Howard v Commissioners of Public Works

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1994
Docket Number[S.C. No. 40 of 1993]
Date01 January 1994
Howard v. Commissioners of Public Works
James Howard and Others
Applicants
and
The Commissioners of Public Works in Ireland
Respondents
Howard v. Commissioners of Public Works
Seán Byrne, Garech de Brur and Dieter Clissman, Appellants
and
The Commissioners of Public Works in Ireland
Respondents
[S.C. No. 40 of 1993]
[S.C. No. 22 of 1993]

High Court

Supreme Court

Local government - Planning - Permission - Necessity - State authority - Statutory corporation proposing to erect visitors' centre - Whether centre a development - Whether statutory corporation exempt from requirement to obtain planning permission in respect of development - Whether development illegal - Effluent treatment plant associated with development - Whether waste disposal installation for the chemical treatment of hazardous waste - Whether environmental impact assessment required - European Communities (Environmental Impact Assessment) Regulations, 1989 (S.I. No. 349), arts. 23 and 24 - Local Government (Planning and Development) Act, 1963 (No. 28), ss. 3, 4, 24 and 84.

Judicial review - Statutory corporation - Proposal to build and maintain visitors' centre - Statutory power to build and maintain specific public amenities - Whether implied power to build and maintain visitors' centre - Expenditure approved by Dáil Éireann éireann- Whether implied authorisation to proceed with development - Whether development ultra vires - Public Works (Ireland) Act, 1831 (1 & 2 Wm. IV, c. 33) - Public Works (Ireland) Act, 1839 (2 & 3 Vict., c. 50) - Public Works (Ireland) Act, 1869 (32 & 33 Vict., c. 74) - Public Works (Loans) Act, 1892 (55 & 56 Vict. c. 61), s. 8 - Phoenix Park Act, 1925 (No. 31) - An Blascaod Mór National Park Act, 1989 (No. 11) - Appropriation Act, 1992 (No. 26) - Constitution of Ireland, 1937, Article 28, s. 4, sub-s. 3 and Article 17, s. 1.

Statute - Interpretation - Statute providing that permission required for development of land - Provision therein requiring State authorities to consult with planning authority before constructing or extending building - Whether latter provision by implication exempted State from requirement to apply for planning permission - Local Government (Planning and Development) Act, 1963 (No. 28), ss. 24 and 84.

Statute - Interpretation - General statute - Whether presumption the State bound by provisions - Whether presumption the State not so bound - Local Government (Planning and Development) Act, 1963 (No. 28).

Section 24, sub-s. 1 of the Local Government (Planning and Development) Act, 1963, provides, inter alia, that permission shall be required in respect of any development of land not being an exempted development.

Section 3 of the Act of 1963 provides, inter alia, that the word "development" shall, for the purposes of that Act, be defined as "the carrying out of any works on, in, or under land or the making of any material change in the use of any structure on other land".

Section 4, sub-ss. 1 and 2 of the Act of 1963 provide that a number of classes of development shall be exempted developments for the purposes of the Act.

Section 4, sub-s. 3 of the Act of 1963 provides:—

"References in this Act to exempted development shall be construed as references to development which is —

  • (a) any of the developments specified in subsection (1) of this section, or

  • (b) development which, having regard to any regulation under subsection (2) of this section, is exempted development for the purposes of this Act."

Section 84, sub-s. 1 of the Act of 1963 provides, inter alia, that before a State authority undertakes the construction or extension of any building, it shall consult with the planning authority to such extent as may be determined by the Minister.

Article 28, s. 4, sub-s. 3 of the Constitution of Ireland, 1937, provides:—

"The Government shall prepare Estimates of the Receipts and Estimates of the Expenditure of the State for each financial year, and shall present them to Dáil Éireann éireann for consideration."

Article 17, s. 1 of the Constitution provides:—

"1 As soon as possible after the presentation to Dáil Éireann éireann under Article 28 of this Constitution of the Estimates of receipts and the Estimates of Expenditure of the State for any financial year, Dáil Éireann éireann shall consider such Estimates.

2 Save in so far as may be provided by specific enactment in each case, the legislation required to give effect to the Financial Resolutions of each year shall be enacted within that year."

In the year 1992 estimates for the public services were presented to the Dáil in accordance with Article 28 of the Constitution. A vote was passed by the Dáil in relation to the financial requirements of the Office of Public Works, and included a sum to be made available to the "national parks and wildlife service". This sum was appropriated to the Office of Public Works by s. 2 of the Appropriation Act, 1992.

Article 23 of the European Communities (Environmental Impact Assessment) Regulations, 1989, provides that a State authority "shall, before undertaking any development of a class specified under Article 24 of these regulations . . . prepare a statement of the likely effects on the environment (hereinafter referred to as an "environmental impact statement") of the proposed development."

Article 24, para. 9 of Part 1 of the first schedule to the Regulations of 1989 provides that "a waste disposal installation for the incineration or chemical treatment of hazardous waste . . . shall be regarded as 'development' for the purposes of these regulations".

The applicants were the members of a non-profit making organisation formed with the object of preserving the Burren, County Clare, as a wilderness area. The respondent is a statutory corporation which was authorised by statute to build and maintain a number of specific public works. It proposed to build, maintain and manage a visitors' centre in the Burren. After the building work had commenced, the applicants brought judicial review proceedings claiming that the respondent had no statutory power to build, and, having built, to maintain the proposed centre, and that the respondent had acted illegally in that it had failed to obtain planning permission for the development. It was further submitted on behalf of the applicants that the respondent had failed to comply with the provisions of art. 23 of the European Communities (Environmental Impact Assessment) Regulations, 1989, insofar as the effluent treatment plant to be installed at the centre constituted a waste disposal installation for the chemical treatment of hazardous waste within the meaning of art. 24 of the Regulations.

It was submitted on behalf of the respondent, first, that the respondent had an implied power to carry out the development, which power was to be inferred from the wide variety of specific public works which the Oireachtas had authorised the respondent to erect and maintain. Secondly, it was submitted that in voting to allocate funds to the Office of Public Works in the knowledge that monies were to be spent on the construction of the visitors' centre, Dáil Éireann éireann had, by implication, approved the development, and that accordingly, the respondent had an implied statutory power to erect and maintain the visitors' centre arising out of the Appropriation Act, 1992. Thirdly, it was submitted since s. 84 of the Local Government (Planning and Development) Act, 1963, imposed upon the respondent an obligation to consult with the planning authority prior to the construction or extension of any building, it was to be implied that the respondent was not required to obtain planning permission for any such proposed development.

Held by Costello J., in granting the relief sought, 1, that the respondent had no general statutory power to erect buildings, provide public amenities or supply public services.

2. That it was a general principle of the construction of the powers of statutory corporations that whatever might be regarded as incidental to, or consequential upon, those things which the legislature had authorised, ought not, unless expressly prohibited, to be held by judicial construction to be ultra vires.

Attorney General v. Great Southern Railway Company (1880) 5 App. Cas. 473 considered.

3. That the power to build and to manage a public amenity in the form of a visitors' centre was neither incidental to, nor consequential upon, any of the respondent's statutory powers.

Attorney General v. Great Southern Railway Company (1880) 5 App. Cas. 473 considered.

4. That the court from a series of statutes authorising the respondent to erect and maintain specific public amenities, could not imply a general power on the part of the respondent to provide public amenities.

Attorney General v. Great Southern Railway Company (1880) 5 App. Cas. 473 considered.

5. That the grant by the Oireachtas of monies from the Central Fund to a statutory corporation to defray the cost of providing services did not authorise such corporation to provide services which were not within its statutory powers.

Per curiam: That the approval of the expenditure by a majority of Dáil Éireann éireann must have been based upon the belief that such expenditure could lawfully have been undertaken by the respondent, and could not have the effect of authorising acts which wereultra vires the respondent.

6. That accordingly, it was ultra vires the respondent both to erect and to maintain the visitors' centre.

7. That the construction of the visitors' centre constituted a development within the meaning of s. 3 of the Local Government (Planning and Development) Act, 1963.

8. That the work being proposed by the respondent did not fall into any of the classes of exempted development specified in s. 4, sub-ss. 1 and 2 of the Local Government (Planning and Development) Act, 1963.

9. That having regard to the provisions of s. 4, sub-s. 3 of the Local Government (Planning and...

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