F. Gregg Bemis v The Minister for Arts, Heritage, Gaeltacht and the Islands, Ireland and Attorney General

• Jurisdiction: Ireland
• Judge: MR JUSTICE FENNELLY,Macken, J.
• Judgment Date: 27 March 2007
• Neutral Citation: [2007] IESC 10
• Court: Supreme Court
• Docket Number: [S.C. Nos. 393 & 395 of 2005]
• Date: 27 March 2007

BEMIS v MIN FOR ARTS & ORS

Between:

F. GREGG BEMIS

Respondent/Respondent

-and-

THE MINISTER FOR ARTS, HERITAGE, GAELTACHT AND THE ISLANDS, IRELAND AND THE ATTORNEY GENERAL

Respondents/Appellants

[2007] IESC 10

No. 393/2005 JR

No. 395/2005 JR

THE SUPREME COURT

JUDICIAL REVIEW

Ministerial power

Property rights - Ministerial power to grant licence to survey wreck - Refusal of licence - Whether power exercised reasonably - Whether procedure followed - Whether Minister failed to consider property rights of owner - Whether Minister failed to take relevant factors into account - National Monuments (Amendment) Act 1987 (No.17), ss. 3(3) and 3(5) - Respondents' appeal dismissed (393 & 395/2005 - SC - 27/3/2007) [2007] IESC 10Bemis v Minister for Arts, Heritage, Gaeltacht and Islands

ADMIRALTY

salvage

Wreck of ÇÿLusitania' - "Archaeological object" - Whether works proposed come within definition of digging or excavation works under statute - National Monuments Act 1930 (No 2), s 26 - Respondents' appeal dismissed (393 & 395/2005 - SC - 27/3/2007) [2007] IESC 10Bemis v Minister for Arts, Heritage, Gaeltacht and Islands

NATIONAL MONUMENTS (AMDT) ACT 1987 S3(5)

NATIONAL MONUMENTS ACT 1930 S26

NATIONAL MONUMENTS (AMDT) ACT 1987 S11

NATIONAL MONUMENTS (AMDT) ACT 1987 S3(3)

NATIONAL MONUMENTS (AMDT) ACT 1994

NATIONAL MONUMENTS ACT 1930 S2

NATIONAL MONUMENTS (AMDT) ACT 1987 S3(1)

NATIONAL MONUMENTS (AMDT) ACT 1987 S3(4)

HERITAGE (TRANSFER OF FUNCTIONS OF CMRS OF PUBLIC WORKS IN IRELAND) ORDER 1996 SI 332/1996

NATIONAL MONUMENTS (AMDT) ACT 1987 S3(1)(a)

NATIONAL MONUMENTS (AMDT) ACT 1987 S3(3)(b)

MULCAHY v MIN FOR MARINE UNREP KEANE 4.11.1994 1995/5/1198

HOWARD v COMMISSIONER OF PUBLIC WORKS 1994 1 IR 101

CRAIES CRAIES ON STATUTE LAW 7ED 1971 65

DPP (IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 1998 16 5907

ABENGLEN PROPERTIES, STATE v DUBLIN CORPORATION 1984 IR 381

1 This appeal concerns a decision taken by the first named Appellant on the 22nd May 2001 refusing the Respondent a licence, sought pursuant to S.3(5) of the National Monuments Act 1987 ("the Act of 1987"), to carry out certain works at the site of a shipwreck off the coast of Cork, and is brought against the decision of Herbert, J. in his judgment delivered on the 17th June 2005, by which he found that the said decision was ultra vires, void and of no effect, and against the order made on the 15th July 2005, following upon the decision.

The Background Facts:

2 The ship known as the "R.M.S. Lusitania" was scuttled off the coast of the State in 1915, by torpedo. The wreck of the ship still remains on or in the seabed, several miles off the Old Head of Kinsale in Co. Cork, and, it would appear, lies at a depth of just under 100 metres. The wreck is owned by the Respondent. Dealings with wrecks, or with certain sites surrounding them - called restricted areas - including, inter alia, diving to inspect wrecks, removing them or any items from them, carrying out works on or in them or in a restricted area, as well as dealing with archeological objects, things or wrecks in a restricted area, are all subject to statutory control pursuant to the provisions of fairly wide ranging legislation. The relevant legislation for the purposes of this appeal is more fully referred to below. Those same activities which are otherwise prohibited may nevertheless be permitted, subject to a licence issuing under the appropriate legislation from the Respondent, The Minister for Arts, Heritage, Gaeltacht and The Islands ("The Minister"), whose functions in that regard were formerly vested in the Commissioners for Public Works.

3 Over a period of several years, persons who were interested in the wreck of the Lusitania have applied to the Minister for licences to dive and/or inspect (survey) it, with the knowledge and indeed in some cases with the cooperation or approval of the Respondent. In respect of most, if not all such applications, the Minister notified the Respondent of them, and liaised with him concerning, inter alia, the scope or the terms of those licences. It is common case between the parties that at all times the Respondent did not, and still does not, accept that the Minister is entitled to control or limit his access, as owner, to the wreck, or to limit or control what he, the Respondent, does with the wreck, whether by removing parts of the wreck itself, or items from it, or by exporting the same, or indeed by freely dealing with his personal property in any manner he sees fit. The Minister does not agree that the Respondent has such an untrammelled right and relies, inter alia, on the provisions of certain legislation and case law in that regard. Further, since at least 2000, and even earlier, the Minister has prepared, or has had prepared for him, expert and other reports in respect of the manner in which the wreck of the Lusitania ought to be dealt with, including proposals as to access to it, the nature and control of such access, and the handling of its contents. As part of that exercise, a draft set of proposals was prepared and sent to the Respondent's solicitors in the year 2000, and correspondence and meetings ensued.

4 As a result of the foregoing, there was a large dossier of documents before the High Court and now before this court, including reports, as well as correspondence between the parties, which forms a particular and perhaps peculiar backdrop or context to the current dispute, and on which both the Minister and the Respondent rely, at least in part.

5 Despite the foregoing history, the Respondent himself applied to the Minister for a licence in respect of the wreck of the Lusitania, by way of application dated the 7 March 2001. This was made on a standard printed form emanating from the Minister's department, and which the Respondent altered, or amended, by deleting portions thereof, a matter to which I will return later in this judgment. This form was supplemented by two additional typed pages headed respectively "Licence Application Part I" and "Licence Application Part 2", which were referred to in the printed application form itself under the headings (a) "survey". The stated "Mission" of Application Part I document was:

"to undertake the complete forensic examination of the wreck of the Lusitania to determine the apparent location and cause of the massive second explosion which led to its rapid sinking".

6 Of additional relevance was the statement as to the "targets for research" which were described under ten different headings.

7 The "methodology" proposed was described in the following terms:

"A full scale saturation diver complex with either dynamic positioning or 4 point moor to accomplish:"

(a) Thorough removal of silt and other deterrents to visual inspection and video;

(b) Entrance into the wreck at all appropriate locations for close on hand inspection, either by cutting through or blasting through such barriers as may prevent access to necessary sites, either from the deck level or from the port side."

8 The licence was sought in respect of the period from June 2001 through September 2006, in other words, for an extended period, in excess of five years, and supervision was to be by the Respondent.

9 The stated Mission under Application Part II, was, in brief, to promote the history and importance of the Lusitania by means of the display of exhibits from the wreck in museums, through a travelling exhibition, inter alia, in the United States, and elsewhere outside the State, and in addition, to undertake on a limited basis, sales to collectors of maritime valuables, to defray the cost borne by the Respondent.

10 The "methodology" in this part of the application was stated as being

"The primary work method will be the utilization of Tech divers proceeding to the site using lift bags to bring the recovered materials to the surface with supplementation from saturation divers."

11 The Minister replied by letter dated the 22nd May 2001, stating he was refusing the application for a licence. It is necessary to set out in full the relevant portions of this letter. They read:

"We note, first of all, that you have altered our application form thereby effectively changing the terms of the application from a non-intrusive approach implicit in such an application to one which is now associated with your accompanying method statement.

The investigation proposed in your method statement involving: 'Through removal of silt and other deterrents to visual inspection and video. Entrance into the wreck at all appropriate locations for close on hand inspection, either by cutting through or blasting through such barriers as may prevent access to necessary sites, either from the deck level or from the port side' is not appropriate to a non-intrusive dive licence application. For this reason, we regret that we must deem your application invalid and as a consequence your licence application is hereby refused.

You are, of course, free to submit a new application for non-intrusive diving licence. We would re-iterate, however, that if intrusive investigation is proposed you will also need to submit a separate application for an archaeological excavation licence. In this regard, we would have to say that the method statement accompanying your letter of 7th March 2001 would require far more detail and that the applicant for the excavation licence should be the person directing the investigation.

We are enclosing new application forms to assist you in this regard and once again, we repeat our offer to provide you with guidance in making your application in relation to the preparation of the method statement and conservation strategy."

12 Accompanying that letter were three printed forms. The first was entitled "Application to Dive on Sites...