Byrne v Commissioners of Public Works

• Jurisdiction: Ireland
• Judge: Mr. Justice Lynch
• Judgment Date: 01 January 1994
• Neutral Citation: 1993 WJSC-HC 138
• Docket Number: [1992 No. 42 MCA],No. 42 M.C.A./1992
• Court: High Court
• Date: 01 January 1994

1993 WJSC-HC 138

THE HIGH COURT

No. 42 M.C.A./1992

BYRNE v. COMMISSIONERS OF PUBLIC WORKS

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND

DEVELOPMENT) ACTS 1963 TO 1990: AND

IN THE MATTER OF SECTION 27 OF THE LOCAL GOVERNMENT (PLANNING

AND DEVELOPMENT) ACT 1976

BETWEEN

SEAN BYRNE, GARECH DE BRUN, DIETER CLISSMANN

APPLICANTS

AND

THE COMMISSIONERS OF PUBLIC WORKS

RESPONDENTS

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

RSC O.31 r12

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S84

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

HALSBURYS LAWS 4ED V44 PARA 860

LOCAL GOVT (WATER POLLUTION) ACT 1977

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989

CONSTITUTION ART 15(2)(1)

BENNION ON STATUTORY INTERPRETATION 1992 ED 117–119

AG V HANCOCK 1940 1 AER 32

CORK CO COUNCIL & BOURKE V OFFICE OF PUBLIC WORKS 1945 IR 561

BYRNE V IRELAND 1972 IR 241

NOLAN V MIN FOR THE ENVIRONMENT & ELECTRICITY SUPPLY BOARD (ESB) 1991 2 IR 548

BYRNE V DUBLIN CO COUNCIL 1983 ILRM 213

KEANE THE 1965 ACT 20 YEARS ON DULJ 1983/4 V 5/6 92

GRANT URBAN PLANNING 1982 ED 174

WILSON V WEST SUSSEX CO COUNCIL 1963 2 QB 764

XJS V DUNLAOGHAIRE CORPORATION 1987 ILRM 659, 1986 IR 750

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976

Synopsis:

PLANNING

Code

Compliance - Exemption - State authority - National park - Visitors centre - Construction - Consultation with planning authority required - Statute - Interpretation - Legislature - Intention - Ascertainment - Implementation - Local Government (Planning and Development) Act, 1963, ss. 26, 84 - Local Government (Planning and Development) Act, 1976, s. 27 - (1992/42 MCA - Lynch J. - 27/11/92) - [1994] 1 I.R. 91

|Byrne v. Commissioners of Public Works in Ireland|

1 Judgment of Mr. Justice Lynch delivered the 27th day of November 1992.

2 The Applicants in this case claim, pursuant to Section 27 of the Local Government (Planning and Development) Act 1976, an Order directing the Respondents to desist forthwith from development at the lands at Ballinastoe, Luggala, Roundwood, Co. Wicklow on the grounds that such development requires a grant of planning permission from Wicklow County Council and that no such planning permission has been granted and the development is therefore unauthorised and unlawful.

3 The first and the second named Applicants have extensive land holdings in the neighbourhood of the said development and the third named Applicant has business interests in the neighbourhood so that all three Applicants clearly have a bona fide interest in the matter because the development may possibly affect them adversely although the Respondents deny that this is at all likely.

4 The development in question comprises the construction by the Respondents of an interpretative or visitor centre (the Centre) to serve the Wicklow National Park, the establishment of which was announced by the then Taoiseach in 1989, as intending ultimately to comprise some 33,000 hectares or 80,000 acres of the Wicklow mountain areas. The authority to declare or announce the establishment of the Wicklow National Park was challenged before me but I am satisfied that nothing really turns on this. The declaration can affect only lands in the ownership of the State whether vested in the Respondents or some other State authority and the Respondents presently in fact have vested in them some 12,500 to 15,000 hectares (being 30,000 to 37,500 acres). As to the remainder of the lands envisaged as being or to be part of the Wicklow National Park the declaration is no more than an aspiration that it may be possible in the future to acquire such lands by agreement with the owners thereof. The Centre which is being constructed by the Respondents is on lands at Ballinastoe aforesaid which are their own property and which are close to the boundary of the proposed Wicklow National Park.

5 The development has given rise to much public interest and debate both for it and against it and, judging by the voluminous books of discovered documents which were handed to me in the course of the hearing, the development has received exceptional investigation and attention from the Respondents from Wicklow County Council and from interested members of the public. I was handed three books of documents discovered by Wicklow County Council and four books discovered by the Respondents and whilst of course there is much duplication nevertheless these seven books run to well over 2,000 pages between them. This voluminous documentation attests to the strong views held by various parties as to the merits or demerits of the development and especially in regard to its location at Ballinastoe aforesaid.

6 I can well appreciate the concern of local land owners, residents and other interested persons regarding possible trespass and damage to the surrounding areas if the development results in a large increase in the numbers of people resorting to the Centre and the area in general. On the other hand I appreciate the desire of the State through the Respondents to make available for the enjoyment of citizens and tourists of places of natural beauty and through the facilities at the proposed Centre to inform and educate them regarding the natural life of the area.

7 However the concern of the Court on this application can only be to decide whether the development is being lawfully undertaken or not in the context of the planning legislation of this State. If it is being lawfully so undertaken then the Court must refuse this application under Section 27 of the 1976 Act to prohibit the development, however undesirable some people may think the development to be. If on the other hand the development is being unlawfully so undertaken then the Court must grant this application under Section 27 of the 1976 Act to prohibit the development, however desirable other people may think it to be.

8 The proceedings commenced by the issue of an originating Notice of Motion dated the 17th of July 1992 addressed to the Respondents in the following terms:

"Take notice that on the 27th day of July 1992 at the hour of 11 o'clock in the forenoon or at the first opportunity thereafter Counsel on behalf of the Applicant shall apply to this Honourable Court sitting at the Four Courts Dublin 7:-"

(1) An Order pursuant to Section 27 of the local Government (Planning and Development) Act 1976directing the Respondent to desist forthwith from the unauthorised development of the lands at Ballinastoe, Luggala, Roundwood in the County of Wicklow without planning permission.

(2) An Order pursuant to Order 31 Rule 12 of the Rules of the Superior Courts directing the Respondent to make discovery on oath of all documents that are or have been in their power possession or control in relation to the matters in issue herein.

(3) Such further or other Order or Orders as to this honourable Court shall seem fit.

(4) Costs.

9 Which application shall be grounded on the Affidavit of Sean Byrne, the exhibit therein referred to, such evidence (oral or otherwise) as may be adduced, the nature of the case and the reasons to be offered."

10 The Notice of Motion was grounded on an Affidavit of the First Applicant Sean Byrne, sworn the 17th of July 1992 and on an Affidavit of Richard Hamilton, sworn the 21st of July 1992. A replying Affidavit sworn by Michael Canny on the 6th of October 1992 was filed on behalf of the Respondents. In addition to the Affidavits and the exhibits referred to therein, I heard oral evidence from Mr. Terry O'Niadh, Secretary to Wicklow County Council, Mr. Muiris O'Keeffe, Engineer, Senior Executive Environment, Wicklow County Council: the Respondents" Deponent Mr. Michael Canny, Director of National Parks: Mr. Ciaran O'Connor, Architect with the Respondents: and the Respondents" Mr. Dave Fadden.

11 The matter was heard by me on Friday the 9th of October, Tuesday the 13th, Wednesday the 14th, Thursday the 15th, Friday the 16th of October and Monday and Tuesday the 9th and 10th of November 1992 and I reserved my Judgment which I now deliver.

12 Section 27 of the 1976 Act so far as material provides as follows:

"(1) Where -"

(a) development of land, being development for which a permission is required under Part IV of the Principal Act, is being carried out without such a permission, or

(b) an unauthorised use is being made of land, the High Court may on the application of a planning authority or any other person, whether or not the person has an interest in the land, by Order prohibit the continuance of the development or unauthorised use.

13 (3) An application to the High Court for an order under this section...