Supreme Court decisions & property rights

Muahahaha

Recently I got talking to an English judge when at a wedding over in the UK. He visits here a good bit and keeps an eye on Irish legal decisions. Anyway we got talking about the Irish Supreme Court and how they view property rights. He was of the opinion (and this was in reference to Lissadell House) that the Irish Supreme Court has on many occasions made judgements in relation to property rights that more than likely would not have been made had the case been run in a UK court of law.

I think the point he was making specifically was that when it comes to walkers rights of way the Irish Supreme Court seems to err on the side of the landowner more often than not. He pointed towards the Lissadell House case and was of the opinion that Irish Supreme Court judges were holding much too high a burden of proof on the council that the rights of way across the estate actually existed.

He said that in the Uk the law certainly respects the right to private property and to enjoy it. However even that can get superseded by what's deemed by judges to be 'the common good' I.e the rights of the many can supersede the rights on the few.

He pointed me towards the Old Head of Kinsale golf course case. It was similar in that walkers had been walking along the cliff/coastal parts of the property for hundreds of year. Private land it certainly was but walkers were walking there without problem. He described the Old Head of Kinsale as one of the most scenic area in all,of Ireland, he had walked it himself on holidays to west Cork. I looked it up- it is indeed spectacular.





So apparently the Old Head of Kinsale was perfectly walkable till about a decade ago when the golf course owners took a case against walkers rambling the coastal paths which they had established going back years. He found it pretty bizarre that an Irish Court upheld the rights of the property owners over the rights of way. The golf club won the case but the court never invoked the wild card of 'the common good'. I kinda agree with him, when you look at those pictures of the Old Head of Kinsale you see it is stunningly beautiful but sad at the same time that now no Irish person can ever set foot on it again without having paid several hundred euro in green fees to the golf club. He called it an absolute tragedy that our judiciary would take away such a magnificent resource away from the citizens of Ireland when there was clear argument that rights of way were long established.

So in light of all that my question is this. Do people think Irish Supreme Court decisions are somewhat biased towards property rights and hold them as virtually sacrosanct, even more so than the common good ? I'm asking this question more so in a general sense rather than specifically in the cases of Lissadell & Kinsale. But it would also be interesting to know if people reckon had the Lissadell & Kinsale cases been run in a UK court how would they have panned out, would you have expected a different decision ?

blueythebear

The major difference between here and the UK is that we have a Constitution. Our Constitution sets out each and every citizens most fundamental rights and this expressly includes the right to private property.

This is the main reason why there would be a difference between here and uk....

Muahahaha

Is what you're saying is that property rights in our Constitution are structured as fundamental rights which cannot be superseded by a principle of upholding the common good ? I.e. even if an Irish Supreme Court judge wanted to rule in favour of the common good he can't due to a hierarchy of rights ?

Pro Hoc Vice

blueythebear wrote: »

The major difference between here and the UK is that we have a Constitution. Our Constitution sets out each and every citizens most fundamental rights and this expressly includes the right to private property.

This is the main reason why there would be a difference between here and uk....

The UK has a constitution, what they do not have is a single written constitution document and all that brings with it,

coylemj

OP, however you try to package it, the insistence by a minority to invoke a right to traipse over private property is not the same as 'the common good'.

If a local authority needs to build a road or lay pipes to service the needs of a few hundred or thousands of their citizens then the property rights of an individual can be set aside or compromised on the basis of the 'exigincies of the common good', the same principle can't be invoked to allow a bunch of ramblers to invade private property for no purpose other than their own recreation.

Pro Hoc Vice

Muahahaha wrote: »

Is what you're saying is that property rights in our Constitution are structured as fundamental rights which cannot be superseded by a principle of upholding the common good ? I.e. even if an Irish Supreme Court judge wanted to rule in favour of the common good he can't due to a hierarchy of rights ?

It's not as simple as that, for many reasons the issue of private property is very complex and more so in Ireland, but the constitution and the way it's been interpreted has lead to a more property owner view in Ireland.

blueythebear

Pro Hoc Vice wrote: »

The UK has a constitution, what they do not have is a single written constitution document and all that brings with it,

The concept of a constitution in the UK is radically different to our concept of a constitution.

In the UK, court decisions and statutes inform and indeed comprise the constitution. Here, our Constitution informs and indeed dictates to our court decisions and statutes.

The obvious point that i made in my first response is that the existence of a constitution document which sets out the fundamental rights of every citizen which is also held as sacrosanct is the reason for differing positions in the UK and ireland on property rights.

Pro Hoc Vice

blueythebear wrote: »

The concept of a constitution in the UK is radically different to our concept of a constitution.

In the UK, court decisions and statutes inform and indeed comprise the constitution. Here, our Constitution informs and indeed dictates to our court decisions and statutes.

The obvious point that i made in my first response is that the existence of a constitution document which sets out the fundamental rights of every citizen which is also held as sacrosanct is the reason for differing positions in the UK and ireland on property rights.

As I said it is incorrect to say the UK does not have a constitution as it clearly does, what it does not have is a single written constitutional document as I pointed out.

A person who can put it better than I http://news.bbc.co.uk/2/hi/uk_news/politics/88136.stm

BTW it is clear that the UK agrees that private property ownership is to be protected and that the common good must be weighed in such protection, it is too simplistic to simply say that because of Article 43 we have a different jurisprudence than the UK.

234

blueythebear wrote: »

The concept of a constitution in the UK is radically different to our concept of a constitution.

In the UK, court decisions and statutes inform and indeed comprise the constitution. Here, our Constitution informs and indeed dictates to our court decisions and statutes.

The obvious point that i made in my first response is that the existence of a constitution document which sets out the fundamental rights of every citizen which is also held as sacrosanct is the reason for differing positions in the UK and ireland on property rights.

The Human Rights Act 1998 incorporates the ECHR into the UK constitutional regime. Protocol 1, Article 1 enumerates a right to private property.

it's not simply the fact that Ireland has a single canonical document that makes the difference.

In my opinion the different approach is probably a judicial reflection of Irish society's historical preference for string property rights. Ever since the land war we have been heavily focused in land and its ownership in a way that England isn't.

Pro Hoc Vice

234 wrote: »

The Human Rights Act 1998 incorporates the ECHR into the UK constitutional regime. Protocol 1, Article 1 enumerates a right to private property.

it's not simply the fact that Ireland has a single canonical document that makes the difference.

In my opinion the different approach is probably a judicial reflection of Irish society's historical preference for string property rights. Ever since the land war we have been heavily focused in land and its ownership in a way that England isn't.

I would totally agree with the view that history is part of the mix, as also is the fact that Ireland was a largely agricultural economy with a large number of people with small landholdings. Most land owners in ireland are 100 acres and a herd of cows a house and a few sheds.

Claw Hammer

234 wrote: »

The Human Rights Act 1998 incorporates the ECHR into the UK constitutional regime. Protocol 1, Article 1 enumerates a right to private property.

it's not simply the fact that Ireland has a single canonical document that makes the difference.

In my opinion the different approach is probably a judicial reflection of Irish society's historical preference for string property rights. Ever since the land war we have been heavily focused in land and its ownership in a way that England isn't.

Individual property rights can be overridden for the common good under the Irish Constitution. There have been numerous court decision to that effect. What the courts can't do is declare rights themselves in a case. There is a separation of powers doctrine. If the Oireachtas passes laws limiting property rights (eg the PRTB limits the rights of landlords) the courts will enforce those laws provided they are not unconstitutional.
The courts can't create a right of way where one did not exist before because they think it is a good idea that people should be able to walk in a particular place. I am unaware of the englis courts do so either for that matter.

Muahahaha

coylemj wrote: »

OP, however you try to package it, the insistence by a minority to invoke a right to traipse over private property is not the same as 'the common good'.

If a local authority needs to build a road or lay pipes to service the needs of a few hundred or thousands of their citizens then the property rights of an individual can be set aside or compromised on the basis of the 'exigincies of the common good', the same principle can't be invoked to allow a bunch of ramblers to invade private property for no purpose other than their own recreation.

Ok so then is it the case that the crux of this is that the Irish Supreme Court tend to never see keeping scenic walks open for the public as being enough towards the common good that they would over rule private property rights ? Is their interpretation of the common good just narrowly focused on infrastructure like pylons, gas pipes, etc? Does public amenity not form any part of the interpretation of common good ?

Am I correct to say that if the Lissadell and Kinsale cases were held in a UK court then there is a good chance the outcomes might have been different ?

Claw Hammer

Muahahaha wrote: »

Ok so then is it the case that the crux of this is that the Irish Supreme Court tend to never see keeping scenic walks open for the public as being enough towards the common good that they would over rule private property rights ? Is their interpretation of the common good just narrowly focused on infrastructure like pylons, gas pipes, etc? Does public amenity not form any part of the interpretation of common good ?

Am I correct to say that if the Lissadell and Kinsale cases were held in a UK court then there is a good chance the outcomes might have been different ?

The Supreme Court might indeed see keeping scenic walks open for the public as being enough towards the common good but it is not for the Supreme Court to legislate. It is for the Oireachtas which has not done so.

If there might be a different outcome in England it would be because of different legislation not because the Judges think something is a good idea.

Bepolite

It's worth noting the double protection. I cant make much more comment I'm at work apart from kudos OP for starting a real Legal Discussion!

PERSONAL RIGHTS

ARTICLE 40

1 All citizens shall, as human persons, be held equal before the law.

This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.

2 1° Titles of nobility shall not be conferred by the State.

2° No title of nobility or of honour may be accepted by any citizen except with the prior approval of the Government.

3 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

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.
3° The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

PRIVATE PROPERTY

ARTICLE 43

1 1° The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.

2° The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.

2 1° The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.

2° The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.

Manach

Of course this is the area of compulsory purchase orders, where the property rights are transferred to another entity (State or in recent cases Private sector) with compensation. Thus in reference to the common good, this is arguable a more clear case that benefits more people and can be more clearly resolved than the issue of "rambling rights". There issues of compensation for land use might not so easily resolved.

234

Claw Hammer wrote: »

Individual property rights can be overridden for the common good under the Irish Constitution. There have been numerous court decision to that effect. What the courts can't do is declare rights themselves in a case. There is a separation of powers doctrine. If the Oireachtas passes laws limiting property rights (eg the PRTB limits the rights of landlords) the courts will enforce those laws provided they are not unconstitutional.
The courts can't create a right of way where one did not exist before because they think it is a good idea that people should be able to walk in a particular place. I am unaware of the englis courts do so either for that matter.

It may be my reading of your post, but I think you are slightly misunderstanding the process of adjudication here.

Yes, the relief granted in court is declaratory. They technically recognise the right rather than create it. However, it is also the court who determines whether the actions of the public have met the test for a public right of way. This will be informed not just be the legislative test, but by the case law in this area.

So the courts do have wide-ranging powers.

No they cannot "create" a public right of way out of the ether, but the English courts certainly don't have this power either.

Claw Hammer wrote: »

The Supreme Court might indeed see keeping scenic walks open for the public as being enough towards the common good but it is not for the Supreme Court to legislate. It is for the Oireachtas which has not done so.

If there might be a different outcome in England it would be because of different legislation not because the Judges think something is a good idea.

Again, the idea of the "common good" here is a way for the law to limit property rights. In this instance, the possibility of public rights of way represents the balancing of the common good against property rights generally.

Mr. Incognito

Compulsory purchase orders are the the rights of many superceding private property rights.

A right of way has to be shown to exist for the courts to affirm. That is a matter for evidence. Each case is judged on the evidence. I dont believe the irish courts have a bias either way nor do the uk courts.

There is no provision in either jurisdiction for judges to apply a right of way from thin air unsupported by strong proof that it has historically been shown to exist

You admit that the people were trespassing in your op on the kinsale head. The court affirmed this.

Thats not to be lamented. People have a right to private land. If its scenic and they want it to be private thats their right.

In 100 years the golf club will be gone and people will be trespassing again. Its not lost forever