Casey v Minister for Arts

• Jurisdiction: Ireland
• Judge: Murray, J.
• Judgment Date: 24 February 2004
• Neutral Citation: [2004] IESC 14
• Court: Supreme Court
• Docket Number: [S.C. No. 190 of 2001]
• Date: 24 February 2004

[2004] IESC 14

The Supreme Court

Murray, J.

McGuinness, J.

McCracken, J.

Record No. 190/01

CASEY v. MINISTER FOR ARTS

Between

TIMOTHY CASEY

Applicant/Appellant

and

THE MINISTER FOR ARTS, HERITAGE, GAELTACHT

AND THE ISLANDS

Respondent

Abstract:

Judicial review - Certiorari - National Monument - Permit - National Monuments Act 1930 to 1987 - State Property Act, 1954 - Whether the respondent was entitled to limit the number of people visiting a national monument by issuing permits for the purpose of preserving the monument.

Facts: In 1996 the Department of Arts and Culture and the Gaeltacht assumed the functions and powers of the Commissioners of Public Works pursuant to the Heritage (Transfer of Functions of Commissioners of Public Works) Order, 1996 (S.I. no. 332 of 1996) and accordingly took over ownership of the island of Skellig Michael in Kerry. In 1995 the Office of Public Works (OPW) introduced a visitor management strategy, which involved the issuing of a limited number of permits to boat operators to land visitors on the island along with a continuous monitoring by guides of the impact of visitor numbers to the national monument. In October 1994, the Monuments Service produced a report and discussion document entitled ' Skellig Michael - Access, Safety and Control of Visitors.' That report contained an extensive review of the status and condition of Skellig Michael and the measures needed on the one hand to protect and preserve its delicate fabric and on the other hand to ensure the safety of persons who visited the island. With a view to introducing a formal management plan the OPW initiated discussions with the local boat owners in 1994. In March 1995 the scheme was adopted whereby permits would be granted for 19 boats only to carry and land passengers on the island on the basis of one trip per day with a maximum of 12 passengers per trip. The figure of 19 was chosen in order to accommodate the existing boatmen and also a number of other persons who had invested in boats for the purpose of the 1995 season.

The applicant had for many years earned a living as a fisherman and from time to time on an irregular basis carried passengers to view the Skellig Islands but he did not have a permit to land passengers on the island. In or about 1995 he purchased a boat and spent further sums over a period of years in order to bring it up to the standard required for carrying passengers. However it was not until 1998 that the boat was certified and licensed by the Department of Marine for the carrying of passengers. In Autumn 1995, the applicant first applied for a permit to land passengers on Skellig Michael and he applied in each successive year, being refused on each occasion and received his final refusal before the commencement of these proceedings, on 16 June, 1998. Consequently, the applicant applied to the High Court for an order of certiorari and certain other declaratory relief by way of an application for judicial review in respect of the respondent's decision to refuse to grant him a permit authorising him to land passengers on Skellig Island. The applicant complained that he had been denied a right to earn a livelihood, that the respondent did not have the power to restrict the number of boat operators by means of the regime which she adopted. In particular, the applicant submitted that the refusal of his application for a permit was arbitrary and capricious and therefore was ultra vires the powers of the Minister. The applicant's application was refused by the High Court and consequently he appealed that decision.

Held by the Supreme Court (Murray, McGuinness, McCracken JJ)in dismissing the appeal:

1. That the fact that a site is a national monument does not deprive the owner of the site of his or her general rights over the property as its owner. Accordingly, the respondent as owner of Skellig Michael was entitled to exercise her rights as owner of the site so long as she complied with the provisions of the National Monuments Acts and the State Property Act, 1954.

2. That the unspecified right to earn a livelihood was not an absolute right and may be regulated or restricted for reasons associated with the common good. The applicant misconceived the nature and ambit of the right to earn a livelihood. The right to carry on a lawful business, such as using a boat for tourist or commercial activity does not entitle a person to have access, as of right, to the property of a third party and use it for business purposes. In any event the applicant was entitled to operate non-landing trips to Skellig Michael.

3. That the statutory functions conferred on the respondent by section 12 of the Act of 1930 were by their nature and substance administrative ones. The preservation of national monuments was quintessentially an administrative matter to be achieved by implementing policy decisions. The introduction of permit arrangements was implemented by administrative decisions and arrangements and was not in the form of legislative instrument. At no stage did the respondent purport or actually resort to the use of delegated legislation for such purposes. Accordingly, the actions of the respondent could not be impugned on the ground that they involved some unconstitutional use of delegated law-making powers.

4. That the duty of the respondent to admit members of the public to enter on and view a national monument was expressly subject to such conditions and limitations as the respondent prescribed. Accordingly, it was well within the powers of the respondent to introduce some system permitting the orderly organisation of visits to Skellig Michael having regard to the unique and isolated location. The respondent, in placing a limitation on the number of boats operating to Skellig Michael acted within the powers and duties conferred on her and was an entirely rational response to the problems which the preservation and protection of Skellig Michael posed.

5. That the criteria adopted by the respondent were clear, objective and transparent. Accordingly, the system operated by the respondent was not so inflexible as to cause any injustice of which the applicant could complain.

Reporter: L.O'S.

1 Murray, J. delivered on the 24th day of February, 2004.

2 This is an appeal from the judgment of the High Court in which the applicant/appellant (hereafter the appellant) was refused an order of certiorari and certain other declaratory relief sought by way of judicial review in respect of a decision of the respondent to refuse grant to the appellant a "permit" authorising him to operate, for commercial purposes, his passenger boat to land customers on Skellig Michael, the renowned island rock, approximately 11.5km off the Iveragh peninsula in Co. Kerry.

Background

3 Most of the facts relevant to the issue in this case are not in dispute. Skellig Michael is a unique place and is regarded as the best preserved and most spectacularly situated early Christian monastic site in the world. Its level of preservation is in large measure due to its isolated location out to sea. Its history as a monastery dates back to the 6 ^th century. Most of the cells and oratories are in excellent condition giving it an unusually high level of authenticity. In or about the 12 ^th century monks ceased to reside their permanently but it continued to be a place of pilgrimage for centuries thereafter. By 1826 the ownership of Skellig Michael had come into to the hands of the Corporation for Preserving and Improving the Port of Dublin who were the predecessors of the Commissioners of Irish Lights and who erected two lighthouses on the Atlantic side of the island. In 1880 the Office of Public Works took over the site which continued to maintain and preserve the monastic remains. In 1996 the Department of Arts and Culture and the Gaeltacht assumed the functions and powers of the Commissioners of Public Works with effect from the 12 ^th March of that year by virtue of the Heritage (Transfer of Functions of Commissioners of Public Works) Order, 1996 ( S.I. no. 332 of 1996).

4 Traditionally, access to the island has been possible at three points depending on the state of the sea from the east, south and north sides of the island. Three paths facilitated access to the Monastery situated 130 metres above sea level from these points, but today the boats land at the pier near the east steps and it seems that both the north and south landings are now disused.

5 Skellig Michael is a particularly vulnerable site because, with the exception of one collapsed church, it is constructed entirely of dry stone. There is no mortar, not even in the enormous retaining walls. The unique nature of the site has been recognised by UNESCO which designated it as a World Heritage Site in 1996. According to the evidence on affidavit of Mr Grellan Rourke, senior conservation architect with the National Monuments Service of the respondent's Department, the site was so designated following a visit to the island by a UNESCO representative because UNESCO was satisfied as to the authenticity of the site and that the Office of Public Works had a visitor management strategy in operation which satisfied their criteria so as to enable them to include Skellig Michael in their World Heritage list of sites. This underlines the importance of such a strategy for the preservation of the site.

6 This visitor management strategy was introduced at the commencement of the 1995 tourist season and involved the issuing of a limited number of permits to boat operators to land visitors on the island along with continuous monitoring by guides of the impact of visitor numbers to the national monument. It is the lawfulness of this limitation on the number of boat operators who may land visitors on the island which the appellant seeks to challenge.

7 The adoption of this visitor management strategy arose,...