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

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 17 June 2005
• Neutral Citation: [2005] IEHC 207
• Court: High Court
• Date: 17 June 2005

[2005] IEHC 207

THE HIGH COURT

[Record No.579JR/2001]

BEMIS v MIN FOR ARTS & ORS

JUDICIAL REVIEW

BETWEEN

F. GREGG BEMIS

APPLICANT

AND

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

RESPONDENTS

NATIONAL MONUMENTS (AMDT) ACT 1987 S3(5)(d)(i)

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

AO & DL v MIN FOR JUSTICE EQUALITY & LAW REFORM 2003 1 IR 1

REGINA (MAHMOOD) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 1 WLR 840 9/1/2001 TLR

O'KEEFFE v AN BORD PLEANALA 1993 IR 39

NATIONAL MONUMENTS (AMDT) ACT 1987 S3(5)(d)(ii)

RSC O.84 r21(1)NATIONAL MONUMENTS (AMDT) ACT 1987 S1

HERITAGE ACT 1995 S2(1)

NATIONAL MONUMENTS ACT 1930 S26(2)

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

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

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

NATIONAL MONUMENTS ACT 1930 S2

NATIONAL MONUMENTS (AMDT) ACT 1987 S11

EUROPEAN CONVENTION ON THE PROTECTION OF THE ARCHAEOLOGICAL HERITAGE 1992

POLICY & GUIDELINES ON ARCHAEOLOGICAL ECAVATION 1999

CARRIGALINE COMMUNITY TELEVISION BROADCASTING CO LTD v MIN FOR TRANSPORT ENERGY & COMMUNICATIONS 1997 1 ILRM 241

NATIONAL MONUMENTS ACT 1930 S26(1)

NATIONAL MONUMENTS (AMDT) ACT 1994 S14

NATIONAL CULTURAL INSTITUTIONS ACT 1997 S2

BEHNKE v BEDE SHIPPING COMPANY LTD 1927 1 KB 649

COLLINS PATH TO FREEDOM 1922 ED

DOHERTY CHRONOLOGY OF IRISH HISTORY SINCE 1500 1989 ED

MOODY A NEW HISTORY OF IRELAND VOL VIII ED 1982

GREENE v MIN FOR DEFENCE 1998 4 IR 464

FRAMEWORK & PRINCIPLES FOR THE PROTECTION OF THE ARCHAEOLOGICAL HERITAGE 1999 S1.1(1)

DELAGDO ENCYCLOPAEDIA OF UNDERWATER & MARITIME ARCHAEOLOGY 1997 ED 248

FAGAN OXFORD COMPANION TO ARCHEAOLOGY 1996 ED

KING & CHAPMAN v THE OWNERS & ALL PERSON CLAIMING AN INTEREST IN THE LA LAVIA JULIANA & SANTA MARIA DE LA VISION 1993 3 IR 413N

ATIONAL MONUMENTS (AMDT) ACT 1994 S2

NATIONAL MONUMENTS (AMDT) ACT 1994 S9

WEBB v IRELAND 1988 IR 353

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART v AG 1970 IR 317 104 ILTR 81

LYNCH, STATE v COONEY 1982 IR 337 1982 ILRM 190

DUNNES STORES IRELAND COMPANY v RYAN 2002 2 IR 60

MARITIME JURISDICTION (AMDT) ACT 1988

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.3.2.1

CONSTITUTION ART 40.3.2.2

US CONVENTION ON THE LAW OF THE SEA 1978 ART 30.3(1)I

NTERNATIONAL CHARTER ON THE PROTECTION & MANAGEMENT OF THE UNDERWATER CULTURAL HERITAGE 1996

UNESCO CONVENTION ON THE PROTECTION OF THE UNDERWATER CULTURAL HERITAGE 1998

O'CALLAGHAN v CMRS OF PUBLIC WORK IN IRELAND & AG 1985 ILRM 364

PLANNING & DEVELOPMENT BILL 1999 PART V

DALY v REVENUE CMRS 1995 3 IR 1 1996 ILRM 122

IARNROD EIREANN v IRELAND 1996 3 IR 321 1996 2 ILRM 500

NATIONAL MONUMENTS ACT 1930 S25(i)

NATIONAL MONUMENTS (AMDT) ACT 1994 S20

NATIONAL MONUMENTS (AMDT) ACT 1994 S8I

COMOS CHARTER FOR THE PROTECTION OF THE ARCHAEOLOGICAL HERITAGE ART 5

INTERNATIONAL AIRCRAFT RECOVERY LLC v UNIDENTIFIED WRECKED & ABANDONED AIRCRAFT 1999 US DIST LEXIS 10846

FLORIDA DEPARMENT OF STATE v TREASURE SALVORS INC 1982 458 US 670

MCDAID v HIS HONOUR JUDGE SHEEHY 1991 1 IR 1 1991 ILRM 250

INTERNATIONAL FISHING VESSELS LTD v MIN FOR THE MARINE 1991 2 IR 95

MULCAHY v MIN FOR THE MARINE & CIF TEORANTA UNREP HIGH COURT KEANE 4.11.1994 1995/4/1198

MACPHARTHALAIN & O'MALLEY v CLIFDEN & WEST CONNEMARA AIRPORT & ORS 1992 1 IR 111

DEVLIN v MIN FOR ARTS CULTURE & THE GAELTACHT & ORS 1999 1 IR 47

DPP v MURPHY 1999 1 IR 98

GORMAN KEARNS & THE NATIONAL TAXI DRIVERS UNION v MIN FOR ENVIRONMENT & LOCAL GOVT & ORS 2001 2 IR 414

REGINA (DALY) v SECRETARY FOR THE HOME DEPARTMENT 2001 2 AC 532

ADMIRALTY

Salvage

Wreck of Lusitania - "Archaeological object" - Whether wreck an "archaeological object" - Whether objects associated with wreck were so plentiful or mundane that they did not have to be preserved - In re "La Lavia" [1999] 3 IR 413 distinguished - National Monuments Act 1930 (No 2), s 2 - Certiorari granted (2001/579JR - Herbert J - 17/6/2005) [2005] IEHC 207 - Bemis v Minister for Arts JUDICIAL

REVIEW

Ministerial power

Property rights - Ministerial power to grant licence to survey wreck - Refusal of licence to owner of wreck - Whether power exercised reasonably - Whether clear procedure followed - Whether Minister failed to consider property rights of owner - Whether Minister failed to take relevant factors into account - Whether Minister entitled to adopt policy - Carrigaline Co Ltd v Min for Transport [1997] 1 ILRM 241 followed - National Monuments (Amendment) Act 1987 (No 17), s 3 - Certiorari granted (2001/579JR - Herbert J - 17/6/2005) [2005] IEHC 207 - Bemis v Minister for Arts

Facts: The applicant, who was the owner of the remains of a vessel R.M.S. Lusitania applied for a licence permitting him to carry out invasive diving, surveying and exploration of the remains of that vessel. The applicant submitted an adapted non-invasive diving form for that application. The first named respondent (the Minister) rejected the applicant’s application as invalid without raising any points of information or determination on the merits. The sole reason for rejecting the licence application was that the form used by the applicant was suitable for non-invasive diving only and had been altered by the applicant. Furthermore, the Minister was of the view that every invasive investigation of the wreck would require an application for an Excavation licence pursuant to s. 26 of the 1930 Act, and no such application had been made. The applicant contended that the form used by him in his licence application was sufficient and valid and he obtained leave to seek judicial review of the Minister’s decision rejecting his application as invalid.

Held by Herbert J. in favour of the applicant:

1. That no specific form of application had been provided for by any statute or practice for the purpose of obtaining a licence for invasive diving. In the circumstances of this case, the Minister failed to consider the applicant’s application in the form it was made, on its merits, within the time permitted by the Act of 1987 and accordingly, the refusal was unjust, irrational and unreasonable and was ultra vires the power vested in the Minister.

2. That the Minister erred in law in holding that every invasive investigation of the wreck would require an application for an excavation licence pursuant to s. 26 of the 1930 Act, as that section only related to excavations for a specific archaeological purpose. The Minister was not entitled to consider that every invasive investigation of a wreck required an excavation licence, he was obliged to consider each individual case on its own facts.

Reporter: L.O’S.

1 JUDGMENT of Mr. Justice Herbert delivered the 17th day of June, 2005

2 The applicant is a citizen of the United States of America, and resides and until 2001, carried on a diving business in that country. I find that as of 7th March, 2001, no specific form of application had been declared, provided or confirmed by any statute, statutory instrument, bye-law, regulation, order or statutory scheme, or established by any clearly defined usage, practice or reputation for the purpose of obtaining a licence for the type of invasive diving, survey and exploration of the remains of the vessel R.M.S. Lusitania, of which he is the sole owner, intended by Mr. Bemis. On the affidavit evidence, for his application of 7th March, 2001, Mr. Bemis in the circumstances adapted a non-invasive diving form which he obtained from Dúchas, the heritage service of the Department of Arts, Heritage, Gaeltacht and The Islands. A similar form had previously been used for non-invasive detailed survey dives made with his consent by Mark Jones and Alan Clegg the results of which, on the evidence, had been furnished to Dúchas in November 2000. I do not accept that this was a deliberate and premeditated strategy on his part to avoid applying for an excavation licence or any other licence.

3 By the provisions of s. 3(5)(d)(i) of the National Monuments (Amendment) Act, 1987, (hereinafter referred to as, "the Act of 1987"), the Minister for Arts, Heritage, Gaeltacht and The Islands (hereafter referred to as the "Minister"), to whom all functions relevant to this matter were transferred by Statutory Instrument 332 of 1996 which came into force on 12th November, 1996, is required to grant or to refuse the licence sought, with or without conditions, within a period of three months from the date of receipt of the application. The Minister is entitled under that Act to seek further information from the applicant in relation to the application. This however, in my judgment, must be interpreted as requiring that the request be reasonable and that the information sought be necessary and relevant to the decision. If the Minister had, by usage or practice established a particular form on which application should be made, (with for example, the purpose of standardising and facilitating the processing of such applications), even if it had not been confirmed or formalised by statute, statutory instrument, bye-law, order, regulation or statutory scheme, it seems to me that it would be intra vires the power of the Minister to furnish a copy of this form to the applicant and to insist that it be used for the purpose of the application. This would have had to be done as soon as practicable. It certainly could not be done after a lapse of almost two and a half months from the date of receipt of the application, which in the circumstances of the three month period permitted by s. 3(5)(d)(i) of the Act of 1987 for the determination of the application, with the consequence of an unconditional licence deemed granted in default, of notification within that period, must be considered a wholly unacceptable delay.

4 No information was...