Hanrahan Farms Ltd v Environmental Protection Agency and Others

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 29 July 2005
• Neutral Citation: [2005] IEHC 482
• Date: 29 July 2005
• Court: High Court

[2005] IEHC 482

THE HIGH COURT

22 JR/2003

Hanrahan Farms Ltd v Environmental Protection Agency & Ors.

(JUDICIAL REVIEW)

BETWEEN:-

HANRAHAN FARMS LIMITED

APPLICANT

-and-

THE ENVIRONMENTAL PROTECTION AGENCY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

-and-

JIM NOONAN, EILEEN NOONAN, JAMES SHEEHY, KAY SHEEHY

NOTICE PARTIES

1 MR. JUSTICE T.C. SMYTH DELIVERED ON FRIDAY, 29th JULY 2005

2 GWEN MALONE

3 =STENOGRAPHY SERVICES LTD.=

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APPEARANCES

For the Applicant:

MR. J. GLEESON SC

MR. J. FITZSIMONS BL

Instructed by:

Carroll & Co. Solicitors

For the 1st Respondent:

MS. N. BUTLER SC

MS. N. HYLAND BL

Instructed by:

Barry Doyle & Co. Solicitors

For the 2nd & 3rd Respondents:

Mr. E. Fitzsimons, SC

Instructed by:

chief state Solicitors

NOTICE PARTIES:

MR. H. O'NEILL SC

RULING DELIVERED BY MR. JUSTICE T.C. SMYTH ON FRIDAY 29TH JULY 2005.

7 MR. JUSTICE SMYTH: Judgment having been delivered herein on the 21st July 2005, the matter was put back to enable the parties to consider the form of order the Court should make on foot of the judgment and to hear any application for costs.

8 On the matter coming before the Court on 26th July 2005, counsel for the Applicant (engaged in the case) though not the counsel who actually presented the case for the Applicant or the 2nd and 3rd Respondent in court indicated that they required that the court do determine the constitutional issues raised in the proceedings.

9 on the hearing of the application it was common case that the constitutional validity of sections 83 and 84 of the Environmental Protection Agency Act 1992should only be considered if it was necessary to do so. In M. -v- An Bord Ucthala [1977] IR 287, 293, O'Higgins C.J. said:-

"Normally, such a law as a statute of the oireachtas will enjoy a presumption of constitutionality which ought not to be put to the test unnecessarily."

10 a principle that was restated in Murphy -v- Roche [1987] IR 106 per Finlay C.J. at p.100 as follows:-

"where the issues between the parties can be determined and finally disposed of by resolution of an issue of law other than constitutional law, the Court should proceed to determine that other issue first, and, if it determines the case, should retrain from expressing any view on the constitutional issue that may have been raised."

11 Notwithstanding my misgivings on ruling on the constitutional issue in all the circumstances of the case, I do so with reluctance for the avoidance of possible additional costs that may arise by its non-determination.

12 The Applicant contends that:

13 (a) The provisions of Section 83 and 84 of the Act of 1992 constitute an unjust attack on the property rights of the Applicant.

14 (b) The provisions of Section 83 and 84 exceed what is necessary or appropriate in the common good and are not appropriate; and

15 (c) No compensation is payable under the provisions of Part IV of the Act of 1992 in respect of conditions such as Condition 4.2 attached to the IPC licence granted to the Applicant.

16 The challenge raised is that the provisions of the sections are repugnant no Article 41.1, 2 and 3 of the Constitution. The Respondent relied on the well established principles of constitutional interpretation that should be applied, in the instant case, viz

17 (i) The constitutional validity of the sections should only be considered if it is necessary to do so.

18 (ii) The sections are entitled to the presumption of constitutionality and that presumption applies with particular force to these sections which balance competing constitutional rights in the socio-economic sphere.

19 (iii) If the Court takes the view that two interpretations of sections are open, one of which is and the other which is not, constitutional, it must prefer the constitutional interpretation.

20 (iv) If the Court takes the view that Condition 4 of the IPC licence, or any part thereof, constitutes an impermissible violation of the constitutional rights of the Applicant, it must be presumed that this provision (or the relevant part of it, viz 4.2) was not authorised by the sections unless the Agency was required [the 'shall' and 'shall not' of s.83 (2) and (3) under those sections] to impose that condition, or part thereof.

21 The Applicant relied on Iarnród Eireann -v- Ireland [1996] 3 IR 321 as authority for the proposition that corporate bodies enjoyed the constitutional protection of the guarantee of private property. In that context, reliance was placed on the affidavit evidence that the effect of giving effect to condition 4.2 would be (a) an estimated 20% reduction in production which would (b) result in a reduction on the 'going concern' value of the Applicant's business (though there was no evidence of an intended sale as a going concern or the refusal of a lending institution to grant facilities because of this or the like),

22 (c) the destocking required by condition 4.2 would seriously undermine the economic viability of the Applicant's facility. It was submitted that a statutory scheme that permits the imposition of a wholly arbitrary level of animal destocking that is not founded on scientific data cannot be said to be rationally connected to the objective of the Act. (I think it is unnecessary for me to reiterate what is already stated in the judgment about the objective and the activity and their interrelationship.)

23 In the application of the presumption of constitutionality, it is a principle that has particular force in relation to legislation dealing with social and economic matters. In the McDonald -v- Bord na gCon [1965] IR 217 at p.235, Kenny J. stated:

"where the Court has power to declare an Act to be unconstitutional because it does not defend and vindicate the personal rights of the citizen, it is a jurisdiction to be exercised with extreme care and caution, particularly having, regard to the now accepted extensive role of the State in economic and social matters."

24 This approach of the Courts towards the presumption of constitutionality found expression in more recent years in Re Article 26 and the Planning and Development Bill 1999 [2000] 2 IR 320 where it was argued that the provisions of Part V of that Bill violated Article 40.1 by discriminating in favour of persons in need of social housing at the expense of landowners, but Keane C.J. focused very firmly on the respect that one great organ of state owes to another and said as follows:-

"... it is peculiarly the province of the Oireachtas to seek to reconcile in this area of...