Howard v Commissioners of Public Works

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1994
Docket Number[S.C. No. 40 of 1993]
Date01 January 1994

High Court

Supreme Court

[S.C. No. 40 of 1993]
[S.C. No. 22 of 1993]
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

Cases mentioned in this report:—

Attorney General v. Great Eastern Railway CompanyELRELRUNK (1880) 5 App. Cas. 473; (1880) 11 Ch. D. 449; 49 L.J. Ch. 545; 42 L.T. 810; 28 W.R. 769.

Bonanza Creek Gold Mining Co. Ltd. v. R.ELRUNKUNKUNKUNK [1916] 1 A.C. 566; [1916-1917] All E.R. Rep. 999; 85 L.J.P.C. 114; 114 L.T. 765; 32 T.L.R. 333; 26 D.L.R. 273; 10 W.W.R. 391; 34 W.L.R. 177.

British Broadcasting Corporation v. JohnsELRWLRUNKENRUNKTAXUNKUNK [1965] Ch. 32; [1964] 2 W.L.R. 1071; [1964] 1 All E.R. 923; 108 Sol. Jo. 217; [1964] T.R. 45; 43 A.T.C. 38; 41 T.C. 471; 10 R.R.C. 239; [1964] R.V.R. 579.

Bropho v. State of Western AustraliaUNK [1990] 171 C.L.R. 1.

Byrne v. Dublin County CouncilDLRM [1983] I.L.R.M. 213.

Byrne v. Commissioners of Public WorksIR [1994] 1 I.R. 91.

Byrne v. IrelandIR [1972] I.R. 241.

Capper v. BaldwinELRWLRUNKUNK [1965] 2 Q.B. 53; [1965] 2 W.L.R. 610; [1965] 1 All E.R. 787; 129 J.P. 202; 109 Sol. Jo. 192.

Central Dublin Development Association v. Attorney GeneralDLTR (1969) 109 I.L.T.R. 69.

Cork County Council v. Commissioners of Public WorksIR [1945] I.R. 561.

Cox v. HakesELRUNKUNK (1890) 15 App. Cas. 506; 54 J.P. 820; 6 T.L.R. 465; sub. nom.Bell-Cox v. HakesUNKUNK 60 L.J.Q.B. 89; 63 L.T. 392; 39 W.R. 145; 17 Cox C.C. 158.

Davies Jenkins and Co. Ltd. v. DaviesELRWLRUNKUNKENRUNK [1968] A.C. 1097; [1967] 2 W.L.R. 1139; [1967] 1 All E.R. 913; 111 S.J. 277; [1967] T.R. 65; 46 A.T.C. 58.

Direct United States Cable Co. v. Anglo-American Telegraph Co.ELRUNK(1877) 2 App. Cas. 394; 216 L.J.P.C. 71; 36 L.T. 265.

King v. BurrellENRENRUNKENR (1840) 12 Ad. & El. 460; 4 Per. & Dav. 207; 4 Jur. 1109; 113 E.R. 886; sub. nom.R. v. BurrellUNKUNK 9 L.J.Q.B. 337; 4 J.P. 556.

The Lord Advocate v. Dumbarton D.C.ELRWLRUNKUNK [1990] 2 A.C. 580; [1989] 3 W.L.R. 1346; [1990] 1 All E.R. 1; (1990) 2 Admin. L.R. 429; (1990) 134 S.J. 165.

In re MacManawayELRUNK [1951] A.C. 161; 66 T.L.R. (Pt. 2) 808; 94 S.J. 687.

Murphy v. Dublin CorporationIR [1972] I.R. 215.

Nolan v. The Minister for the EnvironmentIRIR [1989] I.R. 357 (H.C.); [1991] 2 I.R. 548 (S.C.)

Province of Bombay v. Municipal Corporation of BombayELRUNKUNK [1947] A.C. 58; [1947] L.J.R. 380; 62 T.L.R. 643.

The Queen v. Eldorado Nuclear Ltd. (1985) L.R. (Const.) 304.

R. v. Banbury (Inhabitants)ENRUNKUNKENR (1834) 1 Ad. & El. 136; 3 New. & M.K.B. 292; 2 Nev. & M.M.C. 210; 3 L.J.M.C. 76; 110 E.R. 1159.

R. v. Wimbledon Justices, ex p. DerwentELRWLRUNKUNKUNKUNK [1953] 1 Q.B. 380; [1953] 2 W.L.R. 350; [1953] 1 All E.R. 390; 117 J.P. 113; 97 S.J. 1160; 51 L.G.R. 432.

Salomon v. Salomon and Co. Ltd.ELRUNKUNKUNKUNK [1897] A.C. 22; 66 L.J. Ch. 35; 75 L.T. 426; 13 T.L.R. 46; 41 S.J. 63; 4 Mans. 89; 45 W.R. 193.

State of West Bengal v. Calcutta Corporation [1967] A.I.R. 997.

Tinkham v. PerryUNKUNKUNK [1951] 1 All E.R. 249; [1951] 1 T.L.R. 91; 95 S.J. 107.

Tormey v. Commissioners of Public Works (Unreported, Supreme Court, 21st December, 1972).

The United States v. Hoare (1821) 26 Fed. Cas. 329; (1821) Mas. 311.

Urban District Council of Tralee v. Stack (Unreported, High Court, Barrington J., 13th January, 1984).

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).

Judicial Review.

On the ex parte application of the applicants made on the 23rd November, 1992, the High Court (O'Hanlon J.) granted leave to the applicants to apply by way of judicial review for, inter alia, the following reliefs:—

  1. (1) A declaration 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 on the 23rd October, 1992, was ultra vires the respondent;

  2. (2) A declaration that the said decision of the respondents whereby it purported to undertake the said development without planning permission granted pursuant to Part IV of the Local Government (Planning and Development) Act, 1963, as amended, was void and of no effect;

  3. (3) A declaration that the proposed visitors' centre was a development within the meaning of the Local Government (Planning and Development) Act, 1963;

  4. (4) A declaration that the respondent was not exempt from the application of the Local Government (Planning and Development) Act, 1963, and was required to apply for and obtain planning permission for the said development before proceeding therewith;

  5. (5) A declaration that the respondent was required to submit to Clare County Council as planning authority an environmental impact statement for independent assessment by the said authority in the course of and pursuant to a planning application seeking permission for the proposed development;

  6. (6) A declaration that the respondent was required to seek and acquire consent and approval for the development of the said visitors' centre and in particular the water treatment plant therein from Clare County Council by virtue of Council Directive 85/337/E.C. and/or by virtue of the provisions of S.I. No. 349 of 1989 and in particular art. 23 thereof;

  7. (7) A declaration that the environmental impact statement in respect of the proposed development procured by the respondent was to be submitted to a competent authority for independent assessment pursuant to the provisions of Council Directive 85/337/E.C., and

  8. (8) Injunctions restraining the respondent from proceeding with or undertaking any works forming part of the development of the proposed visitors' centre and waste treatment plant and car park thereof.

Following the filing of a statement of opposition dated the 8th January, 1993, the application came on for hearing before the High Court on the 28th and 29th January and 2nd February, 1993, on foot of a notice of motion dated the 25th November, 1992.

The Commissioners appealed to the Supreme Court by way of notice of appeal dated the 22nd February, 1993. By consent of the parties, the appeal was heard in conjunction with the appeal in Byrne v. Commissioners for Public Works (see p. 91 supra.) and both appeals were confined to the point as to whether the State was, by virtue of the provisions of s. 84 of the Act of 1963, impliedly exempted from the obligation to apply for planning permission.

The appeals were heard by the Supreme Court (Finlay C.J., O'Flaherty, Egan, Blayney and Denham JJ.) on the 15th March, 1993, and the 20th and 21st April, 1993.

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 —

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

  2. (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...

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