High Court of Ireland Decisions

1. The second and third named defendants are the registered owners of certain lands at Castlemaine Harbour, Dingle Bay, County Kerry which include Inch Spit. The first named defendant, the brother the second named defendant, from time to time grazes in excess of one hundred sheep on the said lands and is the caretaker thereof. Some development had already taken place for the layout of a golf course. The Minister then opposed what her Department believed to be further development. She says that the lands form part of a special area of conservation.

2. Notwithstanding, the defence acknowledges that the defendants were notified, by letter dated the 26th March, 1997, that their property was included in the Candidate List of European sites.

3. Within two months, on the 23rd May, 1997, the defendants objected to the inclusion of their property in the list and complained that the plaintiff had failed, neglected and refused to introduce any, or any appropriate, appeal or objection procedure and have not processed the defendants’ objection, not permitted the defendants to make any objection on the basis of economic, social and cultural requirements and/or on the basis of regional and local characteristics, nor had taken account of the defendants’ ligitimate expectation. No adequate compensation package was in place.

4. In the premises the defendants say that the plaintiff's decision is ultra vires and void.

5. In the alternative the regulations do not apply to the development of the defendants’ property as a golf course as the development commenced in or about the month of April, 1994 prior to the coming into force of the regulations and is, alternatively, in breach of the defendants’ constitutional rights in that it has a retroactive effect.

6. The defendants counterclaimed for damages.

7. The Regulations of 1997 purported to bring into force in Ireland the laws, regulations and administrative provisions necessary to comply with the Directive albeit within 5 rather than 2 years of notification.

8. An environmental impact assessment in respect of a proposed operation or activity shall be an appropriate assessment for the purpose of this regulation.

9. No reply was received to this letter.

10. He also referred to a “list of candidate SAC’s” which was prepared by him on 29th June, 1995 prior to his departure to the Review and General Section of the Department. That list included Castlemaine Harbour, as No. 343, describing five types of dunes, banks, mud flats, inlets, bays etc. It also contains a reference to that petalophyllum ralfsii which was designated as subject to further within boundary field checking; that the site is selected for at least one priority habitat; that the site is or contains or is contained within an SPA; that the site requires a full boundary survey and that there is a requirement for a seaward boundary to be drawn for the site in consultation with a marine biologist.

11. That list followed a draft interim list of candidate SAC’s which was a paper by Dr. O’Criodain of April, 1995 which form the basis of a Wexford Conference of the research branch of the Wildlife Service. Dr. O’Criodain points out in his paper that there was much uncertainty surrounding the high proportion of unsurveyed or inadequately surveyed national heritage areas and that this seriously weakened the validity of the list. It is certain that some key sites are missing from it and the habitats and species sited for each candidate site may not always be appropriate. Castlemaine Harbour, Inch, Ross Bay is included with the shorter narrative than that contained in the list of candidates SAC’s of the 7th September, 1995.

12. The third document entitled “SAC’s with priority habitats (MPSU list)” of the 5th November, 1996 includes Castlemaine Harbour without any comments as there are in relation to a few of the areas listed.

13. It was clear from Dr. O’Criodain’s evidence that what was to be sent to the Commission of the European Communities was a standard data form in respect of each of the sites identified rather that a list. This appears to have been completed as a Natura 2000 Standard Data Form for special protection areas in July, 1999.

14. Taking their evidence together with that of Dr. O’Criodain, the genesis of the Proposed Candidate Special Areas of Conservation Ireland appears to be as follows:

15. April 1995 Draft interim list of Candidates SACs (includes Castlemaine with similar details) (Wexford Document)

16. There is some ground for finding that the three letters referred to in Dr. Curtis’ grounding Affidavit emanated from a common source. Moreover, the information was itself hearsay. The application followed the day after notification was given to the occupier and not to the owner. The letter accompanying the notification itself did refer to the golf course development and to the requirement for an environmental impact assessment.

17. While no operation was being carried out, evidence as to an operation that might be carried out was, of course, to the development of a golf course which had been the subject of previous correspondence.

18. He had no knowledge of any work on the lands at Easter. He didn’t speak nor have any contact with his brother following the service of the notice and Court injunction. He had no connection with Dr. Arthur Spring. He did not read the legal papers. He refused to take them despite the reference to Dr. Curtis’ Affidavit in his Affidavit where he said that, up to the day he gave evidence, he had not read the papers.

19. Dr. Spring, he said, had full control to develop courses and a hotel which he would finance. They didn’t specify 1, 2 or 3 courses but Dr. Spring gave him a ballpark figure per golf course. He said that he told Dr. Spring to live within the law.

20. He said that he told his solicitor to welcome Duchas and the Wildlife Service on board. He was not aware whether his solicitor had put proposals on paper. He was never told that the site was an area of high amenity and that planning would not be forthcoming. He had looked at the development plan before the purchase and didn’t need planning permission. He was unaware of problems until 1994 when the Council had “put a stop when we had 8 to 10 holes laid out”. He could not recall when work commenced. He did not have detailed plans. He was not aware that the Wildlife Service was looking for information. Their key man, he said, wouldn’t meet him. He did not know the name of the contractor who carried out the work in 1994. He did not pay him. Dr. Spring dealt with the layout of the 8 - 10 holes. He had not discussed the 1992 Directive. Either Dr. Spring or Mr. O’Sullivan, the Solicitor, would have told him of the injunction. He was amazed at what he termed “fabrication and hearsay.”

21. In May, 1997 he lodged an objection to the site being listed.

22. He said that he was not aware of the allegation in his defence that the Minister had not dealt with the objection nor with what counsel for the plaintiff termed the widespread attack on the Minister. He had not discussed this.

23. When asked if he was prepared to abide with the regulations he replied that he could not answer, that he did not know where he was with the law. He was not aware of the injunction proceedings.

24. He had no trust in the Minister giving consent pursuant to Regulation 14. He said that the Department had tried to confiscate his property. He agreed that no proposals had been sent to the Minister.

25. Both the plaintiff and the defendant submitted extensive legal submissions.

26. Mr. McDonagh SC, on the behalf of the Minister submitted that the Minister is obliged to take certain minimum steps to preserve sites which are placed on a list in accordance with the EC (Natural Habitats) Regulations, 1997. However, even in the absence of any implementing regulation it is clear, he submits, that the obligations on the Member State arise from the Directive. This requires Ireland to take the steps, whether by way of legislation or administrative decision, as outlined in the Directive. The obligations arise not by virtue of a duty created by the Regulations only, but also by virtue of the provisions of the Directive itself. This was made clear by the decision of the Court of Justice on the 11th September, 2001 in case C-67/99 Commission -v- Ireland .

27. The plaintiff has prepared a list, which at all times included Castlemaine Harbour and, within that designation, Inch Spit, and has further notified the land owners of the listing by publication in local newspapers. Indeed the second and third defendants have pleaded in their defence that they have been served pursuant to Regulation 4. Accordingly there is no issue regarding service.

28. The protection that the Minister is obliged to give relates to the list even if, on being forwarded to the European Commission, the Commission itself forms a view that the site does not come within the criteria set out in Annex III.

29. The Minister is obliged under Regulation 17 to take appropriate action where she considers that an operation or activity was about to be carried out on the site which had been placed on a list. Appropriate Orders were granted by the Court. Whether the Court granted such an injunction pursuant to Regulation 17 or pursuant to its general powers is not necessarily a decision that the Court has to decide. The Order granted was directed against the first named defendant, the only defendant at that time, his servants or agents and otherwise howsoever. Mr. McDonagh SC says that Mr. Justice Kelly added the words “ or any persons having notice of the making of the Order”. The second and third named defendants were joined as co-defendants by Order of Mr. Justice Smith.

30. Certain submissions were made with regard to the right of the Minister rather than the Attorney General, to seek injunctive relief.

31. Keane J., as he then was, in Irish Permanent Building Society -v- Caldwell [1979] ILRM 273 at p.275 stated that “in the absence of an expressed Statutory Provision, a private individual cannot maintain an action such as the present ”, (where the plaintiffs' sought to challenge the validity of a decision of the defendant Registrar of Building Societies).

32. In the circumstances, Mr. McBratney submits, that insofar as any jurisdiction may exist in common law to prevent the apprehended harm to habitats, proceedings can be brought only by the Attorney General and the plaintiff does not have the requisite locus standi to maintain the proceedings.

33. Moreover, paragraph 3 only permits the Minister to make an application to Court to prohibit the continuance of the operation or activity. In the present case Mr. McBratney submits no operation or activity had taken place.

34. It is submitted that the only category into which the site could fit would be the first category (See 5.1.1 above). The defendant submits that there is no evidence before the Court that the site was placed on a list in accordance with Chapter 1 of Part II of the Regulations. This is so because it is a database and not a list defined as “ a number of connected items or names written consecutively ” as in the 10th Edition of the Concise Oxford Dictionary at page 828. Moreover the database was capable of being altered on a daily basis, according to the evidence of Mr. Kelly. It is not, accordingly, an exhaustive or complete list. Accordingly it does not constitute compliance with the Directive.

35. That reasoning, Counsel submits, was subsequently endorsed in Commission -v- Ireland (case C-67/99) at paragraphs 15, 17, 30 and 32.

36. In that case the Court found that a first partial definitive list of only 39 sites was transmitted by 30th September, 1998. For this reason the Court held that Ireland had failed to comply within the prescribed period ending on that date and that the content of the Irish National List sent to the Commission was “ manifestly inadequate ”.

37. Counsel for the defendant submitted that there is a continuum from the creation of the initial list towards transmission to the Commission with provisions made for, at most, some modifications to the list during the process. Therefore, if the list which is sent to the Commission is required to be exhaustive and definitive, it follows that the initial list drawn by the Minister must also be exhaustive and definitive (subject to the possibility of minor amendments) and that anything short of such a list does not constitute a “list” within the meaning of Regulation 3. In circumstances where the purported list is a database, subject to the possibility of daily amendment, it is not apparent how this can constitute compliance with the regulations.

38. In the circumstances where the Directive has been interpreted as requiring Member States to submit an exhaustive list, then under the regulations the list of candidates sites drawn up by the Minister should also be exhaustive. This is the interpretation which most closely accords with the purpose of the Directive and achieves the results envisaged by the Directive. The principles of European law stipulate that legal measures implementing a Directive must be construed so far as possible in accordance with the Directive ( Von Colson -v- Land Nordrhein/Westfalen (1984) ECR1891, (1986) CMLR 430 approved in Marleasing SA -v- La Comercial Internacional de Alimentación SA (1990) ECR 1-4135, (1992) 1 CMLR 305. Moreover these principles have been approved by the Irish Courts in Lawlor -v- Minister for Agriculture [1990] 1 IR 356; Bosphorus Hava -v- Minister for Transport [1994] 2 ILRM 551 and Nathan -v- Baily Gibson Ltd , the Supreme Court, 29th February, 1996, where Hamilton C.J. said at page 23 of his judgment:-

39. The defendants also submit that the procedure must be strictly adhered to because of the very severe interference with the second and third named defendants proprietary rights.

40. It is clear from the evidence before the Court, which was accepted by the plaintiff, that nothing had happened on the site. The plaintiff's apprehension on this regard was entirely misconceived. Accordingly, there is no basis on which relief could be granted pursuant to Regulation 17. There was not a reasonable, well grounded apprehension that any work would be carried out.

41. A similar approach was taken by the Court of Appeal. Fitzgibbon L.J. stressed, at p 171, that:-

42. More recently, Mr. Justice Geoghegan in Szabo -v- Esat Digifone Limited [1998] 2 ILRM 102 held that .. “ for a quia timet injunction to be granted there would have to be a proven substantial risk of danger ” (p.110).

43. In his submission Counsel for the defendants submit that the evidence in this case falls well short of satisfying that standard. The evidence is entirely hearsay - a story upon a story. There is not any evidence from any person with first hand knowledge of any act or event which could constitute an indication by the defendants, or any of them, that they were on the verge of carrying out any activity in or about the 27th March, 1997 or the period leading up to it.

44. Accordingly, the obligation on the Minister to make application to a Court of competent jurisdiction, pursuant to Regulation 17(3) is circumscribed by that Regulation.

45. In those events, if the Minister, having regard to the conclusions of the assessment undertaken, is of the opinion that the operation or activity will adversely effect the integrity of the site, she shall make an application to a Court of competent jurisdiction to prohibit the continuation of the operation or activity.

46. While it is clear that the Minister had not, at the time of the application of the injunction, submitted an exhaustive list to Europe for their consideration, as is evidenced of the Commission -v- Ireland case referred to above, the site in question was listed appropriately at the time of that application.

47. Moreover, by letter dated the 8th May, 1992 the predecessor of the Minister wrote to the second and third named defendant’s Solicitor regarding the conservation of the lands in question.

48. Accordingly, the lands the subject matter of this application were included in a list, the defendants were aware of such listing and, indeed, have appealed the inclusion of the lands on such list.

49. Member States are also required to take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats species insofar as such a disturbance could be significant in relation to the objectives of this Directive (Article 6(2)).

50. In any event it is clear that Regulation 17 is prospective rather than retrospective. The Minister is entitled and, indeed, obliged, to apply for injunctive relief even thought the activity is not been carried out but may be carried out in the future. While not expressly stated this is the probable interpretation notwithstanding the wording of Regulation 17(3) that the Minister shall make an application to a Court of competent jurisdiction to prohibit the continuance of the operation or activity. Paragraph (3) might be interpreted within the wider scope of Regulation 17(1); “where the Minister considers that an operation or activity is been carried out or may be carried out ...”.

51. If I am wrong in interpreting Regulation 17(3) in such a broad sense - and I do so with some doubt, given the legal principle recognised in Mahon -v- Butler [1998] 1 ILRM 284 at 291, the Minister would be restricted to seek an injunction to prohibit the continuance of land use which is in any event exempted development as so found by An Bord Pleanala.

52. Operation or activity is defined broadly as:-

53. In this regard the definition of operation or activity meaning any use other than development which is not exempted development or development by a local authority etc. within the meaning of the Local Government (Planning and Development) Acts, 1963 to 1993 renders the definition of operation or activity to exclude rather than to include development under the said Acts.

54. Even if there were credible evidence of a threat of such operation or activity - and I do not need to make a finding in this regard - the obligation on the Minister is to ensure that an appropriate assessment of the implications for the site is undertaken in view of the sites conservation objectives. The regulation gives an example of such appropriate assessment by referring to an environmental impact assessment. There may be other appropriate assessments but it seems unlikely, given the example in Regulation 17(2), that a mere opinion, however expert, would be appropriate given the reference to the requirement regarding conservation objectives. Conservation is defined as a series of measures required to maintain or restore the natural habitats and the populations of species of wild fauna and flora at a favourable conservation status of a natural habitat and of a species. There would appear to have been nothing approaching such “a series of measures” with regard to Site 343, the subject matter of this application. Taking the two concepts together it would appear that a formal assessment relative to the objectives is an obligation to be undertaken by the Minister when she considers that an operation or activity is been carried out which is likely to have a significant effect on a site listed.

55. Whatever doubts that might exist regarding future operations or activities that are covered by Regulation 17(3) there is no doubt that the Minister has to have regard to the conclusions of the assessment undertaken. She must form the opinion that the operation or activity will adversely affect the integrity of the site concerned. Only in these circumstances can the Minister make an application to Court to prohibit the continuance (or if I am right in a broader interpretation), to prohibit the commencement of an operation or activity.

56. However, it is not helpful to a Court of equitable jurisdiction to leave until the time of application for a perpetual injunction, four years later the giving of evidence that no operation or activity was proposed when at the same time objecting to the inclusion of the site in a list and the postponing of the dealing with such objection until the hearing of this Motion.

57. Moreover, the defendants have not shown that they or any of them have suffered damage. The second named defendant was somewhat ambiguous with regard to his complying with the regulations (see 8.5 above). The letter of 8th May, 1992 sent to his solicitor was not replied to. No proposals were made by or on his behalf regarding the site.