CEDH · CASELAW;REPORTS;ENG — 6 juin 1990

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  Application No. 12742/87   PINE VALLEY DEVELOPMENTS LTD. AND OTHERS   against   IRELAND   REPORT OF THE COMMISSION     (adopted on 6 June 1990)                           TABLE OF CONTENTS                                                               Page   I.       INTRODUCTION         (paras.   1 - 18) .....................................   1           A.       The application                 (paras. 2 - 7) ...............................   1           B.       The proceedings                 (paras. 8 - 13) ..............................   1           C.       The present Report                 (paras. 14 - 18) .............................   2     II.      ESTABLISHMENT OF THE FACTS         (paras.   19 - 47) ....................................   4           A.       The particular circumstances of the case                 (paras. 19 - 41) .............................   4           B.       Relevant domestic law and practice                 (paras. 42 - 47) ............................. 12   III.     OPINION OF THE COMMISSION         (paras. 48 - 108) .................................... 16           A.       Points at issue                 (para. 48) ................................... 16           B.       Article 1 of Protocol No. 1                 (paras. 49 - 89) ............................. 16           C.       Article 14 of the Convention in conjunction                 with Article 1 of the Protocol                 (paras. 90 - 101) ............................ 23           D.       Article 13                 (paras. 102 - 107) ........................... 25           E.       Recapitulation                 (para. 108)   ................................. 25   DISSENTING OPINION OF MR. LOUCAIDES, joined by Mr.   Vandenberghe, Mrs.   Thune and Mr.   Rozakis ....... 27   PARTIALLY CONCURRING, PARTIALLY DISSENTING OPINION OF MRS. LIDDY ................................................ 29   APPENDIX I       :   HISTORY OF THE PROCEEDINGS ................ 32   APPENDIX II      :   DECISION ON THE ADMISSIBILITY ............. 33   I.   INTRODUCTION   1.       The following is an outline of the case as submitted to the European Commission of Human Rights and of the procedure before the Commission.   A.   The application   2.      The first applicant is Pine Valley Developments Ltd., a company registered in Dublin whose principal business was the purchase and the development of land.   The company is still in existence but is not trading.   It has no assets.   3.       The second applicant is Healy Holdings Ltd., the parent company of the first applicant also registered in Dublin, whose principal business was also the purchase and development of land.   The company has been in receivership since 14 October 1985.   The shareholding in Pine Valley Developments Ltd. was held by Healy Holdings Ltd. and by the third applicant in trust for Healy Holdings Ltd.   4.       The third applicant, Mr.   Daniel Healy, is the managing director and sole beneficial shareholder of both the first and second applicants.   He is an Irish national and lives, at present, in England.   5.       The applicants are represented, in the proceedings before the Commission, by Mr.   Philip O'Sullivan S.C., of counsel, and Messrs. McKeever & Son, Solicitors, Dublin.   6.       The application is directed against Ireland whose Government are represented by their Agent, Mr.   P. E. Smyth, Department of Foreign Affairs.   7.       The case concerns an alleged interference with the applicants' property rights and the absence of compensation or other remedy under Irish law for such interference.   It raises issues under Articles 13 and 14 of the Convention and Article 1 of Protocol No. 1.   B.   The proceedings   8.       The application was introduced before the Commission on 6 January 1987 and registered on 23 February 1987.   On 8 October 1987, the Commission decided, in accordance with Rule 42 (2)(b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite them to present, before 15 January 1988, their observations in writing on the admissibility and merits of the application insofar as it raised issues under Article 1 of Protocol No. 1 and Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.   Following an extension of the time limit, the respondent Government submitted their observations on 15 March 1988. The applicants' observations in reply were submitted on 9 May 1988.           The Commission next considered the application on 15 December 1988 and decided to invite the parties to a hearing on the admissibility and merits of the case insofar as it raised issues under Article 1 of Protocol No. 1 and Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.   9.      At the hearing, which was held in Strasbourg on 3 May 1989, the applicants were represented by Mr.   P. O'Sullivan, S.C., and Mr.   G. Walsh, Solicitor, of Messrs.   McKeever and Son, and Ms.   H. O'Sullivan, Adviser.   10.      The Government were represented by Mr.   P. E. Smyth, Agent, Mr.   H. J. O'Flaherty, S. C., and Mr.   J. O'Reilly, Counsel, Mr.   J. F. Gormley, Office of the Attorney General, and Mr.   P. Fenton, Department of the Environment.   11.      Following the hearing, the Commission declared the application admissible and invited the parties to submit before 29 September 1989 any further evidence or additional observations that they wished to put before the Commission.   After several extensions of the time limit, the Government's supplementary observations were submitted on 13 November 1989.   The applicants' reply to these observations was submitted on 12 January 1990.   The Government submitted a response to these observations on 9 February 1990.   12.      In their supplementary observations the Government requested the Commission to reject the application under Article 29 of the Convention.   The Commission considered this request on 15 March 1990 and found no basis for the application of Article 29 of the Convention.   13.      After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which such a settlement can be effected.   C.   The present Report   14.      The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes in plenary session, the following members being present:                     J. A. FROWEIN, Acting President                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER                   H. VANDENBERGHE              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ              Mr.   C. L. ROZAKIS              Mrs.J. LIDDY              Mr.   L. LOUCAIDES   15.      The text of this Report was adopted by the Commission on 6 June 1990 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   16.      The purpose of the Report, pursuant to Article 31 of the Convention, is:             (i) to establish the facts, and            (ii) to state an opinion as to whether the facts found               disclose a breach by the State concerned of its               obligations under the Convention.   17.      A schedule setting out the History of the Proceedings before the Commission is attached as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   18.      The full text of the parties' submissions, together with documents lodged as exhibits, are held in the archives of the the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.   The particular circumstances of the application   19.      On 10 March 1977 the Minister for Local Government granted outline planning permission for industrial warehouse and office development in respect of a site comprising 21½ acres of land at Clondalkin, County Dublin to its then owner, Mr.   P. Thornton.   This decision was granted on appeal against a decision of the planning authority (Dublin County Council) of 26 April 1976 refusing an application for full planning permission on the grounds inter alia that the site was located in an area zoned for the further development of agriculture so as to preserve a green belt.   A record of the permission was made in the planning register.   20.      On 15 November 1978 the first applicant (Pine Valley Developments Ltd.) agreed to purchase the lands for £550,000 in reliance upon the grant of outline planning permission.   Such outline planning permission establishes the right of the landowner in principle to develop land subject only to subsequent approval of detailed plans.   In the event that such subsequent approval is refused, Section 55 of the 1963 Planning Act provides for a general right to compensation for any reduction in value of the interest of the claimant in the land.   21.      On 16 July 1980 the first applicant applied to Dublin County Council for detailed planning approval in reliance on the outline permission already granted.   On 15 September 1980 the Council refused to grant the planning approval sought.           First Pine Valley Case         ----------------------   22.      On the refusal by the Council to grant planning approval, the first applicant sought, and was granted on 8 December 1980, a conditional Order of Mandamus, directing Dublin County Council to grant planning approval.   The Order was made absolute by the High Court in a decision dated 27 May 1981.   23.      The first applicant then sold the property to the second applicant (the parent company - Healy Holdings Limited) on 17 July 1981 for £550,000.   24.      On an appeal by Dublin County Council against the High Court's decision, the Supreme Court held, on 5 February 1982, that the grant of outline planning permission by the Minister for Local Government was ultra vires the Minister and was therefore a nullity.   The Court found that the Minister could only make a decision which contravened the development plan (as in the present case) where the planning authority had sought his permission to take such a decision.   The Minister possessed no power under the relevant legislation (Section 26 of the Local Government (Planning and Development) Act 1963) to make a decision which contravened the development plan following an appeal against the refusal of the planning authority.   25.      The consequence of this decision was that the lands could not be developed, with the result that the market value of the lands was substantially reduced.   The applicants alleged that the property fell in value from £550,000 to £50,000.           Section 6 of the Local Government (Planning and         -----------------------------------------------         Development) Act 1982         ---------------------   26.      In order to validate planning permissions and approvals the validity of which came into question as a result of the above decision of the Supreme Court, the Local Government (Planning and Development) Act 1982 was enacted and entered into force on 28 July 1982.   27.      Section 6 of the 1982 Act provided as follows:   "1)   A permission or approval granted on appeal ... prior to the 15th day of March 1977 shall not be, and shall not be regarded as ever having been, invalid by reason only of the fact that the development concerned contravened, or would contravene, materially the development plan relating to the area of the planning authority to whose decision the appeal related.   2)   If, because of any or all of its provisions, subsection (1) of this section would, but for this subsection, conflict with a constitutional right of any person, the provisions of that subsection shall be subject to such limitation as is necessary to secure that they do not so conflict but shall be otherwise of full force and effect."   28.      The date of 15 March 1977 was the establishment date of An Bord Pleanála (Planning Board) which assumed the appeal functions formerly entrusted to the Minister for Local Government (Section 2 of Local Government (Planning and Development) Act 1976).   29.      Section 2 of the 1982 Act provided that permission granted on or after 1 November 1976, and no later than 31 October 1982, would cease on 31 October 1987, or seven years after the granting of permission, whichever was earlier.   In the present case the permission would have ceased on 10 March 1984.   30.      In the course of the debate on the 1982 Act before Seanad Éireann (Upper House of Parliament) the Minister of State at the Department of the Environment was asked the following question:   "I understand that certain planning permissions were declared to be null and void by the Supreme Court.   I agree the law has to be put right, but who is going to declare under subsection (2) whether a person's constitutional rights are going to be interfered with?   Does it mean another trip to the Supreme Court?   What is the position? The Minister might tell us exactly what is in his mind."   The Minister replied as follows:   "It would be agreed by the court.   Subsection (2) has been included by the parliamentary draftsman, with the agreement of the Attorney General, so as to preserve the rights of parties to any proceedings now before the courts and to assure that no court is deprived of jurisdiction regarding an issue raised in such proceedings.   This subsection is also designed to meet the case of any unconstitutional interference with a property right."   (Official Report of the Parliamentary Debates of Seanad Éireann for 22 July 1982, Columns 1411 - 1435).   31.      One other case was pending before the courts at the time of the enactment of Section 6 of the 1982 Act concerning a planning permission which had been granted on appeal by the Minister for Local Government.   However the Supreme Court later held that the case fell outside the scope of the Supreme Court's decision in the second Pine Valley case (see below) and was thus unaffected by Section 6 of the 1982 Act (unreported decision of the Supreme Court of 19 February 1983).   32.      Following the coming into force of this legislation Pine Valley Developments Ltd. wrote to Dublin County Council on 4 August 1982 seeking planning approval on the basis of the outline permission granted on 10 March 1977.   Dublin County Council refused approval on 10 December 1982 inter alia on the grounds that the Supreme Court had held in the Pine Valley case that the purported outline permission was not a valid permission.   The applicants did not appeal against this decision to the Planning Board (An Bord Pleanála).   They considered that an appeal would have been to no avail since the Board had to confine itself to matters of proper planning and development and could not give an authoritative interpretation of Section 6 of the 1982 Act.   33.      However, on 27 April 1983 the applicants' architect (and nominal shareholder with Mr.   Healy in Healy Holdings Ltd.) wrote to An Bord Pleanála asserting that the first applicant was excluded from the benefit of Section 6 (1) of the 1982 Act and asking that the applicants' position be reconsidered in the light of "the injustice of the situation".   The Board replied on 2 May 1983, regretting that it could be of no assistance.   Finally, on 7 September 1984 the applicants' solicitors wrote again to the Board requesting it to deal with the outstanding appeal which had originally been dealt with by the Minister in March 1977 and subsequently found invalid by the courts.   The Board replied on 23 November 1984 that "the appeal which was determined by the Minister for Local Government on 10 March 1977 does not remain to be determined by the Board".   On being asked by the solicitors to indicate the reasons for this decision, the Board replied on 8 January 1985 as follows:           "I am directed by the Board to inform you that the legal advice         which we have taken in this matter is confidential to them.         The Board understood that your original query was raised in         order that you might be in a position to inform the Court         as to whether or not the Board considered that the Appeal         remained to be determined by them.   As the Board is not a         party to the Proceedings, it does not feel it can assist in         the matter any further than by stating the position which it         has adopted.   If it is intended to query this position you         will know what steps to take."           Second Pine Valley Case         -----------------------   34.      On 11 March 1983 the first applicant brought proceedings against the Minister of the Environment seeking damages for breach of statutory duty, for negligent misrepresentation and for negligence. The statement of claim was subsequently amended on 25 January 1985 to include the second and third applicants as plaintiffs.   Subsequently the parties agreed to the following points of law to be determined:   1)       Whether an action in damages for breach of statutory duty lay against the Minister of the Environment for granting on legal advice outline planning permission to Mr.   Thornton;   2)       Whether an action in damages for negligence lay against the Minister of the Environment;   3)       Whether an action in damages for negligent misrepresentation lay against the Minister of the Environment;   4)       Whether in the circumstances pleaded the State has failed to vindicate the property rights of the plaintiff and if so, whether an action for damages lay against the State;   5)       Whether in the circumstances pleaded the State has in its laws respected, and as far as practicable by its laws, defended and vindicated the property rights of the plaintiff and if so, whether an action in damages lies against the State.   35.      On 28 June 1985 the High Court found that the applicant had no cause of action.   On 22 July 1985 the first and second applicants entered into an agreement with the third applicant (Mr.   Healy) acknowledging that any benefit resulting from the proceedings would accrue to him free of any claim by the two companies.   On 30 July 1986 the Supreme Court unanimously dismissed an appeal against the High Court decision ([1987] ILRM, pp. 753-768).           Breach of statutory duty         ------------------------   36.      Mr.   Justice Finlay C.J. (with whose judgment Mr.   Justice Griffin agreed and Mr.   Justice Hederman concurred) first rejected the applicants' claim based on breach of statutory duty (ibid., pp. 757-758):   "...   What the plaintiffs do contend, however, is that the exercise by the first-named defendant of his powers under the Act of 1963 in the form of the decision which he made to grant outline planning permission which materially contravened the development plan, was such a gross abuse of the power which he was purporting to exercise that it could not reasonably be an exercise of that power.           It was, therefore, submitted that it constituted a breach of a duty owed to the plaintiffs as persons who might become and were in fact affected by the granting of that outline permission.   The duty was alleged to be to exercise his statutory power of decision in a reasonable fashion and, it was submitted, a breach of it was actionable in damages.           I am satisfied that this submission also fails.           The Minister in making his purported decision to grant an outline planning permission was exercising a decision-making power vested in him for the discharge of a public purpose or duty.   The statutory duty thus arising must, however, in law, be clearly distinguished from duties imposed by statute on persons or bodies for the specific protection of the rights of individuals which are deemed to be absolute and breach of which may lead to an action for damages.           The decision-making power or duty purporting to have been exercised on this occasion, in my view, falls, with regard to the question of damages arising from its performance into a quite different category.           I would adopt with approval the clear summary contained in the 5th Edition of H.W.R. Wade Administrative Law at page 673 when the learned author states as follows:           'The present position seems to be that         administrative action which is ultra vires         but not actionable merely as a breach of duty will         found an action for damages in any of the         following situations.           1.   If it involves the commission of a recognised         tort, such as trespass, false imprisonment or         negligence.         2.   If it is actuated by malice, e.g. personal         spite or a desire to injure for improper reasons.         3.   If the authority knows that it does not possess         the power which it purports to exercise.'           I am satisfied that there would not be liability for damages arising under any other heading.           It is, of course, conceivable that proof of what has been submitted in this appeal as a gross abuse of the exercise of a statutory power of decision, or proof of a wholly unreasonable exercise of that power, would be taken by a court to be evidence that the authority knew or must have known that it did not possess the power which it purported to exercise.           I am quite satisfied, however, that the exercise by the defendant of this power in 1977, in the manner in which he did, and having regard to the legal advice which he sought and obtained prior to doing so, could not possibly constitute such a gross abuse of power or wholly unreasonable exercise of power as to lead to an inference that he was aware that he was exercising a power which he did not possess.   The only evidence led in this case quite clearly indicated the contrary, and that the Minister was of the belief that he was exercising a power which he possessed.           Not only am I satisfied that this is the true legal position with regard to a person exercising a power of decision under a public statutory duty, but it is clear that there are and have always been weighty considerations of the public interest that make it desirable that the law should be so.   Were it not, then there would be an inevitable paralysis of the capacity for decisive action in the administration of public affairs."           Negligence and negligent misrepresentation         ------------------------------------------   37.      In rejecting the applicant's claim based on negligence and negligent misrepresentation, Mr.   Justice Finlay C.J. stated as follows (ibid., p. 756):           "The learned trial judge dealing with the evidence before         him by the principal legal adviser to the first-named         defendant, stated as follows:           '[The] evidence which I accept, was that all planning         appeals to the Minister were scrutinised by the legal         section of the Department before submission to the         Minister and that when the Local Government (Planning and         Development) Act 1963 became law the legal section of the         Department had advised the Planning Section that the         Minister had power on appeal to allow a development which         materially contravened the Plan.   The legal adviser had         not appreciated that 26(3) of the Act imposed any         conditions precedent to a grant of permission by the Minister         in those cases and over the years permission had been granted         for many developments of that kind.'           I am satisfied that these inferences of findings of fact made         by the learned trial judge are supported by the evidence         given and therefore can not be disturbed or interfered with         by this Court.           Having regard to that finding, I am quite satisfied that the         learned trial judge was right in reaching the conclusion         which he did that the first-named defendant could not be         said to have been guilty of negligent misrepresentation.         If a Minister of State, granted as a persona designata         a specific duty and function to make decisions under a         statutory code (as occurs in this case), exercises his         discretion bona fide, having obtained and followed         the legal advice of the permanent legal advisers attached         to his Department, I cannot see how he could be said to have         been negligent if the law eventually proves to be otherwise         than they have advised him and if by reason of that he makes         an order which is invalid or ultra vires.   The         Plaintiffs on this appeal expressly waived any question of an         allegation of malice or improper motives against the first-         named Defendant, nor indeed was any allegation of malice or         impropriety made against him in the pleadings.   I am, therefore,         satisfied that insofar as the Plaintiffs have appealed against         the learned trial Judge's findings, that an action in damages         for negligence or for negligent misrepresentation does not and         cannot lie, the appeal must fail."           Damages for breach of constitutional right of property         ------------------------------------------------------   38.      As regards the claim against the State for damages based upon a breach of the applicant's constitutional right of property, Mr.   Justice Finlay C.J. added as follows (ibid., pp. 758-760):           "With regard to this submission the first enquiry must, it         seems to me, be as to whether there has been an unjust attack         on the plaintiffs' property rights or whether an injustice         has been done to them.           What the Minister was doing in making his decision in 1977         to grant outline planning permission to the then owner of         these lands was not intended as any form of delimitation         or invasion of the rights of the owner of those lands but         was rather intended as an enlargement and enhancement of         those rights.           The purchase of land for development purposes is manifestly         a major example of a speculative or risky commercial         enterprise.   Changes in market values or economic forces,         changes in decisions of planning authorities, the rescission         of them, and many other factors, indeed, may make the land         more or less valuable in the hands of its purchasers.           I am prepared to accept that prima facie in this         instance the fact that the Minister's decision was ultimately         found by this Court to have been a nullity, probably         contributed towards a diminution in the value of the land         in the Plaintiffs' hands.   That fact, itself, however,         does not, in my view, necessarily mean that an injustice         was done to the Plaintiffs and I am certain that that does         not constitute an unjust attack on the Plaintiffs' property         rights.           The obligation of the State in Article 40.3.1° and Article         40.3.2° is in the first instance, as far as practicable by         its law to defend and vindicate the personal rights of the         citizen and, in the second instance, to protect as best it         may from unjust attack, and in the case of injustice done,         vindicate the property rights of every citizen.   In its         decision in the case of Moynihan v.   Greensmyth [1977]         IR 55, this Court in its judgment delivered by O'Higgins CJ,         stated as follows:           'It is noted that the guarantee of protection given by         Article 40.3.2° of the Constitution is qualified by the         words as best may be.   This implies circumstances         in which the State may have to balance its protection         of the right as against other obligations arising         from regard for the common good.'           I am satisfied that it would be reasonable to regard as a         requirement of the common good an immunity to persons in whom         are vested statutory powers of decision from claims for         compensation where they act without negligence and bona fide.         Such an immunity would contribute to the efficient and         decisive exercise of such statutory powers and would, it         seems to me, tend to avoid indecisiveness and delay,         which might otherwise be involved.           I am, therefore, satisfied that there cannot be, on the facts         of this case, any question of there being a clearcut obligation         imposed on the State to provide compensation for the Plaintiffs         in the circumstances which have arisen.   I am, therefore,         satisfied that the submissions made with regard to a claim for         damages for breach of constitutional rights must also fail.   It         is not necessary for me to decide, and I express no opinion, on         the question as to whether an action does lie for failure on         the part of the Oireachtas to legislate in protection of         personal rights, as distinct from the action to set aside or         invalidate legislation which fails adequately to protect or         vindicate them."   39.      On the question of whether the applicants were excluded by Section 6(2) Mr.   Justice Finlay C.J. stated that the 1982 Act retrospectively validated certain planning decisions but contained a saver "for cases involving constitutional rights of other persons, which would appear to exclude the plaintiffs from the benefit of such retrospective validation" (ibid., p. 758).   40.      Mr.   Justice Henchy (Griffin J agreeing) expressed the opinion that the applicants might have a remedy for breach of covenant or for unjust enrichment.   He also considered that Section 6(2) excluded the appicants and that no issue of unfair discrimination arose (ibid., pp. 763-764):   "It is to be assumed that there was a conveyance by deed of the lands in question to Pine Valley.   This conveyance must have contained, either expressly, or by implication under s. 7 of the Conveyancing Act, 1881, a covenant for title on the part of the vendor.   When, as a result of the decision of this Court that the Minister's planning permission was a nullity, there would have been a breach of the vendor's covenant for title, which would have given Pine Valley a cause of action for damages against the vendor for breach of that covenant.   But even if, for one reason or another, such a claim for breach of covenant did not lie, another form of proceedings could have been used by Pine Valley to prevent the unjust enrichment which may be said to have accrued to the vendor through getting money from Pine Valley for a planning permission which turned out to be worthless.   So much of the purchase price as was attributable to the planning permission was paid under a mistake of law, but in my opinion it would be recoverable no less than if it had been paid under a mistake of fact:   see Goff and Jones, The Law of Restitution, 2nd edition (1978), p. 91.   Pine Valley have not shown that they could not recover their loss in that way.   It may therefore be said that they have failed to prove that an injustice has been done to them for the purposes of Article 40.3.2°.   ...           S. 6 of that Act had the effect of giving retrospective validity to planning permissions such as this granted on appeal prior to 15 March 1977, save where such retrospective validation would conflict with a constitutional right of any person.   This meant that Pine Valley were excluded from the benefit of the section, for they had exercised their constitutional right to litigate the validity of the planning permission in the Courts.   That exclusion has been attacked by counsel for Pine Valley as being unfairly discriminatory as far as they are concerned, but in my view, while a discrimination has resulted, the primary and overriding purpose of the section was to avoid an unconstitutional invasion of the judicial domain by attempting to give validity to any planning permission which the Courts may have held to be lacking in validity.   It would follow that no injustice has been done to Pine Valley by s.6 of the 1982 Act."   41.      Mr.   Justice Lardner considered that the exclusion of the applicants by Section 6 constituted neither an unjust attack on their property rights nor unlawful discrimination (ibid., p. 767):           "The particular controversy between the parties in Pine Valley Developments Ltd. v.   Dublin County Council was tried and decided by this Court in favour of the Defendants in February 1982.   No doubt it was apprehended that s. 6(1) of the Local Government (Planning and Development) Amendment Act 1982 might operate to reverse retrospectively this Court's decision and that this might constitute an unwarrantable interference by the legislature in a decision of the courts.   It seems probable that it was in these circumstances that s. 6(2) was enacted with a view to avoiding such interference.   And this subsection has been accepted by counsel for both sides in the present case as excluding the appellants from the benefit of s. 6(1).           It is in respect of this situation or set of facts that the appellants contend that to exclude them from the benefit of s. 6(1) constitutes (a) an unjust attack on their property rights or an injustice done which affects their property rights and (b) discriminates unfairly as between them and other persons who had received permissions or approvals of the Minister on appeal under Part IV of the 1963 Act and who were given the benefit of s. 6(1).   In regard to the first contention it seems to me that s. 6(2) was included by the Oireachtas for the purpose of respecting and not interfering with the determination by the courts of the justiciable controversy which constituted the proceedings in Pine Valley Developments Limited v.   Dublin County Council and of respecting the constitutional rights of the parties, both plaintiffs and defendants in that action, to have their controversy determined by the courts rather than by the Oireachtas.   It may be that there is to some extent a conflict here between the right of the parties to have their controversy judicially determined by the courts and the present appellants' property interest.   That fact in itself, however, does not in my view, necessarily mean that an injustice was done to the appellants and I am satisfied that it does not constitute an unjust attack on the appellants' property rights or an unlawful discrimination against them."   B.   Relevant domestic law and practice   42.      Articles 40.1, 40.3 and 43 of the Constitution of Ireland provide as follows:   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."   ...   "3.      1° The State guarantees in its laws to respect,         and, as far as practicable, by its law 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." ...   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."           Relevant provisions of the Local Government         -------------------------------------------         (Planning and Development) Act 1963          -----------------------------------   43.      The relevant provisions of the 1963 Act provide as follows:           Section 26 (1)           "Where,           (a) application is made to a planning authority         in accordance with permission regulations for         permission for the development of land or for an         approval required by such regulations, and           (b) any requirements relating to the application         of or made under such regulations are complied with,           the authority may decide to grant the permission or approval         subject to or without conditions or to refuse it;   and in