Attorney General (Martin) v Dublin Corporation

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: O'HIGGINS C.J.
• Judgment Date: 16 February 1983
• Neutral Citation: 1978 WJSC-SC 1800,1983 WJSC-SC 690
• Docket Number: 45/6/1979,(68/81)
• Date: 16 February 1983

MARTIN v. DUBLIN CORPORATION

FRANCIS C. MARTIN

v.

THE RIGHT HONOURABLE THE LORD MAYOR, ALDERMEN AND BURGESSESOF DUBLIN

AND BY ORDER

THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND

1978 WJSC-SC 1800

45/6/1979

THE SUPREME COURT

1 JUDGMENT delivered the 7th day of March 1979by O'HIGGINS C.J.[mem. Diss].

2 These are relator proceedings in which the Plaintiff Francis X. Martin with the fiat of the Attorney General seeks an injunction to restrain the first-named Defendants (hereinafter referred to as "the Corporation") from demolishing, removing or otherwise interfering with the national monument at Wood Quay, Dublin (hereinafter referred to as "the Wood Quay site") other than with a valid consent under the National Monuments Act 1930. The Plaintiff also seeks a declaration that certain Joint Consents dated 29th August 1978 and 10th October 1978 given by the Corporation and the Commissioners of Public Works in Ireland (hereinafter called "the Commissioners") are invalid or, if valid, are no longer in force. The Commissioners were joined in theproceedings, after these had commenced, because they had entered into the Joint Consents already mentioned.

3 This action so framed is concerned with the public controversy which has raged for some time as to whether the Corporation should be permitted to build new Municipal Buildings on the Wood Quay site, which is their property, or whether this site should be preserved as a national monument because of its identification with early Viking settlements and the origins of the City of Dublin. In earlier proceedings the Plaintiff had succeeded in restraining the Corporation from proceeding with the work because they had not observed the provisions of the National Monuments Acts 1930and in particular had not obtained the necessary consent to interfere with the site, which was later declared to be a national monument. In the present proceedings as already indicated the Plaintiff seeks to restrain the Corporation from demolishing or excavating the Wood Quay site on the basis that a Consent or Consents since obtained are invalid or not in force. Apart from notingits existence I do not intend to say anything further with regard to the present controversy - it belongs properly to the field of administrative action and policy. This Court is concerned solely with the objective application of the law to the issues which arise in the proceedings before it.

4 In the High Court the Plaintiff sought and was granted an Interlocutory Injunction, pending the trial of the action, restraining the Corporation from doing anything to the site. Against the granting of the injunction this appeal has been brought both by the Corporation and the Commissioners. This Court has been referred to the transcript of the oral evidence and the many affidavits which were heard and considered by Mr. Justice Gannon in the High Court - in all the hearing of this appeal has continued, over four days. In the end, however, the issue comes down to the very nett question whether the Joint Consent under which the Corporation seek to develop the site is a valid and subsisting one or not. If it is, then it is clear that the Plaintiff has nocase and of course cannot justify the Injunction which he obtained in the High Court. This is expressly conceded by his counsel. If the Consent is not a valid and subsisting one then it is equally clear that the action by the Corporation of which the Plaintiff complains was without lawful authority and the Plaintiff would be entitled to the relief he claims in this action. It seems to me that much of the time taken up in the High Court in the reading of affidavits and the hearing of evidence could have been avoided if preliminary issues as to the validity of the Consent or Consents and the question whether they were still in force or had expired had first been considered and tried by the learned trial Judge. As a decision on these issues in favour of the Defendants would determine the entire action the cumbersome process of considering and granting an Interlocutory Injunction might thereby have been avoided. In any event it is now clear, and it is agreed by both the Plaintiff and the Defendants, that the fate of this appeal and of the entire action depends on thevalidity of the Consent relied upon by the Corporation and the question whether it has expired.

5 It is on that basis, as if these were certiorari proceedings, that I now propose to consider the Consent relied on by the Corporation.

6 This Consent is dated the 29th August 1978. It is in the form of a Joint Consent by the Commissioners and the Corporation and purports to have been made under the provisions of Section 14 of the National Monuments Act 1930. It authorises the Corporation as owner of the Wood Quay site to demolish and remove wholly or in part "or otherwise interfere with, excavate, dig or otherwise disturb the ground within, around or in proximity to the said national monument to the extent necessary to permit the completion of the said recited contract for the erection of the said civic offices on the site subject to the following conditions". The Contract referred to was a Building Contract dated the 21st October 1977 between the Corporation and John Paul & Co. Ltd. The Conditions specified were four in number. The firstwas to the effect that for the ensuing period of six weeks up to the 9th October 1978 the National Museum should be permitted to carry out on the site archaeological excavations and investigations. The secondprovided "that if the investigations and excavations by the National Museum should result in some new archaeological find of great importance, further time will, if necessary, be given to investigate it." The third related to facilities being provided for the inspection and recording of finds of historical and archaeological interest during the course of the building and the fourthstipulated that the Corporation should prepare a model of the site showing the archaeological structures revealed by all theinvestigations.

7 Section 14(1) of the National Monuments Act 1930provides that, it shall not be lawful for any person "to do any of the following things in relation to a national monument of which the Commissioners or a local authority are the owners or the guardians or in respect of which a preservation order is in force, that is tosay

8 (a) to demolish or remove wholly or in part or to disfigure, deface, alter or in any manner injure or interfere with any such national monument without or otherwise than in accordance with the Consent hereinafter mentioned or

9 (b) to excavate, dig, plough, or otherwise disturb the ground within, around or in proximity to any such national monument without or otherwise than in accordance with the Consent hereinaftermentioned."

10 Subsection (2) provides, inter alia, that in the case of a national monument of which a local authority are the owner (as in this case) the Consent must be the Joint Consent in writing of the Commissioners and such local authority. Subsection (3) provides as follows

"The Commissioners and every local authority are hereby respectively authorised to give such consent as is mentioned in the foregoing subsection if and whenever they think it expedient in the interests of archaeology or for any other reason so to do and are hereby further authorised to attach to any such consent all such conditions and restrictions as they think fit."

11 Section 21 of the Act provides for the establishment of an Advisory Council for giving advice and assistance toThe Commissioners and by subsection (5) provides

"The Advisory Council may make representations to the Commissioners with respect to any matter relating to national monuments and shall give to the Commissioners, if requested by them so to do, their advice with regard to any question relating to suchmonuments."

12 Section 22 similarly provides that a local authority may establish a local advisory committee and by subsection (5) such local advisory committee "may make to the local authority by which it was established or to the Commissioners or to the Advisory Council such representations as it may think fit in relation to national monuments in its functional area."

13 The licence or permission granted to the National Museum to conduct archaeological excavations and investigations on the site for the period of six weeks from the date of the Consent of the 29th August 1978 was by an Instrument, dated 10th October 1978 extended by the Commissioners and the Corporation up to the 9th December 1978. This seems to me to be no more than a variation of the first Condition in the Consent ofthe29th August 1978.

14 In his Statement of Claim the Plaintiff attacks the Consent upon which the Corporation relies on three grounds. In the first place he says that this Consent was not made in accordance with law because prior to the making neither the Commissioners nor the Corporation consulted with or took the advice of either the Advisory Council or the County Borough of Dublin National Monuments Advisory Committee nor any other relevant or available archaeological advice. I am satisfied that this plea is not supported in any way by the facts. This, however, seems to me to be irrelevant. As I read the relevant provisions of the National Monuments Act under which both the Commissioners and the...