Keane v an Bord Pleanála (No. 3)

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1998
Date01 January 1998
Docket Number[1994 No. 472 J.R., S.C. Nos. 374 and 380 of 1995]
Keane v. An Bord Pleanála
Patrick Keane and Patrick Naughton
Applicants
and
An Bord Pleanála and The Commissioners of Irish Lights, Respondents
Clare County Council, Paul Considine, Valerie Considine and The Minister for the Marine, Notice Parties
[1994 No. 472 J.R., S.C. Nos. 374 and 380 of 1995]

High Court

Supreme Court

Statute - Interpretation - Meaning of "beacon" - Whether updated construction of statute possible - Whether possible to interpret statute and ascertain statutory powers by reference to object of statute - Merchant Shipping Act, 1894 (57 & 58 Vict., c. 60), s. 742.

Statute - Interpretation - Area of responsibility and jurisdiction - Meaning of"adjacent seas" - Whether Loran-C navigational system extended beyond area of responsibility of second respondents - Merchant Shipping Act, 1894 (57 & 58 Vict., c. 60), s. 634.

Judicial review - Statutory powers - Statutory provisions conferring powers on second respondents regarding navigation - Whether second respondents have power to construct, maintain and operate Loran-C navigational system - Ultra vires - Merchant Shipping Act, 1894 (57 & 58 Vict., c. 60), ss. 634, 638 and 742.

Section 634 of the Merchant Shipping Act, 1894, provides that the superintendence and management of all lighthouses, buoys and beacons throughout Ireland and the adjacent seas and islands is vested in the second respondent.

Section 638 of the Act of 1894, confers, subject to certain restrictions, on the second respondents the following powers exercisable within their area:—

"(a) to erect or place any lighthouse, with all requisite works, roads and appurtenances;

(b) to add to, alter, or remove any lighthouse;

(c) to erect or place any buoy or beacon, or alter or remove any buoy or beacon;

(d) to vary the character of any lighthouse or the mode of exhibiting lights therein."

Section 742 of the Act of 1894, provides, inter alia:—

"'LIGHTHOUSE' shall in addition to the ordinary meaning of the word include any floating and other light exhibited for the guidance of ships, and also any sirens and any other description of fog signals, and also any addition to a lighthouse of any improved light, or any siren, or any description of fog signal;

'BUOYS AND BEACONS' includes all other marks and signs of the sea."

The applicants sought by way of judicial review to challenge the powers of the second respondent, to construct, maintain and operate an aid to navigation known as the Loran-C system. This was a position-fixing system based on the transmission and reception of low frequency electro-magnetic waves or pulses.

The applicants contended that the second respondents had no express or implied powers to construct, maintain or operate the Loran-C system since the system did not constitute a "lighthouse", a "buoy" or a "beacon" as defined in the Act of 1894. The second respondents contended that the Act of 1894, should be given an updated construction that encompassed the Loran-C system. The respondent also contended that the great object of Part II of the Act of 1894, was to enable the second respondents in the interest of the safety of mariners, to provide all necessary aids for navigation.

Held by Murphy J., in granting the relief sought, 1, that where terminology used in legislation was wide enough to capture a subsequent invention there was no reason to exclude that invention from the ambit of the legislation. However a distinction must be made between giving an updated construction to the general scheme of the legislation and altering the meaning of particular words used in the legislation.

2. That it was not possible to interpret the Act of 1894, or ascertain the statutory powers of the second respondents by reference to the wide general principle that the great object of the Act was to enable the second respondents in the interests of the safety of mariners, to provide all necessary aids for navigation as their powers were defined by reference to precise equipment.

3. That, accordingly, neither the general scheme of the Act of 1894, nor the powers or duties expressly or implicitly conferred on the second respondents nor the particular words used in the Act of 1894, permitted the second respondents to construct, maintain or operate a navigational aid system which was based on the transmission of electro-magnetic waves or pulses, which had not been identified in 1894, by equipment which had not been invented in 1894.

The second respondents appealed to the Supreme Court contending, inter alia,that the trial judge had erred in law and in fact in finding that the proposed Loran-C mast was not a "beacon" within the meaning of s. 742 of the Merchant Shipping Act, 1894. The applicants contended, inter alia, that the powers of the second respondents were limited to the particular area of "Ireland and the adjacent seas and islands" and that the Loran-C system extended beyond this area.

Held by the Supreme Court (Hamilton C.J., Blayney and Barrington JJ., O'Flaherty and Denham JJ. dissenting) in dismissing the appeal, 1, that the second respondents were not given any general power to provide navigational aids and the navigational aids they were empowered to provide were limited to those specified in s. 638 of the Act and which were of such a nature as were capable of being provided within the area of responsibility of the second respondents and which would be effective to provide guidance for ships within the area of responsibility of the second respondents.

2. That the mere fact that the Loran-C mast can be described as a "beacon" in the current use of the term did not entitle it to be so described for the purposes of the Act if it was something which was beyond the scope of the Act and the duties and powers conferred on the second respondents.

Per Blayney and Barrington JJ.: That since a "beacon" was defined as a mark or sign of the sea per s. 742 of the Act of 1894 the essential function of a "beacon" was to mark a particular place so that such place could have been identified by an approaching ship. However the essential purpose of the Loran-C system was to enable ships to plot their position at sea and was not to enable ships to identify the place on which the Loran-C mast was erected.

Per O'Flaherty J., disssenting: That it was asking too much of the legislature to amend old legislation to take account of every new development and, accordingly, the word "beacon" included radio beacons and beacons erected for the purpose of marine navigation. Per Denham J., dissenting: That since the Act described "beacons" as"signs of the sea" their function was to impart information to guide ships. Further, that the interposition of an instrument to decipher the information did not alter the fundamental principle of imparting and receiving information.

Grant v. Southwestern Properties [1975] Ch. 185, McCarthy v. O'Flynn[1979] I.R. 127 and Derby & Co. Ltd. v. Weldon (No. 9)[1991] 1 W.L.R. 652 followed.

Per Denham J., dissenting: That "all other signs of the sea" was a general and wide terminology upon which it was appropriate to have an updating construction, and in including the Loran-C as a beacon, the meaning of that word was not being altered.

4. That the intention of the legislature as expressed in ss. 634 and 638 of the Merchant Shipping Act, 1894, was clearly to limit the area of jurisdiction and responsibility of the second respondents to "Ireland and adjacent seas and islands" and to limit the exercise by the second respondents of the powers conferred on them by the Act to such specified area; that the Loran-C system provided an aid to navigation to both ships and aircraft that extended far beyond the area of responsibility of the second respondents.

Per O'Flaherty J., dissenting: That "adjacent seas" meant there was no limit how far out to sea the jurisdiction of the second respondents extended. That, in any event, since the place where the mast would be erected was clearly within the jurisdiction of the second respondents they could not be deprived of jurisdiction to erect it just because of the range and efficiency of the mast.

Per Denham J., dissenting: That the concept of "adjacent seas" did not limit the degree or length of signal and the fact that the Loran-C would give a stronger signal than other types of beacon did not alter its fundamental character.

Cases mentioned in this report:—

A.G. v. Edison Telephone Company of London (1880) 6 Q.B.D. 244; 50 L.J.Q.B. 145; 43 L.T. 697; 29 W.R. 428.

In re Alderton and Barry's Application (1941) 59 R.P.C. 56.

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

Barrell v. Fordree [1932] A.C. 676; 101 L.J.K.B. 529; 96 J.P. 278; 48 T.L.R. 482.

Beneficial Finance Corp. v. Conway [1970] V.R. 321.

Derby & Co. Ltd. v. Weldon (No. 9) [1991] 1 W.L.R. 652; [1991] 2 All E.R. 901.

Grant v. Southwestern Properties [1975] Ch. 185; [1974] 3 W.L.R. 221; [1974] 2 All E.R. 465; 118 Sol. Jo. 548.

Hill v. The King [1945] K.B. 329; [1945] 1 All E.R. 414; 114 L.J.K.B. 438; 172 L.T. 255; 61 T.L.R. 294.

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

Lake Macquarie Shire Council v. Aberdare County Council (1969) 123 C.L.R. 327; [1971] A.L.R. 362; 44 A.L.J.R. 373.

Lynch v. Fleming [1953-1954] Ir. Jur. Rep. 45.

McCarthy v. O'Flynn [1979] I.R. 127; (1979) 114 I.L.T.R. 22.

R. v. Daye [1908] 2 K.B. 333; 77 L.J.K.B. 659; 99 L.T. 165; 72 J.P. 269; 21 Cox C.C. 659.

R. v. Peters (1886) 16 Q.B.D. 636; 55 L.J.M.C. 173; 54 L.T. 545; 50 J.P. 631; 34 W.R. 399; 2 T.L.R. 359; 16 Cox C.C. 36.

R. v. South London Coroner, ex parte Thompson (1982) 126 Sol. Jo. 625.

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgment of Murphy J., infra.

On the 4th November, 1994, the first respondent granted permission to the second respondents to construct the Loran-C navigational system. The...

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