MacPharthalain v Commissioners of Public Works

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Blayney
Judgment Date17 January 1992
Neutral Citation1992 WJSC-HC 806
Docket Number[1990 No. 72 JR],72/JR/90
Date17 January 1992

1992 WJSC-HC 806

THE HIGH COURT

72/JR/90
MAC PHARTHALAIN v. COMMISSIONER PUBLIC WORKS
JUDICIAL REVIEW

BETWEEN

SEAN Mac PHARTHALAIN, ANGELA O'MALLEY AND THE CLIFDEN ANDWEST CONNEMARA AIRPORT PUBLIC LIMITED COMPANY
APPLICANTS

AND

COMMISSIONERS OF PUBLIC WORKS, IRELAND AND THE ATTORNEYGENERAL
RESPONDENTS

Citations:

WEXFORD CO COUNCIL, R V LOCAL GOVT BOARD 1902 2 IR 349

R (MCEVOY) V DUBLIN CORPORATION 2 LR IR 371

STEPHENS GREEN CLUB & ANOR, STATE V THE LABOUR COURT 1961 IR 85

INDUSTRIAL RELATIONS ACT 1946

INDUSTRIAL RELATIONS ACT 1946 S67

FORESTRY ACT 1976 S9(1)(f)

Synopsis:

JUDICIAL REVIEW

Certiorari

Decision - Annulment - High Court - Jurisdiction - Bogland - Unspoiled wilderness - Preservation - Designation of area as being of scientific interest - Effect of designation on landowner - Natural justice - Whether designation imposed liabilities or affected rights - Forestry Act, 1976, s. 9 - (1990/72 JR - Blayney J. - 17/1/92) - [1992] 1 I.R. 111

|Mac Pharthalain v. Commissioners of Public Works in Ireland|

REAL PROPERTY

Land

Value - Reduction - Notice - Absence - Wildlife Service - Decision - Designation of land as area of international scientific interest - Intact blanket bog - Decision quashed - (1990/72 JR - Blayney J. - 17/1/92) - [1992] 1 I.R. 111

|Mac Pharthalain v. Commissioners of Public Works in Ireland|

1

Judgment of Mr. Justice Blayneydelivered the 17th day of JANUARY 1992.

2

The first named Applicant, Mr. Mac Pharthalain, is the owner of land near Clifden which he has agreed to sell to the third named Applicant (to which I shall refer as the Airport Company) for the purpose of constructing a landing strip for aircraft. The second named Applicant, Mrs. O'Malley, is the owner of adjoining lands through which the Airport Company is to be given a right-of-way.

3

The Contract between Mr. Mac Pharthalain and theAirport Company, entered into on the 2nd December 1988, contains a special condition that the sale is "subject to planning permission being obtained by the purchaser for the development of the property in sale for the purpose of the use of same as an airstrip.........". The Airport Company applied for outline planning permission and this was refused by the Galway County Council on the 1st December 1989. The first reason given for the refusal was thefollowing:

"1. Site is located within the northern part of the Errisbeg bogland complex in an undeveloped, unspoilt wilderness which is designated by the Wildlife Service as being of international scientific importance and the proposed development by reason of noise, air and road traffic, excavation and drainage and upgrading of inadequate road system would be likely to disturb the balance of a delicate ecosystem causing irreparable damage and would be contrary to the proper planning and development of the area".

4

The Wildlife Service is a section of the Office of Public Works and none of the Applicants had been aware that the site had been designated by them as being an area of scientific interest. Neither of the first two Applicants had been given notice of any intention on the part of the Wildlife Service to consider such designation. In these proceedings brought by way of Judicial Review the Applicants now seek an Order of Certiorari quashing the decision of the Commissioners of Public Works designating the area within which lands of the first two Applicants are situate as an area of international scientific interest.

5

The application was heard on oral evidence and was two days at hearing but there was very little dispute as to the facts. It was common case that the Court was not concerned with whether the decision to designate the relevant area as one of international scientific interest was correct or not. The issues were firstly, whether the designation of the area as one of scientific interest was a decision; secondly, if it was, whether it constituted a judicial act which could be quashed on Certiorari: and finally, whether there were grounds for quashingit.

6

The relevant facts might be summarized as follows. Following some surveys by An Fores Forbartha, an area of land, known as the Roundstone Bog, lying to the south of the lands of the first and second named Applicants, was designated as an area of scientific interest by the Wildlife Service of the first named Respondent in 1982. The boundary of this area was revised by the Wildlife Service in 1987 and the effect of the revision was to push the northern boundary further north and to include within the designated area the lands of the first and second named Applicants. The evidence of Doctor Cross, a Botanist and Geographer who has been with the Wildlife Section of the Office of Public Works for 16 years, was that the whole area contains an intact blanket bog and that the airport site is an essential part of it. He also said that certain species of plants localized in that area are not found elsewhere.

7

No notice was given to either of the first two Applicants of the decision in 1987 to move the northern boundary as to include their lands in the area designated. They both said that if they had been given notice they would have objected to the proposal.

8

Miss Noreen O'Keeffe, a Principal Officer with the Wildlife Service prior to her retirement in August 1990, gave evidence as to the reason why areas were designated as of scientific interest and as to who were informed of the designation. She said that since 1972 all the countries in the European Community were interested in identifying such areas and that in this country surveys were done of both raised and blanket bog. The areas were graded according to their relative importance, there being four different grades in descending order of importance; international, national, regional and local. The Roundstone Bog is graded as being of international interest. When areas have been designated, maps are prepared and sent to County Councils and other planning authorities, and also to the Departments of Agriculture and Forestry. There is no communication to the public. One of the effects of land being included in an area of scientific interest is that no grants for afforestation will be available in respect of it.

9

Evidence of specific instances of the refusal of such grants was given by a number of witnesses. Mr. Brian Hussey, the Chief Executive of Woodland Investments Limited, one of the biggest companies in the private sector engaged in forestry, said that they had agreed to purchase certain lands in County Mayo for afforestation subject to obtaining the usual grants; that initially these had been approved but they had then received a note from the Forest Service that they had loarned that the land was in an area of scientific interest so they could not give the grants. No other reason was given. He said in addition that...

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    ...contractual rights; 4. effects on their reputation. ... [451] The judgments of the High Court and the Supreme Court in MacPharthalain v. Commissioners of Public Works [1992] 1 I.R. 111; [1994] 3 I.R. 353 held that the decision "affected the rights" of the applicants. Does that mean that t......
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