Crofton v Min for Environment

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Hedigan,
• Judgment Date: 10 March 2009
• Neutral Citation: [2009] IEHC 114
• Date: 10 March 2009
• Docket Number: [635 JR/2004]

[2009] IEHC 114

THE HIGH COURT

[635 JR/2004]

Crofton v Min for Environment

BETWEEN:

DESMOND CROFTON

APPLICANT

AND

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT

RESPONDENT

EEC DIR 92/43/EEC

EEC DIR 79/409/EEC

STATE PROPERTY ACT 1954 S11(2)

CONSTITUTION ART 40.3.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

MURPHY v DUBLIN CORP 1972 IR 215 1973 107 ILTR 65

DUNNE v DONOHOE 2002 2 IR 533 2002 2 ILRM 200 2002/7/1623

BRITISH OXYGEN CO LTD v MIN OF TECHNOLOGY 1971 AC 610 1970 3 WLR 488 1970 3 AER 165

MISHRA v MIN FOR JUSTICE 1996 1 IR 189 1996/13/4227

CASSIDY v MIN FOR INDUSTRY 1978 IR 297

O'NEILL v MIN FOR AGRICULTURE 1998 1 IR 539 1997 2 ILRM 435 1998/29/11600

LIVE STOCK (ARTIFICIAL INSEMINATION) ACT 1947 S3(1)

WILDLIFE ACT 1976 S11(1)

WILDLIFE ACT 1976 S56(1)

HUMPHREY & ORS v MIN FOR ENVIRONMENT & NATIONAL TAXI DRIVERS UNION 2001 1 IR 263 2001 1 ILRM 241 2000/18/6956

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237 1990/8/2141

MINISTER

Powers

Exercise of ministerial discretion - Whether unlawful fettering of discretion - Decision to prohibit hunting on State lands - Application to quash decision by way of judicial review - Scope afforded to ministerial decision on judicial review - Whether decision ought to be quashed - State Property Act 1954 (No 25), s 11(2) - British Oxygen v Board of Trade [1971] AC 610, O'Keeffe v An Bord Pleanála [1993] 1 IR 40, Mishra v Minster for Justice [1996] I IR 189 and Humphrey v Minister for Environment [2001] 1 IR 263 applied; O'Neill v Minister for Agriculture [1998] 1 IR 539 distinguished - Relief refused (2004/634JR - Hedigan J - 10/3/2009) [2009] IEHC 114

Crofton v Minster for the Environment

Facts: The applicant was the Director of the National Association of Regional Games Council, the largest shooting and conservation organisation in Ireland. The applicant sought inter alia an order of certiorari quashing the decision of the respondent to maintain a policy of a prohibition on hunting on State lands acquired for conservation purposes and that the decision to maintain a blanket ban on shooting on State lands was an unreasonable exercise of discretion vested in the respondent.

Held by Hedigan J. that the respondent had acted properly in considering whether to maintain the prohibition against shooting on certain lands. He did not fetter his discretion nor did he act ultra vires. The respondent made his determination on foot of a substantial amount of objective evidence and there was no aspect of the decision that was so unreasonable so as to fly in the face of reason and common sense. The reliefs sought would be refused.

Reporter: E.F.

Mr. Justice Hedigan,

1 1. The applicant is the Director of the National Association of Regional Games Council ('the NARGC'). The NARGC is Ireland's largest shooting and conservation organisation, with some 26,000 members. It is an umbrella organisation representing local and regional game clubs around the country. It was established in 1968, with the aims and objectives ofinter alia: the preservation of certain lands for the purposes of the hunting of game; the development and improvement of game stocks on these lands; and the promotion of the conservation of wildlife and its habitat on these lands.

2 2. The respondent is a public official, charged with the protection of the natural environment, as well as wildlife conservation.

3 3. The applicant seeks the following reliefs:

4 (a) An order ofcertiorari, quashing the decision of the respondent, communicated by letter dated the 29^th of January 2004, to maintain as a matter of policy a prohibition on hunting of State lands acquired for nature conservation purposes;

5 (b) A declaration that the decision to maintain a blanket ban on shooting on State lands constitutes a failure on the part of the respondent to exercise a discretionary decision making power;

6 (c) A declaration that the decision to maintain a blanket ban on shooting on State lands constitutes an unreasonable exercise of the discretion vested in the respondent;

7 (d) A declaration that there is no sufficient statutory or lawful basis for the application of a blanket ban on shooting on State lands as a matter of policy;

8 (e) A declaration that the decision to maintain a blanket ban on shooting on State lands was unreasonable having regard to the weight of material before the respondent to the effect that parcels of State land should be considered on a case by case basis;

9 (f) A declaration that the applicant enjoyed a legitimate expectation that the right to fair procedures and/or constitutional justice of the member of the NARGC would be observed in the decision making process and that the respondent would consult with the NARGC in respect of the findings of a jointly funded research project; and

10 (g) A declaration that the decision of the respondent to advise that he was not prepared to consider further correspondence on the issue of shooting on State lands constitutes a failure to observe the applicant's rights to fair procedures in any decision making process and represents a refusal to consider any further application on the merits of the application having regard to the State lands in question.

I. Factual and Procedural Background

11 4. For several decades, it has been official State policy in Ireland to prohibit shooting on State lands. The applicant submits that this policy has only become problematic in recent times, by virtue of the acquisition by the State of substantial tracts of land which would previously have been available to members of the NARGC for shooting and conservation purposes. The applicant contends that these recent acquisitions have led to a significant diminution in the shooting land available for members.

12 5. For a number of years now, the NARGC has actively sought a review of the policy prohibiting shooting on State lands. In November 1999, the Minister for Arts, Heritage, the Gaeltacht and the Islands announced a review of the existing policy. This review was undertaken by the Heritage Council, with the assistance of a firm of UK ecology consultants called 'Just Ecology', and a report entitled 'Review of the policy of hunting on state-owned lands managed by the Minister for Arts, Heritage, Gaeltacht and the Islands' was produced. In September 2000, the Heritage Council primarily recommended, on foot of this report that the blanket ban should be maintained. However, it accepted that a partial relaxation of the ban, in respect of certain activities, could be a viable alternative.

13 6. The NARGC was dissatisfied with both the nature and the presentation of the findings in the Heritage Council's report. It engaged Dr. Brian Madden, a conservation expert who manages a consultancy called Biosphere Environmental Services, to carry out an independent critique of the report and recommendations of the Heritage Council. It is worth noting that Dr. Madden is also the Independent Scientific Adviser to the Special Area of Conservation Appeals Advisory Board ('the SACAAB'). The SACAAB was established by the respondent to advise him on appeals by landowners against the designation of their lands as Special Areas of Conservation under Council Directive 92/43/EEC of the 21^st of May 1992, commonly known as 'the Habitats Directive'.

14 7. Dr. Madden's critique, which was submitted to the NARGC in January 2001, expressed a number of concerns in relation to the procedures employed by Just Ecology and also the manner in which information had been compiled. In particular, Dr. Madden pointed to the conclusion, which he felt was erroneous, that allowing hunting on all types of State lands would be incompatible with the Habitats Directive as well as Council Directive 79/409/EEC of the 2^nd of April 1979, commonly known as 'the Birds Directive'.

15 8. The respondent decided on the 4^th of January 2002, having regard inter alia to the criticisms made by Dr. Madden on behalf of the applicant, to establish the Scientific Review Group on Hunting ('the SRG') which comprised representatives of the National Parks and Wildlife Service ('the NPWS') as well as members of the NARGC. The terms of reference of the SRG were to examine the no-hunting policy on those lands which were now the property of the NPWS, but which had previously been used for hunting purposes, "from a scientific perspective only". The SRG thus produced a report on that issue in June 2002.

16 9. The SRG Report recommended,inter alia, a complete review of hunting on all State-owned lands. The SRG also prepared a document entitled "An Approach to the Development of a Methodology for Identifying the Issues in Relation to Decision Making about Hunting at Individual Sites". Initially, the NPWS was unwilling to accept the SRG Report, on the basis that it had not been signed by its representatives. This problem was subsequently rectified and the report was circulated in or about January 2003.

17 10. It is the respondent's position that neither he, nor the previous official with responsibility for the prohibition - the Minister for Arts, Heritage, the Gaeltacht and the Islands - ever committed themselves to a specific consultation procedure, either with the applicant or the NARGC, regarding the findings of the SRG report. Nonetheless, the respondent scheduled a consultation with the applicant on the 5^th of February 2003 to consider those findings, in addition to more general considerations concerning any potential review of the existing policy. At this consultation however, the respondent indicated that he had not yet considered the SRG Report in detail.

18 11. By letters dated the 7^th of May 2003 and the 13^th of June 2003, the applicant wrote to the respondent seeking a further consultation on the subject of the SRG Report. The respondent...