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Development by Commissioners of Public Works was not exempt from planning permission

By: Mark Tottenham BL

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Supreme Court, in two cases concerning the powers of the Commissioners of Public Works, determines that the Commissioners were not exempt from seeking planning permission in relation to certain development, on the grounds that: (a) there was no general principle of non-applicability of general legislation to the State or to State agencies, on the grounds that any such 'Crown prerogative' did not survive the enactment of the Constitution and such a principle would disturb the necessary constitutional balance between the rights of the State and the rights of the individual; and (b) an alleged ambiguity between two sections of the relevant legislation did not entitle the court to imply into the legislation an exemption from planning permission for development carried out by the Commissioners.

Finlay CJ (nem diss): Judicial review - development of visitor centre in place of historic natural interest (Burren) - whether development was illegal - restraint on development - whether Commissioners of Public Works were exempt from requirement of seeking planning permission - separate proceedings relating to interpretative centre at different site - (Wicklow) - section 27 of the Local Government (Planning and Development) Act 1963 - appropriate legal principles - meaning of development - exempted developments - power of Minister to make regulations in relation to exempted developments - section 90, Act of 1963 - construction of statutes - s 84 - requirement that state authority consult with planning authority - whether meaning clear and unambiguous - presumption that legislature intended legislation to have some rational effect - presumption against application of general statutes to the State or to State authorities - further submissions - whether legislature intended requirements of planning permission to apply to Commissioners in carrying out works - concept of 'Crown prerogative' - whether work was exempted - whether Commissioners prohibited from carrying out works.

"Having carefully considered the submissions which were made to the Court, I have come to the conclusion that there is not any principle deriving from the provisions of the Constitution or from the common law applicable in Ireland which presumed that a general statute does not apply to the State or State agencies unless it is either expressly so applied or must so apply by necessary implication. I am also satisfied that there is no such principle which presumes that a general statute applies to the State and to State authorities unless they are expressly exempted from its application or an exemption of them from its application must necessarily be implied from the Statute.
...
I appreciate that it can be urged that an element of certainty arises from a presumption of non-application, unless expressly made, or by necessary implication arising. It does not seem to me, however, that such a consequence would be a sufficient justification, notwithstanding its practical advantages, in relation to certainty, for the introduction of a presumption which would appear to disturb what might otherwise be considered as a necessary constitutional balance between the rights of the State and the rights of the individual.
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The combination, however, of what appears to be the unambiguous meaning of the words contained in section 24 in respect of a building constructed by the Commissioners and the equally unambiguous terms of the words contained in section 84 as leading to an incongruous or even an absurd result, cannot in my view, upon the principles applicable, entitle the courts in interpreting this statute to insert, as it were, into section 24 an implied exemption for development of any description carried out by the Commissioners of Public Works which is nowhere expressed in that section."

Denham J (concurring): Interpretation of statutes - whether a specific rule of construction - presuption regarding legislation and the executive - whether Commissioners required to seek planning permission for a development under s 24 of the 1963 Act - special position of executive - history of Crown not being bound by statute - prerogative of immunity from suit - whether immunity survived enactment of 1922 constitution or 1937 constitution.

"The presumption in favour of the Crown was founded on the concept of the King in a feudal society. The prerogative of the Crown is not a concept which in this context was carried over and vested in the State."

Walsh J (concurring): Special position of executive - feudal roots - whether laws made by rulers for subjects - Australian and Canadian authorities.

"The Constitution is derived from "the people" of Ireland. It is a sovereign, independent, democratic state; Art. 5. The state, legislative, executive or judicial, is not above the law."

"Thus the essence of the Constitution is that there is a government with three independent arms, which each independently carry out their governmental duties. The separation of powers is the kernel of the democratic state set up under the Constitution. While the checks and balances of the separation of powers establish a system wherein one arm of government in general is not favoured over the other, neither in general does one encroach upon the other, although in certain circumstances there are rights of intervention by one upon the boundaries of another, as set out in the Constitution. In general the boundaries of the three organs remain intact. By such a balance is the modern democratic state achieved."

O'Flaherty J (dissenting): State land - State Property Act - State authority - whether planning legislation applied to the State - intention of legislature - whether presumption existed that State not bound - other jurisdictions - 1963 Act -

"In sum, I believe that the workings of a parliamentary democracy such as ours would be well served by such a rule as this - it provides a rudder for a craft of the State - though I reiterate that it would be open to the legislature to provide by a general provision in an Interpretation Act or in any individual Act that the State should be bound. I justify this belief because these present cases, important though they may be to the immediate litigants, have unveiled a problem of the most fundamental importance in the matter of statutory interpretation. It is a problem that very likely will continue to surface. Having had such extensive submissions, I believe there will not be a better time to afford a definitive answer. The answer I would provide in the instant cases is that the State has not been expressly or by implication bound by the particular legislation in question."

"It seems to me to be inconceivable that Section 84 would have been inserted in the 1963 Act if it was intended that the Commissioners were required to apply for a planning permission."

Egan J (dissenting): Whether section 24 applied to Commissioners - State authority.

"If sec. 24 which, subject to its own exceptions, requires planning permission, could be said to apply to the Commissioners in the two cases we are dealing with, why was sec. 84 enacted? It makes little sense to me that mandatory provisions should be made for undefined consultation with the planning authority or the Minister for Local Government if, at the end of such consultation, application for permission had still to be made to the planning authority. I am satisfied that there must be another explanation for the insertion of sec. 84 and that the reason is to define the obligations of a state authority before undertaking the construction or extension work referred to in the section. This explanation would mean exemption from the requirements of sec. 24."

Blayney J: Whether State bound by legislation - presumption or special rule of construction - whether 1963 act applied to Commissioners - s 24.

"S. 84 is very limited in its scope. It applies only to the construction or extension of a building. So, if it were to have the effect of relieving the Commissioners from applying for planning permission, it could only do so in respect of the construction or extension of a building. But the two interpretative centres they are constructing involve much more than just buildings. The Mullaghmore Centre includes a waste treatment plant, storage tanks, and a car park covering an area of 6,500 square metres, and the Luggala Centre includes forecourts and parking facilities for 180 to 200 cars and 5 or 6 coaches. No possible interpretation of s. 84 could relieve the Commissioners from applying for planning permission for these additional entities which are not buildings but which clearly are development. So the Commissioners would in any event need to obtain planning permission for them."

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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