Howard v Commissioners for Public Works (No. 3)

• Jurisdiction: Ireland
• Judgment Date: 08 June 1994
• Date: 08 June 1994
• Docket Number: [1993 No.
• Court: High Court

Howard v. Commissioners for Public Works (No. 3)

James Howard and Others

Plaintiffs

and

The Commissioners of Public Works in Ireland, Ireland and The Attorney General, Defendants (No. 3)

[1993 No. 456P]

High Court

Local government - Planning - Statutory corporation - Determination by High Court that construction of interpretative centre by corporation ultra vires and illegal - Subsequent grant of requisite powers to corporation by statute - Whether provisions of statute applying to interpretative centre - State Authorities (Development and Management) Act, 1993 (No. 1), s. 2, sub-ss. 1-3.

Constitution - Separation of powers - Exclusive judicial domain - Determination by High Court that development of lands by defendant ultra vires - Statute providing that defendant to be deemed always to have had powers in issue - Whether interference by legislature with the judicial power - State Authorities (Development and Management) Act, 1993 (No. 1), s. 2, sub-ss. 1-3 - Constitution of Ireland, 1937, Article 34.

Statute - Interpretation - Retrospectivity - Statute purporting to reverse final determination of High Court - Whether interference by legislature with the judicial power - State Authorities (Development and Management) Act, 1993 (No. 1), s. 2, sub-ss. 1-3 - Constitution of Ireland, 1937, Article 34.

Constitution - Personal rights - Property rights - Application by way of judicial review seeking determination that development by defendant of lands ultra vires - Order of court in plaintiffs' favour - Statute granting requisite power to defendant - Whether plaintiffs enjoying personal rights to, and property rights in, order of court - Whether further development of site by defendant an invasion of plaintiffs' rights - Whether court obliged to restrain further development to prevent injustice - Whether injustice done such as to oblige court to vindicate rights of plaintiff - Constitution of Ireland, 1937, Article 40, s. 3.

Words and phrases - "Injustice done" - Determination by High Court that defendant acted ultra vires in constructing interpretative centre on own lands - Whether to be inferred from order that defendants guilty of an injustice - Whether injustice done such as to oblige court to vindicate rights of plaintiff - Constitution of Ireland, 1937, Article 40, s. 3.

Section 2 of the State Authorities (Development and Management) Act, 1993, provides, inter alia, as follows:—

"(1) A State authority shall have, and be deemed always to have had, power -"

• (a) to carry out, or procure the carrying out of, development;

• (b) to maintain, manage, repair, improve, alter, enlarge, reduce in size, remove or otherwise deal with buildings or structures or other works or property of, or provided under paragraph (a) of this subsection by, a State authority;

• (c) to procure the maintenance, management, repair, improvement, alteration, enlargement, reduction, removal or dealing aforesaid . . .

(2) A State authority shall have, and be deemed always to have had, all such incidental, supplemental, ancillary and consequential powers as, in the opinion of the authority, are necessary or expedient for the purposes of the exercise by it of the powers aforesaid.

(3) If, because of any or all of its provisions, subsections (1) and (2) of this section would, but for the provisions of this subsection, conflict with the constitutional rights of any person, the provisions of those subsections shall be subject to such limitations as are necessary to secure that they do not so conflict but shall otherwise be of full force and effect."

The first defendant was a statutory corporation which was authorised by statute to build and maintain public works, and which, in October, 1992, commenced the construction of a visitors' centre in the Burren, County Clare. On the 12th February, 1993, following an application by the plaintiffs to the High Court by way of judicial review, the High Court (Costello J.) granted the plaintiffs declarations that the development of the visitors' centre was ultra vires the powers of the first defendant and was illegal by reason of the fact that no planning permission had been obtained in respect thereof pursuant to the provisions of s. 24, sub-s. 1 of the Local Government (Planning and Development) Act, 1963, and granted an injunction restraining the first defendant from proceeding with or undertaking any works forming part of the centre. [See Howard v. Commissioners for Public Works[1994] 1 I.R. 101].

On the 18th February, 1993, six days after judgment was delivered by Costello J., the State Authorities (Development and Management) Act, 1993, was signed by the President. The plaintiffs instituted proceedings in the High Court against the defendants claiming, inter alia, a declaration that, by virtue of the judgment and order of the High Court already obtained by them, the first defendant had no power, whether by virtue of the provisions of the Act of 1993 or otherwise, to proceed with construction of the visitors' centre; injunctions restraining the first defendant from proceeding with the construction thereof; a declaration that the provisions of s. 2, sub-ss. 1 and 2 of the Act of 1993 were invalid having regard to the provisions of Constitution of Ireland, 1937, and a mandatory injunction directing the first defendant to restore the site of the proposed visitors' centre to the condition it was in prior to the commencement of the building works.

It was submitted on behalf of the plaintiffs, inter alia, first, that the plaintiffs had personal rights to, and property rights in, the judgment and order of the High Court (Costello J.) of the 12th February, 1993, which rights were derived from the provisions of the Constitution of Ireland, 1937, and that for the first defendant to proceed with the construction of the visitors' centre would constitute an invasion of those rights. Accordingly, it was submitted that, having regard to the provision of s. 2, sub-s. 3 of the Act of 1993, the provisions of s. 2, sub-ss. 1 and 2 of the Act of 1993 could not authorise the first defendant to proceed with the development, and the existing works should be removed and the site restored to its pre-existing state. Secondly, it was submitted that it was necessarily to be inferred from the determination by the High Court that the first defendant had acted ultra vires that an injustice had been done, and the court was obliged to grant the orders sought so as to ensure that the injustice was righted. In this regard it was submitted that a wrong which did not detrimentally affect any citizen might constitute an injustice. Thirdly, it was submitted that an interpretation of s. 2, sub-ss. 1 and 2 of the Act of 1993 such as would empower the first defendant to proceed with the works notwithstanding the judgment and order of the High Court would constitute an invasion by the Oireachtas upon the exclusive function of the courts to administer justice, and would constitute an attempt by the Oireachtas to validate an unconstitutional act by means of legislation.

Held by Lynch J., in refusing the relief sought, 1, that an act that was merely wrongful did not necessarily, of itself, constitute an injustice done to the people of Ireland; nor was it determined by the High Court in Howard v. Commissioners for Public Works[1994] 1 I.R. 101 that the first defendant had been guilty of an injustice in commencing the construction of the visitors' centre.

Howard v. Commissioners for Public Works [1994] 1 I.R. 101 considered.

2. That for the Oireachtas to purport to alter or reverse the determination by the High Court that the first respondent had acted ultra vires in carrying out the development would constitute an impermissible interference by the legislature with the judicial power, and, accordingly, a contravention of the constitutional separation of the powers of the organs of State.

3. That, accordingly, having regard to the provisions of s. 2, sub-s. 3 of the Act of 1993, the provisions of s. 2, sub-ss. 1 and 2 of that Act must, in their application to the first respondent's power to carry out the proposed development, be read as if the words"and be deemed always to have had" were omitted therefrom.

4. That, while an unconstitutional act could not be retrospectively validated by legislation, there was no reason why the Oireachtas could not now confer upon the first defendant the powers which it was determined by the High Court that it lacked.

Shelley v. District Justice Mahon [1990] 1 I.R. 36; Glavin v. Governor of Mountjoy Prison[1991] 2 I.R. 421; and Howard v. Commissioners for Public Works[1994] 1 I.R. 101 considered.

5. That, accordingly, there was no constitutional bar to the prospective application of s. 2, sub-ss. 1 and 2 of the Act of 1993 to the first defendant in respect of its development of the centre.

Howard v. Commissioners for Public Works [1994] 1 I.R. 101 considered.

6. That, henceforth, the proper forum for the determination of the question of whether the existing works might remain in situ was the planning authority.

Per curiam: That while there was now no legal basis for the injunction contained in the order of the High Court, the first defendant having been granted the power to proceed with the development, the court had no jurisdiction, in the course of the instant proceedings, to vacate or amend the order of the High Court; an application ought to be made by the first defendant in the proceedings in Howard v. Commissioners for Public Works[1994] 1 I.R. 101 on the basis of the instant judgment.

Howard v. Commissioners for Public Works (No. 2) (Unreported, High Court, Costello J., 29th July, 1993) and The Attorney General v. Open Door Counselling Ltd. (No. 2)[1994] 2 I.R. 333 considered.

Cases mentioned in this report:—

A.G. (S.P.U.C.) v. Open Door Counselling Ltd. [1988] I.R. 593; [1987] I.L.R.M. 477.

The Attorney General v. Open Door Counselling Ltd. (No. 2) [1994] 2 I.R. 333...