O'Callaghan v Commissioners of Public Works in Ireland

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.
• Judgment Date: 01 January 1985
• Neutral Citation: 1984 WJSC-SC 2607
• Court: Supreme Court
• Docket Number: 265/84
• Date: 01 January 1985

1984 WJSC-SC 2607

THE SUPREME COURT

O'Higgins C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

265/84

O'CALLAGHAN v COMMISSIONER OF PUBLIC WORKS and ATTORNEY GENERAL

O'CALLAGHAN

v.

COMMISSIONERS OF PUBLIC WORKS

Subject Headings:

CONSTITUTION: statute

NATIONAL MONUMENT: protection

NATURAL JUSTICE: fair procedures

1 JUDGMENT delivered the 31st day of July 1984by O'HIGGINS C.J.

2 By an Indenture of Conveyance dated the 26th April 1977, and made between Laurence McGuinness of Carnhill, Rush, in the County of Dublin, and the Plaintiff, the Plaintiff became the owner in fee simple of 46 acres of land situate at Drumanagh, Loughshinny, in the County of Dublin. Part of these lands, comprising 38.5 acres, consists of an area known as a promontory fort, upon which a Martello Tower now stands.

3 The first-named Defendants are the body charged with the implementation of the National Monuments Acts 1930to 1954and are hereinafter referred to as "the Commissioners". On the 13th April 1977 the Commissioners purported to make an Order pursuant to the provisions of Section 8(1) of the National Monuments Acts 1930, as amended, undertaking the preservation of the promontory fort as anationalmonument. This Order will be referred to hereafter as "the Preservation Order".

4 In these proceedings the Plaintiff has challenged the validity of the Preservation Order on two grounds. The first of these grounds rests on a claim that the statutory provisions under which the Preservation Order was made (Section 8 of the National Monuments Act 1930, as amended) is invalid, having regard to the provisions of the Constitution. The second ground is to the effect that the Order is ultra vires the provisions of Section 8 by virtue of the Commissioners' failure to act judicially in the making thereof and, in particular, in their failure to create and carry out procedures which were fair and in accordance with natural and constitutional justice by affording the Plaintiff sufficient notice of their intention to make the Order and sufficient opportunity of making objections and representations in respect thereof. The Plaintiff's action having failed in the High Court, an appeal has been brought to this Court.

5 It is a general rule that this Court only considersand pronounces on questions of validity when it is necessary to do so in order to decide issues between parties. In this case it is only necessary to consider the Plaintiff's claim that Section 8 of the National Monuments Act 1930is invalid, if the second claim, based on the allegation that the Preservation Order was made ultra vires, fails. For this reason this judgement and such other judgments as may be given by individual members of the Court, will be confined to this second claim.

6 The promontory fort at Drumanagh on the Plaintiff's lands is, according to the evidence, well known to archaeologists in Ireland. It is highly thought of both because of its size and because of its situation on the east coast of Ireland. Most other such forts are smaller and are situate on the south and west coasts of the country. These forts are Celtic in origin and date from the last two centuries B.C. and the first century A.D. They are not unique to Ireland but are to be found along the Atlantic coast, from Brittany to the north of Scotland.They were encountered by Julius Caesar in his campaigns in Gaul and have been fully described by him in his writings. As the descriptive name applied to them indicates, they were constructed on the approach to a land promontory jutting into the sea. Two or three large embankments or fosses were built to cut off the promontory and to afford protection to the inhabitants of a small built-up area within. The interest to archaeologists lies not only in the form of construction but also in the wealth of material available for excavation. While the Drumanagh fort has been used for grazing of sheep, cattle and other animals for many centuries, such use has not damaged and is not likely to damage the archaeological material available for excavation and examination. Deep ploughing with machinery could, however, destroy both what remains of the fort and such archaeological material as lies therein. At this stage and at the outset of this judgment I wish to make it clear that no issue arises either on the pleadings in this action, the evidence at the trial or the submissions on this appeal as to theDrumanagh promontory fort being correctly described as and declared to be a national monument. It is in the light of this concession that I propose now to examine the relevant provisions of the National Monuments Acts, the making of the Preservation Order and the evidence upon which the learned trial Judge reached his decision.

7 As already mentioned, the Plaintiff became the owner of the land upon which the promonotory fort stands by Conveyance dated the 21st April 1977. He had, of course, some months earlier entered into a contract to purchase the land from the previous owner, Laurence McGuinness. When he entered into this contract he had been informed by Laurence McGuinness of a notice which had been served on him by the Commissioners, restricting any reclamation or excavation work without notice to the Commissioners. This notice was dated the 18th December 1970 and was served on Laurence McGuinness pursuant to the provisions of Section 8 of the National Monuments (Amendment) Act of 1954. This Section is in the following terms:

8 2 "8(1) The Commissioners shall, from time to time,cause to be published in Iris Oifigiúil, a list of

9 (a) such monuments as are reported by the Advisory Council and as the Commissioners consider to be monuments the preservation of which is of national importance, and

10 (b) such other monuments as the Commissioners think fit.

11 (2) When it is intended to include a monument in a list under subsection (1) of this Section, the Commissioners shall notify the owner of the monument of that intention and of the penalties which may be incurred by a person guilty of an offence under this Section.

12 (3) Where the owner of a monument which is included in a list under subsection (1) of this Section proposes to demolish or remove, in whole or in part, alter structurally or make additions to the monument, or make excavations in the neighbourhood thereof, he shall give notice of his intention to the Commissioners and shall not, except in case of urgent necessity, and with the consent of the Commissioners, commence any work of demolition, removal, alteration, addition or excavation for a period of two months after giving such notice."

13 The Commissioners, having decided to include the promontory fort at Drumanagh in a list of national monuments, accompanied their notice of this intention to Mr. McGuinness with a letter, also dated the 18thDecember 1970, explaining the purpose of their action. This letter signed by the Director of the National Parks and Monuments branch was asfollows:

" National Monuments Acts 1930and 1954 I enclose in duplicate a formal notice under Section 8 of the National Monuments (Amendment) Act 1954, in respect of the monument specified in the notice, the preservation of which the Commissioners consider to be of national importance. Please acknowledge receipt of the notice by signing the duplicate in the space provided and returning it to this office. An addressed envelope on which postage need not be paid is enclosed.

The inclusion of a monument in a list published under Section 8 does not imply that it is being neglected by the owner or that it is receiving improper treatment at his hands; it is a formal declaration that, because of its importance, it is in the national interest that it should be given legal protection. We shall be glad if you will co-operate with us in preserving the monument.

A copy of Section 8 of the National Monuments (Amendment) Act 1954is typed on the back of the notice.

Promontory forts are large defensive encampments situated on headlands where the neck of the promontory has been defended by theconstruction of banks and ditch. They date back over 1,000years."

14 The notice specified the promontory fort as being about to be included in the list to be published in Iris Oifigiuil. It further indicated that there would be a prohibition on any interference, demolition, excavation or anything of that nature to the monument without notice being given to the Commissioners. It also informed the owner that it would be an offence to act contrary to the provisions of the Section. Mr. McGuinness duly acknowledged the receipt of this notice and appended his signature at the foot thereof. On the 29th September 1971 the Commissioners duly included the promontory fort in a list published in Iris Oifigiuil pursuant to subsection (1) of Section 8 of the Act of 1954. There can, therefore, be no doubt that when the Plaintiff contracted to purchase these lands and was informed of this notice, he was, or should have been, aware that he was purchasing land upon which was a national monument and that he was precluded from interfering with it without due notice to and the consent of the Commissioners. Asto this the learned trial Judge said in his judgment: (I quote)

"the Plaintiff stated in evidence that he had been informed personally by the vendor about this notice and that if he was going to do any reclamation work the Commissioners must be informed, but he said that he had also been told by the vendor that the notice only applied to the earthworks at the base of the headland. Whether the vendor might or might not have had some reason for this belief in the unlikely event of his having read the definition of national monument in Section 2 of the Act of 1930, the notice which was served on him made it reasonably clear to anyone living in the district that the Commissioners were referring to the entire of the headland enclosed by the banks. It has not been...