Grennan v Min Agriculture

• Jurisdiction: Ireland
• Judge: Mr. Justice Francis D. Murphy
• Judgment Date: 04 October 1995
• Neutral Citation: 1995 WJSC-HC 4654
• Docket Number: No. 39 J.R. 1995
• Court: High Court
• Date: 04 October 1995

1995 WJSC-HC 4654

THE HIGH COURT

No. 39 J.R. 1995

GRENNAN v. MIN AGRICULTURE

BETWEEN

MICHAEL GRENNAN

APPLICANT

AND

THE MINISTER FOR AGRICULTURE FOOD AND FORESTRY

RESPONDENT

Citations:

BOVINE TUBERCULOSIS (ATTESTATION OFTHE STATE & GENERAL PROVISIONS) ORDER 1989 SI 308/1989 ART 12

DISEASES OF ANIMALS ACT 1966 S20

DISEASES OF ANIMALS ACT 1966 S22

DISEASES OF ANIMALS ACT 1966 S58

HOWARD V MIN FOR AGRICULTURE 1992 IR 260

DISEASES OF ANIMALS ACT 1966 S17

DISEASES OF ANIMALS ACT 1966 S17(1)

DISEASES OF ANIMALS ACT 1966 S17(2)

BOVINE TUBERCULOSIS (ATTESTATION OFTHE STATE & GENERAL PROVISIONS) ORDER 1978 SI 256/1978

BOVINE TUBERCULOSIS (ATTESTATION OFTHE STATE & GENERAL PROVISIONS) ORDER 1989 SI 308/1989 RULE 13(1)

CARROLL V MIN FOR AGRICULTURE 1991 1 IR 230

ROONEY V MIN FOR AGRICULTURE 1991 2 IR 539

Synopsis:

AGRICULTURE

Cattle

Disease - Eradication - Bovine tuberculosis - Animals - Tests - Co-operation of farmer withheld - Frustration of attempt to effect tests - Restricted-holding notice served - Validity of notice challenged - Fair procedures applied - Bovine Tuberculosis (Attestation of the State and General Provisions) Order, 1989, article 12 - Diseases of Animals Act, 1966, s. 20 - Constitution of Ireland, 1939, Article 40 - (1995/39 JR - Murphy J. - 4/10/95)

|Grennan v. Minister for Agriculture, Food and Forestry|

CONSTITUTION

Personal rights

Fair procedures - Cattle - Disease - Eradication - Enforcement of statutory scheme - Service of restricted-holding notice - Prohibition of unauthorised movement of cattle - Requirements of natural justice satisfied - (1995/39 JR - Murphy J. - 4/10/95)

|Grennan v. Minister for Agriculture, Food and Forestry|

NATURAL JUSTICE

Fair procedures

Cattle - Disease - Eradication - Enforcement of statutory scheme - Service of restricted-holding notice - Prohibition of unauthorised movement of cattle - Requirements of natural justice satisfied - (1995/39 JR - Murphy J. - 4/10/95)

|Grennan v. Minister for Agriculture, Food and Forestry|

1 Judgment of Mr. Justice Francis D. Murphydelivered the 4th day of October, 1995.

2 The Applicant in these proceedings seeks to quash a Notice issued pursuant to Article 12 of the Bovine Tuberculosis (Attestation of the State and General Provisions) Order, 1989 (the "1989 Order") by a veterinary inspector employed by the Respondent by which the Applicant's holding was declared a "restricted holding". The Applicant also challenges the validity of Article 12 of the 1989 Order itself. In addition a general challenge is made to the administration by the Respondent of the Bovine Tuberculosis Eradication Scheme.

3 The Applicant's claim may be divided into three separate headings asfollows:-

4 1. That the Restricted Holding Notice issued pursuant to Article 12 of the 1989 Order (the "Notice") is ultra vires the powers of the Respondent for the following reasons:-

5 (a) The Applicant did not refuse to permit his herd to be tested in accordance with law;

6 (b) The Respondent had no power to issue the Notice pursuant to the 1989 Order;

7 (c) In issuing the Notice the Respondent failed to comply with the principles of natural justice, and in particular, failed to afford the Applicant the opportunity of making representations prior to the issuing of the Notice;

8 (d) The Notice was a disproportionate penalty and constituted a criminal sanction.

9 2. That Article 12 of the 1989 Order is itself ultra vires the powers of the Minister under the Diseases of Animals Act, 1966("the 1966 Act").

10 3. That the Applicant is entitled to require that the testing of the Applicant's herd be carried out in accordance with Sections 20, 22 and 58 of the 1966 Act.

11 The foregoing analysis of the issues arising in this case is taken directly from the very helpful written submissions made on behalf of theRespondent.

12 The matter came before the Court on the 2nd February, 1995 on an ex parte application by the Applicant for leave to apply on Judicial Review for a declaration that Article 12 of the Bovine Tuberculosis (Attestation of the State and General Provisions) Order, 1989 was ultra vires the provisions of the Diseases of Animals Act, 1966and the powers of the Minister thereunder. The basis on which leave was sought to make that and other challenges was set out at paragraph (e) ofthestatement of the grounds lodged by the Applicant. Those grounds comprise some 16 paragraphs and reference may be had, if necessary, to the particular grounds though it seems to me that they are more helpfully summarised in the submissions made on behalf of the Minister.

13 The Applicant is a farmer in his late fifties. He is married with seven children. His farm comprises 52 acres and is situate at Morraugh, Tullamore, Co. Offaly. He has operated as a dry stock farmer. His mother owns a further 52 acres and his wife is the registered owner of a farm comprising 100 acres. In the nature of his business he bought store cattle; fed them and sold them as finished beef. He estimated that the turnover of sales was about 150 cattle per annum. In February of this year he had 56 cattle on the land of which 22 were ready for sale. It is clear that he feels intensely about the Bovine Tuberculosis Scheme; the way it is operated by the Respondent and the manner in which it impacts upon him. Indeed he explained that he has already served a period of detention in Shelton Abbey because of his unwillingness to pay a fine arising from a protest he made in respect of that Scheme.

14 There is little conflict as to the facts of the present matter. In March 1994 the Respondent's officials advised the Applicant that his cattle would be tested at 9 a.m. on the 22nd March, 1994. The Applicant failed to comply with the terms of that Notice. A subsequent appointment was made for the 25th May, 1994 to carry out the appropriate tests and on that occasion the Applicant met the officers from the Respondent's Department but refused to permit the tests to be carried out otherwise than in accordance withSection 20 of the 1966 Act. I am satisfied that the officers of the Department explained that the tests were being carried out in pursuance of the 1989 Order and that they were entitled so to do and that the refusal of the Applicant to permit the test to be carried out otherwise than in accordance with Section 20 of the 1966 Act gave those officers reasonable grounds for concluding that the Applicant, as owner or occupier or person in charge of the holding in question, had not in relation to some animal complied with some provision of the 1966 Act or the 1989 Order and accordingly that the officer concerned was entitled to declare, as he did, the holding in question to be a restricted holding by serving or...