O'Sullivan and Others v National Parks and Wildlife Service of the Department of the Environment

JurisdictionIreland
JudgeMr. Justice William M. McKechnie
Judgment Date13 May 2010
Neutral Citation[2010] IEHC 376
CourtHigh Court
Date13 May 2010

[2010] IEHC 376

THE HIGH COURT

[No. 770 JR/2009]
O'Sullivan & Ors v National Parks and Wildlife Service of the Department of the Environment
JUDICIAL REVIEW
IN THE MATTER OF THE BOURN VINCENT MEMORIAL PARK ACT 1932, AND IN THE MATTER OF THE STATE PROPERTY ACT 1954, AND IN THE MATTER OF THE BYE LAWS MADE BY THE COMMISSIONER OF PUBLIC WORKS IN IRELAND (WITH THE APPROVAL OF THE MINISTER FOR FINANCE) BY VIRTUE OF THE POWERS CONFERRED ON THE SAID COMMISSIONERS UNDER THE BOURN VINCENT MEMORIAL PARK ACT 1932

BETWEEN

PAT O'SULLIVAN, PAUL TANGNEY, BILLY TANGNEY, MARK TANGNEY, MICHAEL MCCARTHY, MICHAEL JOY, PAT JOY, JOHN CRONIN, DENNIS DOONA, JEREMIAH O'SHEA, MICHAEL GRIFFIN, RICHARD O'GREENE, MICHAEL O'GRADY, GERARD CRONIN, JOHN O'GRADY, MICHAEL SWEETMAN, MICHAEL MORIARTY, JOHN COFFEY, HUGH MUNDELL, DAN MURPHY, TOM HICKEY, ULTAN BREENE, DENNIS O'SHEA, DAN FERRIS, ROSE HICKEY, BRENDAN JOY AND MICHAEL J. O'DONOGHUE
APPLICANTS

AND

THE NATIONAL PARKS AND WILDLIFE SERVICE OF THE DEPARTMENT OF THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT
RESPONDENTS

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997

EUROPEAN COMMUNITIES (CONSERVATION OF WILD BIRDS) (AMDT) REGS 1995 SI 31/1995

BOURN VINCENT MEMORIAL PARK ACT 1932 PART I

BOURN VINCENT MEMORIAL PARK ACT 1932 PART II

BOURN VINCENT MEMORIAL PARK ACT 1932 PART III

BOURN VINCENT MEMORIAL PARK ACT 1932 S10

BOURN VINCENT MEMORIAL PARK ACT 1932 S11

BOURN VINCENT MEMORIAL PARK ACT 1932 S12

BOURN VINCENT MEMORIAL PARK ACT 1932 S14

BOURN VINCENT MEMORIAL PARK ACT 1932 S15

BOURN VINCENT MEMORIAL PARK SI 234/1971 PARA 3(9)

ASHBOURNE HOLDINGS LTD v BORD PLEANALA & CORK CO COUNCIL 2003 2 IR 114 2003 2 ILRM 446 2003/3/564

RADIO LIMERICK ONE LTD v INDEPENDENT RADIO & TELEVISION CMSN 1997 2 IR 291 1997 2 ILRM 1 1997/6/2117

BOURN VINCENT MEMORIAL PARK ACT 1932 S14(4)

STATE (FPH PROPERTIES SA) v BORD PLEANALA 1987 IR 698

HOEY & MATTHEWS v MIN FOR JUSTICE 1994 3 IR 329 1994 1 ILRM 334 1993/12/3714

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

CASSIDY & ORS v MIN FOR INDUSTRY 1978 IR 297

O'BRIEN v MANUFACTURING ENGINEERING CO LTD 1973 IR 334

KILLINEY & BALLYBRACK DEVELOPMENT ASSOCIATION LTD v MIN FOR LOCAL GOVT & TEMPLEFIN ESTATES LTD 1978 ILRM 78

KEEGAN & LYSAGHT, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202

MURPHY v STEWART & ORS 1973 IR 97

BOURN VINCENT MEMORIAL PARK ACT 1932 S12(1)

CASEY v MIN FOR ARTS 2004 1 IR 402 2004 2 ILRM 260 2004/7/1408 2004 IESC 14

CROFTON v MIN FOR ENVIRONMENT UNREP HEDIGAN 10.3.2009 2009/10/2359 2009 IEHC 114

CONSTITUTION ART 40.3.1

AG & MIN FOR POSTS & TELEGRAPHS v PAPERLINK LTD & ORS 1984 ILRM 373 1983/7/1782

RODGERS v IRISH TRANSPORT & GENERAL WORKERS UNION & ORS 1978 ILRM 51 1978/3/230

MINISTERS & SECRETARIES ACT 1924 S9

MINISTERS & SECRETARIES (AMDT) ACT 1939 S6

HERITAGE (TRANSFER OF DEPARTMENTAL ADMINISTRATION & MINISTERIAL FUNCTIONS) ORDER 1995 SI 61/1995

HERITAGE (TRANSFER OF FUNCTIONS OF CMRS OF PUBLIC WORKS IN IRELAND) ORDER 1996 SI 332/1996

HERITAGE (TRANSFER OF DEPARTMENTAL ADMINISTRATION & MINISTERIAL FUNCTIONS) ORDER 2002 SI 356/2002

STATE PROPERTY ACT 1954 S10

STATE PROPERTY ACT 1954 S11

STATE PROPERTY ACT 1954 S10(1)

STATE PROPERTY ACT 1954 S11(1)

STATE PROPERTY ACT 1954 SCHED 1

STATE PROPERTY ACT 1954 S5

STATE PROPERTY ACT 1954 S6

CLARKE NATION STATE & NATIONALITY IN THE IRISH CONSTITUTION 1998 16 ILT 252

CLARKE NATIONALISM THE IRISH CONSTITUTION & MULTICULTURAL CITIZENSHIP 2000 51 NILQ 100

BOURN VINCENT MEMORIAL PARK ACT 1932 S14(1)

BOURN VINCENT MEMORIAL PARK ACT 1932 S14(2)

BOURN VINCENT MEMORIAL PARK ACT 1932 S15(1)

BOURN VINCENT MEMORIAL PARK ACT 1932 S4

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

O'CALLAGHAN v CMRS OF PUBLIC WORKS & AG 1985 ILRM 364 1984/8/2607

COURTHOUSES (PROVISION & MAINTENANCE) ACT 1935

BOURN VINCENT MEMORIAL PARK ACT 1932 S15(5)

BLAKE & ORS v AG 1982 IR 117

NATIONAL PARKS

Licence

Permits - Jarvey operators - Mandatory requirement to have approved dung-catching device fitted to jaunting car - Killarney National Park - Ultra vires - Bye-laws - Right to earn a livelihood - Discrimination - Duty to manage and maintain - Minister's responsibility for park - Rights of ownership - Whether respondents had statutory power to impose requirement - Whether power to exclude applicants from park - Whether unauthorised delegation of responsibility - Whether unreasonable, unfair, arbitrary or capricious - Whether unconstitutional attack on right to work - Whether unequal treatment - Ashbourne Holdings Ltd v An Bord Pleanála [2003] 2 IR 114; Radio Limerick One Ltd v Independent Radio & Television Commission [1997] 2 IR 291; State (FPH Properties SA) v An Bord Pleanála [1987] IR 698; Hoey v Minister for Justice [1994] ILRM 334; East Donegal Co-Operate Livestock Mart Ltd v Attorney General [1970] IR 317; Cassidy v Minister for Industry and Commerce [1978] IR 297; O'Brien v Manufacturing Engineering Co Ltd [1973] IR 334; Killarney & Ballybrack Development Association Ltd v Minister for Local Government [1978] 1 ILRM 78; State (Keegan) v Stardust Victims Compensation Tribunal [1986] IR 642; Murphy v Stewart [1973] IR 97; Casey v Minister for Art, Heritage, Gaeltacht and the Islands [2004] IESC 14 [2004] 1 IR 402; Crofton v Minister for the Environment, Heritage and Local Government [2009] IEHC 114 (Unrep, Hedigan J, 10/3/2009); Attorney General v Paperlink [1984] ILRM 373; Rodgers v IT&GWU [1978] ILRM 51; O'Callaghan v Commissioner for Public Works in Ireland [1985] 5 ILRM 364 and Blake v Attorney General [1984] ILRM 34 considered - Bourn Vincent Memorial Park Act 1932 (No 31), ss 10, 11, 12, 14 and 15 - State Property Act 1954 (No 25) - Ministers and Secretaries Act 1924 (No 16), s 9 - Ministers and Secretaries (Amendment) Act 1939 (No 36), s 6 - European Union Habitats Directive (SI 94/1997) - European Union Birds Directive (SI 31/1995) - Bourn Vincent Memorial Park Bye-Laws (SI 234/1971), bye law 3(9) - Heritage (Transfer of Departmental Administration and Ministerial Functions) Order 1995 (SI 61/1995) - Heritage (Transfer of Functions of Commissioners of Public Works in Ireland) Order 1996 (SI 332/1996) - Heritage (Transfer of Departmental Administration and Ministerial Functions) Order 2002 (SI 356/2002) - Constitution of Ireland 1937, article 40.3.1 - Application dismissed (2009/770JR - McKechnie J - 13/5/2010) [2010] IEHC 376

O'Sullivan v National Parks and Wildlife Service of the Department of the Environment, Heritage and Local Government

Facts: The applicant jarvey operators in Killarney National Park sought to challenge the lawfulness of the mandatory fitting of a dung-catching device to their cars by the respondent National Park and Wildlife Services. The respondents erected a series of bollards at strategic points which prevented the jarveys from entering the Park. These actions gave rise to the proceedings and the applicants had secured an interim injunction against the respondents. The applicants contended that the respondents had acted ultra vires and raised the question of whether due compliance could become a precondition for Park entry. The issue arose as to the provisions of the Bourn Vincent Memorial Park Act 1932 and the State Property Act 1954 and the powers therein, as well as Bye-laws enacted in 1971. The respondents conceded that the restriction was fully within their powers as set out in the Act of 1932 and the 1971 bye-laws. It was argued that the steps taken by the respondents were in the nature of an administrative decision and not in the form of a legislative instrument.

Held by McKechnie J. that the power of imposition was a power exercised for the management, maintenance and control of the Park. Preventative steps would also be classified as acts or incidents of management, maintenance and control. The suggested requirement was squarely within the powers of the respondents as set out in the Act of 1932. There was nothing unusual in their provisions. The respondents could have opted for different provisions to impose the impugned condition. The enforcement by restriction was lawful. There had been no unjust attack on the property rights of the applicants or any unjustifiable difference in treatment. The imposition of the requirement was not unreasonable as a matter of law. The requirement was not disproportionate to the underlying problems or refusal of the jarveys to engage.

Reporter: E.F.

Introduction:
1

1. Killarney National Park is unique: Killarney jarveys are unique: both are in conflict in unique circumstances.

2

2. Killarney National Park, which is the first national park established in Ireland, was created when Muckross Estate was donated to the State in 1932. The presentation was that of Senator Arthur Rose Vincent and his parents-in-law, Mr. and Mrs. William Bowers Bourn, in memory of the Senator's late wife Maud. The nucleus of the Park remains the 10,700 acres which since the gift, has been known as the Bourn Vincent Memorial Park. Since then, however, lands of the Grosvenor Kenmare Estate, McShain (Innisfallon), Islands in Lough Leana, McShain (Glena), Villears-Stewart (Incheens) Kenmare Estate, McShain Estate, Edward Dawney and Mary McCabe (Incheens), have all been incorporated. As a result, the National Park in all comprises over 25,000 acres of diverse ecology including the Lakes of Killarney, much woodland of international importance and many mountain peaks. This Park is protected under regulations implementing the EU Habitats Directive ( S.I. No. 94 of 1997) and the EU Birds Directive ( S.I. No. 31 of 1995) as well as having UNESCO Biosphere Reserve designation (1981). It is managed on behalf of the State by the Department of the Environment, Heritage and Local Government, through its National Parks...

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