archive-ie.com » IE » S » SUPREMECOURT.IE

Total: 1020

Choose link from "Titles, links and description words view":

Or switch to "Titles and links view".

  • as made is ultra vires the provisions of section 16 of the Act 18 The appellant draws a parallel with s 213 of the Planning and Development Act 2000 which allows local authorities to acquire land for both immediate and future use It is submitted that according to subs 3 of s 213 as interpreted in Clinton v An Bord Pleanála No 2 2007 IESC 19 2007 4 I R 701 Clinton No 2 where a local authority wishes to acquire land compulsorily that is not required for immediate use it must have a declared purpose for which the property is required and this must be made known If the land is required for a future use rather than an immediate use and where the intended purpose is not known the land may only be acquired by agreement In the absence of a comparable provision in the relevant industrial legislation s 16 of the 1986 Act cannot be used in the manner in which it has 19 The admission referred to above para 17 is also relevant in another way As will be recalled the IDA must comply with the s 16 proviso of the 1986 Act before it can exercise powers of a compulsory nature Those provisions refer to certain matters that directly relate to the industrial undertaking which it is intended will develop these lands It must therefore follow according to the submissions that some particular undertaking has to be identified against which the provisions of the s 16 proviso can be measured As no undertaking has been identified to date the appellant submits that it is therefore impossible to satisfy the proviso Accordingly the compulsory purchase order is also invalid on this ground 20 The appellant also submits that any land acquisition under s 16 of the 1986 Act must be undertaken having regard to the constitutional rights of the land owner In this light the interference with the appellant s constitutional rights should be the least necessary Mr Reid refers to the twin protection of his property rights under Articles 40 3 and 43 of the Constitution of Ireland He also refers to his right to the protection and security of his dwelling under Article 40 5 It is submitted that the trial judge failed to have proper regard to these safeguards In support the appellant relies on The People D P P v Barnes 2006 IECCA 165 2007 3 I R 130 Wicklow County Council v Fortune 2012 IEHC 406 and Clinton No 2 The last mentioned case is extensively cited on his behalf in particular where Geoghegan J refers to the protection of the constitutional rights of land owners where acquisition is not by agreement The learned judge when commenting on such situations said that the acquiring authority must be satisfied that the acquisition of the property is clearly justified by the exigencies of the common good Clinton No 2 at p 724 It is argued that this test is not satisfied in the present case 21 As in the High Court Mr Reid raises in this appeal the issue of objective bias with regard to the Chairman of the IDA who took part in both the original and final decision to acquire his lands He was also a director of the firm which carried out a report on the suitability of such lands for IDA s purposes This position of the Chairman was not as such disclosed it emerged only very late in the day during the hearing conducted by the adjudicator It is submitted that the facts as outlined meet the test for objective bias set out in Bula Ltd No 6 in that a reasonable person informed of all of the facts would reasonably perceive the existence of such bias 22 The appellant argues that on the failure to give reasons issue the High Court should have had more regard to the two decisions of the Supreme Court in Meadows v Minister for Justice 2010 IESC 3 2010 2 I R 701 and in Mallak v Minister for Justice 2012 IESC 59 2012 3 I R 297 He alleges that the lack of such reasons has prejudiced his ability to fully challenge the decision s made by the IDA 23 It is also said that the proportionality test as laid down by Costello J in Heaney v Ireland 1994 3 I R 593 requires that the objective of the restrictions resulting from the impugned provisions must be of sufficient importance to warrant overriding a constitutional right and that in this case the uncertainty with regard to the industrial undertaking for which the lands would be needed resulted in a lack of proportionality in the decision of the IDA 24 Finally the appellant submits that he has a constitutional right to an independent arbiter and that the principle of nemo iudex in causa sua applies in this case even though the trial judge arrived at a contrary conclusion In this regard it is claimed that s 16 of the 1986 Act is unconstitutional as it does not provide for such an arbiter In addition he argues that this provision is also in contravention of article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms and of articles 6 and 8 of the European Convention on Human Rights Submissions of the First Named Respondent IDA 25 The IDA submits that despite the fact that under the 1986 Act it has the power to take possession of the lands and dwelling by compulsion it instead sought in the first instance to acquire the lands by agreement When this failed it made the decision in issue which decision was made fairly and lawfully based on the material before it and in accordance with the provisions of s 16 of the 1986 Act The IDA emphasises that the appellant was afforded legal representation and that he had the benefit of an expert witness both at the expense of the IDA further that he made submissions at the hearing before the adjudicator as well as been given the opportunity to cross examine the witnesses called on behalf of the Authority The process was therefore entirely open and fully transparent 26 It is denied that the first named respondent has inadequately defined the purpose for which the lands are being acquired on the contrary that purpose has at all times been made abundantly clear It is the position of the IDA that the powers under s 16 of the 1986 Act are not comparable to the provisions of s 213 of the Planning and Development Act 2000 the 2000 Act which allows local authorities to acquire land However the IDA says that the case law interpreting s 213 of the 2000 Act Clinton No 2 has confirmed that it is not essential that a particular development purpose be indicated as a justification for acquiring land Where such a purpose has not been identified however it agrees that the local authority must acquire the land by agreement With regard to the meaning of the word purpose as contained in s 16 of the 1986 Act it is the submission of the IDA that the purpose for which it seeks to acquire the land is for industrial development and that this requirement of s 16 is thus satisfied in the instant case 27 The first named respondent states that contrary to the assertion made by the appellant whilst the subject lands are not zoned and therefore may not currently be used for industrial development that of itself does not preclude future development for such purposes It simply means that steps have to be taken to regularise the planning status of the lands 28 With regard to the decision in Clinton No 2 upon which the appellant relies the first named respondent argues that the explanation given by the President of the High Court in that case with regard to the meaning of the word purpose is correct as it was upheld by the Supreme Court on appeal The learned judge Finnegan P defined purpose as a statutory purpose meaning any of the statutory purposes under which the Dublin City Council operated According to the submissions the Court held that this did not mean a particular scheme of development As a matter of fact this submission is not correct as a reading of the judgment of Geoghegan J will demonstrate 29 With regard to the obligation to give reasons for its decision the IDA claims that the learned trial judge s conclusions in this regard are correct The High Court found that the statement by the Board of the IDA that the statutory test contained in s 16 of the 1986 Act had been satisfied was a sufficient discharge of its duty in this regard In response to the argument that more detailed reasons should have been provided so as to facilitate any legal challenge the IDA states that when one considers the overall process which led to its decision and the extent of the appellant s participation in it it seems quite evident that Mr Reid was fully aware at all times of the Board s reasons Furthermore in Clinton No 2 the Court rejected a similar argument grounded on the alleged absence of reasons 30 On the issue of bias the IDA again adopts the approach of the trial judge It is stated that the test for objective bias in this jurisdiction is that as outlined in Bula Ltd No 6 and other similar cases The respondent submits that the Chairman of the IDA was a non executive director of the consultancy firm which was retained by the IDA to advise in relation to the merits inter alia of the lands of the appellant However the connection of Mr O Mahony to this firm was fully disclosed to the IDA when he was first appointed to this position in 2010 The IDA thus argues that this allegation is misplaced and that it is founded on an irrational perception of the situation as apparently held by the appellant Furthermore it is pointed out that the Chairman had no involvement in the retainer of the consultancy firm or in the preparation of the report drawn up by that body Accordingly in its submission the test of objective bias which requires the reasonable apprehension of a reasonable man of perceived or indirect bias is not met 31 The learned trial judge was also correct in dismissing the allegation that the making of the CPO was not proportionate in accordance with the principles set out in Meadows as between the authority and the landowner The IDA in support of this conclusion refers to the fact that the appellant is to be fairly compensated for his lands Furthermore in response to the submission that the IDA was acting as a judge in its own case contrary to the principle of nemo iudex in causa sua the IDA relies on O Brien which it says is consistent with the European Convention on Human Rights and with the Irish Constitution In O Brien the Supreme Court noted that the task of securing bog land for the public good was vested in Bord na Móna and that the use of its compulsory powers was the exercise of an administrative rather than a judicial function paras 8 and 16 5 supra The same is true of the IDA Further the respondent was not adjudicating upon parties rights nor was it making a decision for its own benefit at all times it was acting solely in the public interest 32 The first named respondent recognises that the Attorney General is the appropriate party to defend the constitutionality of the provisions in issue but it reserves the right to add its own submissions if called upon to do so by the Court Notwithstanding this it does say that its decision to compulsorily acquire the lands of the appellant does not unlawfully interfere with any of his constitutional rights It is submitted that none of the relevant rights provide absolute protection and that such rights are designed primarily if not solely to resist unlawful or disproportionate interferences The Submissions of Ireland and the Attorney General 33 In light of the decision arrived at in this judgment it is not necessary to refer in any detail to these submissions which correctly were confined to the constitutional and Convention issues It is sufficient to say that the State supports the continuing applicability of O Brien As the decision to compulsorily acquire is an administrative one lying towards the policy end of the decision making spectrum the process engaged in was in sufficient compliance with the property rights of the appellant Accordingly any of the requirements arising out of either the Constitution or the Convention were satisfied Discussion Decision 34 Just as Carmody v Minister for Justice Equality and Law Reform 2009 IESC 71 2010 1 I R 635 decided that constitutional issues should be determined before Convention issues a series of other cases such as The State P Woods v Attorney General 1969 I R 385 M v An Bord Uchtála 1977 I R 287 Murphy v Roche 1987 1 I R 106 and McDaid v Judge Sheehy 1991 1 I R 1 have decided that the constitutional validity of any statutory provision should not be embarked upon where an effective remedy based on other grounds is capable of resolving the lis between the parties Therefore I propose to deal with the matter in that way Accordingly I will commence with the issues directly arising out of s 16 of the 1986 Act which are both the ultra vires point and the proviso point para 15 supra The Ultra Vires Point 35 Under s 16 of the 1986 Act para 7 supra the IDA is given power for the purpose of providing or facilitating the provision of sites or premises for the establishment development and maintenance of an industrial undertaking a to acquire lands b to acquire rights over a variety of incorporeal hereditaments as well as over and in respect of water and c to terminate restrict or otherwise interfere with the rights last mentioned The exercise of any of these rights is subject to the terms of the proviso specified in that section i e the s 16 proviso Although quoted above para 7 supra it is worth referring to that provision once again It reads if the Authority i considers that industrial development will or is likely to occur as a result and ii is satisfied that the undertaking conforms or will conform to the criteria set out in subs 3 and 4 of s 21 or s 25 2 36 Both of these requirements are cumulative and their joint compliance is a condition precedent to the exercise of the powers conferred by the section That this is so is not in dispute Therefore the Authority must be satisfied a that industrial development will or is likely to occur and b that the industrial undertaking conforms or will conform to the criteria mentioned in s 21 3 and 4 of the 1986 Act or in s 25 2 thereof As can thus be seen the legislature has expressly linked the exercise of compulsory powers to the conditions specified in the s 16 proviso These conditions therefore have been incorporated into and form an integral part of the compulsory purchase process itself In fact such requirements equally apply to land acquired by agreement 37 Section 21 is in Part III of the 1986 Act and is headed Industrial Incentives as it gives the IDA responsibility for providing the support structures as outlined it is not difficult to understand the reasons underlying the linkage which I have referred to Subsections 1 and 2 of s 21 give the Authority power of a general nature to make grants and they set out how the maximum amount of any such grant is to be calculated Subsections 3 and 4 read as follows 3 This section applies to an industrial undertaking in respect of which the Authority is satisfied that it a will produce products for sale primarily on world markets in particular those products which will result in the development or utilisation of local materials agricultural products or other natural resources or b will produce products of an advanced technological nature for supply to internationally trading or skilled sub supply firms within the State or c will produce products for sectors of the Irish market which are subject to international competition or d is a service industry as specified by the Minister by order under section 3 4 The industrial undertaking shall also satisfy the Authority that a financial assistance is necessary to ensure the establishment or development of the undertaking b the investment proposed is commercially viable c it has an adequate equity base d it has prepared a suitable company development plan and e it will provide new employment or maintain employment in the State that would not be maintained without assistance given under this Act and increase output and value added within the economy As will be observed subs 3 is satisfied if any one of the specified matters is met whereas each of those mentioned in subs 4 must be in place before that provision is complied with 38 Section 25 2 reads 2 An employment grant may be made where in the opinion of the Authority the service industry would contribute significantly to regional and national development and in particular a would be commercially viable b would have good prospects for growth and c would not be developed in the absence of an employment grant 39 The issues thus arising are whether these provisions when properly interpreted in the contextual setting in which they are positioned permit the acquisition of lands not required for immediate use That is has the IDA power to assemble a land bank otherwise than by agreement the vires point and secondly in circumstances where the Authority has not identified the industrial user which will ultimately benefit from such acquisition how can it be satisfied as it must be that the conditions precedent as outlined in the proviso for the exercise of compulsory powers have been met As expressed it might be thought that these two matters closely resemble each other but the emphasis relative to the vires i ssue is on the power to acquire land not required for immediate use but which would be available if and when a potential industrial user might require it whenever that might be On the other hand the emphasis regarding the proviso point is on due and proper compliance with the statutory preconditions 40 The right to own what is one s own is as ancient as the earliest form by which unit groups of society regulated the affairs of those within them Intrinsic to such a right is an entitlement to undisturbed enjoyment of one s property and if necessary the right to rebuff all unwelcome interferences with it This right has always been recognised as a bedrock of the common law with Blackstone describing it as the third absolute right inherent in every Englishman Commentaries on the Laws of England 176 Vol 3 138 In 1937 the right acquired recognition at the highest level of our legal order It has been endorsed in several other Constitutions throughout the world and it can be found expressly conferred in many international instruments such as the Universal Declaration of Human Rights the European Convention of Human Rights the Convention and the Treaty on the Functioning of the European Union as well as in the EU Charter to name but a few Its importance therefore is at the forefront of democratic institutions worldwide 41 Article 40 3 1 of the Constitution gives protection at a fundamental personal rights level to the property rights of every individual That protection is enhanced by the provisions of Article 43 which acknowledge that the right to private ownership of external goods which it describes as a natural right inures to man by virtue of his rational being and treats its historical origin as being antecedent to positive law These provisions are phrased in general terms and embrace virtually all forms of property whereas Article 40 5 offers specific protection as regards one s dwelling house describing it as being inviolable All of these constitutional provisions but in particular those first mentioned inform each other 42 Like the vast majority of rights conferred at the individual level it has been recognised for a considerable period that from time to time the enjoyment of such rights may have to accommodate the wider needs of society as a whole Accordingly provision has been made that the exercise of such rights ought in civil society to be regulated by the principles of social justice and could be restricted with a view to reconciling their exercise with the exigencies of the common good Article 43 2 1 and 43 2 2 of the Constitution Therefore whilst the right to have and to retain one s property is safeguarded at the highest level possible within our system of law nevertheless when it becomes necessary to facilitate the common good there will inevitably be to some degree or other an interference with the exercise of these rights See Central Dublin Development Association v Attorney General 1975 109 I L T R 69 for a useful summary of these constitutional provisions 43 The exercise of compulsory powers against the wishes of an objecting landowner is clearly a major interference with the property rights of such person Keane J in O Brien said at p 270 In each case the person exercising the function is determining whether the constitutionally guaranteed rights of the citizen in respect of his private property should yield to the exigencies of the common good Though reversed on other grounds this passage remained untouched by the Supreme Court Much the same was said by Costello P in Crosbie v Custom House Dock Development Authority 1996 2 I R 531 both of which observations were endorsed specifically by Geoghegan J in Clinton No 2 44 Whilst the existence of such a power which apparently stretches as far back as 1541 has been upheld by the Courts across a wide variety of public bodies or bodies performing public functions for many years nonetheless certain well described principles have now been established which depending on circumstances will be applied in determining the outcome of any challenge to the invocation of such a power For the purposes of this case the following can be said i The conferring and exercise of statutory powers in this regard must accord with the Constitution and must respect and implement the principles of both natural and constitutional justice There has never been any doubt but that such applies to any state interference with property rights Foley v Irish Land Commission 1952 I R 118 Nolan v Irish Land Commission 1981 1 I R 23 ii The impact on the right to private property which can vary from the minimal to the absolute as in this case where the entire holding including the family dwelling house is sought to be expropriated must be justified or necessitated by the exigencies of the common good which will of course have regard to the principles of social justice iii Even where so justified compensation will virtually always be an important aspect of constitutional protection iv The conferring and exercise of such power must be granted and carried out in such a way that the impairment of the individual s rights must not exceed that which is necessary to attain the legitimate object sought to be pursued In other words the interference must be the least possible consistent with the advancement of the authorised aim which underlines the power v Such power must be expressly conferred by statute on the body which seeks to implement it Further where constitutional rights are abrogated by statutory intervention such provisions must be construed in a way which gives full effect to above principles vi As the 1986 Act is a post constitutional statute there is a presumption i nter alia that all steps taken within and as part of the compulsory process will be duly compliant with the aforesaid principles East Donegal Co operative Livestock Mart Ltd v The Attorney General 1970 I R 317 45 Whilst I readily recognise the distinction between the exercise of compulsory purchase powers which carry with it the provision of compensation as provided for by law and the rights which a search warrant confers on investigating agencies nonetheless there is a good deal of similarity between both in that constitutional rights are being lawfully interfered with potentially resulting in very serious consequences for those affected by the exercise of such powers Accordingly the observations which I have emphasised in the following passage by Keane J in Simple Imports Ltd v Revenue Commissioners are apt to apply At p 250 of the report the learned judge said Search warrants such as those issued in the present case entitle police and other officers to enter the dwelling house or other property of a citizen carry out searches and in the present case remove material which they find on the premises and in the course of so doing use such force as is necessary to gain admission and carry out the search and seizure authorised by the warrant These are powers which the police and other authorities must enjoy in defined circumstances for the protection of society but since they authorise the forcible invasion of a person s property the courts must always be concerned to ensure that the conditions imposed by the legislature before such powers can be validly exercised are strictly met emphasis added Therefore in addition to the matters listed in the preceding paragraphs any condition s precedent must be strictly adhered to before the exercise of such power can be regarded as valid 46 It has never been denied by the IDA that at the date of the making of the CPO it did not have a particular industrial undertaking in mind for which these lands were being acquired That this is so appears irrefutably from the evidence in particular from the affidavit of Mr Barry O Leary sworn on 8th March 2013 Having stated that the subject lands are of particular strategic importance for the specialised type of industrial use identified by the IDA Mr O Leary at paras 9 10 and 12 thereof states that 9 IDA s property solutions is a pivotal component in winning these new investments and job targets Having appropriate and timely property solutions tailored to the needs of prospective multi national clients has been the key contributor to winning FDI for Ireland The empirical records of international research have demonstrated the rationale for a pro active national property development programme The availability of suitable property solutions is a key element in the decision making process undertaken by prospective investors Therefore the availability of quality property solutions is a critical component underpinning the winning of FDI and jobs This is especially true where FDI require large scale infrastructure including utilities access and communications 10 The model of acquisition and development of suitable and appropriate sites by IDA is both proven and established and underpins the securing and winning of global investments in Ireland Furthermore this model has enabled the development of clustering in the physical academic and related business spectrums Therefore it cannot be overly emphasised the importance of being able to acquire lands so that in negotiations with a particular industry or undertaking either where that industry or undertaking wishes to expand its existing operations or where it seeks to choose Ireland for the first time for its investment IDA can point to land which it can secure for such an investment and this can make the difference between Ireland securing high quality investment relative to other countries with which it competes on a world level 12 The M4 cluster in North Kildare equally presents significant opportunities for winning new investment and jobs This M4 cluster currently supports the employment of approximately 7 500 in IDA client companies Intel and HP 47 As a result of and based on this evidence the only reasonable conclusion which can be drawn is that the intended acquisition of Mr Reid s lands is not because such lands are presently required by the IDA but rather that such are for future use so that if and when a particular undertaking should seek to develop them they would be immediately available at such time In consequence it is suggested on behalf of Mr Reid that what the IDA is in fact doing is acquiring a land bank for potential and prospective future use Such characterisation is I think legitimate in light of Mr O Leary s evidence 48 It is not suggested that the power to acquire by compulsion lands intended for future use is to be found anywhere other than within s 16 of the 1986 Act Disregarding the s 16 proviso for a moment that section in conferring such powers is in standard form and shares the phraseology used with many other statutes which also provide for such powers including s 213 2 a of the Planning and Development Act 2000 the 2000 Act which heavily featured in much of the debate in this case In fact subs 3 was even more prominent for a number of reasons which I will refer to in a moment The entire section reads as follows 213 1 The power conferred on a local authority under any enactment to acquire land shall be construed in accordance with this section 2 a A local authority may for the purposes of performing any of its functions whether conferred by or under this Act or any other enactment passed before or after the passing of this Act including giving effect to or facilitating the implementation of its development plan or its housing strategy under section 94 do all or any of the following i acquire land permanently or temporarily by agreement or compulsorily ii acquire permanently or temporarily by agreement or compulsorily any easement way leave water right or other right over or in respect of any land or water or any substratum of land iii restrict or otherwise interfere with permanently or temporarily by agreement or compulsorily any easement way leave water right or other right over or in respect of any land or water or any substratum of land and the performance of all or any of the functions referred to in subparagraphs i ii and iii are referred to in this Act as an acquisition of land b A reference in paragraph a to acquisition by agreement shall include acquisition by way of purchase lease exchange or otherwise c The functions conferred on a local authority by paragraph a may be performed in relation to i land or ii any easement way leave water right or other right to which that paragraph applies whether situated or exercisable as the case may be inside or outside the functional area of the local authority concerned 3 a The acquisition may be effected by agreement or compulsorily in respect of land not immediately required for a particular purpose if in the opinion of the local authority the land will be required by the authority for that purpose in the future b The acquisition may be effected by agreement in respect of any land which in the opinion of the local authority it will require in the future for the purposes of any of its functions notwithstanding that the Authority has not determined the manner in which or the purpose for which it will use the land c Paragraphs a and b shall apply and have effect in relation to any power to acquire land conferred on a local authority by virtue of this Act or any other enactment whether enacted before or after this Act 4 A local authority may be authorised by compulsory purchase order to acquire land for any of the purposes referred to in subsection 2 of this section and section 10 as amended by section 86 of the Housing Act 1966 of the Local Government No 2 Act 1960 shall be construed so as to apply accordingly and the reference to purposes in section 10 1 a of that Act shall be construed as including purposes referred to in subsection 2 of this section 49 As can immediately be seen the basic power to compulsorily acquire land as given in s 16 1 a b and c of the 1986 Act is virtually the same as that outlined in s 213 2 a i ii and iii of the 2000 Act However that is where the similarity between the sections stops Of striking note is the fact that in 2000 the Oireachtas saw fit to include subs 3 in s 213 whereas of course no such provision is to be found in the 1986 Act 50 The analysis of this subsection as contained in Clinton No 2 is of course of interest but the subsection s real significance for the issue presently under discussion is not so much as to what constitutes a particular purpose but rather that the provision also deals with land required for future use Under s 213 3 a of the 2000 Act compulsory powers are available where land is so required but only where the particular purpose for its acquisition is already known and disclosed by the local authority Under subs 3 b of s 213 land cannot be compulsorily acquired for future use where the authority has not determined the manner in which or the purpose for which the lands will be so used Therefore the subsection deals with two related but quite distinct matters namely the presence or absence of a particular purpose grounding the use of such powers and secondly the acquisition of a land holding for future use 51 It must be presumed that the Oireachtas had a particular reason for inserting subs 3 into s 213 of the 2000 Act Evidently it must have thought that the basic acquisition powers as set out in subs 2 did not or at least did not without ambiguity or uncertainty cover the acquisition of land required only for future use Thus the conferring of powers on local authorities to do so The various conditions attaching to the use of such power does not in any way take from the perceived necessity to confer it In fact one can see quite a discerning approach by the Oireachtas as regards future use in that it has distinguished between circumstances where the lands are and are not earmarked for a particular purpose In conferring compulsory powers in the former situation the legislature in a controlled way is facilitating the orderly functioning of a local authority whereas in denying such a power where land banking is the sole purpose it is reflecting due respect for a landowner s property rights This is entirely consistent with the constitutional provisions and case law above mentioned Whether the balance so provided for is sufficient in all circumstances is of course not a matter for this judgment It is the enactment of a specific provision dealing with future use which is significant 52 The resulting contrast between the provision which is relied upon in this case as conferring a similar power and s 213 of the 2000 Act is striking In my view s 16 of the 1986 Act does not confer any power on the IDA to acquire lands not required for immediate use but which might be utilised at some future time For such to be the case there would have to be an express statutory provision to that effect That is not to be found in the

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/badf314b9fcbd00280257ef90038ac17?OpenDocument&TableRow=2.2 (2016-02-09)
    Open archived version from archive


  • said and was said on this appeal that the question which arises is whether a public authority should be immune from liability for negligence which causes foreseeable harm when a private person or body would not However it is also argued that this is not a helpful way to frame the question No private person is for example permitted or required to exercise police powers Public authorities do not carry out those functions for private gain or out of personal choice and are not permitted to avoid their responsibilities because of the risks involved As Lord Toulson put it in Michael v Chief Constable for Wales 2015 2 W L R 343 at para 114 echoing earlier observations of Lord Hoffman in Stovin v Wise It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose through organisational defects or fault on the part of an individual the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible The conceptual issues can be particularly acute in the field of policing crime prevention and crime prosecution On the one hand the public policy objectives in pursuing criminality are important and anything that could interfere with that task and the resources necessary to perform it is to be avoided On the other hand the public and private harm caused by police failure is very substantial 15 Since the decision in Hill there has been a large number of cases in the UK on the general area of the private law duty of care of public authorities and also in the specific context of crime prevention prosecution and investigation Some cases have sought to explore whether the general principle of non liability in Hill is subject to exceptions qualification or distinction if the error is said to arise due to operational risk rather than policy choices or where it is alleged the negligence passes some higher threshold of gross negligence or default or where it is suggested that the particular fact situation gives rise to a limited and targeted duty to an identifiable person See by way of example Rigby v Chief Constable of North Hamptonshire 1985 1 W L R 1242 Brooks v The Metropolitan Police Commissioner 2005 1 W L R 1495 and Chief Constable of Hertfordshire Police v Van Colle and Smith v Chief Constable for Sussex 2009 1 A C 225 16 These developments have occurred in parallel with and have been influenced by cases exploring the impact of the European Convention on Human Rights the Convention on domestic law This arises both in the traditional manner of a complaint to the Court in Strasbourg about the legal protection available in a member state and indirectly from the incorporation of the Convention in domestic law in the UK by the Human Rights Act 1998 and in Ireland by the European Convention on Human Rights Act 2003 While there are subtle and important differences between these pieces of legislation both impose an obligation on public authorities to respect the Convention and contemplate a claim for damages for breach of that duty 17 In an early case Osman v The United Kingdom 2000 29 E H R R 245 the European Court of Human Rights ECtHR treated the case law as establishing an immunity for public authorities which it considered was disproportionate and in breach of Article 6 1 of the Convention This was met with polite but forceful criticism by the UK domestic courts and in Z v The UK 2002 34 E H R R 3 the ECtHR acknowledged that the case law establishing that there was no duty of care in negligence in certain situations was at least in principle compatible with the Convention However it might be said that the outcome of these cases meant and still means that domestic tort jurisprudence in common law countries is capable of being tested against the Convention 18 These developments have particular significance in the present context since the ECtHR found somewhat controversially in O Keeffe v Ireland 2014 59 E H R R 15 that there had been a violation of Article 3 of the Convention in that Irish law did not provide an effective remedy in respect of the plaintiff s complaints of sexual abuse at the hands of a teacher The controversial aspect of the judgment articulated in the dissenting judgments arose in part from the fact that the court appears to have assumed that no action lay in Irish domestic law either under the existing torts or by way of constitutional tort and that it was therefore not necessary to exhaust national remedies in that regard This was so even though that issue had not been squarely addressed in litigation in this Court Cases involving a claim of liability of the State might involve a consideration of the assumptions made by the ECtHR in O Keeffe v Ireland and the decision in that case and its implications in Irish law 19 In a different though related development it appears to be accepted that an action will lie for damages under the Act of 2003 for breach by the State of its Article 2 obligation to protect life This will be applicable only in those cases where it is alleged that police failures have led to the death of an individual and thus is not directly relevant here However in a relatively recent judgment the High Court of England and Wales Greene J has also held that an action for damages under the Human Rights Act 1998 will lie for breach of the State s obligation under Article 3 to investigate torture and degrading treatment which can arise in the case of investigation of crimes such as rape In DSD NBV v Commissioner for Police of the Metropolis 2014 E W H C 436 QB DSD the Court had to consider claims brought by the victims of a notorious serial rapist who alleged that failure to apprehend the perpetrator was a breach of the State s obligations under Article 3 of the Convention Greene J held that an action did lie in the circumstances of that case This decision was appealed in Commissioner for Police of the Metropolis v DSD NBV 2015 E W C A Civ 646 wherein the Court dismissed the appeal The decision of the Court of Appeal of England and Wales was not available when these cases were argued in this Court 20 In an important recent Northern Ireland case C A Person Under A Disability v The Chief Constable of the Police Service of Northern Ireland 2014 N I Q B 63 Gillen J considered an application to strike out pleadings alleging that culpable failure to investigate a rape allegation caused extreme upset distress and psychiatric injury to the Victim In the light of the decision in DSD Gillen J refused to strike out a claim for damages under the Human Rights Act 1998 However he also refused to strike out the claim in negligence because it was possible that the development of the law in negligence may be affected by developments in the field of the Convention observing I suspect that the last drop of ink has not been spilt on this issue This decision has some resonance in this jurisdiction since the procedure and practice of the Courts of Northern Ireland is closely related to that which applies in this jurisdiction coming as they do from a common source 21 The developments of the law in the UK and elsewhere have been carefully reviewed and analysed in an important recent judgment of the UK Supreme Court Michael Others FC v The Chief Constable of South Wales Police and Another 2015 2 W L R 343 Michael This case involved a claim on behalf of the parents and children of a victim of a shocking murder The victim Ms Michael had contacted the emergency 999 number because her violent and aggressive ex boyfriend had assaulted her and had threatened to return to kill her Because of inadequacies in the handling of the call the relevant police service was not mobilised with sufficient urgency and Ms Michael was brutally attacked and stabbed by her ex boyfriend He was apprehended pleaded guilty to murder and was sentenced to life imprisonment 22 Perhaps the central issue in Michael was whether there was an exception to the Hill principle which rejected a general duty of care on the basis of a limited and targeted duty to an identifiable individual arising on the facts of the case This broadly followed the observations of Lord Bingham of Cornhill in Chief Constable of the Hertfordshire Police v Van Colle and Smith v Chief Constable of Sussex Police 2009 1 A C 225 It was also argued that the circumstances gave rise to an assumption of liability on the part of the police services 23 In Michael the UK Supreme Court reviewed the law of a number of common law jurisdictions Briefly it appears that the Australian courts and the State Courts in the United States took broadly the same approach as that in Hill In New Zealand however the Court of Appeal overturned a decision striking out such a claim In Canada and South Africa it was possible to establish liability at common law for negligent police actions The UK Supreme Court noted the two judgments under appeal together with another decision of the High Court as indicating that the Irish Courts had consistently held that the police owed no private law duty of care in respect of the investigation and prosecutorial functions By a majority the Supreme Court in Michael reaffirmed the Hill principle However Lord Kerr and Lady Hale dissented and would have permitted a negligence claim to proceed on the basis that the particular facts created a duty of care to the victim It is noteworthy that the Court in that case was only concerned with the common law claim in negligence It was accepted that the Article 2 claim could proceed to trial 24 I should emphasise that this is only the briefest outline of developments in the common law world and is not intended to indicate any settled or even tentative view on the many issues which arise It is sufficient however to observe that the preliminary issue raised in both cases is one which has involved a considerable legal debate at the highest level in other common law countries and a debate which it might be thought still has some distance to go In this regard it is particularly noteworthy that the decision in Michael has already generated considerable comment It has been described as arguably the third most important case after Donoghue v Stevenson and Hedley Byrne v Heller on the English law of negligence to be decided by the UK s highest court See McBride University of Cambridge Faculty of Law Research Paper 21 2015 Another commentator has suggested that it may well mark the beginning of a new era in duty of care jurisprudence in the UK and a willingness to break with Caparo Goudkamp A Revolution in Duty of Care 2015 131 L Q R 519 I mention these commentaries not to endorse them necessarily since neither they nor the decision in Michael were available when the submissions of most of the parties were made in this case but rather to illustrate the significance of the issues which are to be addressed in these cases 25 These cases appear to have been argued in the High Court on the basis that they were to be determined by reference to the general principle illustrated in W and Hill However as already mentioned these cases may themselves involve separate and important considerations which did not arise in Hill or Michael for example Even if it were possible and appropriate to permit a claim for negligence in respect of a failure to apprehend someone who later commits a crime and is later convicted of that crime does any such principle extend to a situation where the alleged perpetrator has not been charged or if charged whose trial has not proceeded or most significantly of all if a trial has resulted in a verdict of not guilty Even if it were possible in general to claim damages against the investigative or prosecution services itself a difficult issue as the discussion above illustrates would it be possible to do so in circumstances where any such claim might involve a contention that without such negligence the accused would or could have been found guilty It should be clear that very large questions of public policy could arise Is such a claim permissible What standard of proof would that require Would the acquitted person be a necessary party I mention these issues here in outline only and without any elaboration because they have not been addressed hitherto but any consideration of such issues and any refinement of them only illustrates the complexity and importance of these cases The Trial of a Preliminary Issue 26 These cases came before the High Court by applications made by the defendants to have preliminary issues of law tried to determine whether or not the defendants owed a duty of care in the circumstances of the case and arguably whether any actionable claim arose on the facts In detailed and helpful written submissions on behalf of the defendants in BL reference is made to a striking passage in the judgment of Lord Justice Jacobs in the Court of Appeal of England and Wales in M v Commissioner of Police of the Metropolis 2007 E W C A Civ 1361 Referring to certain comments as to the caution with which a court should approach the trial of a preliminary issue Jacobs LJ stated at para 44 I would only add that the history of the tort of negligence shows that Lord Browne Wilkinson s words of caution should not be regarded as too prescriptive After all many important authorities on the topic and especially about whether or not there was duty of care have been decided in strike out or preliminary point circumstances Mr Beer provided a list obviously not comprehensive it is an interesting game to think of others of House of Lords cases so decided Donoghue v Stevenson 1932 AC 562 Hedley Byrne Co v Heller Partners 1964 AC 465 Dorset Yacht Company v Home Office 1970 AC 1004 Anns v Merton London Borough Council 1978 AC 728 Hill v Chief Constable of West Yorkshire Police 1989 AC 53 Calveley v Chief Constable of Mersey 1989 AC 1228 Caparo Industries v Dickman 1990 2 AC 605 X v Bedfordshire County Council 1995 2 AC 633 Mark Rich Co v Bishop Rock Marine Co 1995 AC 211 Arthur JS Hall Co v Simons 2002 1 AC 615 D v East Berkshire Community NHS Trust 2005 2 AC 373 Brooke v Commissioner of Police of the Metropolis 2005 1 WLR 1495 The defendant s submissions in BL argued that these observations are equally applicable to this case 27 However in my view a consideration of the observations of Lord Justice Jacob reveals if anything a difference in the approach of the Irish courts and those of the UK The same observation simply cannot be made about the development of the Irish law of negligence The major recent cases in the Supreme Court such as Ward v McMaster 1988 I R 337 Siney v Dublin Corporation 1980 I R 400 Glencar Plc v Mayo County Council No 2 2002 1 I R 84 and O Keeffe v Hickey 2009 2 I R 302 are examples of cases which went to trial and were not determined on the trial of a preliminary issue Indeed the difference in outcome and approach can be illustrated by the fact that one very substantial piece of litigation in the recent past involved separate claims against the auditors of the failed Insurance Corporation of Ireland brought by the liquidators of the company and the purchasers of the company That raised of course the question of the liability of auditors of a company to purchasers of a company who relied upon the audited accounts in purchasing the shares in the company An application for a trial of a preliminary issue was however rejected Subsequently the House of Lords of the UK decided the same issue in Caparo Industries plc v Dickman 1990 2 A C 605 and did so on a preliminary issue 28 It is possible to speculate on reasons why there is such a significant divergence in practice between the two jurisdictions in an area where both the law and procedures have such marked similarities but it is impossible to deny that the difference exists Some of this may be traced to cultural differences and a preference in Ireland for the full oral hearing before a court It is also the case that until relatively recently Irish courts did not experience many lengthy and elaborate claims Some of the differences I suspect may also be traced to the existence during the period most of the cases referred to were decided of a generous civil legal aid system in the UK On the other hand plaintiffs actions for personal injuries and other claims in Ireland have often been dependent upon the willingness of a legal team to advance a claim on the hazard that if the claim failed they will receive no payment The imbalance in resources that can sometimes exist may lead a court sensitive to the risk that a claim with some merit may founder in an interlocutory war of attrition to a disposition to permit a claim at least to go to trial where the merits of the claim may be more apparent than at an earlier stage It is also perhaps the

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/099ebd9b1d7a3ece80257ef4005294ba?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • Ruddy filed on 24th January 2013 and the exhibits referred to therein While that affidavit is not before this Court counsel for the Bank without any objection from Mr Cagney furnished to the Court on the hearing of the appeal an exhibit specifically referred to in the order of the High Court dated 25th January 2013 as the letter of Mr Ruddy to Mr Cagney setting out the terms of a proposed settlement which arose out of a meeting between Mr Cagney and Mr Ruddy In broad terms the Bank proposed that in consideration of Mr Cagney discontinuing the relevant proceedings the overdraft facility of 15 000 would continue in place on the joint account subject to the Bank s usual terms and conditions including operating in a normal manner It was also indicated that the Bank would reconsider a recent loan application by one of the joint account holders if it was resubmitted Further it was open to the customers to apply for an increased overdraft facility which if the Bank agreed to provide it would be on the usual banking terms The letter envisaged the proceedings being struck out on consent with no order as to costs In the curial part of the order made by the trial judge on 25th January 2013 it was ordered that the undertaking of the Bank previously given do continue up to and including Friday the 15th February 2015 Further the Court gave directions that a Mr Cagney write to Mr Ruddy in response to that letter setting out the points of variance with Mr Ruddy s letter no later than 4th February 2013 and b Mr Cagney file an affidavit in reply to Mr Ruddy s affidavit on or before 6th February 2013 The motion was adjourned for hearing to 15th February 2013 7 Before the adjourned date Mr Cagney filed a notice of appeal in the office of the Supreme Court on 12th February 2013 In the notice of appeal he appealed the order of the trial judge dated 25th January 2013 specifically referring to the order that the undertaking of the Bank continue to the next adjourned date The notice further indicated that Mr Cagney would apply to this Court to have the trial judge removed from hearing the case as this case has not been set down for hearing In the grounds of appeal it was alleged that the orders of 28th November 2012 and of 25th January 2013 were invalid The earlier High Court proceedings 8 The earlier High Court proceedings under Record No 2012 6977P were commenced by plenary summons which issued on 17th July 2012 An application for an interlocutory injunction was initiated in those proceedings pursuant to an order of the High Court McGovern J made on 30th July 2012 which gave directions in relation to the application That application ultimately came on for hearing before the trial judge on 28th November 2012 and a separate order was made by the trial judge on

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/0c5de651af65c4a880257eeb00566a33?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • In a sense a number of subsidiary questions arise under this heading The first is as to whether the evidence discloses a failure on the part of the relevant Revenue officials to sufficiently engage with the argument put forward by Vieira s advisors 3 3 The second concerns an issue raised in reply by counsel for the Revenue who drew attention to evidence to the effect that as a fallback position the Revenue had considered and had that view confirmed by advice that the matter could also be dealt with under the jurisprudence of the European Court of Justice ECJ stemming from the decision in Halifax plc and ors v Commissioners of Customs and Excise Case C 255 02 2006 E C R I 01609 In that case the Grand Chamber of the Court ruled that the Sixth VAT Directive must be interpreted as precluding any right of a taxable person to deduct import VAT where the transaction from which that right derives constitutes an abusive practise The Court went on to hold that a finding of abusive practice requires first that the transactions concerned notwithstanding formal application of the conditions laid down by the relevant provisions of the Sixth Directive and the national legislation transposing it result in the accrual of a tax advantage the grant of which would be contrary to the purpose of those provisions Second it must also be apparent from a number of objective factors that the essential aim of the transaction concerned was to obtain a tax advantage Finally the Court held that where an abusive practise is found to exist the transactions involved must be redefined so as to re establish the situation which would have prevailed in the absence of the transactions constituting that abusive practise 3 4 A third potential question in relation to this issue arises out of a debate disclosing at least a potential difference of emphasis in the jurisprudence as to the proper test to be applied in determining whether it can properly be said that a party such as a Revenue official had the requisite reason to believe in accordance with the legislation in question That difference can be said to lie between the positions adopted by Charleton J in Menolly Homes Ltd v The Appeal Commissioners and anor 2010 I E H C 49 and O Neill J in Vieira v the Revenue Commissioners 2009 I E H C 431 3 5 The second issue concerned the question of whether the Revenue had issued one or two assessments and indeed a connected question of whether it was open to the Revenue to raise more than one assessment in the circumstances of this case While such an issue might not appear ordinarily to be of any great moment it is of particular relevance in the circumstances of this case At the relevant time there was a four year limitation period on the raising of an assessment of VAT as provided with effect from the 1st January 2005 by s 30 4 a ii of the VAT Act in its then form It was common case that at least part of the first year mentioned in the notice of assessment fell outside of that period As there was no differentiation as and between VAT said to be due between one part of that year and another it followed that the Revenue quite properly and correctly accepted that the assessment in respect of that year was statute barred and that the tax mentioned in that assessment or part of the assessment could not properly be collected However the Revenue maintained that there was no barrier to the raising of the assessment in respect of the second year all of which year was within time 3 6 It is in that context that it was argued either that there was only one assessment in which case the entirety would have fallen as being statute barred or that if there were two assessments such a course of action was not it was said permitted under the legislation If that latter proposition were correct then of course the assessment would also either be unenforceable as being incorrectly formulated or else it would be statute barred 3 7 The third issue which was argued by counsel for the Revenue concerned an assertion that the second point being the question of whether there had been one or two assessments had not been raised either at the stage when leave to seek judicial review was granted or it was said at the hearing before the High Court In those circumstances it was argued that this Court could not or at least should not entertain the second point at all Clearly it would only be necessary to consider this third issue if the Court were persuaded that there was some merit in the one two assessment issue for if it were not in the Court s view a good point anyway it would not matter whether it was too late to raise it In those circumstances I would propose leaving over that point until such time as I have set out my views on the second issue 3 8 Against the background of those issues it is necessary to consider the views of the trial judge on the first and second issues 4 The High Court Judgment 4 1 The trial judge noted that the equivalent statutory provision to s 23 1 of the 1972 Act in the United Kingdom is s 73 1 of the Value Added Tax Act 1994 which provides that where a taxable person has among other things failed to make any returns or where the returns are incomplete or incorrect the Customs and Excise Commissioners may assess the amount of VAT due from him to the best of their judgment and notify this to the taxable person The trial judge considered the meaning of the phrase best of their judgment as discussed by Woolf J in Van Boeckel v Customs and Excise Commissioners 1981 S T C 290 in the following terms it should be recognised particularly bearing in mind the primary obligation to which I have made reference of the taxpayer to make a return himself that the commissioners should not be required to do the work of the taxpayer in order to form a conclusion as to the amount of tax which to the best of their judgment is due In the very nature of things frequently the relevant information will be readily available to the taxpayer but it will be very difficult for the commissioners to obtain that information without carrying out exhaustive investigations In my view the use of the words best of their judgment does not envisage the burden being placed on the commissioners of carrying out exhaustive investigations What the words best of their judgment envisage in my view is that the commissioners will fairly consider all material placed before them and on that material come to a decision which is one which is reasonable and not arbitrary as to the amount of which is due As long as there is some material on which the commissioners can reasonably act then they are not required to carry out investigations which may or may not result in further material being placed before them 4 2 Ultimately the trial judge held as follows 4 8 The concept of having reason to believe involves an analysis of the subjective state of mind of the respondent s inspector based on the objective information before him The reason which gives him to believe that tax is due and payable must be based on facts which are known to him I am satisfied that the correct test is not dissimilar to that enunciated by Woolf J in Van Boeckel v Customs and Excise Commissioners 1981 S T C 290 in respect of to the best of their judgment in the sense that the act of determining whether tax is due must be based on the material placed before an inspector and that a reasonable as distinct from arbitrary conclusion must be arrived at after assessing that material It can be formulated as follows on the basis of the material before the inspector can he reasonably conclude that an amount was due to entitle him to raise an assessment for a particular period 4 3 The trial judge found that at the time the assessment or assessments were raised in December 2006 Mr O Brien held the financial returns and accounts for the financial years ending the 31st August 2002 2003 and 2004 and that he possessed information as to the overall sales figures and the amount of VAT which Vieira had paid and the sales of underdeveloped sites Further the trial judge accepted that Mr O Brien had concluded that the licence agreements were a device to avoid VAT on the basis of the information before him and the interviews he had had with representatives and advisors of Vieira Therefore the trial judge held that Mr O Brien had ample reason to believe that an amount of tax was due and payable by Vieira which he was able to calculate by reference to the extensive aforementioned financial material In addition the trial judge was satisfied that the volume and quality of information available to Mr O Brien would also satisfy the test proposed by Vieira namely that of having an opinion that was bona fide factually sustainable and not unreasonable 4 4 In deciding that two separate VAT assessments had in fact been made the trial judge had regard to the language of s 23 of the 1972 Act in holding that there is no doubt that a notice of assessment is not the same as an actual assessment Further the trial judge noted that the Value Added Tax Estimation of Tax Payable and Assessment of Tax Payable or Refundable Regulations 2000 S I No 295 of 2000 set out in regulation 5 2 what a notice is to contain and that the U K Court of Appeal in Honig v Sarsfield 1986 S T C 246 held that the charge to tax arose from the relevant statutory provisions together with the making of the assessment and was in no way dependent on notice to the taxpayer 4 5 Further the trial judge noted that s 23 of the Act of 1972 expressly refers to any period He held that this must be construed as enabling the inspector to raise assessments in respect of specific periods and that it is for the inspector to choose the appropriate period in respect of which he has reason to believe tax is due and payable The trial judge noted that s ection 23 of the Act of 1972 does restrict an inspector to making one assessment and one assessment only It is quite clear that separate assessments can be raised in respect of separate periods and not one assessment in respect of several periods The judge noted that the actual assessments to VAT in this case were made on the 13th December 2006 the day before the notice was issued and that Mr O Brien made separate calculations in respect of both and created two separate computer printouts Ultimately the trial judge held that the separate balances of tax due for the two specified periods illustrated the fact that there were two assessments encapsulated in the notification of the assessment and that for those reasons the assessment for the second period 1st September 2003 to 31st August 2004 was valid 4 6 Further the trial judge noted that the issue of the time limit for the notice of assessment was raised for the first time some 20 months after proceedings were instituted and in excess of two years after the notice of assessment was raised This the trial judge found occurred in circumstances where Vieira brought proceedings on the basis that it was only alerted to the claimed paucity of the knowledge on the part of the Revenue in April and May of 2007 Therefore the trial judge found that while there was no delay in the commencement of proceedings which were commenced within the three month time period prescribed by O 84 r 21 of the Rules of the Superior Courts there was gross culpable delay on the part of Vieira in bringing their amended ground regarding the time limit for the notice of assessment The trial judge found as follows Whilst there was correspondence between the parties in February 2009 in which the applicant raised the out of time issue for the first time thereby prompting a concession from the respondents that the assessment for the earlier of the two periods in the notice of assessment was in fact out of time no explanation is offered as to why this state of affairs was not raised earlier given that the state of the law in this regard was well settled and all the relevant facts were known to the applicant once the notice of assessment was served In my judgement there was gross culpable delay on the part of the applicant in this regard which has not been explained or excused the consequence of which is that I must hold that the applicant was out of time in bringing this amended ground 4 7 Before going on to address the specific issues which arise it is appropriate that I record a number of observations which have informed the order in which I consider it to be appropriate to address the issues 5 Some Observations 5 1 The first observation is simply to record the uncontroversial fact that this case is not concerned with determining whether the arrangements entered into by Vieira in respect of the licence agreements with Mr McPeake actually have the tax consequences which on the one hand Vieira assert or which on the other hand the Revenue maintain The merits of the legal argument as to whether the licence agreements entered into create a self supply are a matter which would ultimately have to be determined by the Appeal Commissioners or if necessary by the courts on appeal in the event that there is a valid assessment or assessments raised in time and a valid appeal by Vieira against that assessment or assessments 5 2 These proceedings are not therefore concerned with the question of whether VAT is actually due but rather with the question of whether there was a valid assessment or assessments in the first place With particular reference to the question of whether the Revenue had in accordance with s 23 of the VAT Act reason to believe that tax is due it is not therefore necessary to reach a conclusion as to whether the Revenue view is correct Rather it is only necessary to assess whether the Revenue has met the threshold of having as a matter of law reason to believe that the tax was due 5 3 The second observation derives from the fact that on the Revenue s case there were two independent bases for suggesting that the inspector had reason to believe that the tax was in fact due The first involved an assertion that the inspector had properly addressed the argument put forward by Vieira s advisors which suggested that the tax was not due and had come to a reasonable view that the argument thus advanced was not sustainable On that basis counsel for the Revenue argued that the threshold for reason to believe under s 23 of the VAT Act had been met with it following that the question of whether the Revenue or Vieira were actually correct would be a matter for the Appeal Commissioners However counsel also argued that as a matter of fact the inspector as an alternative formed what was said to be a reasonable view that the same amount of tax was due under the abusive process jurisprudence deriving from Halifax It should be said that counsel for Vieira strongly argued that the facts did not support the underlying contention that the inspector actually had relied on the requisite belief on Halifax type grounds 5 4 Given that argument it seems to me that the starting point has to be to consider what the proper approach should be where it is asserted that there are two allegedly independent grounds on which a decision maker might be argued to have reason to believe that a state of affairs exists which justifies taking action authorised by statute I therefore turn next to that question 6 Two alternative bases 6 1 It seems to me that it is important at the outset to identify two different types of cases which may potentially arise in many types of situations 6 2 In certain circumstances a decision maker may be required to take into account a range of factors in reaching an ultimate conclusion The weight to be attached to each factor may well be a matter for debate and ultimately may well be a matter which the decision maker must decide as part of the decision making process In such a circumstance it is possible to envisage a case where a decision maker properly considers a range of factors but can be demonstrated to have inappropriately considered one material factor But if that factor was one which was required to be taken into account and on the hypothesis that it was not properly considered there may well then be a case that the overall decision must nonetheless be regarded as tainted even though there may have been other factors properly considered which might of themselves have justified the decision in the first place The issues which arise in such a case are complex but it is not necessary to deal with them here 6 3 On the other hand it is possible to envisage a case where there is a range of independent bases upon which a decision can be justified In such a case any one factor may be sufficient The factors may not be in any way dependent on one another It seems to me that the legal issues which arise in such a case may be much simpler Provided that there is a sustainable basis on which the decision in question could have been made and provided that any other factor which may have been considered as a separate and independent ground for coming to the same decision could not have influenced the question of whether the sustainable basis was present or not then it may not always be necessary to analyse any other grounds put forward to justify the decision for that sustainable ground may independently and in and of itself be sufficient to justify the decision 6 4 The point might be explained in this way If ground a and ground b are entirely independent bases for making a decision and if the decision maker has properly and sustainably found ground a to exist then the decision may well be justified irrespective of how the decision maker addressed ground b In such a case the decision maker was not required to consider ground b at all for ground a provided a self contained basis for reaching the decision concerned Even if some legitimate criticism can be made of the way in which ground b was considered that may not have any effect on the validity of the decision for it could not have influenced the question of whether ground a was found to be present and ground a would in and of itself be sufficient 6 5 In contrast one might envisage a case where a decision maker was required to have regard both to factor a and factor b in reaching an overall decision The decision maker may have properly considered factor a and found that it weighed heavily in favour of making the decision On the other hand some significant flaw may be exposed in the way in which the decision maker considered factor b In such a case it may well not be clear as to whether the same decision could or should have been made had factor b been properly taken into account for a consideration of that factor was required to form part of the mix in any event If that factor was not properly considered then it might have been that no matter what view was taken of factor a a different decision would have been made Even if there might be an argument that the same decision would have been reached in any event based on the weight to be attached to factor a alone there would still be a strong argument that the decision as a whole was tainted 6 6 For those reasons there will be cases where provided that the two asserted bases are fully independent and provided that each entirely by itself would be sufficient to justify the decision in question it may only be necessary that there be one sustainable basis for the decision in order for the decision to be lawful 6 7 In the circumstances of this case it seems to me that the two arguments put forward on behalf of the Revenue concerning reason to believe are entirely independent The relevant VAT could be due either because the technical view of the Revenue on whether the licence agreements operated as a self supply was correct or entirely independently and even if or indeed because that technical view was wrong if the case nonetheless came within Halifax and the jurisprudence which has developed thereafter It follows that if the Halifax point provides a legitimate basis for the Revenue contention that the inspector had reason to believe that VAT was due then that of itself is sufficient to justify determining that the inspector had indeed reason to believe that the VAT was due I therefore propose to consider that question first incorporating as it does the prior issue of whether it can be said that Halifax was as a matter of fact a separate independent and stand alone basis for making the assessment or assessments concerned I therefore turn to that question 7 Was Halifax a separate stand alone basis 7 1 As noted earlier counsel for Vieira suggested that the evidence did not support the Revenue s factual contention in that regard It follows that it is necessary to look at the evidence in a little more detail 7 2 A number of affidavits were sworn and filed on each side However in a second affidavit sworn by Mr O Brien on the 17th December 2007 he refers to the fact which had already been addressed in his first affidavit that he had prior to raising the assessment or assessments concerned consulted not only with his superiors but also with technical advisors which I infer may have involved legal advice from either solicitor or counsel When referring to this issue Mr O Brien says the following at para 10 of that second affidavit My own view is supported by my discussions with my superior and with the receipt of internal expert technical advice which advice confirmed my opinion that the licence device did not operate to take the property out of the VAT net and even if it did it was an abuse of rights and as such was subject to the Halifax decision and required it to be redefined to re establish the position had the licence not been in place Mr O Brien reconfirmed in the same paragraph that the advice to which he referred predated the assessment or assessments 7 3 It seems to me to be clear therefore that Mr O Brien gave evidence that the Halifax point provided a separate and stand alone basis for coming to the view that VAT was due As he puts it in his affidavit even if it did meaning even if the licence arrangements did operate as a self supply nonetheless Halifax would in his view and in the view of those who advised him provide a separate basis for coming to the view that the VAT claimed was due 7 4 Counsel for Vieira drew attention to the fact that the contemporaneous documentation and indeed Mr O Brien s affidavits make it clear that he did not consider the Halifax point to be necessary because he came to the view that the licence agreements did not technically achieve the end of creating a self supply in the manner contended for on behalf of Vieira That much is clearly true But it is equally true as deposed to by Mr O Brien in the passage from his affidavit which I have already cited that he had a back up position He came to the view and it was a view supported by considered advice that even if he was wrong in his assessment of whether the licence agreements technically operated to create a self supply VAT was nonetheless due under Halifax principles 7 5 On the facts it is clear therefore that while Mr O Brien did not think that he had to go so far as to rely on Halifax he did in fact rely on Halifax as a fallback position in the event that his technical view on the question of whether there was a self supply was wrong It is clear on the facts therefore that he did rely on the Halifax point as a separate basis for raising the assessment It is also clear that the Halifax point is entirely independent of the other point Indeed it is in one sense a directly opposite point Halifax would only arise in the event that Vieira was technically correct on the self supply argument 7 6 In those circumstances it seems to me that provided the Halifax point provided an appropriate basis for having reason to believe that the tax was due it provides a stand alone justification for issuing the assessment or assessments irrespective of whether the criticism made of the way in which Mr O Brien considered the technical arguments on self supply are well founded Even if that criticism was justified and Mr O Brien s consideration of those issues fell short of being sufficient to meet the threshold for being able to sustainably hold that he had reason to believe that the VAT was due on that basis the Halifax point would in and of itself provide a separate potential sustainable justification for having reason to believe that the same sums were due It is therefore necessary to consider the Halifax point 8 The Halifax Point 8 1 It must again be recalled that this Court is not being asked to consider whether the Halifax principles actually require in all the circumstances of this case the form of reverse engineering that the ECJ has mandated should occur in circumstances where an abusive practise is established The only issue which this Court has to consider is whether there were sufficient materials and argument available to Mr O Brien for him to have reason to believe that Halifax could be deployed In my view the answer to that question is clear The underlying issue is whether the creation of the licence agreements amounted to an abusive practise If that was so then Halifax is clear authority for the fact that VAT liability must be calculated as if the licence agreements had not been in place It is certainly arguable that the import of Halifax is that tax becomes due and can be the subject of a valid assessment if an abusive practise is properly identified 8 2 It is important to recall that this judgment is not concerned with the question of whether VAT is actually due It follows that it is not necessary to consider whether an argument based on the Halifax line of jurisprudence would necessarily prevail Indeed it is important to note that the jurisprudence which derives from Halifax has evolved by subsequent decisions of the ECJ and indeed may well continue to develop However for the purposes of this judgment it is only necessary for the Court to consider whether Mr O Brien had reason to believe that the proper application of that jurisprudence to the facts of this case would lead to the relevant VAT being due 8 3 In that context it is important to distinguish between the consequences of deploying Halifax on the one hand and the general anti avoidance provision contained in s 811 of the Taxes Consolidation Act 1997 as amended In the latter case a series of procedures is required to be followed before tax can be said to be due An inspector of taxes who believes that a particular scheme is caught by s 811 must follow those procedures before it can be said that tax is due In such a case the inspector could not simply raise an assessment for the tax which might be due should the Revenue find itself in a position to be able successfully to deploy the section But it is at least arguable that the consequences of a measure amounting to an abusive practise within the meaning of that term as used in Halifax gives rise to an immediate liability to tax subject only of course to the right of the tax payer to appeal which can be the subject of a legitimate assessment It follows that Mr O Brien was entitled to have reason to believe that any VAT which would have been due in the event that the licence agreements had not been entered into was in fact due subject only to Mr O Brien also having reason to believe that the licence agreements were an abusive practise In passing I should note that no issue was raised concerning the question of whether Mr O Brien could have had reason to believe that the actual sums specified in the assessment or assessments were the correct sums That is not to say that his calculations might not be the subject of debate on an appeal before the Appeal Commissioners However no question concerning his calculation was put forward as a ground for suggesting that he could not have had reason to believe that the precise sums claimed were due provided that he was correct in principle 8 4 It is therefore necessary to consider whether there is sufficient evidence from which it can be concluded that Mr O Brien had reason to believe that the licence agreements were an abusive practise for the purposes of the Halifax jurisprudence In my view there clearly was It must yet again be emphasised that nothing which is said in this judgment should be taken as expressing any view as to whether the licence agreements were in fact an abusive practise The only issue is as to whether Mr O Brien had reason to believe that they were 8 5 It must be recalled that the case which Vieira makes as to the effect for VAT purposes of the licence agreements is relatively straightforward It is said that the effect was to give rent free to Mr McPeake possession of the various properties for a fourteen day extendable period It is said that for technical reasons parting with possession in that way is sufficient to create a self supply which takes the properties out of the VAT net subject only to paying VAT at a much lower level on the basis of the self supply itself 8 6 Obviously the Halifax point only arises in the event that the technical arguments on self supply are determined in favour of Vieira On that assumption it would follow that due to technical provisions of the VAT Acts entering into a simple licence of that type may provide a mechanism by which property which has been developed as part of a business can be extracted by means of a self supply from the business in a way which will very significantly reduce the amount of VAT which must be charged There is no doubt that if the technical argument is correct there is in the words of the ECJ in Halifax an accrual of a tax advantage The question would be whether the accrual of such an advantage in the circumstances outlined would be contrary to the purpose of the relevant provisions of EU VAT law Given that this matter may come to be considered in detail by both the Appeal Commissioners and possibly the courts I will do no more than to state that at this stage it was entirely sustainable for Mr O Brien to come to the view that that requirement of Halifax was met He had on the evidence in my view reason to believe that the accrual of that tax advantage would be contrary to the purposes of the sixth directive 8 7 The second leg of the test identified by the ECJ in Halifax is that from a consideration of various objective factors it must be apparent that the essential aim of the relevant transaction was to obtain a tax advantage Again I am satisfied that there is sufficient evidence to support the view that Mr O Brien had reason to believe that the essential aim of the licence agreements was indeed to significantly reduce the amount of VAT which would need to be paid While it is ultimately a matter for the Appeal Commissioners and the courts it is difficult on the materials currently available to see that there was any other comparable advantage to the licence agreements There is no evidence to suggest that it made the task of selling the properties by Mr McPeake significantly easier because he was given the sort of possession which the licence agreements provided for That is not to say that arguments might not be put forward and evidence be presented which might legitimately persuade either the Appeal Commissioners or the courts that a different conclusion could be reached on this point For present purposes it is only necessary to say that I am satisfied that Mr O Brien had reason to believe that the second aspect of the test identified in Halifax was met being that the essential purpose of the licence agreements was to obtain a tax advantage 8 8 It follows that I am satisfied that Mr O Brien had reason to believe that the Halifax jurisprudence could be deployed for the purposes of recalculating the VAT liabilities of Vieira as if the licence agreements had not been entered into and further had reason to believe that the sums set out in the assessment or assessments would on the basis of such recalculation be due and be properly included in an assessment 8 9 It follows that the trial judge was correct to reject the argument put forward by Vieira which was based on the contention that Mr O Brien did not have an appropriate reason to believe Furthermore in my view this matter is sufficiently clear that it is unnecessary to address the subtle distinction concerning the appropriate threshold which derives from the respective judgments of Charleton J and O Neill J to which reference has been made I would leave to a case in which that distinction might be decisive a decision on the appropriate threshold 8 10 Furthermore for the reasons already identified I am satisfied that the Halifax point given that I found it to be valid provides a sufficient stand alone basis justifying the raising of the assessment or assessments so that it is unnecessary therefore to consider the merits of the technical issues raised As those issues may well be the subject of detailed consideration on their merits before the Appeal Commissioners or the courts I do not think it would be appropriate to say anything more about those issues at this stage 8 11 It follows that it is necessary therefore to turn to the question of whether there were in fact one or two assessments in the

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/4761934c4b29191580257ee40044d610?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • 1 Agriculture silviculture and aquaculture b iii deforestation for the purpose of conversion to another type of land use where the area to be de forested would be greater than 10 HA of natural woodland or 70 HA of conifer forest These regulations came into force on the 1st May 1999 It is referred to as the regulation 15 It was common case that if a project involved de forestation of an area greater than 70 HA of conifer forest then an Environmental Impact Assessment must be provided for such a project 16 It was argued in the High Court that the regulation applied retrospectively or within a time when a planning permission was extended The High Court held that the effect of the regulation was not such as to require the submission of an Environmental Impact Assessment referred to as an EIA for the purpose of obtaining an extension of the time within which the permission could be relied upon 17 It was argued that two permissions 99 2377 and 02 3560 did not have the necessary EIA having been lodged after the date when the regulation came into force The High Court did not accept that any EIA under the 1999 Regulation was required Thus the issue before the High Court related to the permissions 97 3470 97 3652 and 00 4581 18 In the High Court it was accepted in argument that 97 3470 and 00 4581 related to part of the lands in Derrybrien covered in forest 19 As to 97 3652 that land area is covered by bog and not forested and so it was considered that the same principles do not apply to that planning permission 20 The High Court stated that the requirement for an EIA in respect of de forestation did not come into effect until 1st May 1999 The learned High Court judge held Accordingly it is my view that an E I A dealing with de forestation was not required for the first application for planning permission Insofar as the second application in 1997 is concerned I have already said that it related to lands on which there was no forestry and again the issue of an E I A dealing with de forestation does not arise The final planning permission which is of relevance is that in relation to 00 4581 An Environmental Assessment so called was furnished with that application 21 The High Court considered the affidavit evidence before the Court It had been pointed out by Mr William Murray in his affidavit that while an EIS was not required with application 97 3470 it was best practice as recommended under the Department of Environment Wind Farm Development Guidelines issued to planning authorities Further he had stated in his affidavit that the point made on the forestry concerning the adequacy of the EIS constitutes a retrospective objection to planning permission 22 The High Court held Having considered this particular point it seems to me that there is force in the argument made by Mr Murray in his affidavit If there was a deficiency either in the earlier Environmental Impact Assessment or the Environmental Statement prepared in respect of the later application for planning permission it would have been open to the appellant s predecessor and indeed to any of the local residents to object to the planning permissions sought on that ground If notwithstanding any objection that could have been made planning permission had been granted then it would have been open to the appellant or its predecessors or any of the residents to judicially review the decision by which planning permission was granted This did not happen I have come to the conclusion that in questioning the validity of the Environmental Impact Statement and Environmental Assessment as it is referred to in respect of the 00 4581 planning permission that the appellant herein is in effect attempting to retrospectively object to the planning permission or perhaps more accurately seeking to challenge the validity of the permissions granted Clearly this cannot be done now The time for making such a challenge to the validity of the permissions has long since passed 23 The second argument advanced in the High Court by the appellant was that the removal of trees was not covered by the grant of planning permissions in respect of the three relevant permissions In essence this issue was whether planning permission was required for the removal of the trees 24 The High Court determined that the removal of the trees was de forestation Further that the regulation did not impose retrospectively an obligation to furnish a further EIS to deal specifically with the impact of de forestation by the development at Derrybrien save in the last three relevant permissions As to the last permission the High Court re iterated that any challenge to that permission based on an alleged inadequacy of the EIS was not permissible as to hold otherwise would amount to an attack on the permissions notwithstanding that the time to challenge these permissions by judicial review had passed 25 The High Court identified the crux of the case as being whether or not the permissions made it clear from an objective point of view that the scope of the permissions included the removal of the trees and the change of use of the land from forestry to wind farm 26 The High Court held that the permissions granted were granted in accordance with the documents lodged and the documents lodged included the Environmental Impact Statements Thus they were considered by the High Court to see if they made it clear that the proposed development involved the removal of all the forestry at the Derrybrien site in respect of the relevant applications 27 The learned High Court judge concluded Having considered the matter carefully and in particular in the light of the matters set out in the Environmental Impact Statements I have come to the conclusion that on a reading of the Environmental Impact Statements attached to the various permissions it was quite clear that the proposed development envisaged the removal of the forestry thereon and the change of use on the lands from forestry to use as a wind farm I can come to no other conclusion In the circumstances I am not satisfied that the appellants have made out the case that the de forestation of the lands at Derrybrien is an unauthorised development I have no doubt that but for the catastrophic events of the 16th October 2003 these proceedings would not have commenced The concerns of the appellant are understandable but it is to be expected that the steps taken by the Respondents will ensure that there will not be a recurrence Notice of Appeal 28 The appellant has appealed the said judgment to this Court The Notice of Appeal is dated the 19th February 2009 While the High Court judgment was delivered on the 3rd June 2005 the High Court order was not perfected until the 16th February 2009 The appellant seeks an order setting aside the judgment and order of the High Court i Refusing the reliefs sought restraining the respondents from commencing or continuing the unauthorised development namely the de forestation on Derrybrien ii refusing final orders restraining the respondents from continuing the unauthorised development iii refusing a final order directing the restoration of the lands to their condition prior to the commencement of the unauthorised development inclusive of re planting trees and the restoration of pre existing drainage channels and appealing the costs order 29 The grounds on which the appellant appealed were stated to be i That the High Court erred in holding that an Environmental Impact Assessment dealing with de forestation was not required insofar as it involved development consents and or planning permissions obtained after the commencement of the regulation on the 1st May 1999 ii that the High Court erred in holding that proceedings brought pursuant to s 160 in respect of a development on the basis that it amounted to an ongoing breach of the regulation could or should not be upheld on the basis that the said development had been open to challenge at an earlier stage by way of judicial review of the decision to grant planning permission iii that the High Court erred in law and in fact in holding that the de forestation of the site was covered by the grants of planning permission in respect of the three relevant permissions iv that the High Court erred in failing to give due and proper consideration to the relevant EC environmental legislation namely Council Directive 85 337 EEC of the 27th June 1985 on the assessment of the effects of certain public and private projects on the environment either before or after its amendment by Council Directive 97 11 EC of the 3rd March 1997 in respect of the development v that the High Court erred in law and in fact in that notwithstanding acknowledgement of the relevance of the EC Environmental Directives the decision was confined to consideration of the regulation vi the High Court erred in law and in fact in holding that no Environmental Impact Assessment was required for development consent planning permission No 97 3652 on the sole grounds that no issue of de forestation arose and by ignoring other criteria such as safety human health soil and landscape vii that the High Court erred in law and in fact in making a decision which was not in accordance with Irish and Community law Submissions 30 Submissions were advanced to the Court on behalf of the appellant and the respondents Events since the High Court decision of 2005 European Court of Justice 31 Proceedings were brought by the European Commission which resulted in a judgment of the European Court of Justice in Commission v Ireland Case C 215 06 2008 E C R 1 4911 which held that the development of the wind farm had not been preceded by an environmental impact assessment as required by the EIA Directive It was stated 104 The purpose of carrying out an environmental impact assessment in conformity with the requirements of Directive 85 337 is to identify describe and assess in an appropriate manner the direct and indirect effects of a project on factors such as fauna and flora soil and water and the interaction of those factors In the present case the environmental impact statements supplied by the developer had certain deficiencies and did not examine in particular the question of soil stability although that is fundamental when excavation is intended 105 Consequently by failing to take all measures necessary to ensure that the grant of development consents relating to the first two phases of construction of the wind farm was preceded by an environmental impact assessment in conformity with Articles 5 to 10 of Directive 85 337 and by merely attaching to the applications for consent environmental impact statements which did not satisfy those requirements Ireland has failed to fulfil its obligations under that directive 32 The European Court of Justice declared that by failing to adopt all measures necessary to ensure that the projects which are within the scope of Council Directive 85 337 EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment either before or after amendment by Council Directive 97 11 EC of 3 March 1997 are before they are executed in whole or in part first considered with regard to the need for an environmental impact assessment and secondly where those projects are likely to have significant effects on the environment by virtue of their nature size or location that they are made subject to an assessment with regard to their effects in accordance with Articles 5 to 10 of Directive 85 337 and the development consents given for and the execution of wind farm developments and associated works at Derrybrien County Galway were preceded by an assessment with regard to their environmental effects in accordance with Articles 5 to 10 of Directive 85 337 either before or after amendment by Directive 97 11 Ireland has failed to fulfil its obligations under Articles 2 4 and 5 to 10 of that directive Ireland was ordered to pay the costs Additional Evidence 33 Additional evidence was before this Court This additional evidence related to events after the delivery of the High Court judgment on the 3rd June 2005 when the appellant s motion was refused 34 The wind farm has been built and has been fully operational since January 2006 35 The respondents acted bona fide in accordance with planning permission at all times 36 The wind farm has no responsibility for any defect that may exist in the planning permission 37 While the judgment and decision of the High Court was given on the 3rd June 2005 the appellant did not file a notice of appeal until four years later in February 2009 38 Other proceedings were brought by the appellants on or about the 29th June 2005 i e just weeks after the refusal of the injunction by the High Court in these proceedings 39 In those other proceedings the appellant challenged by way of judicial review the decision of Galway County Council to grant extensions of the appropriate period for the planning permissions 05 316 and 05 317 Those proceedings were heard by Budd J in July 2007 A reserved judgment was delivered on the 14th March 2008 in which Budd J found for the appellants 40 However no final orders were made in those judicial review proceedings as they were settled by the parties A settlement was reached and inter alia it was agreed that 265 000 be paid to the appellant by the windfarm While the terms of the settlement were to be kept confidential it appears to have been agreed that no orders would be sought on foot of the judgment of Budd J 41 Also it appears that a joint statement was issued to the media which concluded We trust that the operation of the windfarm will serve not just the interests of the country s renewable energy needs but the people of Derrybrien 42 No application was made to the Supreme Court in relation to an appeal in this matter in 2005 seeking a priority hearing or otherwise nor was an application for priority made after the appeal was filed in 2009 This was a backlog appeal first listed in one of the Supreme Court backlog lists on the 27th November 2013 Law 43 This is an appeal from a motion refusing relief under s 160 1 a of the Planning and Development Act 2000 44 Section 160 makes statutory provision for an injunction in relation to unauthorised development It provides 1 Where an unauthorised development has been is being or is likely to be carried out or continued the High Court or the Circuit Court may on the application of a planning authority or any other person whether or not the person has an interest in the land by order require any person to do or not to do or to cease to do as the case may be anything that the Court considers necessary and specifies in the order to ensure as appropriate the following a that the unauthorised development is not carried out or continued b in so far as is practicable that any land is restored to its condition prior to the commencement of any unauthorised development c that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject 3 a An application to the High Court or the Circuit Court for an order under this section shall be by motion and the Court when considering the matter may make such interim or interlocutory order if any as it considers appropriate 6 a An application to the High Court or Circuit Court for an order under this section shall not be made i in respect of a development where no permission has been granted after the expiration of a period of 7 years from the date of the commencement of the development or ii in respect of a development for which permission has been granted under Part III after the expiration of a period of 7 years beginning on the expiration as respects the permission authorising the development of the appropriate period within the meaning of section 40 or as the case may be of the appropriate period as extended under section 42 b Notwithstanding paragraph a an application for an order under this section may be made at any time in respect of any condition to which the development is subject concerning the ongoing use of the land 45 This section of statutory law has been the subject of case law 46 In Leen v Aer Rianta c p t 2003 4 I R 394 McKechnie J considered s 160 He referred to Morris v Garvey 1983 I R 319 and to p 324 where Henchy J speaking for the Supreme Court considered the correct approach a court should take under the provisions of s 27 2 of the Local Government Planning and Development Act 1976 of which McKechnie J noted Which provisions are for present purposes almost identical to the corresponding words in the opening part of s 160 47 In Leen McKechnie J held Though the contextual circumstances in which Henchy J made the above mentioned remarks must be noted nonetheless there is no doubt but that this quoted part of his judgment has been repeatedly followed in later cases both in this court and in the Supreme Court and in many respects has been treated as constituting principles of general application Even within such principles however it is quite clear that the Supreme Court was endorsing the existence of a discretion under s 27 or as of now s 160 as it

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/77284f77af49694f80257ee0004b739a?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • an appeal from the Circuit Court was a final order 15 Subsequently an execution order issued from the Circuit Court in favour of the Personal Representative on 7th October 2009 Eventually on 1st October 2010 the Personal Representative attended at the Cottage with the Sheriff for the purpose of executing the order Some time later Ms Gunning in the company of her daughter vacated the Cottage Unfortunately having subsequently broken back into the Cottage Ms Gunning was committed for contempt of Court to Dóchas Women s Prison in Dublin However this Court is not concerned with the course of the proceedings by the Personal Representative against Ms Gunning in the Circuit Court in County Wicklow subsequent to the initiation of the proceedings in the High Court the subject of this appeal 16 Nonetheless before considering those proceedings it is appropriate to record that in the proceedings in the Circuit Court before His Honour Judge O Hagan in the proceedings in the High Court before Smyth J in the proceedings in the Circuit Court before His Honour Judge White and in the proceedings on the appeal from the Circuit Court to the High Court before Murphy J Ms Gunning was not legally represented Moreover she has not been legally represented in the proceedings the subject of this appeal either in the High Court or on the appeal Ms Gunning would undoubtedly have benefited from professional legal advice from the late 1990s onwards particularly as regards the complex legal issues in relation to the title to the Cottage The proceedings in the High Court 17 As stated above the plenary summons issued on 8th November 2010 To recapitulate it is assumed that the Personal Representative is sued in his capacity as Personal Representative of the Testator In the general endorsement of claim on the plenary summons Ms Gunning at paras 8 9 and 10 sought the following reliefs a an order for the return of the keys of her home the Cottage without further delay b an order preventing the Personal Representative and other named parties who are not before the Court from interfering with her home and property and causing her and her family any further mental distress and torture and c damages for stress torture damage to her home furniture and valuables from dampness over an extended period since her illegal eviction together with damage to her health welfare and reputation and that of her daughter Fatima 18 The wrongdoing which Ms Gunning alleged gave rise to her entitlement to such relief was set out in paras 1 to 7 inclusive of the general endorsement of claim In order to identify the foundation of Ms Gunning s claim it is convenient to summarise those paragraphs in which the following wrongdoing is alleged i abuse of privilege and power to steal and dispossess Ms Gunning of her family home the Cottage ii colluding with others to cover up the facts to steal her home and property on false and fraudulent documentation iii colluding with others to destroy deface and conceal the fact that her home and property was very valuable in a sought after area of Greystones County Wicklow iv the denial to her of her legal and lawful inheritance contrary to the Act of 1965 v concealing vital evidence from the courts the Land Registry offices and the County Council Planning Section and An Bord Pleanála vi filing false and fraudulent documentation in the Probate Office to mislead and deny Ms Gunning her legal and lawful inheritance vii collusion with others to obtain a false and fraudulent court order for an illegal and unlawful eviction from her family home the Cottage and viii mental torture and massive abuse of her eighty year old mother and interference with her sister Mary Gunning in the use of the age old method of Divide and Conquer to destroy our Family to make belief that we were the authors of our own misfortune In relation to the allegations at viii it is appropriate to recall that the Personal Representative s entitlement to apply for a grant of letters of administration to the estate of the Testator derives from the judgment and order of the High Court Smyth J in proceedings at the suit of the Widow made on 31st July 2003 and his actual authority derives from the grant of letters of administration with the will of the Testator annexed which issued to him after the death of the Widow As those allegations at viii have not been advanced either by the personal representatives of the Widow or by Mary Gunning none of whom are before the Court it is unnecessary and it would not be appropriate to consider them further The application the subject of the appeal 19 Following delivery of Ms Gunning s statement of claim but before delivering a defence the Personal Representative brought an application to the High Court on 21st February 2011 seeking the following orders a an order pursuant to Order 19 rule 28 of the Rules of the Superior Courts the Rules dismissing the plaintiff s claim on the grounds that it discloses no reasonable cause of action and is frivolous and vexatious b an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff s claim as an abuse of process and c an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiff s claim on the grounds that it is an attempt to re litigate a case that was decided by the Circuit Court and the High Court and is accordingly res judicata The applicant also sought an Isaac Wunder order prohibiting the plaintiff from issuing proceedings against the Personal Representative without leave of the Court As recorded earlier the application was grounded on the affidavit of the Personal Representative sworn on 18th February 2011 20 It is necessary to consider the process of the application through the High Court in detail Fortunately there are before this Court transcripts of the DAR recordings of the proceedings in the High Court I have read and carefully considered the content of each transcript 21 The matter first came on for hearing in the High Court before Hogan J the trial judge on 16th May 2011 There was also a motion by Ms Gunning for discovery before the High Court on the same day However the trial judge took the view that it was logical to address the Personal Representative s motion first In my view that was undoubtedly a sensible approach In relation to the Personal Representative s application in broad terms the response of Ms Gunning was grounded on two propositions that she was claiming absolute title to the Cottage and that the earlier decisions of the Circuit Court and the High Court had been procured by fraud After exploring those propositions with Ms Gunning the trial judge having made it clear that the previous orders of the High Court were prima facie binding on him indicated that he would give Ms Gunning an opportunity to adduce clear evidence that the previous decisions were procured by fraud Ms Gunning was also to have an opportunity to demonstrate that she had in fact got a superior title to the Cottage than the Personal Representative had In the circumstances the Judge adjourned the application to 27th June 2011 having directed Ms Gunning that any documents she wished to rely on should be served on the Personal Representative on or before 20th June 2011 That decision was the subject of an order of the Court perfected on that day 22 When the matter was back before the trial judge on 27th June 2011 Ms Gunning was still persisting in her argument that she had a superior title to the Personal Representative to the Cottage but she had not produced any concrete evidence of that Moreover she was still persisting in her contention that the previous orders of the High Court had been procured by fraud but again she had not produced any satisfactory evidence to that effect In the course of hearing her submissions the trial judge stated that he was minded to put the matter in for a full viva voce hearing and he made it clear that given the existence of a previous High Court order i e the order of Murphy J on the appeal from the Circuit Court he had no jurisdiction unless she could show that it was obtained by fraud Later the trial judge made it clear to Ms Gunning that he was giving her the opportunity to establish fraud and also to establish that she had a superior title In relation to the latter aspect of the matter he made it clear that she would have to get an opinion showing that she had a superior title either from a solicitor or a conveyancing counsel On that basis the matter was adjourned for hearing to 26th July 2011 The matter did not proceed to hearing on 26th July 2011 because on 20th July 2011 the matter was listed for mention at the request of the Personal Representative The position of the Personal Representative on that occasion was that it being the holiday season he had some difficulty in relation to adducing oral evidence In any event that problem became immaterial because when the matter came before the Court Ms Gunning alleged that the trial judge had a serious conflict of interest and that she was objecting to him continuing with the case any further The outcome of that was that the trial judge adjourned the application to enable Ms Gunning raise the matter with the President of the High Court 23 In the event another High Court Judge Cross J was assigned to hear Ms Gunning s complaint He heard Ms Gunning s application which in his ruling of 28th October 2011 he characterised as an application to remove Judge Hogan from sitting in judgment of my case Eileen Gunning v Brian Sherry Cross J in a reasoned ruling addressed the history of the case the involvement of the trial judge in the case Ms Gunning s application and her grounds for seeking the relief she sought He also cited the relevant authorities He set out his decision as follows I am of the view that Judge Hogan had showed absolutely no bias against Ms Gunning Given her status as a lay litigant he was very indulgent of her and offered her every opportunity to make the case and notwithstanding the fact that on the 27th June 2011 she did not produce the evidence she was required to do Judge Hogan still in ease of her ordered that the case go to full trial when he clearly could have halted the case there and then on the Personal Representative s motion There was no bias against Ms Gunning and no evidence either that the Judge assisted the legal representative of the Personal Representative Accordingly Cross J dismissed Ms Gunning s application That decision was reflected in the order of the Court made on 28th October 2011 in which it was ordered that Ms Gunning s application stood refused There was no appeal against the order of Cross J 24 The hearing of the Personal Representative s application was resumed before the trial judge on 7th February 2012 At Ms Gunning s insistence counsel for the Personal Representative opened the grounding affidavit of the Personal Representative He also opened the order of His Honour Judge White and the order of Murphy J and made some brief submissions Ms Gunning was accompanied by a McKenzie friend John Gill whom this Court was informed has since died Thereafter Ms Gunning and occasionally Mr Gill addressed the Court It was clear that Ms Gunning was still submitting that the Court orders on which the Personal Representative relied had been obtained to use Mr Gill s terminology by false and malicious misleading information to the courts Transcript page 12 It was also clear that Ms Gunning was persisting in her claim that she was one hundred per cent owner of the Cottage She was reminded by the trial judge that she was being given permission to call oral evidence Transcript page 24 After further allegations by Ms Gunning and Mr Gill against persons most of whom were not before the Court and an intervention from a person in the body of the Court the trial judge reminded Ms Gunning once again that he had given her every opportunity to call such witnesses as she saw fit Transcript page 32 25 Later in answer to a question from the trial judge as to how Ms Gunning was claiming to be the one hundred per cent owner of the Cottage Mr Gill s response was that she was going to have to get an opportunity to explain that It then became apparent that Ms Gunning was looking for a further adjournment Transcript page 34 Subsequently it was made clear that she was looking for a two month adjournment When the views of the Personal Representative were canvassed as to adjourning the Personal Representative s application to dismiss the proceedings the Personal Representative objected to an adjournment on the ground that Ms Gunning had had an ample opportunity to gather the oral evidence which she had been informed by the Court she was entitled to adduce on the 27th June 2011 Just before the lunch break the trial judge ruled on the application for an adjournment and he refused it Transcript page 52 26 After the lunch break there was further interchange between Ms Gunning and Mr Gill and the Court but no evidence was called On the final occasion on which the trial judge informed Ms Gunning that she could call whatever evidence she wished her response was a request that he make his order whereupon the trial judge commenced his ex tempore ruling Transcript page 59 In the course of the ex tempore ruling having interrupted the trial judge both Ms Gunning and Mr Gill left the Court The trial judge ruled that he had no alternative but to strike out the proceedings as an abuse of process Transcript page 64 He then dealt with the application for an Isaac Wunder order He stated that he would make such an order as would restrain Ms Gunning from issuing any further proceedings in the High Court without the prior leave of the High Court Transcript page 66 As regards costs the trial judge made an order that the Personal Representative was entitled to the costs of the proceedings to be paid out of the estate of the Testator and he made a costs order over against Ms Gunning that she pay to the estate the costs of the proceedings the costs to be taxed in default of agreement Transcript page 67 At the end the trial judge stated that he would give his reasons in writing for the ruling on 28th February 2012 and he adjourned the matter to that date The judgment of the High Court 27 The judgment of the High Court was delivered on 28th February 2012 Neutral Citation 2012 IEHC 88 Having outlined the factual background the first proceedings in the Circuit Court Record No 154 01 the first proceedings in the High Court Record No 2003 122SP and the withdrawal of the appeal by Ms Gunning to this Court against the order of Smyth J the second proceedings in the Circuit Court Record No 105 07 E and the appeal to the High Court against the order of His Honour Judge White the trial judge at para 18 et seq went on to deal with the proceedings before him and the Personal Representative s application to strike out the proceedings as an abuse of process He stated at para 23 that in the absence of any evidence that the earlier decisions were wrong in some way much less evidence of fraud it followed that the earlier decision of the High Court the decision of Murphy J affirming the Circuit Court decision the decision of His Honour Judge White must stand However on the basis that it might be useful to do so he went on to inquire of possible grounds of fraud which might conceivably exist or have existed He made the point that the will of the Testator had never been challenged In fact it is difficult to see how Ms Gunning could have challenged it she having applied for and been granted probate of the will in 1985 The trial judge then considered two possible bases on which Ms Gunning could claim to be the full owner of the Cottage the first being that she purchased the fee simple reversion and the second being that she had acquired a possessory title 28 While emphasising that no formal documents of title were put before the High Court as evidence of her acquisition of the freehold reversion the trial judge considered the first basis on the assumption in Ms Gunning s favour that she had purchased the reversionary interest Lest there be any doubt on this point I reiterate that there is no evidence before this Court that Ms Gunning acquired the freehold reversion all that is before this Court is the consent form Form C signed by Ms Tooley which on the basis outlined earlier proves nothing The point made by the trial judge was that if his assumption was correct Ms Gunning was in any event the personal representative of the Testator at the relevant time The trial judge referred to the relevant legal principles governing the situation where a person in a fiduciary capacity acquires the freehold reversion in property in which the leasehold interest is held in trust as here because of the application of s 10 3 of the Act of 1965 referring to a decision in Gabbett v Lawder 1881 11 L R Ir 295 and the following passage from Delany on Equity

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/ac7c0a64f806255c80257ed80042f16a?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • court may thereupon dismiss the action or make such other order therein as may be just O 34 2 If it appears to the court that there is in any cause or matter a question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried or before any reference is made to an arbitrator the court may make an order accordingly and may direct such question of law to be raised for the opinion of the court either by special case or in such other manner as the court may deem expedient and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed These provisions have existed for a long time and can find expression at least as far back as the 1905 Rules of Court Order 25 rr 2 and 3 and Order 34 r 2 respectively and almost certainly have an antecedence well beyond that Encouraging Efficiency 21 In more modern times particularly in light of litigation becoming ever more complex costly and lengthy many attempts at official level have been made to identify ways in which the consequences of such events can be avoided or at least ameliorated Hence both legislative provisions and specific rules of court with that intention in mind have been adopted in several different sectors of litigation including personal injuries commercial and competition to name but some as well as provision being made for mediation conciliation and other forms of alternative dispute resolution Order 56A RSC Side by side with these changes there has been much innovation at judicial level by way of case management modular hearings and other imaginative steps to the same end Largely the results have been very positive but still vigilance must be exercised lest through the prism of expedition truncated hearings will end up having the opposite effect I am satisfied that such would be the situation if the appeal in the instant case was allowed 22 Despite the undoubted advantages of such insightful moves it remains the position that at primary level a unitary trial is the starting point Experience throughout many decades of litigation has shown that in the vast majority of cases this is the best mechanism by which justiciable issues can be determined not only so as to achieve justice but also as representing the most expeditious and cost effective way of doing so Therefore whilst I greatly favour all suggestions which curtail the possibility of having diffuse and lengthy trials one must be sure however that what is provided for in that regard will in fact achieve the intended end Case Law 23 There has been a good deal of recent case law touching on the various methods by which litigation may best be conducted and disposed of and on the jurisdictional basis for the courts so providing See P J Carroll Company Limited v Minister for Health and Children No 2 2005 3 I R 457 Split or modular trials have increased greatly with the making of orders in respect thereof now being governed by fairly well established principles such as those laid down in Cork Plastics Manufacturing v Ineos Compound UK Limited 2008 IEHC 93 Clarke J McCann v Desmond 2010 4 I R 554 Charleton J and Atlantic Shellfish v Cork County Council 2010 IEHC 294 Laffoy J However as always there must be added to these general principles any individual factor of relevance which emerges from the circumstances of any given case Thus the assessment as to whether or not some modification of a unitary trial is appropriate will have to be considered having regard to all of the circumstances of each individual case 24 The formal basis upon which a court can make an order that a point of law should be determined by way of a preliminary issue is of course set out in the Rules of Court in particular those above mentioned para 20 supra There would seem little doubt however that being charged with the responsibility of administering justice a judge in control of a trial or a court in control of an appeal would have at judicial level similar powers to those prescribed by such rules Whilst it is true to say that Order 25 and Order 34 overlap to a significant extent McDonald v Bord na gCon 1964 I R 350 at 357 it is clear that Order 34 may be invoked before any evidence is given or any question or issue of fact determined A fundamentally different situation pertains to Order 25 which O Dalaigh C J in Kilty v Hayden 1969 I R 261 at 265 explained as follows When Order 25 is contrasted with Order 36 it becomes clear that Order 25 is not providing for the separate trial of issues which are partly of fact and partly of law but for the separate trial of a net point of law disassociated from issues of fact that is to say the point of law must arise on the basis of the facts being as the opposing party in his pleadings alleges them to be As it happened the application for the trial of a preliminary issue was dismissed in that case as a central issue of fact remained in dispute between the parties 25 As appears from the passage quoted the distinction being made was between Order 25 on the one hand and Order 36 and not Order 34 of RSC on the other in fact Order 34 was not referred to at all in the judgment The reference to Order 36 by the Chief Justice was to point out that in rr 7 and 9 thereof provision is made whereby the court can direct the trial of a distinct question of fact or one partly of fact and partly of law r 7 and in addition can direct that any issue of fact should be determined by different modes of trial or in whatever order of priority the court sees fit r 9 The reference in both rules 7 and 9 to the involvement of a jury does not of course arise in an action such as the instant one Order 36 of RSC however has not been relied upon or invoked on this application 26 Further reference was made to Order 25 of RSC by the Supreme Court in McCabe v Ireland 1999 4 I R 151 where at p 157 of the report Lynch J stated A preliminary issue of law obviously cannot be tried in vacuo it must be tried in the context of established or agreed facts The facts relevant to the preliminary issue must not be in dispute but they may be agreed for the purposes of the preliminary issue of law only without prejudice to the right to contest the facts if the actual determination of the preliminary issue should not dispose of the matter at issue The facts must be agreed or the moving party must accept for the purposes of the trial of the preliminary issue which he raises the facts as alleged by the opposing party The extract from the judgment of O Dalaigh C J in Kilty v Hayden 1969 I R 261 at 265 is then quoted apparently with approval See also Ryan v Minister for Justice 2000 IESC 33 27 It is therefore clear that without the relevant factual context as asserted by the responding party being agreed to or accepted where such a context is necessary the provisions of Order 25 of RSC may well be fatally compromised in their effectiveness Consequently when considering the use of this provision the court will always be obliged to have regard to the issues involved to the contextual setting in which these issues are pleaded and to the overall evidential footprint in which they are at that point in the case then positioned 28 Whatever may be the precise contours of either or both Order 25 1 and Order 34 2 of RSC it is clear that each has a common purpose namely to save time and cost when the preliminary process is compared with any other suggested method of hearing including a full trial of the issues raised Duffy v News Group Newspapers Limited No 2 1994 3 I R 63 and Croke v Waterford Crystal Limited Unreported High Court Smyth J 26th June 2003 Convenience will also be a consideration and whilst there is no express reference to such in Order 25 as there in Order 34 r 2 nonetheless this matter has equal application to both rules In this regard it is of interest to note what O Higgins C J had to say on this particular point in Tara Exploration Development Limited v Minister for Industry and Commerce 1975 1 I R 242 Tara Exploration where at p 256 the learned Chief Justice said In addition it must appear to the court to be convenient to try such question of law before any evidence is given This will involve a consideration of the effect on other issues in the case and whether its resolution will reduce these significantly or shorten the hearing Convenience in this respect must also be considered in the light of what appears fair proper and just in the circumstances 29 Whilst the factors most frequently referred to in the case law are time costs convenience and the potential impact which any decision on the preliminary issue may have for the case as a whole it is important to bear in mind as Tara Exploration discloses that such are not exclusive of other factors and that rules of court are always the servants of justice If they aid and assist that end as they are designed to they are apt fitting and pertinent where they are at odds with that purpose they are stood down Simply put the overall requirements of justice are as a matter of constitutional jurisprudence intrinsic to all such rules which must be both read and applied accordingly Need for Caution 30 The caution which I have urged as being appropriate when deciding whether or not to adopt the preliminary issue process paras 21 22 supra stems from litigation experience which shows that it may be very difficult in some cases to predict in advance of the hearing what facts might be critical in determining the issues which they potentially give rise to The same problem may even exist as to what the established facts mean either in a primary or secondary sense Whilst the various procedural tools of pre trial investigation are designed to eliminate differences in this regard and insofar as possible to eliminate them nevertheless the evidence of witnesses even that as anticipated frequently gives rise to some variations even in the most thoroughly prepared of cases 31 From another perspective sometimes the reliefs claimed and the issues of law involved when discussed at trial may give rise to the necessity to further explore a factual context which previously might not have been considered as relevant Hence the necessity in order to avoid these difficulties for fairly well established certainty on the factual situation before a point of law under the preliminary process can be safely dealt with The most frequent example given of the type of issue which confidentially can be disposed of in this way is one arising under the Statue of Limitations Delaney McGrath 3rd Ed para 14 13 Even then however such may be problematic if for example some controversy exists with regard to a person s date of knowledge Whilst undoubtedly there are certain issues which appropriately can be disposed of in this way nonetheless there will be many others which cannot be Therefore careful consideration must be given to each such issue as raised 32 These views are also well supported by authority an example of which is to be found in the judgment of Kenny J in Tara Exploration High Court where the learned judge at p 249 stated When this procedure is adopted the answers to the questions of law usually have to be qualified in so many ways that they do not lead to expedition or indeed to clarity Answering the questions may be an interesting academic exercise but the questions of law which have to be decided are usually conditioned by the facts p 249 A more recent expression of the necessity for prudence in this regard is to be found in the judgment of Hardiman J in B T F v Director of Public Prosecutions 2005 2 ILRM 367 where at p 565 the learned judge stated It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings clearly a strong case can be made for its trial as a preliminary issue The classic example is whether the statute of limitations is pleaded In other cases however the position may be much less clear In addition I respectfully agree with para 14 13 of Civil Procedure in Superior Courts Delaney McGrath 3rd Ed where the authors point out that such procedure normally will only be ordered in limited circumstances where a discrete issue or issues arise in proceedings that can be conveniently tried by reference to agreed facts and the determination of which may dispose or substantially dispose of the entire action 33 All of these statements and observations can therefore be taken as inviting the court which is asked to provide for a preliminary issue to evaluate the underlying circumstances with care and to ensure as far as possible that any order so made will ultimately satisfy the purposes which underpin the rules and practices in this regard 34 Finally in accordance with Article 34 4 3 of the Constitution an appeal can be taken to this Court from an order of the High Court on any application seeking the trial of a preliminary issue This right has now been modified following the passing of the 33rd Amendment of the Constitution and the enactment of the Court of Appeal Act 2014 neither of which however apply to this case As the making of such an order is discretionary in nature this Court when exercising its appellate jurisdiction as with all similar orders will give due and proper respect to the decision made by the trial judge and the reasons therefor even where that decision has been arrived at solely on affidavit evidence The situation might be different if for example the High Court had a type of policy by which such applications were determined that is not the situation in the instant case Subject however to that consideration of influence this Court can substitute its own views for those of the High Court if it thinks it appropriate or necessary to do so In the Goods of Morelli Deceased Vella v Morelli 1968 1 I R 11 Summary of Legal Position 35 The following therefore is a summary of the legal position before Order 25 of the RSC can be successfully invoked There cannot exist any dispute about the material facts as asserted by the relevant party such can be agreed by the moving party or accepted by him or her solely for the purposes of the application There must exist a question of law which is discreet and which can be distilled from the factual matrix as presented There must result from such a process a saving of time and cost when the same is contrasted with any other suggested method by which the issues may be disposed of in default with a unitary trial of the entire action In the absence of admissions appropriate evidence will usually be necessary in this regard impressions of what might or might not be will not be sufficient The greater the impact which a decision on the preliminary issue s is likely to have on the entire case the stronger will be the argument for making the requested order Conversely if irrespective of the courts decision on that issue s there should remain for determination a number of other substantial issues or issue s of a substantial nature the less convincing will be the argument for making such an order Exceptionally however even if the follow on impact will not dispose of any other issue the process may still be appropriate where the subject issue is substantial in its own right and where its determination will clearly benefit the action in an overall sense As an alternative to such a process in such circumstances some other method or mode of proceeding such as a modular trial may be more appropriate It must be convenient to make such an order at one level this consideration of itself can be said to incorporate all other factors herein mentioned but for the purposes of clarity it is I think more helpful to retain the traditional separation of such matters Convenience therefore should be understood as meaning that the process will enhance in an overall way the most efficient timely and cost effective method of disposing of the entire litigation The making of such an order must be consistent with the overall justice of the case including of course fair procedures for all parties The court at all times retains a discretion whether or not to make such an order when so deciding it should exercise caution so as to make sure that if an order is made it will meet the purposes intended by it finally Subject to giving due and proper weight to the decision of the trial judge the appellate court can substitute its own views for those of the High Court where it thinks it is both necessary and appropriate to so do The Instant Case 36 In this

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/7dd59d79f53187fb80257eeb005389f7?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive


  • was that in the passage quoted above it stated that Portisham is situated on the foreshore However it did not prove by reference to a map or otherwise that that statement was accurate 7 In his affidavit Mr Smyth recorded the contents of the last sentence in the quotation from Mr Byrne s report He also recorded that Mr Byrne noted that the vessel was situated on the foreshore moored to the quay wall and that under Part XV of the Act of 2000 developments on the foreshore other than exempted development on the foreshore require planning permission Mr Smyth then averred that the only exemption from planning permission for living on a boat is contained in Class 1 of Exempted Rural Developments in the Planning and Development Regulations 2001 S I No 600 of 2001 the 2001 Regulations He then demonstrated that Mr Kennedy s vessel did not come within the Class referred to the terms of which will be outlined later 8 There was also before the High Court an affidavit sworn on 4th January 2013 by Eugene Curry a marine consultant The purpose of that affidavit was to identify precisely where in Balbriggan Harbour Portisham was berthed Mr Curry exhibited a plan of the harbour on which he had drawn a plan view of an outline of the hull of the Portisham to the same scale of the plan of the Harbour on which it is drawn The plan of the harbour he utilised was a plan prepared by a firm of Consulting Engineers and dated September 2012 It was entitled Site Location Plan Balbriggan Harbour There is nothing to suggest that it was prepared in connection with the Council s application the subject of this appeal Mr Curry depicted the outline of the hull and described it as approx position of vessel in manuscript While it is very surprising that the Council did not specifically prove by reference to an ordinance survey map the actual line of the high water mark for the purpose of depicting the location of the foreshore as defined in the Act of 2000 within Balbriggan Harbour nevertheless the site plan appears to have been based on the relevant ordinance survey map and it appears that it was utilised under an Ordinance Survey licence details of which appear on the site plan On the site plan the line of the high water mark throughout the harbour area shown thereon including the pier at which the vessel is moored is depicted as HWM That pier is one of two piers which extend into Balbriggan Harbour and it is located to the east of the other pier and extends out into the harbour in a north easterly direction A notation on the site plan indicates that what the line marked HWM depicts is the Highest point to which medium tides flow 9 From the commencement of the proceedings Mr Kennedy has been a litigant in person and the Court is conscious that he did not have the benefit of legal advice on the difficult legal issues which arise on the Council s application An affidavit sworn by him on 5th December 2012 was filed in response to Mr Smyth s affidavit Mr Kennedy set out his critique of the averments in Mr Smyth s affidavit As regards paragraph 21 which referred to some of the contents of Mr Byrne s planning report and the planning issues he merely queried whether the term land applies to tidal zones For the reasons outlined later that query I surmise reveals his misunderstanding of the meaning of foreshore in Irish law and in particular in the context of an application under s 160 of the Act of 2000 Mr Kennedy understandably then went on to set out what he considered to be the then current position in relation to the range of matters which were addressed in Mr Smyth s affidavit but which are not material to the issues on the application for example the application of the 2010 Bye Laws None of the matters he averred to were relevant to the question whether the Council is correct in its contention that the presence of Portisham in Balbriggan Harbour constitutes an unauthorised development within the meaning of the Act of 2000 In particular none of the matters questioned the jurisdiction of the Council as planning authority to bring an application under s 160 The judgment and order of the High Court 10 The Council s application was heard in the High Court on the 18th February 2013 by Hedigan J who delivered an ex tempore judgment on that day He stated that it was clear from the evidence that the use of the vessel as a habitation in Balbriggan Harbour is an unauthorised use He commented that by reason of the vessel s general condition and the unsuitability of Balbriggan Harbour Mr Kennedy will never obtain planning permission for such use and indeed he had never applied for it He observed that the vessel was unseaworthy unregistered and uninsured That being the case Mr Kennedy would be unable to remove it even if he wished to do so He stated that to put an end to the unauthorised use and the danger caused thereby to the harbour structure the vessel required to be removed forthwith He concluded that the only practicable course of action was for the vessel to be removed by the Council to be broken up In the circumstances he made orders in the terms sought at paragraphs 1 and 3 of the notice of motion as recorded at i and iii in para 3 above 11 Accordingly in the order of the Court which was dated 18th February 2013 not 18th February 2012 as appears on its face it was ordered that a Mr Kennedy was prohibited from keeping Portisham at Balbriggan Harbour and b the Council is authorised to carry out the removal of Portisham from Balbriggan Harbour and her subsequent demolition The appeal 12 Mr Kennedy appealed in person against the order of the High Court The operative notice of appeal was dated 14th August 2013 Mr Kennedy set out eight grounds on which he was relying in support of his case that the whole of the judgment and order of the High Court should be set aside Two of the grounds address the Council s case that the presence of Portisham in Balbriggan Harbour is an unauthorised use within the meaning of the Act of 2000 First ground 6 which again points to his misunderstanding of the meaning of foreshore in Irish law states The county s jurisdiction for planning and development purposes ends at the line of high tide Specifically their foreshore extends from the line of high tide to the nearest continuous road The county s action was taken under the Act of 2000 but their own published map of the County Development Plan shows the boundary of their Planning authority to the edge of the quay Jurisdiction for the tidal zone was transferred to the Minister for the Environment on 15th January 2010 under the Foreshore and Dumping at Sea Amendment Act 2009 This Act has been effective since January 2010 Prior to that jurisdiction lay with the department of the marine This puts my boat outside the county s jurisdiction where planning is concerned Emphasis in original Secondly ground 7 states My boat remaining complete with propulsion and steering machinery does not constitute a development under the meaning of the Planning Act I am in the process of improving the vessel but I have not deliberately or otherwise disabled her seagoing capability 13 In broad terms the grounds relied on by Mr Kennedy as quoted in the next preceding paragraph question a the jurisdiction of the Council in relation to planning and development of Balbriggan Harbour and in particular the portion of the harbour at which Portisham is moored and b whether the presence of Portisham at that location and its use for habitation constitutes an unlawful development within the meaning of the Act of 2000 as the Council contends In considering whether Mr Kennedy is correct in questioning the Council s position on those bases it is necessary to consider the provisions of the Act of 2000 and the 2001 Regulations made thereunder in some detail 14 While it is true that by virtue of the provisions of the Foreshore and Dumping at Sea Amendment Act 2009 the Act of 2009 to which Mr Kennedy refers in ground 6 certain functions relating to the foreshore were transferred from the Minister for Agriculture Fisheries and Food to the Minister for the Environment Heritage and Local Government none of those functions relate to or regulate the planning and development of the foreshore which is governed by the Act of 2000 Accordingly the Act of 2009 is of no relevance to the issues raised on this appeal Relevant legislative and regulatory provisions 15 Section 32 of the Act of 2000 provides that subject to the other provisions thereof permission shall be required under Part III thereof a in respect of any development of land not being exempted development and b in the case of development which is unauthorised for the retention of that unauthorised development In s 2 of the Act of 2000 the word land is defined as including any structure and any land covered with water whether inland or coastal 16 An application for permission under Part III of the Act of 2000 is made to the relevant planning authority In s 2 of the Act of 2000 the expression planning authority is defined as meaning in the case of a county the council of the county In other words the Council is the planning authority for Fingal County The functional area of the Council as planning authority is its administrative county 17 Part XV of the Act of 2000 ss 224 to 228 which has been part of the planning code since 11th March 2002 by virtue of the Planning and Development Act 2000 Commencement No 3 Order 2001 S I 599 2001 deals with development of the foreshore Section 225 1 provides that subject to the provisions of the Act of 2000 permission shall be required under Part III in respect of development on the foreshore not being exempted development in circumstances where were such development carried out it would adjoin the functional area of the planning authority That sub section goes on to provide that accordingly that part of the foreshore on which it is proposed to carry out the development shall for the purposes of making an application for permission in respect of such development be deemed to be within the functional area of that planning authority 18 The definition of foreshore is to be found in s 224 which in Part XV gives it the meaning assigned to it by the Foreshore Act 1933 the Act of 1933 with a variation In s 1 of the Act of 1933 the word foreshore is defined as meaning the bed and shore below the line of high water of ordinary or medium tides of the sea and every tidal river and tidal estuary and every channel creek and bay of the sea or of any such river or estuary Since the enactment of the Maritime Safety Act 2005 there has been inserted in the definition in the Act of 1933 a provision to the effect that the outer limit of the foreshore shall be determined in accordance with s 1A of the Act of 1933 That provision although not of relevance for present purposes fixes the outer limit of the foreshore as being coterminous with the seaward limit of the territorial seas of the State as provided from time to time by Act of the Oireachtas that is to say currently at twelve nautical miles The variation to the definition contained in the Act of 1933 incorporated in s 224 of the Act of 2000 is that foreshore includes land between the line of high water of ordinary or medium tides and land within the functional area of the planning authority concerned that adjoins the first mentioned land In other words land including land covered by water above the high water mark and between that and adjoining land within the functional area of the planning authority comes within the definition of foreshore 19 The word development is defined in s 3 of the Act of 2000 In subs 1 of s 3 it is defined except where the context otherwise requires as meaning the carrying out of any works on in over or under land or the making of any material change in the use of any structures or other land Of particular relevance for present purposes is subs 2 of s 3 which provides for the purposes of subs 1 and without prejudice to its generality as follows b where land becomes used for any of the following purposes i the placing or keeping of any vans tents or other objects whether or not moveable and whether or not collapsible for the purpose of caravanning or camping or habitation or the sale of goods ii or iii the use of the land shall be taken as having materially changed 20 Section 4 of the Act of 2000 deals with exempted development Sub section 2 empowers the Minister for the Environment and Local Government to make regulations providing for any class of development to be exempted development for the purposes of the Act of 2000 and such regulations may be subject to conditions 21 Mr Smyth in his affidavit has drawn attention to the 2001 Regulations and in particular to one class of exempted development provided for therein That class Class 1 headed Limited Use for Camping is contained in Part 3 headed Exempted Development Rural of Schedule 2 which relates back to Article 6 of the 2001 Regulations Article 6 provides inter alia that a class specified in column 1 of Part 3 shall be an exempt development for the purposes of the Act of 2000 provided the development complies with the conditions and limitations specified in column 2 of that schedule The class pointed to by Mr Smyth is in the following terms Temporary use of any land for the placing of any tent campervan or caravan or the mooring of any boat barge or other vessel used for the purpose of camping A number of conditions and limitations are attached to that Class one being condition 2 which provides No tent campervan caravan or vessel shall remain on the land for a period greater than 10 days Mr Smyth has averred that the only exemption from planning permission for living on a boat is contained in Class 1 He has further averred that at the time of the swearing of his affidavit Mr Kennedy had been keeping his boat as a residence in Balbriggan Harbour for over two years By now that period has extended to over four and a half years Meaning of foreshore in Irish law 22 Mr Kennedy s query in his replying affidavit as to whether the term land applies to tidal zones suggests that he is under the same misapprehension as to the meaning of foreshore as is frequently encountered In one of the most recent texts which deals with foreshore in the context of Irish law Long on Marine Resource Law Thomson Round Hall 2007 the author states at para 2 09 Remarkably although the matter is of considerable importance there is still some doubt in the public mind about the spatial element of the foreshore Some of this doubt stems from the general perception that the foreshore is the inter tidal zone that is covered and uncovered by the ebb and flow of the tide Dr Long cautions at para 2 10 that considerable care should be taken with the use of the term foreshore which has different meanings for different statutory and other purposes What this Court is concerned with in this case is its meaning for the purposes of the Act of 2000 that is to say the meaning ascribed to it in s 224 of that Act Application of the legislative regulatory provisions to the facts 23 In applying the foregoing legislative and regulatory provisions having regard to Mr Kennedy s grounds of appeal quoted earlier the core question is whether the mooring of Portisham in Balbriggan Harbour and its subsequent use by Mr Kennedy for habitation is an unauthorised development within the meaning of the Act of 2000 In answering the foregoing question a number of factors are relevant 24 First the onus is on the Council to prove that Portisham is situated on the foreshore The evidence by reference to the site plan exhibited by Mr Curry is that Portisham is moored along the south western side of the easterly north easterly pier which extends into Balbriggan Harbour The site plan indicates that the pier is within the functional area of the Council because by virtue of s 227 of the Local Government Act 2001 the maritime boundary of Fingal County is deemed to coincide with the ordinary high watermark for the time being and land for the purposes of illustration only is read as including inter alia piers The site plan which appears to be based on the ordinance survey map for the area although there is no formal proof of that depicts the high water mark in the area in which Portisham is located as being on the south westerly edge of the pier Therefore assuming the site plan does in fact accurately replicate the ordinance survey map Portisham is located on what is foreshore as defined in both the Act of 1933 and in the s 224 of the Act of 2000 being located just below the high water mark On the basis of that assumption which also underlies the findings in the three succeeding paragraphs insofar

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/2387b1a2b52eda1980257e9700569f78?OpenDocument&TableRow=2.1 (2016-02-09)
    Open archived version from archive