Murphy v Wicklow County Council

• Jurisdiction: Ireland
• Judge: MR. JUSTICE KEARNS,O'Sullivan J.,,MR. JUSTICEKEARNS
• Judgment Date: 13 December 1999
• Neutral Citation: [1999] IEHC 57,[1999] IEHC 225
• Date: 13 December 1999
• Docket Number: 12512p/99,25 JR 1998
• Court: High Court

[1999] IEHC 225

THE HIGH COURT

25 JR 1998

MURPHY v. WICKLOW CO COUNCIL

DUBLIN

DERMOT MURPHY

Applicant

THE COUNTY COUNCIL OF THE COUNTY OFWICKLOW

Respondent

Citations:

HOUSING ACT 1966 S78

STATE PROPERTY ACT 1954 S2

NATURE RESERVE (GLEN OF THE DOWNS) ESTABLISHMENT ORDER 1980 SI 178/1980

RSC O.84 r20(4)

LYNCH, STATE V COONEY 1982 IR 337

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED 739–764

CAHILL V SUTTON 1980 IR 269

LANCEFORT LTD V BORD PLEANALA 1998 2 ILRM 401

CHAMBERS V BORD PLEANALA 1992 1 IR 134

SCANNELL ENVIRONMENTAL & PLANNING LAW IN IRELAND 219

LAW V MIN FOR LOCAL GOVT UNREP DEALE 7.5.1974

HAVERTY V BORD PLEANALA 1987 IR 485

CIE, STATE V BORD PLEANALA UNREP SUPREME 12.12.1984 1984/6/1813

BRADY V DONEGAL CO COUNCIL 1989 ILRM 282

STAFFORD & BATES V ROADSTONE 1980 ILRM 1

ROBINSON V CHARIOT INNS LTD 1986 ILRM 621

MORRIS V GARVEY 1982 ILRM 177

MCGARRY V SLIGO CO COUNCIL 1989 ILRM 768

SPUC V COOGAN 1989 IR 734

CROTTY V AN TAOISEACH 1987 IR 713

MCGIMPSEY V IRELAND 1990 ILRM 441

R V INSPECTORATE OF POLLUTION EX-PARTE GREENPEACE LTD (NO 2) 1994 4 AER 329

PARSONS V KAVANAGH 1990 ILRM 560

WILDLIFE ACT 1976 S64

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989

EEC DIR 85/337 ART 5(2)

NI EILI V ENVIRONMENTAL PROTECTION AGENCY 1997 2 ILRM 458

BROWNE V BORD PLEANALA 1989 ILRM 865

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

BERKELEY V SECRETARY OF STATE FOR ENVIRONMENT & FULHAM FOOTBALL CLUB 1998 PLCR 97

CONSTITUTION SAORSTAT EIREANN ART 11

CONSTITUTION ART 10

STATE PROPERTY ACT 1954 S9

STATE PROPERTY ACT 1954 S10(2)

STATE PROPERTY ACT 1954 S11

STATE PROPERTY ACT 1954 S10(1)

STATE PROPERTY ACT 1954 S11(1)

STATE PROPERTY ACT 1954 S10

STATE PROPERTY ACT 1954 S11

WILDLIFE ACT 1976 S15

WILDLIFE ACT 1976 S12

WILDLIFE ACT 1976 S12(2)

WILDLIFE ACT 1976 S15(2)

WILDLIFE ACT 1976 S15(5)

WILDLIFE ACT 1976 S15(6)

ROADS ACT 1993 S53

LOCAL GOVT ACT 1925 S1

KEANE V BORD PLEANALA 1997 1 IR 184

BENNION STATUTORY INTERPRETATION 618

CONSTITUTION ART 5

CROWN LANDS (IRL) ACT 1822 S15

FISHERY HARBOUR CENTRES ACT 1968 S3

FISHERY HARBOUR CENTRES ACT 1968 S3(8)

TRANSPORT ACT 1944 S130

WEBB V IRELAND 1988 IR 353

HOWARD V COMMISSIONERS FOR PUBLIC WORKS 1993 ILRM 665

LOCAL GOVT (IRL) ACT 1898 S10(1)

MAXWELL INTERPRETATION OF STATUTES 12ED 28

R V BANBURY 1834 1 A & E 136

CAPPER V BALDWIN 1965 2 QB 53

DAVIES JENKINS & CO LTD V DAVIES 1967 2 WLR 1139

LOCAL GOVT (IRL) ACT 1898 S10

BYRNE V IRELAND 1972 IR 241

LOCAL GOVT (NO 2) ACT 1960 S10

HOUSING ACT 1966 S86

LOCAL GOVT (NO 2) ACT 1960 S10(1)

LOCAL GOVT ACT 1991 S7(1)

GLENCAR EXPLORATIONS PLC V MAYO CO COUNCIL 1993 2 IR 237

BLAND LAW OF EASEMENTS & PROFITS A PRENDRE (1997) 64

SMELTZER V FINGAL CO COUNCIL 1998 1 IR 279

DORAN BRAY & ENVIRONS (1905) 97

CARSONS ILLUSTRATED GUIDE TO THE COUNTY OF WICKLOW (1882) 47

FORESTRY (RE-DISTRIBUTION OF PUBLIC SERVICES) ORDER 1933 S R & O 158/1933

DPP V JONES 1999 2 WLR 625, 1999 2 AER 257

STATE PROPERTY ACT 1954 S11(2)

HALSBURYS LAWS OF ENGLAND 4ED PARA 500

ABERCROMBY V TOWN COMMISSIONERS OF FERMOY 1900 1 IR 302

AG V ANTROBUS 1905 2 CH 188

ELLENBOROUGH PARK, IN RE 1956 CH 131

Synopsis

Planning

Judicial review; locus standi; environmental impact statement (EIS); consent of Ministers for Finance and Agriculture to acquisition of state land designated a nature reserve; compulsory purchase procedure; rights of way; ius spatiendi; charitable trust; applicant seeks to judicially review decision of respondent to widen public road running through the Glen of the Downs; whether the applicant has locus standi; whether the application has merit; whether there was delay in challenging the EIS; whether the applicant has locus standi to ground his application in relation to the EIS; whether the applicant can challenge the EIS certified by the Minister for the Environment in an application against the respondent; whether the EIS provided adequate material on which the Minister could decide to certify; whether an entirely new EIS was a reasonable requirement; whether there was consent from the Minister for Finance; whether the respondent had a licence to enter on State lands to commence development; whether amendment of S.I. 178 of 1980, designating the area as a nature reserve, is a precondition to development; whether compulsory purchase procedures are applicable to State lands; whether public rights of way exist in the area; whether the public have a ius spatiendi; whether a charitable trust may be presumed to have been created; Wildlife Act, 1976.

Held: Declaratory relief granted in relation to two grounds; there is a requirement of consent for the sale and transfer of State lands and development of State lands and the compulsory purchase procedures are not applicable to State lands. Relief refused on the other grounds.

Murphy v. Wicklow County Council - High Court: Kearns J. - 19/03/1999

While it might be regarded as a borderline case the court would exercise its discretion in granting locus standi to the applicant to bring judicial review proceedings challenging the respondent's proposal to upgrade a section of the N11 national primary route by constructing a dual carriageway through a wood nature reserve. The applicant's challenge to the environmental impact statement on the area failed by reason of delay and the fact that such challenge would require to be directed against the Minister for the Environement who certified the impact statement, not the respondent. There was no consent from the Minister for Finance to the transfer of State land to the respondent as required by the State Property Act 1954. No licence for the proposed use for development of the lands was ever furnished by the State authority in whom the lands were vested. The statutory instrument designating the area as a nature reserve or at least its annexed map required an amendment to address the proposed development and the appropriate time for this amendment was when the road scheme was completed. In the absence of specific enabling statutory provision, compulsory purchase powers did not extend to State lands. The CPO in this case was a nullity from its inception. The right to wander over the lands in question could no longer be regarded as a right recognised by law in the absence of an express grant and there was no evidence of such grant. The High Court so held in refusing the relief claimed.

1 JUDGMENT OF MR. JUSTICE KEARNSDELIVERED ON FRIDAY, 19TH MARCH 1999

2 I hereby certify the following to be a true and accurate transcript ofmy shorthand notes of the evidence in the above-named action.

CONTENTS

1.	BACKGROUND	1–16
2.	LOCUS STANDI	17–32
3.	E.I.S. ARGUMENTS	33–47
4.	STATE PROPERTY ACT 1954	48–56
5.	S.I. 178 of 1980	57–75
6.	COMPULSORY PURCHASE AND STATE LANDS	76–92
7.	PUBLIC RIGHTS OF WAY	93–115
8.	CONCLUSIONS	15–117
9.	APPENDICES

MR. JUSTICE KEARNS DELIVERED HIS JUDGMENT AS FOLLOWS

MR. JUSTICE KEARNS: The Glen of the Downs is an area of outstanding

3 natural beauty and ecological diversity. Its trees and woodlandscomprise the majority of the habitat and ecological areas of importancewithin the Glen. They comprise oak, ash hazel, beech and oak-beechwoodlands. There is also some rowan, sycamore and holly.

4 A stream of pure water runs from North to South through the Glen alongthe Eastern side of the existing roadway. Adjacent to it are wetwoodlands which constitute the habitat for some rare invertebrates.

5 It contains 21 different species of breeding birds, including specieswhich are largely restricted to mature native woodland such as Blackcapand Jay. Sika deer, badger and red squirrel are all common species inthe Glen.

6 In the County Development Plan for Wicklow the Glen is designated asbeing of outstanding natural beauty. It is further a listed Area ofScientific Interest rated of National Importance (An Foras Forbartha1981). It is also a designated national Nature Reserve (designated 13thJune 1980) and is protected under the Wildlife Act. 1976. The site isalso listed in the CORINE data base on sites of scientific importanceheld by the EC Commission.

7 The Environmental Impact Statement (EIS) which was prepared in this casein 1990/91 recognised the area as a major amenity, not only for thepeople of County Wicklow but also for Dublin and the country as a whole.It recognised that the Glen must be treated in a very special way, and,as far as possible, preserved unspoiled.

8 The public have always enjoyed access to the Glen of the Downs forrecreational purposes, largely facilitated in the last century by the LaTouche family. In 1766 David La Touche commissioned the leadinglandscape gardener Peter Shanley, to fashion the Glen in the style ofthe early picturesque landscape movement. The Octagon House wasconstructed on the Eastern side of the Glen and apparently served as atea room. A programme of planting was undertaken, the benefits of whichare still to be seen to-day. The course of the stream was altered andmade more amenable to those walking through the Glen. This area of landbetween the stream and public road is covered with ash, hazel woodlandand contains a rich ground flora which has a restricted distributionelsewhere in Ireland.

9 In the early part of this century all the landscomprised in the Glen were sold and responsibility for their managementpassed to the Forestry Department in the 1930's. All of the land wasthen and is now registered in the name of the Minister forAgriculture.

10 There are conflicting views as to the user of the Glen between1933–1970. On one version of the evidence, the public were notencouraged during those years to access the woodlands, although asuggestion to the contrary has been made by witnesses called in thiscase by the Applicant.

11 What is not in dispute is that in 1970 and the years that...