KEANE v Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Justice Francis D. Murphy |
| Judgment Date | 04 October 1995 |
| Neutral Citation | 1995 WJSC-HC 4816 |
| Date | 04 October 1995 |
| Court | High Court |
| Docket Number | No. 472 J.R./1994 |
BETWEEN
AND
AND
1995 WJSC-HC 4816
THE HIGH COURT
Synopsis:
SHIPPING
Navigation
Equipment - Installation - Commissioners - Powers - Extent - Shore-based Loran-C system - Statutory power to erect beacon - Power conferred by 19th century statute - Extended meaning of beacon not accepted - (1994/472 JR - Murphy J. - 4/10/95) [1997] 1 IR 184
|Keane v. An Bord Pleanala|
STATUTORY INTERPRETATION
Words
Meaning - Extension - Propriety - Beacon - Original meaning not extended - Radio mast 750 feet high - Transmission of low-frequency pulsed electro-magnetic waves - International navigation system - Limited power to adapt 19th century statute to include 20th century technology - Corporation not empowered to erect mast - (1994/472 JR - Murphy J. - 4/10/95) [1997] 1 IR 184
|Keane v. An Bord Pleanala|
CORPORATION
Powers
Extent - Origin - Statute - Interpretation - Beacon - Original meaning not extended - Radio mast 750 feet high - Transmission of low-frequency pulsed electro-magnetic waves - International navigation system - Limited power to adapt 19th century statute to include 20th century technology - Corporation not empowered to erect mast - Merchant Shipping Act, 1894, ss. 638, 742 - (1994/472 JR - Murphy J. - 4/10/95) [1997] 1 IR 184
|Keane v. An Bord Pleanala|
Citations:
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)
DUBLIN PORT & LIGHTHOUSES ACT 1810 50 GEO 3 C95
MERCHANT SHIPPING ACT 1894 S634(1)
MERCHANT SHIPPING ACT 1894 S638
MERCHANT SHIPPING ACT 1894 S742
HALSBURYS LAWS OF ENGLAND 4ED V9 PARA 133
BENNION ON STATUTORY INTERPRETATION 2ED
1566 8 ELIZ 1 C13
AG V EDISON TELEPHONE CO 1886 QBD 244
TELEGRAPH ACT 1863
GRANT V SOUTH WESTERN & COUNTY PROPERTIES 1975 CH 185
R V DAYE 1908 2 KB 330
HILL V R 1945 KB 329
ALDERTON & BARRYS APPLICATION, IN RE 1941 59 RPC 56
MCCARTHY V O'FLYNN 1979 IR 127
DERBY V WELDON (NO 9) 1991 1 WLR 652
LAKE MACQUARIE SHIRE COUNCIL V ABDERDARE CO COUNCIL 1969 123 CLR 327
LOCAL GOVT ACT 1906 (AUS)
R V SOUTH LONDON CORONER EX PARTE THOMPSON 1892 126 SJ 625
MERCHANT SHIPPING ACT 1894 PART II
DPP V RICE 1979 IR 15
MCCARTHY V O'FLYNN 1979 IR 127
Judgment of Mr. Justice Francis D. Murphydelivered the 4th day of October, 1995.
In this the second of two Judicial Reviews instituted by the Applicants, the issue for determination by the Court is whether the Commissioners of Irish Lights (C.I.L.) have the requisite statutory power to construct, maintain and operate certain navigation equipment known as the Loran-Csystem.
The issue arises in this way. Some time in 1994 C.I.L. (acting as agents of the Department of the Marine)applied to Clare County Council for permission for the development of land, namely, "to construct an aid to navigation, including a radio mast, ancillary facilities and caretaker's house at Feeard, Cross, County Clare." On the 18th February, 1994 Clare County Council refused the application. On the 4th November, 1994 An Bord Pleanala, reversing the decision of Clare County Council, decided to grant the permission sought for the reasons set out in the First Schedule to their permission and subject to the conditions specified in the Second Schedule thereto. The permission so granted by An Bord Pleanala was challenged by the Applicants herein in proceedings brought by way of Judicial Review and that issue was the subject matter of a judgment delivered by me herein on the 20th June, 1995. In accordance with the provisions of Section 82 of the Local Government (Planning and Development) Act, 1963as amended by Section 19(3) of the Local Government (Planning and Development) Act, 1992, the application for leave to apply for Judicial Review to quash the Order of An Bord Pleanala was brought by way of Motion on Notice to the above named Respondents and Notice Parties. In addition the Applicants combined with that application an application (which could have been brought ex parte) for leave to apply for Judicial Review challenging the powers of C.I.L. to construct, maintain and operate the Loran-C system. Having regard to the manner in which the proceedings came before me, I afforded C.I.L. an opportunity of being heard on what was an ex parte application and having done so, granted leave to the Applicants to apply for Orders of Judicial Review of the decision of C.I.L. to construct, maintain and operate the Loran-C system on two grounds, namely:
1. That the Commissioners of Irish Lights have no power either express or implied to undertake the construction, development and/or management or use of the proposed aid to navigation including a radio mast, ancillary facilities and caretaker's house, the subject matter of the planning application and a subsequent appeal to An Bord Pleanala and of these proceedings, at Feeard, Cross in the County of Clare, and accordingly any such development by the Commissioners of Irish Lights and/or use or management of the said development by the Commissioners of Irish Lights would be ultra vires the powers of the Commissioners of Irish Lights and accordingly invalid or void.
2. The Commissioners of Irish Lights have no power either express or implied to purchase or take any land for the purpose of developing and/or erecting thereon the proposed aid to navigation to include or including a radio mast, ancillary facilities and caretaker's house at Feeard, Cross in the County of Clare, and accordingly the purchase of the said aforementioned lands for the said purposes ultra vires the powers of the Commissioners of Irish Lights and accordingly invalid or void.
The material history in relation to the erection and maintenance of lighthouses around the coast of the then United Kingdom of Great Britain and Ireland may be summarised as follows: By an Act passed in the 50th year of the reign of George III, Chapter 95, the Corporation for Preserving andImproving the Port of Dublin was given or retained the task of purchasing lands and building lighthouses around the coast of Ireland and by the Dublin Port Act, 1867 (30 vic. 31) a separate body was set up under the title of "the Commissioners of Irish Lights" as the body to exercise control over lighthouses, buoys or beacons and the superintendence thereof in Ireland and the adjacent seas and islands thereof. A similar task was vested in Trinity House in relation to England and Wales and the islands, seas and places therein and again in relation to Scotland and the seas and islands thereof, the task devolved upon the Commissioners of Northern Lighthouses. These three corporations continue in existence, notwithstanding the radical political changes which have taken place since their position was formalised in the Merchant Shipping Act, 1894.
It would be helpful to quote the relevant provisions of the three sections of that Act to which both parties referred, namely:-
2 "634(1). Subject to the provisions of this Part of this Act and subject also to any powers or rights now lawfully enjoyed or exercised by any person or body of persons having by law or usage authority over local lighthouses, buoys or beacons, (in this Act referred to as "local lighthouse authorities"), the superintendence and management of all lighthouses, buoys and beacons shall, within the following areas, be vested in the following bodies;namely:-
(a) throughout England and Wales, and the Channel Islands, and the adjacent seas and islands and at Gibralter, in the Trinity House;
(b) throughout Scotland and the adjacent seas and islands, and the Isle of Man, in the Commissioners of Northern Lighthouses; and
(c) throughout Ireland and the adjacent seas and islands, in the Commissioners of Irish Lights,
and those bodies are in this Act referred to as the general lighthouse authorities, and those areas as lighthouse areas.
(2) Subject to the provisions of this Part of this Act, the general lighthouse authorities shall respectively continue to hold and maintain all property now vested in them in that behalf in the same manner and for the same purposes as they have here to held and maintained thesame.
638 A general lighthouse authority shall, within their area but subject, in the case of the Commissioners of Northern Lighthouses, and the Commissioners of Irish Lights, to the restriction enacted in this part of this Act, have the following powers (in this Act referred to as lighthouse powers); namely:-
(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.
742 In this Act, unless the context otherwise requires, the following expressions have the meanings hereby assigned to them; (that is tosay,)
"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 contend that the general intent and purpose of the 1894 Act was to create or confirm in existence statutory bodies which had the right and duty of constructing, maintaining and operating navigational aids which would be visible to or audible by mariners approaching the, particular areas in respect of which jurisdiction was conferred upon the different...
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