Howard v Minister for Agriculture and Food

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 01 January 1990
• Neutral Citation: 1989 WJSC-HC 1697
• Docket Number: No. 336/1988,[1988 No. 336 J.R.]
• Court: High Court
• Date: 01 January 1990

1989 WJSC-HC 1697

THE HIGH COURT

No. 336/1988

HOWARD v. MIN AGRICULTURE & FOOD

JUDICIAL REVIEW

BETWEEN

CORNELIUS HOWARD

APPLICANT

AND

THE MINISTER FOR AGRICULTURE AND FOOD

RESPONDENTS

Citations:

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE & GENERAL PROVISIONS) ORDER 1978 SI 256/1978 REG 1

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE & GENERAL PROVISIONS) ORDER 1978 SI 256/1978 REG 12

DISEASES OF ANIMALS ACT 1966 S22

BOVINE TUBERCULOSIS (ATTESTATION OF THE STATE & GENERAL PROVISIONS) ORDER 1978 SI 256/1978 SCHED 3

DISEASES OF ANIMALS ACT 1966 S20

DISEASES OF ANIMALS ACT 1966 S58

DISEASES OF ANIMALS ACT 1966 S19

DISEASES OF ANIMALS ACT 1966 S20(i)

DISEASES OF ANIMALS ACT 1966 S20(ii)

DISEASES OF ANIMALS ACT 1966 S20(ii)(a)

DISEASES OF ANIMALS ACT 1966 S20(iii)(a)

MCLOUGHLIN, STATE V EASTERN HEALTH BOARD 1986 IR 416

Synopsis:

AGRICULTURE

Cattle

Disease - Eradication - Bovine tuberculosis - Restricted holding - Movement permit - Disposal permit - Validity - Minister of State - Statutory powers to make regulations - Regulations not conforming to powers - Invalid provision of statutory instrument - Severance of regulation not possible - Bovine Tuberculosis (Attestation of the State and General Provisions) Order, 1978 (S.I. 256), arts. 12, 13 - Diseases of Animals Act, 1966, s. 20, 22 - (1988/336 JR - Murphy J. - 3/10/89) - [1990] 2 I.R. 260

|Howard v. Minister for Agriculture|

ANIMALS

Disease

Eradication - Cattle - Bovine tuberculosis - Restricted holding - Movement permit - Disposal permit - Validity - Minister of State - Statutory powers to make regulations - Regulations not conforming to powers - Invalid provision of statutory instrument - Severance of regulation not possible - (1988/336 JR - Murphy J. - 3/10/89) - [1990] 2 I.R. 260

|Howard v. Minister for Agriculture|

MINISTER OF STATE

Powers

Exercise - Cattle - Disease - Eradication - Bovine tuberculosis - Restricted holding - Movement permit - Disposal permit - Validity - Statutory powers to make regulations - Regulations not conforming to powers - Invalid provision of statutory instrument - Severance of regulation not possible - (1988/336 JR - Murphy J. - (3/10/89) - [1990] 2 I.R. 260

|Howard v. Minister for Agriculture|

STATUTE

Instrument

Provision - Invalidity - Severance - Minister of State - Statutory powers to make regulations - Regulations not conforming to powers - Invalid provision of statutory instrument - Severance of regulation not possible - (1988/336 JR - Murphy J. - 3/10/89)

|Howard v. Minister for Agriculture|

1 Judgment of Mr. Justice Murphy delivered the 3rd day of October 1989.

2 In these proceedings the Applicant claims an Order quashing a Movement Permit issued by the Respondents on the 2nd day of November 1988 and alleged by the Respondents to have been issued by them pursuant to Rule 13 of the Bovine Tuberculosis (Attestation of the State and the General Provisions) Order 1978 (S.I. No. 256 of 1978) on the grounds that the same was ultra vires invalid and of no effect. Alternatively it was argued on behalf of the Applicant that the Movement Permit should be construed as the taking of possession of the animal to which it related and in that event the Applicant was entitled to be paid compensation in accordance with the provisions of Section 22 of the Diseases of Animals Act 1966(the 1966 Act).

3 The actual amount of money involved in the present case is something less that £1,000 but the Applicant's complaint forms part of a long-running battle between him and the Minister. For some years the Applicant has contended that the Minister has sought to operate the Bovine Tuberculosis Eradication Scheme contrary to the provisions of the 1966 Act and in breach, in particular, of the statutory duty imposed on the Minister to pay compensation to the owners of infected animals.

4 The Applicant is a farmer and resides with his wife and children at Ballintotty, Nenagh in the County of Tipperary where he farms 97 acres. His stock consists or at any rate did consist of 52 cows, 76 store cattle and one bull.

5 On the 18th day of October 1988 the Applicant's herd was tested for T.B. by a veterinary surgeon of the District Veterinary Office. On the 21st of October 1988 the animals were re-examined when one was found to be a reactor and the tests in respect of four others were inconclusive.

6 On the 26th day of October 1988 officials of the District Veterinary Office in Nenagh served on the Applicant a notice of that date made under Article 12 of the Bovine Tuberculosis (Attestation of the State and the General Provisions) Order 1978 (the 1978 Regulations) declaring the Applicant's holding to be "a restricted holding". The effect of the restricted holding Order was to prohibit (among other things) the movement of any animal in or out of the Applicant's holding except with the authority of a permit issued for the purposes of the 1978 Regulations.

7 By a notice issued on the 2nd of November 1988 addressed to the Applicant and entitled "Disease Eradication Schemes - Movement Permit" the Minister purported to grant permission in the following terms:-

"This permit authorises the movement of the one reactor animal listed below (punched/tagged on the 21/10/'88) from the above premises to a registered meat export premises. This permit must accompany the animals to point of slaughter".

8 The notice goes on to set out particulars in one series of columns of the reactor animal and leaves blank another series of columns to be completed by the veterinary inspector inserting details of the dead weight of the animal and the postmortem results. In addition the veterinary inspector is required by the notice to certify the receipt for slaughter of the animal and the correctness of the details set out by him therein. Whilst it is clear that the Movement Permit authorises the movement of an animal which would otherwise be restricted, it limits the movement to "a registered meat export premises" and clearly envisages the slaughter of the affected animal. Obviously it is more than a mere "Movement Permit". The purpose, effect and operation of this permit is complicated by the inclusion on the form of a series of conditions which relate to the payment by the Minister of a grant under an independent non-statutory scheme in respect of the slaughter of a reactor. To obtain that grant the Applicant must sign the form claiming payment of the grant and accepting such payment subject to the conditions set out in the Movement Permit. Both parties agree that the "Movement Permit" was not merely a relaxation of the restricted holding Order made under Paragraph 12 but that it operated in pursuance of Paragraph 13 of the 1978 Regulations. That crucial paragraph is in the following terms:-

"13 (1) The owner or person in charge of a reactor shall not dispose of it except under and in accordance with a permit issued for the purposes of this Order."

9 (2) Where

10 (a) a reactor is disclosed by a test or otherwise, and

11 (b) a permit has been issued under this Order by the Minister as regards the reactor, and

12 (c) the owner or person in charge of the animal has not within the period of thirty days beginning on the date of issue of the permit disposed of the reactor in accordance with the permit,

13 a veterinary inspector may by a notice in the form set out in the Third Schedule to this Order and served on the owner or person in charge of the reactor, require the reactor to be disposed of in the manner specified in the said form within the period (being not less than a period of three days) specified in the notice, and in case there is a failure to comply with...