Moore v Minister for Arts, Heritage and the Gaeltacht

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 14 February 2018
• Neutral Citation: [2018] IECA 28
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. Nos. 295 & 297 of 2016],Neutral Citation Number: [2018] IECA 28 Record No. 2016/297
• Date: 14 February 2018

BETWEEN/

COLM MOORE

RESPONDENT

- AND -

THE MINISTER FOR ARTS, HERITAGE AND THE GAELTACHT

APPELLANT

- AND -

DUBLIN CENTRAL LIMITED PARTNERSHIP

NOTICE PARTY

BETWEEN/

COLM MOORE

RESPONDENT

- AND -

THE MINISTER FOR ARTS, HERITAGE AND THE GAELTACHT

NOTICE PARTY

- AND -

DUBLIN CENTRAL LIMITED PARTNERSHIP

APPELLANT

[2018] IECA 28

Hogan J.

Peart J.

Birmingham J.

Hogan J.

Neutral Citation Number: [2018] IECA 28

Record No. 2016/295

Record No. 2016/297

THE COURT OF APPEAL

National monuments - Jurisdiction - Declarations - Appellants seeking to appeal against High Court judgment - Whether the High Court enjoys a jurisdiction to declare that certain buildings or sites amount to national monuments for the purposes of the National Monuments Act 1930

Facts: The appellants, the Minister for Arts, Heritage and the Gaeltacht and Dublin Central Limited Partnership, appealed to the Court of Appeal from a judgment of the High Court delivered on the 18th March 2016. In that judgment Barrett J granted a declaration that certain streets and street alignments in the Moore Street, Moore Lane and O'Rahilly Parade area in Dublin 1, along with Nos. 10, part of No. 13 and Nos. 18, 20 and 21 Moore Street constituted national monuments for the purposes of s. 2 of the National Monuments Act 1930. At issue was whether the High Court enjoys a jurisdiction to declare that certain buildings or sites amount to national monuments for the purposes of the 1930 Act.

Held by Hogan J that the question as to whether a particular monument is a national monument "the preservation of which is a matter of national importance" for the purposes of s. 2 of the 1930 Act is, as so formulated by statute, one of pure policy in respect of which there are no established or otherwise manageable legal standards which a court can properly apply. Hogan J noted that under Ireland's constitutional system of separation of powers a policy issue of this kind can only be determinedin the first instanceby an organ of government which is directly elected and is thus answerable to the People. Hogan J held that s. 2 of the 1930 Act cannot be constitutionally interpreted as to vesting the courts with the function of declaring a particular monument to be a national monument where this would entail the courts making purely policy assessments without reference to established legal criteria. Hogan J held that the High Court does not have a free standing jurisdiction to declare a particular monument to be a national monument under the 1930 Act.

Hogan J held that he would allow the appeal on the National Monuments Act issue on the ground that the High Court does not have a jurisdiction to grant the declarations sought.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 14th day of February 2018

1 Does the High Court enjoy a jurisdiction to declare that certain buildings or sites amount to national monuments for the purposes of the National Monuments Act 1930 (as amended)('the 1930 Act')? That is the essential question which is presented on this appeal from a judgment of the High Court delivered by Barrett J. on the 18th March 2016: see Moore v. Minister for Arts, Heritage and Culture [2016] IEHC 150.

2 In that judgment Barrett J. granted a declaration that certain streets and street alignments in the Moore Street, Moore Lane and O'Rahilly Parade area in Dublin 1 (which, for convenience, I propose to describe as the Moore Street battlefield site), along with Nos. 10, part of No. 13 and Nos. 18, 20 and 21 Moore Street constituted national monuments for the purposes of s. 2 of the 1930 Act. Both the Minister for Arts, Heritage and the Gaeltacht ('the Minister') and Dublin Central Limited Partnership have appealed against the granting of this relief. At the outset it should be stated that Nos. 14-17 Moore Street have already been recognised by the Minister as national monuments and a preservation order has already been made in respect of these buildings.

3 The name of Moore Street resonates with anyone with even a passing interest of Irish history, since it was here that the seminal events of Easter Week 1916 came to a conclusion. The basic facts are - or, at least, ought to be - well known to every Irish citizen: On Monday, April 24, 1916 Commandant P.H. Pearse stood on the steps of the General Post Office in Dublin and in the name of the Irish Republican Brotherhood, the Irish Volunteers and the Irish Citizen's Army proclaimed an independent Irish Republic and constituted himself as President of the Provisional Government.

4 There then followed five days of intense fighting between the Volunteers and the British forces throughout Dublin, with sporadic incidents in other parts of the country. This culminated in the evacuation of the GPO by the Volunteers in the evening of Friday, April 28, 1916. The Volunteers then ran the gauntlet of British fire - sustaining heavy casualties in the process - and they ultimately tunnelled their way into Moore Street. The final resting place of the Provisional Government was at No. 16 Moore Street. It was at that point that the decision was made on the following morning to surrender, not least given that Pearse himself was distraught by the ever mounting civilian death toll. Nurse Elizabeth O'Farrell then bravely made her way from No. 16 Moore Street to the British forces under a flag of truce and the surrender took place later afternoon between Brigadier Lowe of the British forces and Commandant Pearse. Summary executions of the members of the Provisional Government (and others) quickly followed. By the time the last volley of shots rang out from a British firing squad in a bleak prison yard on 12 May 1916 the final unravelling of the bonds of an unhappy and unstable union between Great Britain and Ireland was already well underway.

5 I fear that I have done scant justice to these momentous historic events with this all too brief summary. A full narrative of these events is, however, found at Chapters 1 to 4 and Chapters 30, and Chapters 35 to 40 of the judgment of Barrett J. This judgment contains as deeply a moving, eloquent and comprehensive account of the end of the Rebellion as has ever been written.

6 The plaintiff is himself a member of an association known as Cumann Gaolta 1916/The 1916 Relatives Association, but he brings these proceedings in his own name qua citizen of Ireland and as a representative of that Association. The notice party, Dublin Central Limited Partnership, was joined to these proceedings by order of the Finlay Geoghegan J. on 20th July 2016 pursuant to the provisions of Ord. 15, r.14 and Ord. 17, r. 4 in substitution for Chartered Land. Both entities are developers whose commercial interests stand to be gravely affected by these proceedings and, specifically, by the grant of the declaratory relief to the effect that these streets and buildings in the Moore Street area constituted national monuments.

The nature of the judicial review proceedings

7 The question of whether Moore Street should be designated as a national monument has been a matter of civic controversy for some time. In January 2007 the Minister made a preservation order pursuant to s. 8(1) of the 1930 Act in respect of Nos. 14-17 Moore Street and there were plans for a commemorative centre at Nos. 14 to 17 which it was hoped would be ready for the 100th anniversary in 2016. Planning permission for this purpose had been granted in March 2010 and the requisite ministerial consent had been granted in July 2013 under s. 14 of the 1930 Act for the partial demolition of part of these structures to facilitate the construction of the new interpretative centre. It may be noted that no proceedings had been commenced at the time in which the validity of either decision had been challenged.

8 The proceedings have their background in correspondence emanating from the plaintiff's solicitors on 19th August 2015 in which they called upon the Minister to designate the entire Moore Street battlefield site as a national monument. The Minister was also requested to exercise her powers pursuant to s. 22(3) of the Interpretation Act 2005 ('the 2005 Act') to set aside that part of the consent issued under s. 14 of the 1930 Act which permitted the partial demolition of the national monument. By letter dated the 18th September 2015 the Minister refused to take such steps. Section 22(3) of the 2005 Act simply provides that the donee of a statutory power may exercise those powers from time to time as occasion requires.

9 The applicant then sought and secured leave to apply for judicial review on 21st December 2015 from the High Court (Eager J.). The first relief sought was an order of certiorari quashing the decision of the Minister as refused to exercise her s. 22(3) of the 2005 Act powers. The third relief sought was an order of mandamus directing the Minister to consider whether s. 22(3) of the 2005 Act was 'applicable to a consent granted under s. 14 of the [1930 Act].' There then followed a series of prayers for relief by way of declaratory order that certain lands, buildings and sites in the Moore Street area constituted national monuments.

10 An order of certiorari was indeed granted by the High Court in its final order dated 20th May 2016 along with a series of declarations along the lines already indicated to the effect that named lands, buildings and sites in the general Moore St. region were national monuments within the meaning of the 1930 Act.

11 Both the Minister and the notice party have vigorously objected to the use of this procedure in this fashion which they contend is, inter alia, amounts to a contrived collateral attack on the earlier planning permission and ministerial consent. For my part, I cannot help thinking - without, I hope, any disrespect to Mr. Moore - that the primary reliefs of certiorari and mandamus sought by the applicant do...