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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Casey v. Minister for Arts, Heritage, Gaeltacht and the Islands [2004] IESC 14 (24 February 2004)
URL: http://www.bailii.org/ie/cases/IESC/2004/14.html
Cite as: [2004] 1 IR 402, [2004] IESC 14, [2004] 2 ILRM 260
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THE SUPREME COURT
Record No. 190/01
Murray, J.
McGuinness, J.
McCracken, J.
Between
TIMOTHY CASEY
Applicant/Appellant
and
THE MINISTER FOR ARTS, HERITAGE, GAELTACHT
AND THE ISLANDS
Respondent
Judgment of Murray, J. delivered on the 24th day of February, 2004. [Nem Diss]
This is an appeal from the judgment of the High Court in which the applicant/appellant (hereafter the appellant) was refused an order of certiorari and certain other declaratory relief sought by way of judicial review in respect of a decision of the respondent to refuse grant to the appellant a 'permit' authorising him to operate, for commercial purposes, his passenger boat to land customers on Skellig Michael, the renowned island rock, approximately 11.5km off the Iveragh peninsula in Co. Kerry.
Background
Most of the facts relevant to the issue in this case are not in dispute. Skellig Michael is a unique place and is regarded as the best preserved and most spectacularly situated early Christian monastic site in the world. Its level of preservation is in large measure due to its isolated location out to sea. Its history as a monastery dates back to the 6th century. Most of the cells and oratories are in excellent condition giving it an unusually high level of authenticity. In or about the 12th century monks ceased to reside their permanently but it continued to be a place of pilgrimage for centuries thereafter. By 1826 the ownership of Skellig Michael had come into to the hands of the Corporation for Preserving and Improving the Port of Dublin who were the predecessors of the Commissioners of Irish Lights and who erected two lighthouses on the Atlantic side of the island. In 1880 the Office of Public Works took over the site which continued to maintain and preserve the monastic remains. In 1996 the Department of Arts and Culture and the Gaeltacht assumed the functions and powers of the Commissioners of Public Works with effect from the 12th March of that year by virtue of the Heritage (Transfer of Functions of Commissioners of Public Works) Order, 1996 (S.I. no. 332 of 1996).
Traditionally, access to the island has been possible at three points depending on the state of the sea from the east, south and north sides of the island. Three paths facilitated access to the Monastery situated 130 metres above sea level from these points, but today the boats land at the pier near the east steps and it seems that both the north and south landings are now disused.
Skellig Michael is a particularly vulnerable site because, with the exception of one collapsed church, it is constructed entirely of dry stone. There is no mortar, not even in the enormous retaining walls. The unique nature of the site has been recognised by UNESCO which designated it as a World Heritage Site in 1996. According to the evidence on affidavit of Mr Grellan Rourke, senior conservation architect with the National Monuments Service of the
respondent's Department, the site was so designated following a visit to the island by a UNESCO representative because UNESCO was satisfied as to the authenticity of the site and that the Office of Public Works had a visitor management strategy in operation which satisfied their criteria so as to enable them to include Skellig Michael in their World Heritage list of sites. This underlines the importance of such a strategy for the preservation of the site.
This visitor management strategy was introduced at the commencement of the 1995 tourist season and involved the issuing of a limited number of permits to boat operators to land visitors on the island along with continuous monitoring by guides of the impact of visitor numbers to the national monument. It is the lawfulness of this limitation on the number of boat operators who may land visitors on the island which the appellant seeks to challenge.
The adoption of this visitor management strategy arose, according to the uncontroverted evidence before the High Court, in the context of a sophisticated programme for the conservation and restoration of Skellig Michael initiated in 1978. This programme is continuing to the present day and is being carried out by the National Monuments and Historical Properties Service (The National Monument Service) which appears to be a division of both the Office of Public Works and the Department of Arts, Heritage, Gaeltacht and the Islands. It is one of the most important and demanding projects ever undertaken by the National Monuments Service. The project included the bringing together of a multidisciplinary team of experts to co-ordinate the architectural and archaeological engineering and safety aspects of the programme.
Although its very isolation has helped to ensure that the national monument remained relatively unspoiled over the centuries, inevitably time and climate had its effect. There had been a series of wall collapses over the centuries and some of the repairs which were undertaken in the 19th century were poorly done leaving walls in a dangerous and precarious state. The programme or preservation commenced in 1978 has led to significant works of repair and consolidation being taken out on various aspects of the monastery.
While conservation and restoration works with a view to the preservation of the national monument was a primary objective, the national monument service also had in mind the necessity to take account of the safety of person visiting the national monument. When one of the first major projects was undertaken in 1986 it was necessary to close the island to the public because of a great risk to safety, the work area being about 550 feet directly above the landing pier.
In October 1994, the Monuments Service produced a report and discussion document entitled 'Skellig Michael – Access, Safety and Control of Visitors'. This report, produced by the experts concerned, contained an extensive review of the status and condition of Skellig Michael and the measures needed on the one had to protect and preserve its delicate fabric and on the other to ensure the safety of persons, in the particular conditions prevailing, who visited the island.
One of the major problems facing those charged with the protection and preservation of this unique site has been the yearly growth in the number of visitors. In the 1970s, there were only four boat men making the trip with visitors. Detailed records of the number of visitors began in 1987. In 1987, there was an average of six boat arrivals to the island each day, when weather permitted, and never more than eight. In 1993 there was an average of 10-15 boat arrivals and on occasions over 20 per day during the busy months of July and August. Visitor numbers during the seasonal months rose by almost 50% over the 1987-1989 season. In 1987 between the months of July, August and September at least 6,265 people visited the island. This was over a period of 60 days. In 1995 the figure had increased to 12,665 over 107 days. There was some drop in visitors in 1997 and 1998 but this was due to poor summer weather.
These developments have been in part made possible by the arrival of newer, faster boats which can make the journey to the Skellig rocks in less than half the time previously possible. It had been rare for a boat to make more than one trip per day but now four or five such trips are possible by a single boat. According to the uncontested evidence of Mr Rourke, and as noted in that report, the increased number of visitors since 1987 has caused noticeable wear and damage to many aspects of the monastery. In his affidavit he stated that "… the monastic enclosure is almost entirely constructed of dry stone which is vulnerable and easily damaged. In the early 1990's the most important paving on the site had been considerably damaged by the volume of visitors passing over it. It had been necessary to protect it from further damage by putting a new paving on top and consequently it can no longer be seen. Other similar paving is now at risk. All this is unique – once it is lost, it is lost forever." In his affidavit he details other damage and deterioration due to large visitor numbers which I do not think it is necessary to set out in detail although he went onto observe that "… the site is so delicate it cannot cope with even the present demands." Mr Rourke also made reference to the fact the pier access and the steep inclines on the island, together with its delicate structure pose, potential dangers for the safety of visitors, particularly if the numbers at any given time are excessive. Deterioration due to visitor members was also highlighted in the October 1994 report which found that the constant trail of visitors in increasing numbers during the summer season inevitably resulted in a deterioration to the area of the monastery and to the access pathways and steps.
This report recommended, inter alia, that the number of boats should be kept between ten and twelve with the boat operators being restricted to one visit per boat per day and a limitation on the number of visitors per boat. The report also recommended that for the effective implementation of such a new regime, agreement with existing local boat operators should be sought.
In the light of the October 1994 report, it was decided that it would be necessary to introduce a formal management plan to control the ever increasing number of visitors to the island by limiting the number of boat operators who could land such visitors. It was also decided that the number of boat operators be limited to 15, that being the number which operated in 1994. This was higher than initially envisaged but ameliorated by the fact that even during the summer season weather conditions would not permit the boats to operate every day.
With a view to introducing such a plan the Office of Public Works initiated discussions with local boat owners in 1994.
In December 1994, it would appear that a public meeting took place between representatives of the Office of Public Works and boat operators to Skellig Michael. The previous October the report "Skellig Michael – access, safety and control of visitors" had been sent to the boat operators and this formed the basis of the discussion for the meeting. The approach of the Office of Public Works at the time was to seek to limit the number of boats bringing visitors to the island to 15 and for this purpose a permit would be issued to each boat owner. Each boat owner was to be limited to one trip per day during the May/September season and to 12 passengers per boat. The representatives of the Office of Public Works considered that a local consensus among boat operators was important for the effective implementation of the kind of scheme which they had in mind. It is evident that they took into account that existing boatmen had invested in suitable boats and carried on this tourist business on the basis of existing and relatively unrestricted conditions. There were 15 existing boatmen hence the figure of 15 permits for 15 boats with the restrictive conditions of one trip per day and 12 passengers per trip. Approximately 25 people attended the meeting referred to and a consensus agreement could not be obtained by the OPW representatives to the limited number of 15 permits. This was because a number of persons had already invested in boats for the purpose of the 1995 season in addition to the existing 15 boats. The OPW representatives agreed to compromise and in principle agreed to the availability of 19 permits for 19 boats. This was on the basis that the ultimate objective of a limitation of 15 permits would remain and would be achieved over time according as those boat operators issued with a permit retired or otherwise ceased to operate.
Subsequently in March 1995, the scheme was adopted whereby permits would be granted for 19 boats only to carry and land passengers on the island on the basis of one trip per day during the May/September season with a maximum of 12 passengers per trip. The 19 recipients were identified as those 15 existing boatmen and the others who had already invested in boats for the 1995 season. These permits were to be applied for and renewed on an annual basis. The declared policy was to eventually reduce this number to 15. The permits were also declared not to be transferable.
Perhaps I should note that these were not permits or licences in the very formal sense but more in the nature of written permission from the respondent as the person in whom ownership of the island is vested and as the Minister vested with statutory responsibility for the preservation and maintenance of national monuments.
The Plaintiffs Case
In setting out the facts upon which he relies the Plaintiff stated that he had for many years earned a living as a fisherman based in Portmagee, Killarney, Co. Kerry and that from time to time on an irregular and informal basis he carried passengers to view the Skellig Islands but did not have a permit to land passengers on Skellig Michael. In or about 1995 he purchased a boat and spent further sums over a period of years in order to bring it up to the standard for carrying passengers. In 1998 the boat was certified and licensed by the Department of Marine for the carrying of passengers. He says he is the only person in the village of Portmagee with a boat fully licensed by the Department to ferry passengers who does not have a permit to land passengers on Skellig Michael. In Autumn 1995, he first applied for a permit to land passengers on Skellig Michael and he did in each successive year, being refused on each occasion and received his final refusal before the commencement of these proceedings, on the 16th June, 1998.
As a consequence of being refused a permit to land passengers on Skellig Michael, the appellant complains in broad terms that he has been denied a right to earn his livelihood, that the Minister had not power to restrict the number of boat operators by means of the regime which she adopted. In particular the refusal of his application for a permit to land passengers was arbitrary and capricious and therefore ultra vires the powers of the Minister.
The High Court Judgment
The learned High Court Judge held that s.16(1) of the National Monuments Act, 1930 permitted the Minister to restrict and limit the number of members of the public visiting Skellig Michael which is a national monument. Although he found, as a fact, that the appellant was not, on the balance of probabilities, in a position to provide both services to Skellig Michael during the summer of 1995 he concluded that the extent to which the applicant complains of a refusal to grant a permit prior to 1998 such a complaint "is clearly out of time from the point of view of a Judicial Review challenge. What is challenged is the refusal of 12th June, received on the 16th June, 1998." As regards the refusal of the appellants application for a permit in 1998 the learned High Court Judge concluded that s.16(1) conferred on the Minister a discretion to limit the number of visitors by limiting the number of permits, gave reasons to the appellant for the refusal of his application for a permit, and acted within the limits of the discretion accorded to her under the Act of 1930.
The Appeal
The appellant appealed on the following grounds: -
(1) The Learned Trial Judge erred in fact in concluding with regard to the weight of the evidence that the applicant had not made an investment in the purchase and refitting of the boat which he planned to use to ferry passengers to Skellig Michael in 1995.
(2) The Learned Trial Judge erred in finding on the balance of probabilities that the applicant was not in a position to provide services when he applied to the Minister.
(3) The Learned Trial Judge erred in law holding that s.16 (1) of the National Monuments Act, 1930 authorised or empowered the respondent to limit access to Skellig Michael by refusing to permit the applicant/appellant to land on the island.
(4) The Learned Trial Judge erred in forming the view that once duties had been delegated by the Oireachtas, the predecessor of the respondent and the respondent had discretion to exercise powers so as to exclude the applicant from the eligibility for the ad hoc Permit Scheme introduced to restrict access to the island.
(5) The Learned Trial Judge erred in concluding that the respondent had a discretion and exercised within her power and had appropriately notified the applicant of the reasons for her refusal.
(6) The Learned Trial Judge's approval of the arbitrary exercise of the respondent's powers flew in the face of the uncontroverted evidence given on affidavit at the hearing of the action.
(7) The Learned Trial Judge erred in principal in deciding that the boat permit regime in relation to Skellig Michael was intra vires the respondent under the National Monuments Act, 1930 as amended.
The appellants Argument:
In his submissions to this court the appellant acknowledged that grounds 1, 2 and 6 of the appeal were peripheral to his main grounds of appeal concerning the lawfulness of the scheme which the Minister adopted and applied concerning the access of boat operators to Skellig Michael. In fact these points were not in substance pursued at the appeal. I will make a few short comments on them at this point as I do not consider it necessary to deal with them in my conclusions. As regards the first point it is indeed the evidence that the appellant invested in a boat in 1995 but it is also common case that he had to invest further in the refitting of the boat in order to obtain the appropriate certificate for the transport of passengers at sea which did not occur until 1998. It is the refusal to grant the appellant a permit in 1998 which is in issue. The legal issues do not turn on this nor on the matter referred to in ground 2. Ground 6 is really a question of law which is subsumed in the arguments of the appellant relating to grounds 5 and 7.
As regards the substantive issues concerning the lawfulness of the respondents scheme, it was first of all submitted that s.6 (1) of the National Monuments Act, 1930 imposed on the Minister a duty to admit members of the public to enter and view a national monument "subject to such conditions and limitations as the Commissioners … shall prescribe." The powers formerly vested in the Commissioners of Public Works are now vested in the Minister by virtue of the Heritage (Transfer of Functions of Commissioners of Public Works) Order, 1996, with effect from 12th March, 1996. The appellant submitted that the power of the respondent to make admission of the public to a national monument subject to such conditions and limitations as she shall prescribe does not authorise her to impose a quota on boatmen carrying persons by boat to a national monument and in particular based on arbitrary criteria derived from the decision in 1995 with regard to an ad hoc association of boatmen in December, 1994. In this respect the appellant relied on the decision of this Court and the judgment of Finlay C.J. in Clancy –v- The Commissioner of Public Works in Ireland and the Attorney General [1992] 2 I.R. 449. It was further submitted on behalf of the appellant that the essential issue is whether the creation of the boat permit regime is ultra vires the powers of the respondent. The exercise by the Minister of a discretion to impose a regime must, it was submitted, be in accordance with the objectives and spirit of the Act authorising the discretion. It was submitted that any regime imposing quotas would have to incorporate a detailed set of criteria for assessing and prioritising applicants. An example of the type of statutory regime which could be lawful, if authorised by the legislation would be that imposed in relation to salmon licences by the Control of Fishing for Salmon by Drift Net (Kerry Fishery District) Order 1982 (S.I. no. 367 of 1982). In order to determine the question of vires, the relevant legislation must be considered with a view to identifying the principles and policies laid down by the Oireachtas for achieving the identified purpose of the legislation. This should disclose the basis and the scope of a Minister's powers. The Act of 1930 does not do this and does not confer authority on the Minister to apply the regime of limited permits. The Constitution limits the extent to which law making power may be delegated. The appellant relied, inter alia, on the judgment of O'Higgins C.J. in Cityview Press Ltd –v- An Chomhairle Oiliuna [1980] I.R. 381 at 398 where he stated:
"The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever changing situations which confront both the Legislature and the Executive in a modern State… Nevertheless, the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution."
It was submitted that the powers exercised by Minister failed to meet this test. The appellant also relies on the judgment of this court in O'Neill –v- Minister for Agriculture [1998] 1 I.R. 539 which held that the power given by the Livestock (Artificial Insemination) Act, 1947 to the Minister for Agriculture and Food to make regulations controlling the practice of artificial insemination of animals was unconstitutional. The appellant referred in particular to the judgment of Murphy, J. when he stated, at page 556, "It has never been suggested that the power to make statutory regulations should be confined to some stereotyped administrative provisions. It may be, and I see no reason why it should not be, that regulations designed by a Minister and his officials to secure a particular statutory objective would be novel and innovative and accordingly, not in their terms anticipated by the legislature. It is the scope of such regulations and above all the manner in which they affect or touch upon the property or other constitutional rights of the citizens which may raise doubts as to how far they were within the contemplation of the Oireachtas … The scheme manifestly affects the rights of citizens to work in an industry for which the maybe qualified and the right of the potential customers to avail of such potential services. It is not that there is any reason to doubt that the scheme ultimately devised by the [Minister] was desirable, and may well have operated in the national interest, it is simply that such a scheme is so radical in qualifying limited numbers of persons and disqualifying all others who maybe equally competent from engaging in the business. It may be that such a far reaching power could not be delegated by the national parliament at all. Certainly I would be unwilling to accept that in using general words the Oireachtas contemplated such a far reaching intrusion on the rights of citizens."
The appellant submitted that although the objectives of the Minister in this particular case may be laudable, in the context of conservation of national monuments, it is not an objective identified or permitted by the parent act. Any power of the Minister to exercise her powers or discretion in the manner in which she has in this case must be expressly conferred upon her. Moreover, delegated powers must be exercised in accordance with requirements of the Constitution. As Walsh J. stated in East Donegal Co-operative Livestock Mart Ltd –v- Attorney General [1970] I.R. 317 at page 344 "[The provisions of the Act] do not give [the Minister] an absolute or an unqualified or arbitrary power to grant or refuse [licences] at his will. Therefore he is required to consider every case upon its own merits, to hear what the applicant or the licensee (as the case may be) has to say, and to give the latter an opportunity to deal with whatever case may be thought to exist against the granting of a licence or for the refusal of a licence or for the attaching of conditions, or for the amendment or revocation of condition which have already been attached, as the case maybe." Accordingly, since the appellants business of carrying licensed passengers by boat for reward was a lawful one, prima facie any person who can satisfy the Minister that he has whatever technical qualifications appear appropriate and is in a position to comply with whatever other requirements might reasonably be imposed on him ought to be entitled as a matter of right to a permit.
The policy adopted by the Minister was arbitrary. The basis of the Minister's refusal to grant a permit to the appellant was the inflexible application of an unjustified policy. The inflexible appearance to a policy may result in a countervailing injustice (Keane J. in Carrigaline Television Broadcasting Co. Ltd –v- Minister for Transport [1997] 1 ILRM 241 at 284). It was further submitted that, as in the case of Humphrey –v- The Minister for the Environment [2001] 1 I.R. 263 in common with the provisions of s.82 of the Road Traffic Act in that case, the statutory provisions being considered here, Sections 12 and 16 of the National Monuments Act [1930] and s.9 of the National Monuments (Amendment) Act 1987, do not give powers to the Minister to quantifiably restrict the number of persons, such as the applicant, who in order to earn a livelihood seeks to provide access to the perimeter of the national monument to persons wishing to visit it.
Arguments of the respondent
On behalf of the respondent, it was submitted that the National Monuments Acts 1930 – 1987 imposed on the respondent the duty and responsibility for the maintenance, protection and preservation of national monuments. This is evident in particular from s.12(1) of the Act of 1930 having regard to the definition of 'maintain' in s.2 of that Act. It was submitted that the learned High Court Judge was correct in interpreting s.16 (1) as permitting the respondent to limit the number of persons visiting Skellig Michael, the entire island being a national monument, in the interests of its protection and preservation. The power of the respondent to exercise an extensive discretion concerning the limitation and control of visitors to a national monument is supported by the judgment of Finlay, J. in Clancy –v- the Commissioners of Public Works. Accordingly, the Minster exercised her powers intra vires, the powers delegated to her by the Oireachtas. The powers exercised were well within the principles and policies of the Act.
It was further submitted that in limiting the number of permits to boat operators the Minister was in effect regulating the maximum number of persons who could visit the site and not regulating the activities of the appellant. Furthermore, it was submitted, Skellig Michael is the property of the State and vested in the Minister who is entitled, by virtue of the provisions of the State Property Act, 1954, to grant or refuse permission to any particular class or section of the public to have access to and to use State land on such terms and conditions as the respondent shall determine.
The respondent also relied on the determination of the learned High Court Judge as being correct when he held:
"The Court takes the view that, once duties and powers have been delegated by the Oireachtas, to the delegated body has a discretion in the exercise of its powers. The predecessor of the Minister, the Office of Public Works, met with interested parties, that is those boat owners who appeared to have been providing an existing service. There is no evidence before the Court that there was any attempt to exclude the applicant." It was submitted that the learned High Court Judge was correct in concluding that there was not an absence of criteria in the decision made by the Minister and that it was not arbitrary or capricious.
Statutory Provisions
National Monuments Acts 1930 - 1987
The long title to the National Monuments Act 1930 provides as follows:
"An Act to make provision for the protection and preservation of national monuments and for the preservation of archaeological objects in Saorstát Eireann and to make provision for other matters connected with the matters aforesaid."
Section 2 of the Act contains the following definitions:
"the expression "national monument" means a monument or the remains of a monument the preservation of which is a matter of national importance by reason of the historical, architectural, traditional, artistic, or archaeological interest attaching thereto and also includes (but not so as to limit, extend or otherwise influence the construction of the foregoing general definition) every monument in Saorstát Eireann to which the Ancient Monuments Protection Act, 1882, applied immediately before the passing of this Act, and the said expression shall be construed as including, in addition to the monument itself, the site of the monument and the means of access thereto and also such portion of land adjoining such site as maybe required to fence, cover in, or otherwise preserve from injury the monument or to preserve the amenities thereof;"
"the word "maintain" when used in relation to a national monument includes the cleaning, repairing, railing off, fencing, and covering in of such monument and the doing of all such other acts and things as may be necessary or expedient for the preservation or protection thereof, and cognate words shall be construed accordingly;"
Section 5 makes provision for owners of national monuments to appoint Commissioners or the local authority in whose functional area such a monument is situated to be appointed guardians of a monument.
Section 10 and 11 make provision for the gift of a national monument for the Commissioners for Public Works or a local authority and the acquisition of a national monument by the Commissioners. Section 12 provides as follows: -
" (1) Where the Commissioners or a local authority are the owners or the guardians of a national monument, the Commissioners or such local authority (as the case may be) shall maintain such monument and shall, in the case of any monument of which they are guardians, have for themselves, their workmen, agents and licensees free access to such monument for the purpose of inspecting it and bringing such materials and doing such acts and things as they may consider necessary or expedient for the maintenance thereof.(2) Where the Commissioners or a local authority are the guardians of a national monument, the Commissioners or such local authority (as the case may be) may agree with the owner of such monument or with any other person for the maintenance of such monument by such owner or other person either at his own expense or at the cost of the Commissioners or such local authority (as the case may be)."
Section 16 provides, subject to limitations, for the admission of the public to national monument: -
"(1) Where the Commissioners or a local authority are the owners or the guardians of a national monument the Commissioners or such local authority (as the case maybe) shall, subject to the provisions of this section, admit the public to enter on and view such monument upon payment of such (if any) charge for admission and subject to such conditions and limitations as the Commissioners or such local authority shall prescribe.(2) Where the Commissioners or a local authority are the guardians of a national monument by virtue of a deed made under an Act repealed by this Act, the public shall not be admitted to such monument under this section without or otherwise than in accordance with the consent of the owner of such monument given by such deed or otherwise.
(3) Where the Commissioners or a local authority are the guardians of a national monument by virtue of a deed made under this Act and containing a prohibition, whether absolute or qualified, against the admission of the public to such monument, the public shall not be admitted to such monument without or otherwise than in accordance with the consent of the owner of such monument or otherwise than in accordance with the provisions (if any) contained in such deed in relation to such admission."
Section 12 of the National Monuments (Amendment) Act, 1987 inserted the following additional subsection 3 to Section 12 of the Act of 1930: -
"(3) Where the Commissioners or a local authority are the owners of a national monument, the Commissioners or the authority, as the case maybe, may, in addition to maintaining the monument, carry out such other work and do such other things as they think fit to or at the monument and for those purposes they and their officers, workmen, agents and licensees shall have free access to the monument and may for those purposes and for the purpose of such maintenance bring onto and use on any land machinery, vehicles, equipment and materials.".
Section 9 of the National Monuments (Amendment) Act, 1987 conferred powers on the Commissioners, with the approval of the Minister to make by laws for the purpose of their functions in relation to any national monument of which they are the owners or the guardians.
State Property Act 1954
Section 11(2) of the State Property Act, 1954 provides:
"A State authority may, in respect of State land for the time being vested in that State authority, do all or any of the following things -…
(j) Permit the public generally or any particular class or section of the public or the members of any particular association, club or organisation to have access to and to use such State land either generally for a particular purpose, on such terms and conditions as such State authority shall determine."
Conclusions:
The National Monuments Acts 1930 – 1994, of which the Act of 1930 is defined as the 'Principal Act' are intended to provide for the protection and preservation of national monuments and for matters connected with such protection and preservation. In the course of his submissions counsel for the appellant made reference to the importance of considering the long title of an Act when interpreting its provisions. Although it seems to me that the policy and objectives of the Act are clearly expressed in its provisions, (to which I will refer in more detail later) they are confirmed by the long title as "An Act to make provision for the protection and preservation of national monuments …".
Executive responsibility for carrying out statutory duties and functions envisaged by the legislation with a view to achieving its objectives was conferred by the Acts primarily on the Commissioners of Public Works. Certain statutory functions are conferred by the Act of 1930 on local authorities in whose functional area a national monument is situated where the owner of a national monument has appointed the local authority a guardian of the monument. This need not concern us here since the respondent is the owner of the national monument and it is common case that the national monument comprises the entire island rock of Skellig Michael. The Heritage (Transfer of Functions of Commissioners of Public Works) Order 1996 not only transferred the functions and duties of protecting and preserving such monuments vested in the Commissioners of Public Works under the relevant legislation to the Minister but also, by virtue of Article 5 of the Order, vested in the Minister ownership of the national monument in question. No issue arises concerning the transfer of these particular functions.
I think it is also relevant to bear in mind that the fact that a site is a national monument does not deprive the owner of the site of his or her general rights over the property as its owner. In O'Callaghan –v- The Commissioners of Public Works in Ireland [1985] 5 I.L.R.M. 364 at 367, O'Higgins C.J. stated that even in a case where a preservation order has been made in respect of a national monument, (which in that case remained in private ownership), "The order does not deprive the owner of his ownership nor of his rights to use the monument in any manner not inconsistent with its preservation."
It must be clear that where the respondent is the owner of a site which is a national monument she is also entitled to exercise rights of an owner in respect of that site so long as they are compatible with and conform to provisions of relevant statutes such as the National Monuments Acts and the State Property Act, 1954.
Thus, account should be taken of the fact that the respondent, apart from her statutory duties and functions, would, as owner of a national monument, have power for example, to prevent trespassers from entering upon the site, seek to eject unlawful occupiers or otherwise prevent others from using the site for their private or business purposes. Ownership of a national monument by the State, vested in the respondent, could be said to afford to a national monument a form of protection in addition to that which would be afforded if the respondent was solely the guardian of a monument which was otherwise privately owned.
Before considering the substantive issue as to whether the policies and decisions adopted by the respondent fall within the statutory powers conferred on her, there are a couple of discrete issues which I think can be usefully addressed at this stage.
Right to earn a livelihood
One of the arguments advanced by the appellant in support of the reliefs sought is that the refusal of the Minister to grant him a permit to land members of the public on Skellig Michael is a denial or a restriction on his constitutional right to earn his livelihood. That every person has a constitutional right to earn a living is not in issue. That right includes the right of every citizen to earn his or her living from any lawful vocation, trade, business or profession. The constitutional right is one of the unspecified rights which enjoys the protection of Article 40.3.1 (See Blake and Ors –v- Attorney General [1981] ILRM 34 and A.G. –v- Paperlink [1984] ILRM 373). It is not an absolute right and may be regulated or restricted for reasons associated with the common good. As a right enjoying the protection of Article 40.3.2 Costello, J. stated in A.G. –v- Paperlink (at 385) "Accordingly, I am prepared to hold that the State has a duty by its laws to protect as best it may from unjust attack the personal right of each of the Defendants to earn a livelihood.
What then falls for consideration is whether the state monopoly established by the 1908 Act is: -
(a) An 'attack' on the Defendant's right to earn a livelihood and(b) Whether it is an 'unjust' attack on that right."
Accordingly, it seems to me that the first question which arises in this context is not whether some restriction on the appellants right to earn a livelihood can be justified, but whether the refusal by the respondent to grant him permission to land customers on Skellig Michael can be considered as an 'attack' on or a restriction of that constitutional right.
First of all let us consider the relevant facts relating to the means by which the appellant earns or seeks to earn his livelihood as he has explained in his affidavits before the High Court. The appellant purchased the boat 'Puffin' in 1995 for which he has, only since 1998, the appropriate certificate which allows him to carry 12 passengers at sea, within certain limitations related to safety which are not relevant to these proceedings. This permits him to carry 12 passengers at sea on what may be described as commercial pleasure or sightseeing trips including trips to the Skellig rocks although he has no permission to land any of his customers on Skellig Michael.
In his second affidavit Mr Rourke, on behalf of the respondent, stated that the appellant could avail of the opportunity given by Cork/Kerry tourism to operate non-landing trips to Skellig Michael. He went on to state that "All that is required to avail of this opportunity is that the boat should hold a licence from the Department of the Marine and that the skipper should be a member of Cork/Kerry tourism. I understand that the applicant has availed of this business opportunity in recent years.". This statement is not controverted by the appellant in any of his affidavits. As the evidence before the High Court itself indicated, Skellig rocks are stark projections of monumental proportions from the sea with a unique natural habitat for tens of thousands of nesting sea birds and are a special spectacle in themselves even when viewed from the sea. Why membership of Cork/Kerry tourism should be considered a pre-condition to bringing customers on such pleasure trips is not at all clear, but in any case the evidence that the appellant has the opportunity of doing so and has done so has not been called in question, and indeed he says so in his own affidavit.
In addition the appellant has the appropriate certificate for using his boat to bring up to 12 sea anglers on fishing trips.
What is clear is that the appellant wishes to carry on a quite legitimate business of using his boat for tourist or commercial pleasure purposes. There is no complaint that he is restricted in carrying on such a business other than that he has not been given permission by the respondent to land his customers at Skellig Michael. Skellig Michael belongs to the State not to the appellant. In complaining that his constitutional rights have been breached he is in effect saying that he has a constitutional right to land his customers on Skellig Michael as part of his pleasure or tourist business.
I think one only has to state this proposition to see that it cannot be right. It seems to me that the appellant has misconceived the nature and ambit of the right to earn a livelihood. To engage in such a lawful business activity for the purpose of earning a livelihood is something which a citizen is entitled to do as of right. It is self-evident that the right to carry on such a business does not entitle the citizen to have access, as of right, to the property of third parties and use it for business purposes. It does not matter whether the property, in this case a national monument, is privately owned or owned by the State. It is true that the respondent is required, pursuant to s.6 (1) of the Act of 1930, subject to the limitations in that section, to permit members of the public to have access to the national monument. That is purely a statutory obligation directed at entitling members of the public, individually as visitors, to view a national monument. Manifestly it does not confer a right on individuals or business enterprises to land customers for their own business purposes on that property and indeed it must be said the appellant did not seek to advance such an interpretation of that section.
Since neither the appellant, nor any other person engaged in similar business activities, including those who have been granted permits to land passengers on Skellig Michael, are entitled as of right (hence the requirement of such permits) to land their customers for business purposes on the island, it cannot be said that there has been an 'attack' on his constitutional right to earn a livelihood. Nothing is taken away from that liberty. Although the fundamental issue as to whether the respondent acted intra vires her statutory powers remains to be considered, I do not consider that there is any basis for impugning her actions on the grounds of a denial of a right to earn a livelihood.
Delegated Legislation
The next matter which I propose to consider is the arguments of the appellant based on the premise that the Constitution limits the extent to which law making powers may be delegated and in particular as considered by this court in City View Press Limited –v- An Chomhairle Oiliúna [1980] I.R. 381 and O'Neill –v- Minister for Agriculture [1998] 1 I.R. 539.
The respondent has in place a management plan aimed at managing and controlling the access of members of the public to the national monument, Skellig Michael. These include the hours and seasons during which members of the public may have access, their supervision on the island and of course, the matter in issue in this case, the arrangements for the grant of permission or a permit to boat operators. All of these, including the permit arrangements, have been introduced and implemented by administrative decisions and arrangements and not in the form of legislative instrument. At no stage did the respondent purport to or actually resort to the use of delegated legislation for such purposes.
There is nothing exceptional in this because the statutory functions conferred on the Minister by s.12 of the Act of 1930 are, by their nature and substance, administrative ones. They are not regulatory in their nature but involve, such matters as cleaning, repairing, railing off, fencing and covering up monuments as well as acts generally for their preservation and protection. In short, the respondent is charged with the management and administration of national monuments of which the State is the owner. As the appellant pointed out in his arguments the respondent has powers pursuant to Section 9 of the Act 1930 to make bylaws but did not seek to justify the arrangements in question by reference to such a power.
The fundamental issue in this case therefore remains whether in introducing a system for the grant of permits of certain boat operators by way of administrative arrangements the respondent was acting intra vires her powers and obligations under the National Monuments Acts 1930 – 1974. Although there are parallels to be drawn between the criteria which may be applied to ascertain whether an administrative act by a Minister in the carrying out of his or her statutory functions falls properly within the ambit of his or her statutory powers and the exercise of a delegated power to make legislation, such as the principles and policies criteria, the question of whether what the respondent did in this case involved an unconstitutional delegation of a power to legislate or the exercise of a delegated legislative function in an unconstitutional manner does not arise. We are not concerned here with the making or the enforcement of a legislative instrument. The preservation and protection of national monuments is quintessentially an administrative matter to be achieved by implementing policy decisions.
Accordingly, I am of the view that the actions of the respondent cannot be impugned on the ground that they involved some unconstitutional use of delegated law-making powers.
For the sake of completeness in this context, though the point was not argued as such by the appellants, I would add that there is nothing in the relevant legislation which could be interpreted as requiring the respondent to introduce or implement the arrangements in question only by use of the power to make bye-laws conferred by s.9 of the 1987 Act. A general power of an authority to make bye-laws is one which enables the authority in question to ensure the better observance of administrative arrangements which they are otherwise entitled to make, by making it an offence against a bye-law not to observe them. Thus a parks authority could make it a bye-law offence to enter a park after closing hours or to refuse to obey a request of an official to leave the park at closing time. The absence of bye-laws to such an effect could not render unlawful administrative arrangements for the opening and closing times of parks in the exercise of duly authorised administrative functions. Different considerations may arise where statutory provision is made for the making of regulations which must be laid before the Houses of the Oireachtas for approval or disapproval, where it is the intention of the relevant Act that regulatory powers delegated to an authority should be exercised by the making of such regulations and subject to such parliamentary control. No such considerations arise in this case.
The Powers of the respondent
Section 12 (1) of the Act of 1930 in providing that the respondent "shall maintain" a national monument of which she is the owner, imposes on her an express duty. The scope of that duty is governed by the definition of the word "maintain" to be found in s.2 of Act, cited above, and requires the Minister not only to ensure that such things as cleaning, repairing and covering the monument are carried out as required but also requires her to do "all such other acts and things as may be necessary or expedient for the preservation or protection of the monument." The importance of this duty is perhaps emphasised by the definition given to the expression 'national monument' which differentiates it from the definition given to the word 'monument' in the same section, as being one, "the preservation of which is a matter of national importance by reason of the historical, architectural, traditional, artistic or archaeological interest attaching thereto…".
It is in the light of these provisions and the objectives of the legislation that the duty imposed on the respondent by s.16(1) of the Act of 1932 to "admit the public to enter and view such monument … subject to such conditions and limitations as the [respondent] … shall prescribe" falls to be considered.
The most fundamental principle and policy of the Act, as reflected in its long title, is the protection and preservation of national monuments. As this court stated in O'Callaghan –v- The Commissioners of Public Works in Ireland [1985] I.L.R.M. 364 at 367 "It cannot be doubted that the common good requires that national monuments which are the prized relics of the past should be preserved as part of the history of our people." The judgment of this Court, referring to the Act of 1930, also stated that "Its purpose is to preserve in the national interests each such monument by prohibiting any action which may damage or destroy same."
The principles and policies of the Act as spelled out in s.2, to do all "acts and things as maybe necessary or expedient for the preservation or protection thereof …", are express powers and duties conferred on the Minister in addition to the more specific duty to do such acts as cleaning, repairing or covering a national monument.
While it is also a policy of the Act that the respondent shall admit members of the public to enter on and view a national monument that is expressly subject to such conditions and limitations as the respondent shall prescribe.
It is clearly the intention of the Act that the Minister has power to impose such conditions on access by the public to a national monument and place limitations on such access as are appropriate for its preservation and protection. The respondent is the person charged with the administration and management of national monuments to that end.
The respondent had available to her, under the guise of the national monuments service, a multi-disciplinary team of experts to advise her on these matters. It is quite clear from the uncontroverted evidence that was before the High Court on affidavit that the advice to respondent was that the ever increasing number of visitors to Skellig Michael which was taking place could not be allowed to continue if the respondent was to fulfil her statutory duties to maintain Skellig Michael. A system for the management and control of the number of visitors was essential with a view not only to restraining any further increase in the number of visitors but ideally to reduce it to a more tolerable level for its better preservation and protection as well as the safety of the visitors.
It is pellucidly clear that the respondent is entitled, according to the principles and policies of the Act, to take measures for those purposes such as the times when the monument is open to the public and in particular, manage, control and limit the number of members of the public entering upon the site.
That the ambit of the respondents powers to impose conditions on the admission of members of the public is extensive is also evident from the judgment of Finlay C.J. in Clancy –v- Commissioners of Public Works [1992] 2 I.R. 449 at 464 when he stated:
"I am, therefore, satisfied that the obligation imposed by s.16 sub-s.1 on the Commissioners to admit the public, subject to such conditions and limitations as they shall prescribe, was in this case unfettered, and that the Commissioners were accordingly entitled to admit the public to portion only of the national monument, to confine them, if they saw fit, to viewing it only for that position outside its actual buildings or, for example, relevant to the facts of this particular case, to permit access to the ground floor only."
Finlay C.J. subsequently went onto observe "I would find it a wholly unacceptable interpretation of this statutory provision if, as is contended on behalf of the defendants, the Commissioners were held to be confined in the limitations or conditions which they attached to the admission of the public to enter on and use such monument, to the preservation of the fabric of the monument alone, so as to deprive them of any right to insert a condition or limitation which would protect members of the public. … I am satisfied that in carrying out this statutory duty the Commissioners were obliged to take such reasonable steps as were necessary to avoid foreseeable risk to persons likely to be affected by the discharge of that duty, that is to say, to persons who might gain access to the national monument by virtue of the admission of the public to enter upon and view it."
The safety of members of the public is one of the objectives, although a subsidiary one, of the decision to limit the numbers visiting Skellig Michael. Of more significance, perhaps, is the fact that although the protection of members of the public is not expressly mentioned in s.16, or the Act itself, it is clear that this Court accepted that the Commissioners, and therefore in this case the respondent, had extensive inherent powers for the proper management and control of the site comprising the national monument including restricting the degree of access which they could have.
In exercising her right, and indeed her duty, to limit the number of visitors to Skellig Michael it is consistent with good administration that the respondent should seek to do so in some ordered fashion. To control numbers during a busy tourist season on a first come first served basis and turn away visitors after a certain number had been reached would be a recipe for chaos and no doubt extensive disgruntlement among members of the public who had made a significant journey to view a national monument only to be turned away at the entrance. This would be true of any national monument but particularly so at Skellig Michael where visitors have to pay for a significant sea journey, often in difficult conditions. It seems to me well within the powers of the respondent to introduce some system permitting the orderly organisation of visits to Skellig Michael and having regard to its unique and isolated location. I am satisfied that the respondent in placing a limitation on the number of boats operating to Skellig Michael, or introducing a quota as the appellant has described it, falls squarely within the powers and duties conferred on the respondent and is an entirely rational response to the problems which the preservation and protection of Skellig Michael pose.
I conclude therefore, that the argument of the appellant that the respondent, in limiting the number of boats permitted to land passengers on Skellig Michael acted outside the principles and policies of the Acts and thus ultra vires, is unfounded.
Arbitrary and Capricious
It was argued on behalf of the appellant that even if the respondent was entitled to control the number of the visitors to Skellig Michael by granting permission or permits to designated boat operators for specified trips and numbers the manner in which she did it was arbitrary, capricious, without objective criteria and therefore unlawful.
That the Minister in exercising her statutory powers and any discretion which she has in their exercise, should not act arbitrarily or capriciously is not contested.
At this point I think it appropriate to recall the circumstances and context in which the respondent decided to issue a maximum number of 19 permits for boat operators with a view to their eventual reduction to 15 in number.
It is not in contention that the preservation and protection of Skellig Michael could only be served by controlling and limiting the number of visitors to it. Such limitation and control would also contribute to the safety of visitors. As the learned High Court Judge correctly concluded the achievement of that objective could only be effectively done with the co-operation of the existing boat operators who were running regular trips during the tourist season to the island. To that end the national monument service entered into extensive discussions with the boat operators. In particular a meeting with the boat operators took place on 8th December, 1994 following the circulation of the report entitled "Skellig Michael – access, safety and control of visitors", to the boat operators in October of that year. Mr Rourke in his affidavit stated that the proposed holding of such a meeting was widely known in the local communities concerned, particularly among those interested in operating boats to Skellig Michael. He also stated that the appellant ought to have known of the meeting, that two of his cousins attended the meeting, but that he did not. This is really not controverted in any affidavit of the appellant but I do not think the legal issues which he raises are affected by this fact. What is relevant, from the factual point of view, is that at that point and at that meeting it was sought to limit the number of boats that would operate to the island in 1995 to the number of 15, that being the number which operated during 1994. However, it was found that no agreement could be arrived at on that basis because a number of persons present stated they had already purchased boats for the 1995 season. It emerged that if 19 boats were permitted to operate then an agreement could be arrived at. The national monument service agreed to compromise and to permit 19 boats to operate during 1995 on the express intention on the part of the respondent that as boat operators retired or ceased to operate for other reasons this number would be gradually reduced to 15. Non-transferable annual permits were to be granted on the basis of each boat operator being restricted to one visit per day with a maximum number of 12 passengers per visit.
By the year 2000, the number of permits issued had fallen to 16. Some of the boat operators having ceased to operate, and this is in line with the respondents policy of seeking to reduce the number of permits to 15.
It is clear from the evidence before the High Court that this policy is subject to review in the light of any current needs for the protection and preservation of the national monument and that further limitations on the number of members of the public visiting the site could not be ruled out. The policy of granting permission or permit to land persons on Skellig Michael would also be reviewed when and if the number of existing boat operators fell below the number of permits which it is considered appropriate to grant.
It is not in issue that the appellant, although he purchased his boat 'Puffin' in August, 1995 he had not at any material time prior to the receipt of his Department of Marine Licence in 1998 operated the boat for the transport of passengers.
Faced with the imperative task of limiting the number of boats which could land visitors on Skellig Michael, the respondent was entitled to take into account the expert advise that any new scheme would, at least in practical terms, depend for its effectiveness on the co-operation of existing boat operators. The importance and advantages of achieving a consensus among local boat operators at the time should be seen in the context of the fact that the Office of Public Works only has personnel on the island to supervise and control access during limited parts of the year, mainly the tourist season. This is largely due to hostile sea and climatic conditions which means that the island is often a very difficult and unpleasant habitat to remain on for extended periods. There are also difficulties associated with supplies such as food and fuel as well as other basics services. It was also a recommendation of the 1994 report that during the summer season that visiting time be restricted to a maximum time between 11am and 4pm. The report noted that serious damage was being done when OPW had no personnel on the island and it was strongly recommended that the island be closed officially to the public during such periods. Since there would be times when it would be difficult to properly supervise the observance of any new regime it seems to me that it was in the public interest that voluntary agreement to comply with any new regime be sought and obtained with local boat operators, if reasonably possible.
In my view it was also legitimate for her to take into account that a number of boat operators had invested in and carried on their business in the light of the existing practice for admission of visitors which had been in place for many years up to that point. It was also rational and legitimate for her to take into account that in 1994 , prior to the announcement of the new policy proposals, a relatively small number of persons had invested in boats on the same basis. In seeking to achieve effective measures for the protection of Skellig Michael, the respondent sought on the one hand to be fair to existing boat operators and to achieve a system which could be operated effectively.
I have already concluded that the relevant powers conferred on the respondent by the National Monuments Acts are quintessentially administrative and policy related having as their purpose the maintenance of national monuments over which the State also exercises ownership rights and responsibilities. In his submissions the appellant relied on the judgments in such cases as East Donegal Co-operative Livestock Ltd –v- Attorney General (licensing of premises as marts), O'Neill –v- Minister for Agriculture (licensing for the commercial artificial insemination of animals), Carrigaline Co. Ltd –v- Minister for Transport (licensing of television rebroadcasting) and Humphreys –v- Minister for the Environment (licensing of taxis). In this regard I think it is sufficient to say that, in addition to these cases being concerned with different statutory regimes, they relate to the control or regulation of business activity as such and/or the use of privately owned property or resources for the carrying on of a business and I do not consider that they have any bearing on the issues in this case except insofar as they may be said to support the contention of the appellant that even administrative functions conferred on a Minister should not be exercised arbitrarily, capriciously or in bad faith or, as a subsidiary proposition, to be so inflexible as to cause an injustice. The present case does not concern the regulation of a business activity but the management of a national monument and access to it.
The appellant also sought to argue that since the business of 'carrying by licence passenger boat persons for reward was a lawful one' it would seem prima facia that any person who can satisfy the respondent that he has whatever technical qualifications appear appropriate and is in a position to comply with whatever other requirements might reasonably be imposed on him, is entitled as a matter of right to a permit. Again, in this respect, it seems to me that the appellant confuses the right to carry on a business generally with a right to land customers on the site of a national monument and the property of a third party in the course of that business. The latter he is not entitled to do, nor is anybody else, as of right. That is a matter for the Minister as protector and owner of a national monument.
The criteria are clear, objective and transparent. Permits were granted to boat operators who had operated, or invested in boats for such purpose, prior to December, 1994 on the basis of then existing practices.
In my view in adopting the system of granting permission or permits to boat operators the respondent applied criteria which were rational and objective by reference to existing boat operators with a view to achieving what was reasonably necessary for the protection and preservation of a unique national monument and having regard to the investments which boat owners had previously made on the basis of then existing conditions. The appellant has not been singled out. He and others have been refused permits because they do not fulfil the criteria presently applicable. The non-transferable nature of the permits means that in the fullness of time the number of existing boat operators, at 16 as of 2000, may fall below the maximum number considered appropriate and the grant of permits to new operators could become possible. In all the circumstances, I do not consider the system adopted by the respondent as to be so inflexible as to cause any injustice of which the appellant could complain. As it stands it meets current imperatives and as the situation evolves there is scope for new boat operators to be given permits should this be consistent with the proper preservation and protection of Skellig Michael. The criteria to be applied then will be a matter for the Minister in the light of the circumstances arising.
Finally, in the course of the arguments advanced on behalf of the appellant it was submitted that the Minister ought to have adopted an approach similar to that adopted by the Control of Fishing for Salmon by Drift Net (Kerry Fishery District) Order 1982 (S.I. no. 367 of 1982) which set out complex and comprehensive and objective criteria for the grant by a regional board of licences for drift and net fishing for salmon in the Kerry fishery district. I do not consider that to be an appropriate analogy for a variety of reasons which include the fact that it is the exercise of entirely different statutory powers under different legislation and perhaps, in particular, because it is one which regulates a business activity as such, salmon fishing, and not one involving administrative arrangements for access to a national monument in the property of the State. But insofar as reference is made to this at all it is to be noted that the fact that an applicant for such a licence had previously derived a substantial part of his livelihood during certain periods from fishing for salmon was, under the criteria laid down in that Act, a primary factor concerning their eligibility and the priority to be given to such applicants.
In the present case the appellant complains of the criteria adopted by the respondent but the criteria adopted is indeed comparable to that set out in the Drift Net Order insofar as it refers to persons who were already operating, or had invested for that purpose, at the date when the proposed limitation on boat operators was first announced. Since all of those were accommodated no question of priority among them arose.
In the light of the foregoing conclusions, I am of the view that the respondent at all times acted within the scope and ambit of her powers and that accordingly the appeal should be dismissed.