Howard v Commissioners of Public Works
| Jurisdiction | Ireland |
| Judge | Lynch J. |
| Judgment Date | 08 June 1994 |
| Neutral Citation | 1994 WJSC-HC 3057 |
| Docket Number | No. 4656P/1993 |
| Court | High Court |
| Date | 08 June 1994 |
1994 WJSC-HC 3057
THE HIGH COURT
BETWEEN
AND
Citations:
STATE AUTHORITIES (DEVELOPMENT & MANAGEMENT) ACT 1993 S2
HOWARD V COMMISSIONER OF PUBLIC WORKS UNREP COSTELLO 3.3.94 1994/4/1008
STATE AUTHORITIES (DEVELOPMENT & MANAGEMENT) ACT 1993 S2(3)
SHELLY V MAHON 1990 1 IR 36
GLAVIN V GOVERNOR OF MOUNTJOY PRISON 1991 2 IR 421
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV
SPUC V OPEN DOOR COUNSELLING UNREP SUPREME 20.7.93
STROUD 5ED V3 1205 - ILLEGAL
STROUD 5ED V5 2732 - UNLAWFUL
CONSTITUTION ART 15
CONSTITUTION ART 34
CONSTITUTION ART 35
CONSTITUTION ART 36
CONSTITUTION ART 40
CONSTITUTION ART 43
MACAULEY V MIN FOR POSTS & TELEGRAPHS 1966 IR 345
SHELLY V MAHON 1990 IR 36
BRADY V DONEGAL CO COUNCIL 1989 ILRM 286
O'DOHERTY V AG & O'DONNELL 1941 IR 569
MCDONALD V BORD NA GCON (NO 2) 1965 IR 217
LYNHAM V BULTER (NO 2) 1933 IR 74
CASEY CONSTITUTIONAL LAW IN IRELAND 295–296
GLAVIN V GOVERNOR OF MOUNTJOY PRISON 1991 2 IR 421
BYRNE V IRELAND 1972 IR 241
PINE VALLEY DEVELOPMENTS LTD, STATE V DUBLIN CO COUNCIL 1984 IR 407
PINE VALLEY DEVELOPMENTS LTD V MIN FOR ENVIRONMENT 1987 IR 23
MURPHY V AG 1982 IR 241
IRISH PERMANENT BUILDING SOCIETY V REGISTRAR OF BUILDING SOCIETIES 1981 ILRM 242
RIORDAN, IN RE 1981 ILRM 2
ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381
KELLY ON THE CONSTITUTION 2ED 87–88
FITZPATRICK V MIN FOR INDUSTRY & COMMERCE 1931 IR 457
MAIN V STARK (1890) 15 AC 388
CRAIES ON INTERPRETATION OF STATUTES 7ED 387–400
CONDON V MIN FOR LABOUR & AG 1981 IR 62
BUCKLEY V AG 1950 IR 67
QUINN, STATE V RYAN 1965 IR 70
DPP, PEOPLE V SHAW 1982 IR 1
AG V X 1992 1 IR 1
MESKILL V CIE 1973 IR 121
SPUC V OPEN DOOR COUNSELLING 1988 IR 593
MURTAGH PROPERTIES LTD V CLEARY 1972 IR 330
PARSONS V KAVANAGH 1990 ILRM 560
CROTTY V AN TAOISEACH 1987 IR 713
O'REILLY CIVIL PROCEEDINGS AGAINST THE STATE IN IRELAND 137–138
RSC O.19 r29
TRANSPORT SALARIED STAFF ASSOCIATION V CIE 1965 IR 180
MORRIS V GARVEY 1983 IR 319
O'SHEA, STATE V MIN FOR DEFENCE 1947 IR 49
HAMILTON V HAMILTON 1982 IR 466
SLOAN MCKEE & MAGEE V CULLIGAN 1992 1 IR 223
KEANE EQUITY & THE LAW OF TRUSTS 209
HALSBURYS LAWS 4ED V24 PARA 989
AG V SOUTH STAFFORDSHIRE (1909) 25 TLR 408
MCDAID V SHEEHY 1991 1 IR 1
ODGERS ON HIGH COURT PLEADINGS (1991) CH 11 201–202
FREENEY V BRAY URBAN DISTRICT COUNCIL 1982 ILRM 29
KERR ON INJUNCTIONS (1914)
AG V BIRMINGHAM TAME & REA DISTRICT DRAINAGE BOARD 1910 1 CH D 48
CONSTITUTION ART 6
BLASCAOD MOR NATIONAL PARK ACT 1989
STATE AUTHORITIES (DEVELOPMENT & MANAGEMENT) ACT 1993 S2(1)
STATE AUTHORITIES (DEVELOPMENT & MANAGEMENT) ACT 1993 S2(2)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24
Synopsis:
CONSTITUTION
Personal rights
Litigant - Success - Judgment - Law - Declaration - Defendant purported to develop site as visitors centre - Development declared by judgment to have been undertaken ~ultra vires~ the defendant and illegally - Defendant's subsequent acquisition of statutory power to develop such site - Statute having retrospective effect - Interpretation of enactment which conferred such power - Whether constitutional rights of plaintiff infringed - Invasion of the judicial domain - (1993/4656 P - Lynch J. - 8/6/94)- [1994] 3 IR 394 - [1994] 2 ILRM 301
|Howard v. Commissioners of Public Works in Ireland|
JUDGMENT
Basis
Defendant - Powers - Absence - Relief - Declarations - Defendant purported to develop site as visitors centre - Development declared by judgment to have been undertaken ~ultra vires~ the defendant and illegally - Defendant's subsequent acquisition of statutory power to develop such site - Statute having retrospective effect - Interpretation of enactment which conferred such power - Whether constitutional rights of plaintiff infringed - Invasion of the judicial domain - State Authorities (Development and Management) Act, 1993, s. 2 - Constitution of Ireland, 1937, Articles 6, 34, 40 - (1993/4656 P - Lynch J. - 8/6/94)- [1994] 3 IR 394 - [1994] 2 ILRM 301
|Howard v. Commissioners of Public Works in Ireland|
OIREACHTAS
Legislation
Effect - Retrospection - Litigant - Success - Judgment - Law - Declaration - Defendant purported to develop site as visitors centre - Development declared by judgment to have been undertaken ~ultra vires~ the defendant and illegally - Defendant's subsequent acquisition of statutory power to develop such site - Statute having retrospective effect - Interpretation of enactment which conferred such power - Whether constitutional rights of plaintiff infringed - Invasion of the judicial domain - (1993/4656 P - Lynch J. - 8/6/94)- [1994] 3 IR 394 - [1994] 2 ILRM 301
|Howard v. Commissioners of Public Works in Ireland|
ORDER
Amendment
Court - Jurisdiction - Absence - Injunction - Terms - Permanent injunction restrained defendant from constructing visitors centre - Injunction granted in plaintiff's first action - Defendant's subsequent acquisition of statutory power to develop such site - Defendant's new right recognised in plaintiff's second action - Possibility that absolute terms of injunction did not reflect intention of trial judge in first action - Judge in second action not competent to vary order made in first action - (1993/4656 P - Lynch J. - 8/6/94)- [1994] 3 IR 394 - [1994] 2 ILRM 301
|Howard v. Commissioners of Public Works in Ireland|
PRACTICE
Order
Amendment - Court - Jurisdiction - Absence - Injunction - Terms - - Permanent injunction restrained defendant from constructing visitors centre - Injunction granted in plaintiff's first action - Defendant's subsequent acquisition of statutory power to develop such site - Defendant's new right recognised in plaintiff's second action - Possibility that absolute terms of injunction did not reflect intention of trial judge in first action - Judge in second action not competent to vary order made in first action - (1993/4656 P - Lynch J. - 8/6/94)- [1994] 3 IR 394 - [1994] 2 ILRM 301
|Howard v. Commissioners of Public Works in Ireland|
STATUTORY INTERPRETATION
Enactment
Effect - Retrospection - Litigant - Success - Judgment - Law - Declaration - Defendant purported to develop site as visitors centre - Development declared by judgment to have been undertaken ~ultra vires~ the defendant and illegally - Defendant's subsequent acquisition of statutory power to develop such site - Statute having retrospective effect - Interpretation of enactment which conferred such power - Whether constitutional rights of plaintiff infringed - Invasion of the judicial domain - (1993/4656 P - Lynch J. - 8/6/94)- [1994] 3 IR 394 - [1994] 2 ILRM 301
|Howard v. Commissioners of Public Works in Ireland|
Judgment of Lynch J. delivered the 8th day of June 1994,
This Plenary action arises out of and follows on from earlier proceedings bearing record number 331JR of 1992 (the 1992 action) between the same Plaintiffs as in the present action as Applicants and the first Defendant only (the Commissioners) as Respondent.
In the 1992 action the Plaintiffs claimed and were granted declarations and an injunction relating to the proposals by the Commissioners to build a visitor centre on a site in the Burren National Park near Mullaghmore in the County of Clare, proposals which have given rise to much public controversy. This action is brought to interpret and enforce the declarations and the injunction granted in the 1992 action on the 12th February 1993 in the light of the State Authorities (Development and Management) Act, 1993 (the 1993 Act) which was passed by the Oireachtas and became law on the 18th February 1993 that is to say six days after the delivery of the Judgment of the High Court on the 12th February 1993.
The 1992 action was tried by Costello J. and the Order of the High Court on the 12th February 1993 was consequent on a reserved Judgment delivered by him on that date. The operative part of the Order of the 12th February 1993 is as follows:
"The Court doth declare that the development by the Respondent of the Burren National Park Visitor Centre at Mullaghmore in the County of Clare undertaken pursuant to a decision communicated to the Applicants herein about the 23rd day of October 1992 is ultra vires the powers of the Respondent
And the Court doth declare that the aforesaid development is illegal by reason of there being no planning permission for such development
AND IT IS ORDERED that the Respondent be restrained from proceeding with or undertaking any works forming part of the development of the proposed Burren National Park Visitor Centre and waste treatment plant and car park thereof at Mullaghmore in the County of Clare."
This action was heard by me commencing on Tuesday, the 26th April 1994 and concluding on Friday, the 29th April 1994. The trial before me was by agreement of the parties based on Affidavits sworn and filed in connection with an application for an interlocutory injunction which was granted on the 29th July 1993 in this action. Those Affidavits comprised a Joint Affidavit by the first and second Plaintiffs, James Howard and Patrick McCormack, sworn on the 7th July 1993: a joint Affidavit sworn by Declan Kelleher, Sean Roche and Sean O'Brien on the 23rd July 1993: Affidavits of Patrick Flanagan and Michael O'Donoghue both sworn on the 23rd July 1993 and an Affidavit of Michael Canny sworn on the 26th day of July 1993.
The controversy in this action related to the status of the first declaration as to ultra vires and the injunction based thereon in the Judgment and Order of the High Court of the 12th February 1993 in the...
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