subject to these very considerable restrictions, the making of, or refusal to make, an order for compulsory acquisition is essentially an administrative act. Having reached that conclusion, the Court is further satisfied that neither the absence of a right of appeal from the decision of Bard na Móna to acquire a particular area of land or property right, as distinct from the right to review the exercise of that right, nor the absence of a scheme for a confirming external authority constitutes a breach of any of the plaintiffs constitutional rights." In this case the IDA having decided they were interested in the applicant's lands approached him. He was not prepared to sell. Thus the IDA decided to embark upon a compulsory purchase process. The Board served a notice of intention to acquire. It established an inquiry under the chairmanship of Conleth Bradley, S.C. Legal representation was granted to the applicant. The right of the applicant to make objections, representation and observations and the right to call his own expert witnesses was confirmed. The IDA was required to submit a statement of its case with a précis of the evidence it intended to rely upon. The applicant was given the opportunity to respond. It was agreed that some parties could raise particulars in relation to issues arising. There were two preliminary hearings and the full hearing commenced on the 4th July, 2012 and continued until the 6th July. In the course of this inquiry it is clear that every avenue of approach was investigated. All parties had the fullest opportunity to put their case. All the expert reports were available for examination and comment. It is clearly apparent that the IDA was fully aware of, and I find fully committed to, the fairest possible procedure to allow the applicant test the IDA's own rationale for acquiring the land and also to propose his own alternatives. No fault can be found by me with this process. The inquiry body was, it seems to me, a very satisfactory modus operandi when one accepts that no obligation existed for an independent or external body with decision making powers. As found above, the IDA was making an administrative not a judicial decision. Thus the obligation was to act fairly and included in this was the obligation to act proportionately. This means that it must act for a legitimate purpose, any interference with rights must be the minimum necessary to achieve its purpose and it must act in accordance with law. Should it fail to do any of these, the Court has jurisdiction to intervene but not otherwise. It seems to me on the evidence before the Court that the IDA did act fairly and for a legitimate purpose and that the interference with the right of the applicant to his property was the minimum necessary to achieve its purpose and that it acted in accordance with the law. As to whether its actions were proportionate, I will deal with that under the next heading. 7.6 The European Convention on Human Rights The applicant relies on s. 3 of the ECHR Act 2003 which requires that, subject to any statutory provision or rule of law, every organ of the State shall perform its functions in a manner compatible with Ireland's obligations under the provisions of the Convention. This, the applicant argues, requires that he should have available to him the possibility to have the proportionality of the deprivation of his home caused by the compulsory purchase thereof, determined by an independent tribunal. See Yordanova v. Bulgaria, Bjedov v. Croatia and Buckland v. United Kingdom (cited above). In these cases the European Court of Human Rights has decided that in circumstances where a person is to be deprived of their home, Article 8 requires that they have in principle the opportunity to have the proportionality and reasonableness of the measure determined by an independent tribunal in the light of the relevant principles under Article 8. Is the IDA or was the independent inquiry such an independent tribunal? It seems to me that the independent inquiry was a part of the IDA decision-making process. As noted above, it was a fair and proper forum in which the applicant was given every opportunity to make his case on any ground that he wished. It must be noted that no plea ad misericordiam in relation to the loss of his home was actually raised at that hearing. I would have some doubt as to whether this whole process could be regarded as an independent tribunal which could consider the Article 8 issues that the European Court of Human Rights has decided is required. Although it has no particular interest in preferring one site over another, nonetheless the IDA does have its own particular interest in the sense of its perception of what or which land was most suitable in the light of its policy in relation to industrial development. I do not think, however, that the Court needs to resolve this issue. In my view, if there was any doubt as to the jurisdiction of this Court in judicial review to consider the reasonableness and proportionality of compulsory purchase, that doubt has been resolved. Firstly, the Supreme Court in O'Brien (cited above) requires the IDA to act with due fairness of procedure and with proper consideration for the rights of the applicant. In the event it did not do so, clearly this Court can intervene. Secondly, in Meadows v. Minister for Justice [2010] IESC 3, [2010] 2 I.R. 70I, the Supreme Court harking back to the essence of Henchy J.'s seminal judgment in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642, found that the proportionality of any out that interfered with constitutional rights was something the Court of judicial review could examine. Denham J., as she then was, stated (at para. 179) as follows:
'I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all decision making which affects rights or duties require, inter alia, that the decision maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.' 180 This test includes the implied constitutional limitation of jurisdiction of all decision making which affects rights and duties. Inter alia, the decision maker should not disregard fundamental reason or common sense in reaching his or her decision. The constitutional limitation of jurisdiction arises, inter alia, from the duty of the courts to protect constitutional rights. When a decision maker makes a decision which affects rights then, on reviewing the reasonableness of the decision:- (a) the means must be rationally connected to the objective of the legislation and not arbitrary, unfair or based on irrational considerations; (b) the rights of the person must be impaired as little as possible; and (c) the effect on rights should be proportional to the objective."
(2) Are the applicant's rights as little impaired as possible? (3) Are the effects on his rights proportionate to the objective? 7.8 The rights of the applicant to his house in particular have been considered. In the final paragraph of the IDA decision dated the 23rd November, 2012, the Board decided that some arrangement should be made to defer taking Hedsor House and to leave the occupant in possession for a transitional period to be agreed. Thus the IDA seem to me to be attempting to minimise the impact on the applicant's rights as best they can in the light of the ultimate objective which is to take the lands. It goes without saying that this will probably fall far short of leaving the applicant in his home permanently. It is, however, the most that can practicably be done to minimise the effects of the compulsory purchase upon him. 7.9 Lastly, the Court must consider the proportionality of the compulsory purchase. On the one hand is the significance of the applicant's home. Hedsor House is not only the applicant's home, it is a house of historic importance. It is a protected structure. It was built in 1760. It is apparently named for the land agent of the Carton estate of the Dukes of Leinster. It has been occupied by the applicant's family for over a century. It has, thus, not only historic but great family value. These are considerations that must weigh heavily in the balancing of interests with which the Court is here involved. Elements of homelessness that arose in the Strasbourg cases are not, of course, present here. The applicant will be fairly compensated for his land and house. The decision as above noted provides that there will be appropriate consideration given to transitional arrangements for allowing the applicant stay in the house as long as possible. The alleged unlikelihood of development is not something I can consider since "likely" is the criterion and that is something within the expertise of the IDA to assess. Nothing I have heard or read herein could lead the Court to intervene in the decision of the IDA that development was likely if the lands were acquired. Nonetheless, in the end the applicant loses his lands and his home. It is a heavy loss he is asked to bear. Weighed in the balance against this is the need, never greater than now, for industrial development in Ireland. The affidavit of Barry O'Leary herein sets out a profoundly impressive array of facts that show the immense importance of attracting foreign direct investment in Ireland. The success of the IDA in achieving this has resulted in the location in Ireland of eight of the top ten companies in the world in ICT, eight of the top ten companies in the world in pharmaceuticals, fifteen of the top twenty five countries in the world in medical devices and more than fifty per cent of the world's leading financial services companies. Forfás statistics for 2011 show that IDA client companies spend €18.8bn. in the Irish market. Payroll expenditure was €7.3bn. Expenditure on Irish sourced materials was €1.7bn. and IDA client companies spent €9.6bn. on Irish sourced services. Over 150,000 people are employed in Ireland by IDA client companies. Specific targets in the IDA's Horizon 2020 include 105,000 new jobs, 640 investments and annual client spend of€1.7bn. in research, development and innovation. High-end manufacturing, global services and research development and innovation are target areas. Focus is on information and communications technology, life sciences, financial services, content industry, consumer and business services and diversified industries and engineering. To achieve this the IDA must compete at the highest level internationally. Every advantage must be taken and utilised to succeed in this most vital of competitions. It is obvious that nothing less than one hundred per cent effort required at every level in order to succeed in winning investment from competitors just as anxious to succeed. The evidence is that the lands in question located in the so-called M4 corridor present an ideal opportunity for development. Mr. O'Leary avers that the lands are of national and economic importance to Ireland in the struggle to win further foreign direct investment. This was acknowledged by the planning consultant, David Mulcahy, called on behalf of the applicant. This is an expert assessment made by the first respondent and is clearly based on the fullest analysis of the target market and the lands in question. It is not an assessment with which this Court can interfere. 7.10 It seems to me that, weighing these two cases in the balance, this Court is driven to the conclusion that the national interest must outweigh the individual. The need, never greater, to increase employment and generate business demands that many sacrifices be made. Here the burden falls heavily on one party and the Court must and does have sympathy with him. However, the examination of the proportionality of the compulsory acquisition of these lands must conclude that it is proportionate to the objective sought taking into account the applicant's undoubted property rights and his rights under Article 8 of the Convention. 7.11 Thus, I find that all the grounds raised in this application fail and I must refuse the reliefs sought. |
