In Blake v. Attorney General, the Supreme Court held that Article 43 protects the institution of property and property in the broader sense. This would include the elements of the institution including the rights of transfer, bequest, inheritance and enjoyment of property.
Other aspects of state interference with property are covered by Article 40.3 by the guarantee against unjust attack.
The right to private property is a personal right. In virtue of his rational being, man has a natural right to individual and private ownership of worldly wealth. The Constitution protects a bundle of rights, most of which are founded in contract.
The State cannot pass any law, which abolishes all the bundle of rights which are called ownership or the general right to transfer, bequeath or inherit property.
The Constitution provides special protection for property owned by certain religious and educational bodies. “The property of any religious denomination or any educational institution shall not be diverted, save for necessary works of public utility and on payment of compensation.”
Restrictions of Rights in Common Good
The exercise of these rights ought to be regulated by principles of social justice and the State accordingly may by law restrict their exercise with a view to reconciling this with the demands of the common good.
The courts have jurisdiction to inquire whether the restriction is in accordance with the principles of social justice and whether the legislation is necessary to reconcile this exercise with the demands of the common good. If any of the rights, which together constitute the concept of ownership are abolished or restricted (as a distinction from the abolition of all the rights), the absence of compensation for this restriction will make the act, which does this invalid if it is an unjust attack on property rights (Central Dublin Association v. Attorney General).
Scope of Rights Covered
The scope of property rights covered by the Constitution covers a broad range of assets. It was accepted in the challenge to the NAMA Act that contractual rights affected by the legislation were property rights under the Constitution. Similarly, in a challenge to deductions from payments on foot of the Financial Measures in the Public Interest Act (during the financial crisis) the deduction was accepted to affected proprietary contractual rights.
In the State (Pheasantry Ltd) v. Donnelly, intoxicating liquor licences were held not to be property protected by the Constitution. It was said to be a privilege granted by statute and regulated in the public interest. There is no constitutional right to an intoxicating liquor licence, nor to a renewal thereof.
In a challenge to changes in legislation regarding taxi and hackney licences, a similar approach was taken. The value of the licence may change upwards and downwards by regulation. But this effect on its commercial value cannot be regarded as an attack on property rights in the licence. Similarly, the Supreme Court held that quotas were not property rights in the sense protected by the Constitution.
Takings of Property
In the Planning and Development Bill 1999 reference, the Supreme Court were of the view that the requirement to give lands to the local authority or equivalent value was rationally connected to an objective of sufficient importance to warrant interference with a constitutionally protected right. The serious social problems which the measure was designed to meet related to concerns, which in a free and democratic society should be regarded as pressing and substantially and were proportionate to the objective sought to be obtained.
In the An Blascaod Mór Teoranta v OPW case No.3, the Supreme Court found that the Blascaod Mór National Historic Park Act 1989 unconstitutional, in that it unfairly discriminated in the manner in which it acquired assets on the Great Blascaod Island. It distinguished between persons who had owned land there before or since 1953 and was not regarded as a legitimate basis for the distinction.
Fair procedures are required in relation to taking of lands or assets compulsorily. This principle applies generally in respect of the taking of liberty, property and reputation.
Internationally, the necessity of taking of land is sometimes determined judicially. Originally, the Irish Land Commissions exercised its functions by judicial commissioners. Laterally non-judicial commissioners were appointed which was held to be unconstitutional on the basis that they were undertaking an administrative or limited judicial function protected by Article 37.
It appears that there is no requirement that requires takings of land under the statutory scheme to be undertaken by a body independent of the entity concerned (O’Brien v Bord na Mona). Compulsory purchase laws commonly provide for the possibility of a public inquiry were required prior to confirmation of an order. It appears that the absence of these features in the legislation does not make it unconstitutional.
The Court was prepared to read in a presumption that the Board would give some element of a hearing and opportunity to make representations. It was held the Board was exercising an administrative and not judicial function and was in the best position to decide what land should be acquired, compulsorily.
The Board was obliged to follow fair procedures. It was required to give a fair notice to the owner of property of its intention to acquire land and give an opportunity to make representations or objections. It must consider them in a judicial manner. Failure to do so in the case meant the acquisition was invalidated.
Payment of Compensation
There is a common law presumption that when property is taken or acquired compulsorily that compensation should be paid. See generally the sections on compulsory acquisition and the mechanisms for arbitration of compensation disputes. It is widely assumed that generally, property may not be taken under the Constitution without compensation, although the position is not expressed.
In a case where ESB was entitled to acquire wayleaves without compensation, it was held that the provisions were unconstitutional. No compensation was required, although ESB did pay ex gratia compensation. The absence of an entitlement to compensation was held to represent an unjust attack on property rights.
The Supreme Court has held that compensation should be determined in accordance with fair procedures. In contrast, in the same case, the ESB’s power to cut shrubs and hedges adjacent to power lines was held not to require compensation as it placed a relatively minor burden on landowners.
The statutory compensation rules require compensation by way of payment of the market value of the land taken. The courts have indicated that just compensation does not necessarily require that the market value be paid. The Land Commission paid compensation in land bonds whose value at nominal value was less than the market value of the land.
The Supreme Court noted that there may be a delay in the bonds becoming available in the market, for realisation, by which time their value had fallen. However, the challenge on constitutional grounds to payment in land bonds was rejected.
The same principle was upheld on the reference of Part V of the Planning and Development Bill 1999. This required transfer of 20% of the land in question at its non-development used value. The special considerations applicable to planning permission justified the payment of compensation of significantly less than market value. The court accepted that the general principle was that a person should be paid the market value of the land. However, there were special considerations applicable to planning which justified departure from the general principle.
In Maher v, Attorney General Minister for Agriculture, it was held that changes in land values due to change in the quota systems where the link between quotas and land was broken was not unconstitutional.
It does not appear that the Constitution requires that compensation has to be determined by a judicial body. Indeed, it appears that in a case regarding on A Blascaod Mór that judicial review of such decision-making be precluded.