Glann Mór Céibh Teoranta, Glann Mór Cuan Teoranta and Siobhán Denvir-Bairéad v an T-Aire Tithíochta, Pleanáil Agus Rialtas Áitiúil, an Bord Pleanála, Éire Agus an Tard-Aighne (English)

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Hogan J.
• Judgment Date: 01 November 2022
• Neutral Citation: [2022] IESC 40
• Docket Number: S: AP:IE:2021:000107

Between/

Glann Mór Céibh Teoranta, Glann Mór Cuan Teoranta and Siobhán Denvir-Bairéad

Applicants/Respondents

and

The Minister for Housing, Planning and Local Government, An Bord Pleanála, Ireland and The Attorney General

Respondents/Appellants

Idir/

Glann Mór Céibh Teoranta, Glann Mór Cuan Teoranta Agus Siobhán Denvir-Bairéad

Iarratasóirí/Freagróirí

and

An T-Aire Tithíochta, Pleanáil Agus Rialtas Áitiúil, An Bord Pleanála, Éire Agus An Tard-Aighne

Freagróirí/Achomharcóirí

[2022] IESC 40

MacMenamin J.

O'Malley J.

Baker J.

Woulfe J.

Hogan J.

MacMenamin B.

Ní Mháille B.

Baker B.

Woulfe B.

Ó hÓgain B.

S: AP:IE:2021:000107

AN CHÚIRT UACHTARACH

THE SUPREME COURT

JUDGMENT of Hogan J. delivered the 1st November 2022

Introduction

1 . These proceedings arise from a decision of Irish Water to seek a Compulsory Purchase Order in respect of certain lands owned by the applicants at Sruffaun Pier, Carreroe, County Galway, in the Connemara Gaeltacht area. The applicants seek to contest the making of that order before An Bord Pleanála. The Board has already decided on 13th March 2019 to hold an oral hearing. It further decided by letter dated 4th November 2019 that this hearing will be heard in Irish in accordance with the provisions of s. 135(8)(b) of the Planning and Development Act 2000.

2 . In these circumstances the applicants seek various declarations regarding the availability (or, more accurately, the non-availability) of a variety of statutes and statutory instruments in the Irish language. One can, I think, conveniently break down the relief sought into three distinct categories: first, certain Acts of the Oireachtas; second, statutory instruments made pursuant to s. 3(1) of the European Communities Act 1972 which amend other Acts of the Oireachtas and third, other statutory instruments which might be of relevance. More fundamentally, this appeal raises once again the wider question which was in view in Ó Murchú v. An Taoiseach [2010] IESC 26, [2010] 4 IR 484 namely, the extent to which there is a general obligation to translate statutory instruments.

3 . I propose to consider all of the issues in turn. But it is first necessary to set out the background to the appeal.

Background

4 . For the avoidance of doubt, the applicants in the High Court (and the respondents in this Court), Glann Mór Céibh Teoranta, Glann Mór Cuan Teoranta, and Siobhán Denvir-Bairéad shall be referred to as “the Respondents”, and the respondents in the High Court who are still a party to this appeal, i.e. the Minister for Housing, Planning and Local Government, Ireland and the Attorney General shall be referred to as “the Appellants”.

5 . The Respondents are seeking to challenge Irish Water Limited making a Compulsory Purchase Order in respect of certain lands located at Sruffaun Pier, Carreroe, County Galway, in the Connemara Gaeltacht area.

6 . In accordance with applicable law, any objection to such an order is lodged with An Bord Pleanála. An Bord Pleanála may hold an oral hearing in relation to the matter. In addition, in accordance with section 135(8)(b) of the Planning and Development Act, 2000 (hereinafter “the 2000 Act”), in cases where the development is within the Gaeltacht, the hearing shall be conducted in Irish.

7 . The Respondents state that they require official Irish language versions of certain pieces of legislation in order to be able to adequately prepare for, and participate effectively in, the An Bord Pleanála hearing. In these proceedings, they seek, inter alia, a declaration stating that the Appellants have a constitutional obligation to provide an official translation of the Planning and Development (Amendment) Act 2018 and of certain Statutory Instruments listed in an Annex to their Statement of Grounds. Initially, they were seeking Irish language versions of 29 such Instruments, however at the High Court hearing they agreed to remove 5 Instruments from that list. The 29 Statutory Instruments that were originally being sought came to approximately 1,200 pages and the reduced number of instruments, i.e., 24 instruments, came to approximately 600 pages.

8 . This case concerns the right of the Respondents to conduct their business through the medium of Irish. Pursuant to section 135(8)(b) of the 2000 Act, the Respondents have a statutory right to a hearing in the Irish language. Furthermore, the Respondents consider that there will be significant difficulties at the oral hearing in the absence of an authoritative version of the relevant Statutory Instruments being available in Irish.

The Judgment of the High Court

9 . The reliefs sought by the Applicants in the High Court were as follows;

• i. “A Declaration that the first, third and fourth named Respondents have a constitutional duty to issue an official translation in the First Official Language of the Planning and Development (Amendment) Act 2018 and the Statutory Instruments specified in the schedule attached to the Statement and to make same available to the applicants.

• ii. That the second-named Respondents are prohibited from commencing an oral hearing, or from taking any further action in relation to the Irish Water (Carreroe Sewerage Scheme) Compulsory Purchase Order, 2019 (Ref. No. ABP-305519-19) until such time as this case is heard and given final determination.

• iii. That the second-named Respondent be obstructed from opening the oral hearing or taking any further action in relation to the Irish Water (Carreroe Sewerage Scheme) Compulsory Purchase Order 2019 (Ref. No. ABP-305519-19) until such time as the final hearing and judgment in this matter has been completed.

• iv. Any other appropriate order.

• v. Costs.”

10 . O'Hanlon J. decided, having first considering the case law, including Ó Beoláin v. Fahy [2001] 2 IR 279, Ó Murchú v. An Taoiseach [2010] 4 IR 484, pel Austria GmbH v. The Commission (CT-115/94), and Skoma-Lux sro v Celni reditelství Olomouc (C-161/06), that the State is not entitled to take an unreasonable period of time to prepare Irish translations, which would be directly contrary to the status of the language as the first official language pursuant to Article 8 of the Constitution.

11 . O'Hanlon J. stated the following at para. 96;

“It is therefore clear to this court that the State has a constitutional obligation to make an official translation available as soon as possible, and within a reasonable time. But what exactly does that mean? It is not open to the court to declare a specific time period, but it is clear that a period of 17 months, as in this case, is not at all reasonable. I come to this decision in the context that no evidence has been brought before the court in relation to the resources of Rannóg Aistriúcháin [the Translation Section of the Oireachtas]. However, it is clear to the court that there is a shortage of resources, and that is publicly available information. The court understands that the Act is complex, involving detailed terminology and including complex content. And that increases the need to make the translation available fast. It is the view of this court that the need for official translation starts at the point at which a law enters into force, in one official language only. The negligence on the part of the State increases for the period of time that it takes the State to provide the official translation.”

12 . The High Court was therefore satisfied that it was necessary to provide an Irish version of the Statutory Instruments specified in the judgment, and it was also urgent at that stage to provide an Irish version from of same with respect to the terminology involved in the material and its content.” The court issued a declaration that the first, third and fourth-named Respondents (now the Appellants in this Court) have a constitutional obligation to provide an official translation of the Planning and Development (Amendment) Act, 2018 in the first official language. Despite the fact that the translation is now available, nonetheless the Respondents breached the constitutional obligation on account of the unreasonable delay in preparing the translation. With regard to the Statutory Instruments, the High Court ordered that an official translation of the Statutory instruments specified in the schedule (other than at xiii, xv, xvii, xviii and xxi, which are not sought by the Applicants / Respondents in this Court) must be made within a reasonable period of time.

Issues in this Appeal

13 . It has been determined that the following are the issues to be considered in Court in this appeal:

• 1) Was there unreasonable delay on the part of the first, third and fourth-named Appellants in preparing and making available a translation in the national language and the first official language of the Planning and Development (Amendment) Act 2018?

• 2) Is there an obligation on the State to provide the translation of statutory instruments in the first official language (and, if so, what is the extent of any such obligation)?

• 3) Is there a specific constitutional obligation arising from Article 8 being read in conjunction with Article 25 of the Constitution of Ireland, to make Statutory Instruments that amend primary legislation available in the first official language?

• 4) Did the learned Judge also err in law in granting a declaration that the aforementioned Appellants had a constitutional duty to issue and make available to the Respondents an official Irish translation of the aforementioned statutory instruments as soon as possible, and in any case within six months?

• 5) Is the State obliged under Article 8 of the Constitution, in circumstances where the Respondents have a statutory right to conduct the oral hearing before An Bord Pleanála in the first official language under section 135(8) of the Planning and Development Act 2000, to provide an official translation of the Statutory...