Supreme Court of Ireland Decisions

1. This case concerns the Glen of the Downs in County Wicklow which is an area of outstanding natural beauty and is designated as a nature reserve. A public road runs through the Glen. The road widening scheme which has given rise to these proceedings involves the construction of a dual carriageway for approximately five kilometres. Around 0.68 hectares of the land of the Glen on either side of the existing roadway is involved. Elsewhere the applicant has argued that the works and development will irrevocably destroy the woodland of the Glen. The respondent, on the other hand, takes the view that present traffic volumes are too high for the road and they have raised safety issues. However, this appeal does not involve issues as to the woodland, the environment of the Glen, road traffic volumes or safety.

2. This is an appeal by Dermot Murphy, the applicant (hereinafter referred to as “the applicant”) from part of a decision of the High Court, delivered on 19th March, 1999. It is unnecessary to relate an extensive history of these proceedings as, while many issues were before the High Court, only two grounds were argued on behalf of the applicant in the Supreme Court and these raise technical legal issues.

3. Mr. Paul Sreenan, S.C., counsel on behalf of the applicant, submitted that the only reliefs being sought now were those in the statement of grounds at paragraph D.4 and D.9 being:

4. He stated that the relevant grounds of relief in the statement of grounds were set out in paragraphs E.4, E.7 and E.13 being:

5. Wicklow County Council, the respondent, (hereinafter referred to as “the respondent”), brought a notice to vary the judgment of the High Court on the grounds that the learned trial judge erred in:

6. Consequently, the three issues raised by the parties on this appeal are:

7. Statutory Instrument No. 178 of 1980:

8. The map contained in the Schedule is a map of the Glen of the Downs with the legend:

9. Pursuant to the powers conferred on him by s.15 of the Wildlife Act, 1976, by Statutory Instrument No. 178 of 1980, the Minister established a nature reserve in the Glen of the Downs. There has been no claim as to the validity of the Statutory Instrument or the Act; both are presumed valid.

10. The Minister has a duty under s.15(4) of the Wildlife Act, 1976 to manage the land of the nature reserve so as to secure, as best may be, the objectives indicated in the order having regard to and in accordance with the general protection of the natural environment. Duties also arise for others, including local authorities, such as the respondent, under s. 12(2) of the Wildlife Act, 1976. However, those matters do not arise on this appeal. For decision on this appeal are issues on net legal points.

11. The first issue is whether or not the Statutory Instrument needs to be amended in view of the proposed widening of the road. This requires that Statutory Instrument No. 178 of 1980 be construed. Article 2(1) of the Statutory Instrument declared that the land specified in paragraph (2) of that Article shall constitute and thereby was established as a nature reserve. The description of the extent of the lands within the nature reserve is set out in the Statutory Instrument. The relevant words in Article 2(2) are:

12. It is necessary to construe the Statutory Instrument to see what land is included in the nature reserve. This may be determined by seeing what is excluded. It is clear that excluded from the nature reserve is “any part thereof which forms part of a public road.” This is clear language and can be interpreted literally. The reference to the map in the article is a reference back to the lands rather than to a road and thus Article 2(2) should be read as:

13. The area excluded being described as:

14. Thus, the area of the nature reserve is delineated and excluded is “any part thereof which forms part of a public road.” It is a territorial definition of the nature reserve, however, excluded is any part which forms part of a public road. The use of the indefinite article is important, the description is of “a” road, not “the” road. Thus, a public road is excluded from the nature reserve. The clear reference by the indefinite article to a public road indicates that the Statutory Instrument is not fixed to the public road of 1980. By the clear words of the Statutory Instrument a public road is exempted from the nature reserve. Indeed,

15. Article 2(2), the Statutory Instrument does not need to be amended to include a widened road.

16. However, this does not mean any person can act with impunity. The Minister and the respondent have duties under the Wildlife Act, 1976 in relation to the nature reserve, for example the obligations under s.12. Murphy, J. in his judgment has analysed some of the steps, including the consultation process, which have taken place in relation to this nature reserve and the proposed road widening.

17. In light of my determination on the first issue the second issue does not arise for decision. The Statutory Instrument does not need to be modified, therefore no question arises as to a time of modification.

18. The only remaining issue is that raised on the notice to vary by the respondent challenging the right of the applicant to apply to the courts to enforce the Wildlife Act, 1976. The issue of the locus standi of the applicant was before the High Court and was determined in his favour. That issue was not appealed. The third issue raised on appeal is as to whether the courts, on the application of a person other than the relevant Minister under the Wildlife Act, 1976, can entertain an application such as that of the applicant to restrict Wicklow County Council’s intended roadworks on the basis that they interfere with a statutory established nature reserve. This issue highlights the unsatisfactory situation that a relevant Minister, the Minister for Arts, Heritage, Gaeltacht and the Islands, is not a party to this action. In light of my decision on the interpretation of the Statutory Instrument and in view of the circumstances of the case it is not necessary to determine this third issue.

19. I conclude by determining that Statutory Instrument No. 178 of 1980 does not need to be amended because of the proposed road widening and consequently the applicant is not entitled to the declaration and order sought. I would dismiss the appeal.

20. Wicklow County Council has planned for nearly ten years to replace some five kilometres of the N11 where it passes through the Glen of the Downs in County Wicklow with a modem and much needed dual carriageway. The Council drew up all the necessary plans. It has obtained the best professional advice. It procured detailed Environmental Impact Studies and held public hearings partly by reason of the nature of the works involved and partly by reason of the fact that the Council initiated compulsory purchase proceedings in respect of lands required for the purposes of the extended or widened roadway.

21. The Applicant Appellant, Dermot Murphy, did not participate in any of these inquiries or hearings but instead instituted proceedings by way of judicial review against the Council

22. The only matter debated before the Supreme Court was the effect of the Nature Reserve (Glen of the Downs) Establishment Order, 1980, S.1.178 of 1980. (the 1980 Order)

23. The 1980 Order was made by the Minister for Fisheries and Forestry under s. 15 of the Wildlife Act, 1976. That order declared the lands referred to therein and delineated on the map annexed thereto “other than any part thereof which forms part of a public road” to be a Nature Reserve for the purposes of the Act of 1976. The N11 effectively bisects in a north south direction the nature reserve so constituted.

24. In those circumstances two issues arose, namely:-

25. The Act of 1976 confers on the Minister very broad and generalised functions in relation to the conservation of wildlife. The Act comprises 78 sections and a number of schedules. Sections 1-12 are general in their application. Section 13 which provided for the creation of the Wildlife Advisory Council was repealed by the Heritage Act, 1995. Chapter II of the Act of 1976 (which includes sections 15-18) deals with the classification of certain areas of land for conservation purposes. The bulk of the Act - sections 19-78 inclusive - deals largely with the protection of wild birds, protected animals and flora and creates a variety of offences concerning damage to flora and the killing, exportation or injury of birds or animals of different species and at different times of the year. In addition, the relevant Minister is given wide powers to make regulations for the protection of various species of birds and animals and the habitats in which they breed.

26. The consequence of any land being constituted a reserve or a refuge under any of the provisions contained in Chapter II of the Act of 1976 can only be ascertained by an

27. In addition there is what might be described as a concurrent condition. The Minister is required to specify in the establishment order the reasons why a nature reserve is being established and the object for which it is being so established.

28. All of that being said, the section does not of itself impose any obligation on anyone other than the relevant Minister and on him/her it imposes two obligations only, namely:-

29. Whilst the key role of the Minister is to “manage” the lands to which an establishment order relates, s. 15 provides no definition or explanation of that word. This is a surprising omission having regard to s.18 which, in subsection 7 thereof, defines the word (but only for the purposes of s. 18) in the following terms:-

30. “(7) In this section “management” in relation to land means use of the land for agriculture or forestry, the carrying out of works on, in or under the land, the making of any change in the physical, topographical or ecological nature or characteristics of the land and the use of the land for educational or recreational purposes.

31. The powers and duties conferred and imposed on the Minister by s. 15 appear to be very modest. They may be best understood by comparing the consequences of orders made under that section with orders or agreements made under the three subsequent sections.

32. Again, one can see that the recognition order does not of itself impose any obligation on anybody. It merely recognises the work of conservation which is being carried on by an occupier of particular land. A recognition which will be withdrawn or may be withdrawn if he ceases to maintain the lands.

33. There is a fundamental difference between a designation order and either an establishment order or a recognition order. A designation order may be made where the Minister considers that a particular species of fauna should be protected on land which constitutes a habitat of the species. A designation order may (under s.17 subsection 9):-

34. There are then provisions in s. 17 enabling and requiring the Minister to compensate the occupier of the land for the diminution in value of his lands caused by the protective measures contained in the relevant order. In addition there is - unlike the previous sections - an express provision (subsection 15) in the following terms:-

35. Again, this section may be enforced. The Minister can sue on the contract entered into by him and the section provides machinery under which the agreement may be enforced against the successors in title of the landowner who enters into the agreement. Like s. 17, the arrangement under the s. 18 agreement may make provision for the payment of monies by the Minister to the landowner by way of compensation for the obligation assumed by him under the agreement. What may be more significant is that all four sections contain precisely the same provision for the giving of notice by the Minister to the Commissioners for Public Works, An Bord Pleanala and the local planning authority as to the making of an order under sections 15, 16 or 17 or the entering into an agreement under section 18 aforesaid. The common thread is that all relevant bodies should be aware of the fact that the lands affected by the orders or agreement have been classified as in need of, or suitable for, conservation in one form or another. Such information might be of assistance to the planning authorities in considering the desirability of making a conservation order under s.46 of the Local Government (Planning and Development) Act, 1963.

36. More immediately, publication of this information is necessary to make effective the provisions of s. 12 of the Wildlife Act, 1976. That section provides that a Minister of State, any local authority, the Commissioners for Public Works and any State or semi-state company shall:-

37. It seems to me that it is s. 12 aforesaid which provides the principal means by which the legislature and the Minister secures the conservation of habitats and ecosystems comprised in lands the subject matter of establishment orders, recognition orders, designation orders or s. 18 agreements or at any rate the avoidance as far as practicable of any interference with them.

38. No doubt the Minister can in relation to designation orders and s. 18 agreements exercise immediate and direct powers by invoking criminal or civil sanctions. No such remedies are available in relation to sections 15 or 16. The reality in relation to s.15 is that the lands the subject matter of an establishment order are by definition State lands. Indeed s.59 of the 1976 Act defines the lands in respect of which an establishment order is made under s. 15 as a “State land nature reserve “. As the lands to which the Glen of the Downs order relates are not vested in the Minster for Arts and were not acquired under s.56 of the 1976 Act the

39. Minister for Arts does not have the title to exercise effective control over these lands. If, for example, vandals were to trespass on the Glen of the Downs nature reserve and take up residence there with the intention or the consequence of damaging the ecosystem the Minister for Arts could not sustain proceedings to eject them. She does not have an appropriate estate in the lands. Such an action could only have been brought by the owner, namely, the Minister for Agriculture. It may be presumed that where one Minister is given a statutory power to manage State lands in the ownership of another Minister that the other Minister would co-operate with his or her colleague in achieving the statutory purpose. On the other hand it is clear that the function of management cannot be wholly divorced from the ownership of the lands. This is recognised in s.59 of the Act of 1976. That section gave to the Minister power to make regulations permitting the public generally or any particular class or section of the public to have access to various land including:-

40. It would be noticed that regulations may only be made in relation to lands comprised in an establishment order which is land owned by the State. More particularly, subsection 8 of s.59 expressly provides that:-

41. To that extent the legislature recognised expressly that regulations could not be made conferring rights or obligations on or in respect to land in which the State had no legal interest or which would survive the disposal of lands in which the State did have an interest.

42. On the 11th September 1991 the Council wrote a letter to the Minister for Finance entitled “Section 12, 1976 Wildlife Act” and expressly invoked the consultation procedure thereby required. Some confusion appears to have arisen from the fact that the letter was addressed to the Minister for Finance. I believe that the letter was correctly addressed to that Minister but any confusion as to the responsible department is fully understandable. In Devlin .v. The Minister for Arts [1999] 1 ILRM 462 [FL378] I attempted to explain the devolution of the title from the Minister for Lands to the Minister for Arts, Culture and the Gaeltacht (subsequently the Minister for Arts, Heritage, Gaeltacht and the Islands) in the following terms:-

43. However, the Department of Lands became the Department of Fisheries pursuant to Statutory Instrument S.I. No. 29 of 1977. The name of that department was changed on 14 July 1978 to the Department of Fisheries and Forestry. By a further change made on 19 February 1986 it became the Department of Tourism, Fisheries and Forestry. By S.I. No. 82 of 1987 the name was refined to “The Department of the Marine”. By S.I. No. 96 of 1987 the functions vested in the Minister for the Marine under the Wildlife Act, 1976, were transferred to the Minister for Energy. Subsequently by S.I. No. 156 of 1987 the powers of the Minister for Energy under the 1976 Act were transferred to the Minister for Finance. Later still those functions were transferred from the Minister for Finance to the Minister for Arts, Culture and

44. It would seem, therefore, that the letter of the 11th September 1991 was correctly addressed to the Minister for Finance and it did as a matter of fact initiate the consultation process envisaged by s.12 of the 1976 Act. Before writing a letter dated the 9th August 1995 the Commissioners had also received a compulsory purchase order in relation to part of the lands comprised in the Glen of the Downs nature reserve. In their letter the Commissioners referred to that order and to the various discussions and consultations which had taken place in relation to the Council’s proposals and the effect which they would have on the nature reserve. The Commissioners expressed their views as follows:-

45. The Commissioners did, however, go on to advise of certain concerns which they were anxious that the Council would take into account, namely:-

46. Finally, in their letter the Commissioners expressed the view that a compulsory purchase order was an inappropriate procedure to adopt but confirmed that they were willing to hand over the lands in question to the Council.

47. It is clear that the Heritage Act, 1995, under which the responsible Minister is again the Minister for Arts, Culture and the Gaeltacht, overlaps to a considerable extent with the Wildlife Act of 1976. They do have a similar purpose and it is significant the Wildlife Advisory Council established pursuant to the 1976 Act (s. 13) was wound-up and replaced by the Heritage Council created by s.5 of the 1995 Act. The functions of the Commissioners for Public Works in relation to national heritage under the various Acts included in the table to s.24 of the 1995 Act (and those included the Wildlife Act, 1976) were thereafter to be performed by the Commissioners subject to the directions of the Minster for Arts. This may explain why the correspondence between the State and the Council in relation to the Glen of the Downs nature reserve concludes with correspondence from the Commissioners in their capacity as “the Heritage Service”.

48. It was ultimately the view of the Commissioners that the lands comprised in the 1980 Order excluded any part of a public road and that accordingly the proposed widening of the existing carriageway would be a public road when built and that accordingly no amendment to the statutory instrument was necessary.

49. In my view the County Council invoked and complied fully with the requirements of s. 12 of the 1976 Act. The matter was complicated by organisational changes within the State agencies but there is no doubt that the consultation process was initiated with the correct Minister and that the appropriate officers and agents of the State reviewed, discussed and considered the impact of the planned roadway on the nature reserve and were satisfied to approve the same subject to the two provisions which they invited the Council to adopt for the purpose of minimising or avoiding interference with the nature reserve. Certainly the discussions and correspondence which took place met the substantive requirements of s. 12 of the Act of 1976. If any error occurred as to the designation of the particular agencies to whom some of the communications were addressed (and I am not convinced that such was the case) it did not affect the substance of the matter and the important interchange of views which took place. A procedural error within that context would not justify the Court in exercising its discretion to grant relief by way of judicial review. It seems to me that the statutory benefits intended to be achieved by declaring lands to be a nature reserve were obtained and there is no further statutory embargo to Wicklow County Council constructing the roadway by reason of the fact - if such it was - that the additional strip of road would intrude into part of the nature reserve.

50. Furthermore, I am satisfied as a matter of law that once those parts of the State lands comprised in the nature reserve were validly and effectively conveyed to Wicklow County Council the relevant Minister could no longer exercise any statutory power of management or control over the lands which had ceased to be in State ownership.

51. I am satisfied that the 1980 Order did not require to be amended to enable the proposed carriageway to be constructed but it may be desirable to redefine the area excluded from the

52. I would dismiss the appeal.