An act from 1989 aimed at developing the Great Blasket Island into a national park through acquiring most of it by means of a compulsory purchase order is unconstitutional, the High Court has ruled.
The Act was an extreme case of delimiting the island land-owners' property rights, Mr Justice Budd said yesterday. It involved discriminative treatments between two classes of citizens "based substantially on pedigree".
He found in favour of the widow of a former US diplomat, two brothers and a German academic, who between them own most of the island and had asked the High Court to rule the State could not acquire their lands by compulsory purchase order.
The judge held that legislation introduced in 1989 by the then Taoiseach, Mr Charles Haughey, in his capacity as Minister for the Gaeltacht, discriminated against the land-owners and failed to comply with the Constitution.
The challenge was brought by Mr Peter Callery, a solicitor from Dingle, Co Kerry; his brother, James, of Cloonahee House, Elphin, Co Roscommon; Ms Kay Brooks, widow of a former US diplomat; and Mr Matthias Jauch, of Mercier Park, Turner's Cross, Cork.
Through a company, An Blascaod Mor Teo, the landowners control 17/25ths of the island. They challenged the constitutionality of the 1989 Blascaoid Mor National Historic Parks Act, which enabled the land to be compulsorily purchased for development as a national park.
Ms Brooks owns 50 per cent of the land-holding; the Callerys hold 25 per cent each of the remaining land and Mr Jaunch inherited a property which his late brother, Arne, had owned jointly with a local man, Muiris Cleary.
In a 182-page review, Mr Justice Budd said there were seven islands in the Blasket chain. The land-owners had pleaded that Mr Haughey at the time of the passing of the 1989 Act had an interest in the Blasket Islands and they were concerned that Inishvickillane island was bought by the Haughey family in 1974. Part of the landowners' contention was that if a national park was appropriate, it should comprise all the Blasket Islands.
Mr Justice Budd said the landowners claimed they should be permitted to retain ownership of some property on the island in the same manner as the relatives of those who left before 1953 (or were evacuees in that year) are exempted from acquisition. They also objected to provisions in the 1989 Act whereby the Office of Public Works could expropriate their interests and transfer the running and management of the park to a privately-owned Blasket Foundation.
The judge said the Act was particularly unusual in that land belonging to one small group of land-owners might be expropriated whereas another group of land-owners, who might not be Irish residents or citizens or have set foot in Kerry, were exempted on grounds of lineage pedigree.
The Callerys had made it clear that "as Irish citizens in a democratic republic, they did not accept the validity of a discrimination in favour of a `pedigree folk' or the necessity for compulsory acquisition from some landowners but not from others, to demonstrate the life and culture of the former inhabitants of the island".
The Callerys contended that the State should have contacted them bearing in mind that offers of co-operation were made by Mr Peter Callery from 1972. No approach was made, whereas State agents had no fewer than 43 meetings with members of the foundation. They said if a reasonable proposition had been made, they would have been prepared to consider and co-operate in the preservation of the village and amenities on the island.
The judge held that the 1989 Act was an encroachment on and an extreme case of delimiting the land-owners' property rights. He concluded there was discrimination against the land-owners and that it was invidious, unfair and offensive as it was "discriminative treatment between two classes of citizens based substantially on pedigree".
The Act was "unfairly undiscriminatory in its application and failed to comply with the provisions of Article 40.1 of the Irish Constitution".