Howard v Commissioner Public Works
| Jurisdiction | Ireland |
| Judge | BLAYNEY J.,O'FLAHERTY J.,DENHAM J. |
| Judgment Date | 26 May 1993 |
| Neutral Citation | 1993 WJSC-SC 2134 |
| Docket Number | 40/93 |
| Court | Supreme Court |
| Date | 26 May 1993 |
1993 WJSC-SC 2134
THE SUPREME COURT
Finlay C.J.
O'Flaherty J.
Egan J.
Blayney J.
Denham J.
BETWEEN
and
AND
BETWEEN
and
Citations:
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S3(1)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(2)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)
LAND RECLAMATION ACT 1949 S2(1)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S25
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S84
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S90
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART VI
INTERPRETATION ACT 1937 S11
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S22
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S23
BYRNE V IRELAND 1972 IR 241
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24
BYRNE & ORS V COMMISSIONERS OF PUBLIC WORKS UNREP LYNCH 27.11.92 1993/1/138
MAXWELL INTERPRETATION OF STATUTES 12ED 212
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4(1)(i)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24(2)
CORK CO COUNCIL & BOURKE V COMMISSIONERS OF PUBLIC WORKS & ORS 1945 IR 561
US V HOAR MASON 311
LORD ADVOCATE V DUMBARTON DC 1990 2 AC 580
BBC V JOHNS 1965 CH 32
WEST BENGAL V CORPORATION OF CALCUTTA SC INDIA 1967
CONSTITUTION ART 49
CONSTITUTION ART 50
BROPHO V STATE OF WESTERN AUSTRALIA & ANOR 1990 171 CLR 1
R V ELDORADO NUCLEAR LTD 1985 LRC(CONST) 304
BONANZA CREEK GOLD MINING CO LTD V R 1916 1 AC 566
CONSTITUTION ART 5
CONSTITUTION ART 6
CONSTITUTION SAORSTAT EIREANN ART 2
CONSTITUTION ART 15.2.1
CONSTITUTION ART 28.2
MACMANAWAY, IN RE 1951 AC 161
HOUSE OF COMMONS (CLERGY DISQUALIFICATION) ACT 1801
DAVIES JENKINS & CO LTD V DAVIES (INSPECTOR OF TAXES) 1968 AC 1097
R V WIMBLEDON JUSTICES, EX PARTE DERWENT 1953 1 QB 380
COX V HAKES 1890 AC 506
HALSBURY'S LAWS 4ED PARA 863
HALSBURY'S LAWS 4ED PARA 864
STATE PROPERTY ACT 1954 S2
HOGG LISBILITY OF THE CROWN 2ED 1989 205
TOWN & REGIONAL PLANNING ACT 1934
TOWN & REGIONAL PLANNING ACT 1939
CENTRAL DUBLIN DEVELOPMENT ASSOCIATION CASE 109 ILTR 69
WALSH PLANNING & DEVELOPMENT LAW
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S4
TRALEE UDC V STACK UNREP BARRINGTON 13.1.84 1984/3/970
BOMBAY PROVINCE V BOMBAY MUNICIPAL CORPORATION 1947 AC 58
NATIONAL MONUMENTS ACTS 1930 – 1987
TORMEY V COMMISSIONERS FOR PUBLIC WORKS UNREP 21.12.72
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24(1)(a)
SALOMON V SALOMON & CO LTD 1897 AC 22
CRAIES STATUTE LAW 7ED 65–67
MAXWELL INTERPRETATION OF STATUTES 12ED 28 & 29
R V BANBURY (INHABITANTS) 1834 1 A & E 136
CAPPER V BALDWIN 1965 2 QB 53
R V BURRELL 1840 12 A & E 460
TINKHAM V PERRY 1951 1 TLR 91
Synopsis:
CORPORATION
Powers
Extent - Origin - Statute - Provisions - Exclusion not warranted - Public works - Visitors" centre - Project ~ultra vires~ commissioners - (40,22/93 - Supreme Court - 26/5/93) [1994] 1 I.R. 122
|Howard v. Commissioners of Public Works in Ireland|
PLANNING
Code
Compliance - Exemption - State authority - Public works - Visitors" centre - Construction - Building works ~ultra vires~ commissioners - Commissioners bound to obtain planning permission for developments - (40,22/93 JR - Supreme Court - 26/5/93)1994 1 IR 122
|Howard v. Commissioners of Public Works in Ireland|
STATUTORY INTERPRETATION
Corporation
Powers - Extent - Public
works - Construction - Authorisation - Absence - Planning code - Compliance - Necessity - Effect given to plain meaning of enactment despite apparent incongruity - Implied exclusion of State authority not warranted by incongruity - Interpretation Act, 1937, s. 11 - Local Government (Planning and Development) Act, 1963, ss. 2–4, 24, 84 - (40,22/93 - Supreme Court - 26/5/93)
|Howard v. Commissioners of Public Works in Ireland|
|Byrne v. Commissioners of Public Works in Ireland|
JUDGMENT delivered on the 26th day of May 1993by FINLAY C.J.
In certain proceedings by way of judicial review between James Howard and others as Applicants, and the Commissioners of Public Works in Ireland as Respondent (the Mullaghmore action) an order was made by Costello J. in the High Court on the 12th February 1993:
1. Declaring that the development by the Respondent of the Burren National Park Visitors" Centre at Mullaghmore in the County of Clare, was ultra vires.
2. That the aforesaid development was illegal by reason of there being no planning permission for such development.
3. That the Respondent be restrained from proceeding with thedevelopment.
Against that order and decision the Respondents (the Commissioners) appealed, confining their appeal to an appeal against so much of the order as declared that the development was illegal by reason of there being no planning permission for such development.
In the course of his judgment leading to thatportion of his decision, the learned trial judge rejected a claim made on behalf of the Commissioners to the effect that the provisions of the Local Government and Planning Act 1963requiring persons seeking to undertake a development within the meaning of those Acts to obtain planning permission from the appropriate authorities did not apply to the Commissioners by reason of their being exempted from the application of that part of the Act as a "Stateauthority".
In certain separate proceedings brought pursuant to section 27 of the Local Government (Planning and Development) Act 1976by Sean Byrne and others against the Commissioners of Public Works (the Commissioners) seeking an injunction to restrain them from continuing the development of an interpretative centre at Luggala, Roundwood, County Wicklow (the Luggala action), an order was made by Lynch J. in the High Court on the 27th November 1992 refusing the application. Amongst the grounds on which the learned trial judge refused theapplication in the course of a reserved judgment delivered on that day, was a decision by him that the provisions of the Local Government (Planning and Development) 1963, imposing on a person seeking to develop lands an obligation to apply for planning permission to the appropriate authority, did not apply to the Commissioners of Public Works as a Stateauthority.
The Applicants appealed against that decision and order on a number of grounds, including a ground directly related to the learned trial judge's finding that the relevant sections of the Act of 1963 did not apply to the Commissioners.
This Court having been satisfied of the extreme urgency of deciding the issue arising both in the Luggala and Mullaghmore actions concerning the application or non-application of the Act of 1963 to the Commissioners, expedited the hearing of the appeal in the Mullaghmore case, and with the consent of all theparties, treated as a separate issue so much of the appeal in the Luggala case as dealt with the application of the Act of 1963 to the Commissioners, and heard both these appeals, which were on a net point of law, together. This judgment deals, therefore, with the issues raised in both these actions.
The facts which were dealt with in the High Court in both these actions indicated a major controversy between the objectors in each case to the development of the two interpretative centres and the proponents or supporters of that development.
Much sharply conflicting evidence was given in each case with regard to the environmental impact of the proposed development concerned. This Court has not got any right or function to make any decision concerning the issues thus arising, nor is it within its jurisdiction to express any view upon it.
The net issue before this Court on the submissionsmade in the High Court and on the hearing of this appeal has become a clear issue as to the interpretation of the Act of 1963 to be carried out in accordance with the appropriate legal principles.
The Court is of course not in any way concerned with whether the application of the Planning Acts to the Commissioners is or is not politically or socially desirable; that is a question exclusively reserved under the separation of powers for the Legislature.
Section 3(1) of the Act of 1963 provides as follows:
""Development" in this Act means, save where the context otherwise requires, the carrying out of any works on, in or under land, or the making of any material change in the use of any structures or other land."
Section 4(1) of the Act provides as follows:
"The following shall be exempted developments for the purposes of this Act:"
(a) developments consisting of the use of any land for the purposes agriculture or forestry (including afforestation) and development consisting of the use for any of those purposes of any building occupied together with lands so used;
(b) development by the council of the county in the county healthdistrict;
(c) development by the corporation of a county or other borough in such borough;
(d) development by the council of an urban district in suchdistrict;
(e) development consisting of the carrying out by the corporation of a county or other borough or the council of a county or an urban district of any works required for the construction of a new road or the maintenance or improvement of a road;
.......
(i) development consisting of the carrying out of any of the works referred to in the Land Reclamation Act 1949
.......
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