Casey v Minister for Arts

• Jurisdiction: Ireland
• Judge: Mr. Roderick Murphy
• Judgment Date: 31 May 2001
• Neutral Citation: [2001] IEHC 95
• Court: High Court
• Docket Number: No. 472 JR/1998
• Date: 31 May 2001

[2001] IEHC 95

THE HIGH COURT

No. 472 JR/1998

CASEY v. MINISTER FOR ARTS HERITAGE GAELTACHT & ISLANDS

BETWEEN

TIMOTHY CASEY

APPLICANT

AND

THE MINISTER FOR ARTS, HERITAGE, GAELTACHT AND THE ISLANDS

RESPONDENT

Citations:

HERRITAGE (TRANSFER OF FUNCTIONS OF COMMISSIONERS OF PUBLIC WORKS IN IRELAND) ORDER 1996 SI 62/1996

COMPETITION ACT 1991

TREATY OF ROME

NATIONAL MONUMENTS ACT 1930 S16

CLANCY V COMMISSIONERS OF PUBLIC WORKS IN IRELAND 1992 2 IR 449

MERCHANT SHIPPING ACT 1992

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD V AG 1970 IR 317

NATIONAL MONUMENTS (AMDT) ACT 1987 S9

PIGS MARKETING BOARD V DONNELLY LTD 1939 IR 413

CITYVIEW PRESS LTD V AN COMHAIRLE OILIUNA 1980 IR 399

O'NEILL V MIN FOR AGRICULTURE 1998 1 IR 539

NATIONAL MONUMENTS ACT 1930 S2

NATIONAL MONUMENTS ACT 1930 S12(1)

NATIONAL MONUMENTS ACT 1930 S16(1)

NATIONAL MONUMENTS (AMDT) ACT 1954 S17(1)

STATE PROPERTY ACT 1954 S11(2)(j)

TARA PROSPECTING V MIN FOR ENERGY 1993 ILRM 771

PESCA VALENTIA LTD V MIN FOR FISHERIES 1990 2 IR 305

CLANCY V THE COMMISSIONERS 1992 2 IR 449

Synopsis

JUDICIAL REVIEW

Certiorari

Legitimate expectation - Transport - Right to earn livelihood - State liability - Ferry service - Refusal to grant permit - Whether actions of Minister ultra vires (1998/472JR - Murphy J - 31/5/01)

Casey v Minister for Arts, Heritage, Gaeltacht and the Islands

The applicant challenged the refusal of the respondent to furnish him with a landing permit. The applicant required the permit to operate a ferry service to Skellig Micheál. Mr. Justice Murphy held that the Minister was entitled to make the decisions in question. The proceedings would be dismissed.

JUDGMENT of

Mr. Roderick Murphy

1 delivered on the 31st day of May 2001.

2 Skellig Michael, the great Skellig, was the site of one of the most remote monastic settlements of christendom. It remains a place of pilgrimage and veneration for many, has featured internationally as a critical historic site and has featured regularly in the media.

3 It is probable that the island continued to be inhabited as a dependence of Ballinskelligs Abbey after climatic disimprovement, linked to a southern shift in the circumpolar vortex which resulted in colder weather and increased storms on the seas around the Skellig. This factor, together with the development in the Irish church from a monastic to a diocesan structure, signalled the end of the Irish eremitic island colonies resulting in the community of Skellig Michael moving to the mainland. The Prior of Ballinskelligs was still, however, addressed in papal letters as "Augustinian Prior of St. Michael's, Roche" that is of Sceillec Michael, or the steep rock of St. Michael to whom the Rock was dedicated in the 10th Century

4 Skellig Michael remained in the hands of the Augustinian monks until 1578 when Queen Elizabeth I dissolved certain monasteries that were under the protection of the Earl of Desmond. The Skellig Islands later passed to John Butler.

5 Though the monastery ceased to exit, it continued to be used for pilgrimages.

6 As early as 1790 the Knight of Kerry asked the authorities to light it in order to prevent losses at sea and to distinguish the Skellig from Loop Head.

7 About 1826 John Butler of Waterville sold the rock of the Corporation for Preserving and improving the Port of Dublin, who were the predecessors of the Commissioners of Irish Lights who erected lighthouses on the Atlantic side and improved landing on the east side and a road that was blasted out on the precipitous southern and western sides of the island made the lighthouses more accessible.

8 In 1880 the Office of Public Works took over the site and continued to maintain and preserve the monastic remains. The Department of Arts Culture and the Gaeltacht assumed the functions and powers of the office of Public Works with effect from 12th March 1996 (Heritage (Transfer of Functions of Commissioners of Public Works in Ireland) Order, 1996.)

9 One striking characteristic of the hermitage constructed on the steep slopes of the south peak is that it was almost invisible from the lower levels of the island. It was, accordingly, an ideal location for the isolation sought by the eremitic monks, as well as possibly providing some protection from attacks by the Vikings.

10 The approaches to the great Skellig are perilous. Access to the monastery on Christ's Valley or Christ's Saddle, 130 meters above sea level in the middle of the island, is possible at three points depending on the state of the sea from the east, south and north sides of the island. The three paths seem to be constructed in the same way of steps built up on retaining walls or of steps made simply of large flags held in position by some small stones inserted under them. There are also rock cut steps near the waters edge.

11 Because of its unique features it continues to attract more and more visitors, particularly during the summer months when access is possible.

12 Today the boats land at the pier near the east steps. The present access route to the monastery is through the lighthouse road and south steps. It would appear that both the north and south landings are now disused.

13 The monastery is to the north of Christ's Saddle while the hermitage, at the south peak is to the west of Christ's Saddle.

14 Visitor numbers to the monastery have peaked at 12,655 over 107 days in 1995 during the June to September months when guides are established on the island. This followed on works undertaken during 1994 when the island was only open to the public three days per week due to the risks involved and where 5,490 visited the monastery over 45 days. It is estimated that 5 to 10% in addition visit the island but not the monastery.

15 However the increase in visitors necessarily causes deterioration to the monuments and to the access pathways and steps. In 1995 the Department of Arts, Culture and the Gaeltacht, the predecessor of the Respondent in these proceedings, imposed a system of regulation in relation to the landing of passengers which required boats to have a permit to land passengers. Permits were, and are limited to 19 boats.

16 Timothy Casey, the applicant herein, says that in or around 1995 he invested in the acquisition of a boat and expended the sum of £30,000 in its acquisition and refurbishment. He says that he first applied in 1995 for a licence or permit to land passengers on Skellig Michael. He reapplied in subsequent years. His application was not granted. The letter of refusal to his last application was sent to his solicitor on 16th June 1998.

17 2.1 By way of Judicial Review proceedings filed on the 10th December, 1998, Mr. Casey applied to the Court for a number of reliefs.

18 The first of the six reliefs sought is for an Order ofCertiorari in respect of the refusal by the Minister (the respondent herein) to furnish the applicant with a landing permit.

19 The remaining five reliefs seek declarations that the procedures employed by the Minister in assessing the suitability of the applicant for such a permit was unfair, in breach of natural justice and invalid because it adhered to a rigid policy.

20 Moreover it is claimed that the procedures constituted a breach of the Competition Act,1991, or the competition rules of the Treaty of Rome.

21 The applicant also seeks a declaration that the Minister has no right to restrict access to citizens of Ireland to publicly owned land.

22 The applicant said that he had a legitimate expectation which had been interfered with by the Minister's denial to permit him to recover his investment. He had expected to be able to ferry passengers for profit between the mainland and the Skellig Islands and to land passengers on Skellig Michael.

23 Finally, the applicant seeks a declaration from the Court that the purported basis for limiting permits to 19 boats is not justified and that the figure of 19 was arrived at in an arbitrary fashion.

24 2.3 The grounds upon which the applicant looks for relief are detailed in the statement for Judicial Review. He says that he has not been afforded a fair or any hearing in relation to his application nor was he given an opportunity to present any oral submissions.

25 He further says that the Minister has operated a policy whereby other persons have been licensed to operated several boats while he has been denied even one permit. He says that the Minister issued permits to persons whose boats have ceased to operate and that the terms and conditions of the permits are not being adhered to or enforced.

26 Moreover, he says the operators of cruise ships do not require permits to land passengers nor is there and limit on the number of passengers which they may land.

27 The applicant claims that the Minister has blindly operated an inflexible policy without regard to the individual circumstances of applicants for permits, has failed to disclose the criteria (if any) by which applications are entertained or declined and, accordingly, has caused significant loss and damage to the applicant's livelihood. The applicant further says that the Minister has failed to have any regard for the applicant's constitutional right to earn a living.

28 Mr. Casey filed an Affidavit on the 10th December, 1998 and a supplemental Affidavit of 19th July, 2000. He was then 42 years of age and says that he had earned a modest living as a fisherman based out of Port Magee, in the County of Kerry which is the nearest port to the islands.

29 Mr. Casey deposes that in or about 1995 he expended the sum of £30,000 in acquiring the boat and bringing it up to a standard for carrying passengers. The boat was fully licensed and certified by the Department of Marine for ferrying passengers. He says he is the only person in the village of Port Magee with a boat fully licensed who does not have a permit to land passengers on Skellig Michael....