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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kavanagh v. Minister for Justice, Equality and Law Reform and Ors [2007] IEHC 293 (17 July 2007) URL: http://www.bailii.org/ie/cases/IEHC/2007/H293.html Cite as: [2007] IEHC 293 |
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Neutral Citation No: [2007] IEHC 293
THE HIGH COURT
CASE No. 1269P/2007
MICHAEL KAVANAGH
BETWEEN
APPLICANT
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
THE MINISTER FOR HEALTH AND CHILDREN, IRELAND AND THE ATTORNEY GENERAL
RESPONDENT
RULING OF Mr. Justice T.C. Smyth delivered on Tuesday, 17th day of July, 2007
These proceedings were initiated by Plenary Summons which issued on 20 February 2007. The Plaintiff seeks a wide range of reliefs challenging the validity of any decision to develop a prison at a site known as Thornton Hall in Co. Dublin. The Plaintiff's family residence is adjacent to the intended prison site. He seeks interlocutory relief prohibiting the carrying out of any development pending the trial of the action. Notwithstanding the volume of papers and discursive nature of the supporting affidavits, the nature of the relief sought is in the nature of a quia timet injunction to halt apprehended damage that may result from the actual construction of the premises and its ancillary works.
The central plank of the Plaintiff's case is that the Defendants have breached and remain in breach of their obligations under Directive 2001/42/EC and the Plaintiff also bases claims in respect of the alleged non-compliance or observance of Directive 85/337/EEC (as amended). Considerable debate centred on whether a particular decision or decisions was or were a "plan" as envisaged by the Directives. The stated purpose of the interlocutory proceedings was to preserve the status quo pending the trial of the action. The anxieties of the Plaintiff and the public nature of the intended project both warrant an early hearing of the action.
In general the Plaintiff contends that there has been a lack of public consultation (as required under EU Directive 85/337/EC and 2001/42/EC). He also contends that environmental assessments are required prior to commencement of development by reason of the strict provisions of these Directives. The Directives are each concerned with different matters.
The Directives
The 1985 Directive.
Article 1.5 of this Directive (which came into effect on 22 June 1985) provides as follows:
"This Directive shall not apply to projects the details of which are adopted by a specific act of national legislation since the objects of this Directive, including that of supplying information, are achieved through the legislative process."
The Prisons Act of 2007 (No. 10 of 2007) was first published on 14 November 2006 and effectively replaced and elaborated upon a Prisons Bill published on 4 April 2005. The Act of 2007 was signed by the President on 31 March 2007 and Part 4 of the Act came into effect on 1 May 2007 by Ministerial Order, and Part 4 sets out a scheme of public consultation leading to a development consent (which the Plaintiff's properly conceded meant a planning permission) for a particular prison project being enacted by a Special Act of the Oireachtas under section 26(4) of the Act of 2007.
Notwithstanding that generally any views formed at interlocutory stage are merely preliminary. The information placed before the Court is that of a protracted and adequate, within the contemplation of the legislation, public consultation which will take place prior to any development consent in relation to the project for the development of the intended prison. In the present circumstances it is difficult to see what if any application the Directive can have in the instant case.
The 2001 Directive.
In this context the submission of the Plaintiff was that the decision to develop the prison complex is part of a "plan". While the decision is not happenstance - there is, even on a very tentative view of all the relevant facts, doubt as to whether the proposition is sustainable ultimately on the facts before the Court at present. This Directive specifically provides that its time provisions do not apply to plans in place before 21 July 2004. It is clear from the papers that the decision to close Mountjoy jail and replace it was made in February 2004.
The Plaintiff also contended that the National Development Plan which (includes a reference to expenditure on a large sum of prisons - no doubt Thornton Hall) was promulgated in January 2007 is also a "plan" or part of a plan, programme or project and therefore the "plan" is not caught by the time proviso in the 2001 Directive. The Defendants, altogether from asserting conduct amounting to opportunism on the part of the Plaintiff, submitted that this Directive has no application to any decision taken separately or in conjunction with another and any such decision or decisions do not amount to a "plan" within the meaning of this Directive, further that there was no evidence before the Court to warrant the adoption of the Plaintiff's submissions. The Defendant's case was that even if the various decisions to build at Thornton Hall and abandon Mountjoy prison and the Central Mental Hospital could be argued to be a "plan" they do not, and I quote from the Defendants' submissions:
"...constitute a framework against which individual development consents for particular projects can be granted. Which is the requirement of Article 3.2 of the Directive."
A Court would have an added difficulty on the evidence to accept the Plaintiff's submissions in the light of Article 3.8 of the Directive which specifically excludes financial or budgetary plans and programmes. I reiterate again, if reiteration be needed, that any views expressed at this stage are of a tentative or preliminary nature and are not determinative of any ultimate decision the Court may come to on the hearing of the action. As at present advised I would be unable to conclude that the view of the Plaintiff should prevail. There are two specific factual concerns of the Plaintiff, one in respect of water and sanitary services, expressed as possible adverse effects from the building and the use of the prison proposed. The other concern is that of archaeology. Altogether from the fact that the Prisons Act of 2007 disapplies any of the provisions of the National Monuments legislation, except section 25 of the National Monuments Act 1930 (see section 28(1)(c) of the Act of 2007). It seems to me at this stage that it is not sufficient to speculate that some damage may occur on the site to some artefact (for section 25 of the 1930 Act is concerned with the imposition of criminal sanctions for damage to artefacts). In this context I bear in mind of both the affidavits of Mr. Clinton and Mr. Halpin.
Even if there are fair issues to be tried the sooner they are tried the better will be the rights of the litigants be vindicated by an early trial. Again even if damages are not an adequate remedy the irreparable harm or damage can, absent much of the speculation in the documents, be properly identified and appraised at the hearing. Both parties are desirous of a position of legal certainty which interlocutory relief of its nature cannot yield.
Mr. Giblin in concluding his original submissions on the part of the Plaintiff accepted that the balance of convenience is a matter of judicial discretion [T2 p126]. In particular he drew attention to the judgment of the European Court of Justice (Case C-435/97) World Wildlife Fund (WWF) & Ors v. Autonome Provinz Bogen & Ors concerning the interpretation of Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. The result of convoluted many-phased litigation meant that by the time the Plaintiff obtained an order from the European Court all the Plaintiffs had was a success in principle on a nice point of law, but a project to which they objected being extant.
The Plaintiff's conception of his own apprehended damage is extensively set out in the many affidavits and that of the Defendants in Plaintiff's counsel's words:
"...the Defendants, if they were restrained by injunction, the damage
that they would suffer would be remediable insofar as what they would face would be
delay, even if a delay perhaps for as long as two years, but in the meantime they could be designing their project. The Plaintiff would not have any difficulty with that...."
When enquired of the purpose of designing something that might never go ahead I was informed by counsel that:
"Well, they could be designing general features which might be applicable to any site."
Counsel for the Plaintiff conceded that this is a very important project and the damages which would be inflicted on the Defendants is delay in the project. The evidence establishes that €29.9 million was paid to purchase the site for the new prison almost two and a half years ago and very substantial further public moneys are intended to be invested to build and equip a new prison for the substantial reasons averred to in the affidavits and in particular the affidavit of James Martin sworn on 1 May 2007.
Mr. Travers in making the reply to the Defendant's submissions maintained that in the absence of an undertaking that there would be no further major development works on the site then in those circumstances he felt the Plaintiff had to press on and look for some form of at least interlocutory relief to prevent at least any development or developments works taking place until the trial of the action. This he expressed as the urgency of the case. Furthermore, he invited me to case manage the intended application:
"So we can all move with that as quickly as possible."
Clearly the view of the Plaintiff and his advisers is that this case should move forward.
"As quickly as possible." [T3 p155/156]
It is also clear from counsel's submissions that before the case was assigned to me the question of an early trial had been canvassed before Laffoy J. It is equally clear from Mr. Connolly's submissions for the Defendants that they too wished the issues raised in the proceedings to be determined as soon as possible. In short, it is common case that an early trial is a matter of urgency for all parties.
In the written submissions of Plaintiff's counsel the apprehension is raised:
"...that significant further development works in respect of the new prison will, at the very at least, have occurred by the time judgment can be given following the trial of the action in these proceedings."
[Page 2 paragraph 3]. In my judgment this is clearly a case that warrants the earliest date possible for a trial to protect the concerns of the Plaintiff.
At the time of the interlocutory application on June 13 to 15th inclusive both Statement of Claim and Defence, the latter having been delivered on 6 June 2007, had been delivered and the matter was listed for mention for 27 June by which date all questions of discovery would be well known and any dispute on it crystallised. This direction was given to accord with the Plaintiff's requirements for an early trial and Mr. Giblin's submission that the hearing of the action should not take place until the discovery issue was resolved. Likewise, Mr. Connolly clearly signalled the Defendant's intention to bring an application to contend that the whole of the case was dispositive on the issue of delay relying on the authority of O'Donnell v. Dún Laoghaire Corporation [1991] IRLM 301. In Mr. Giblin's response to Mr. Connolly's submissions any effort to have the case determined at the interlocutory hearing on the issue of delay was to say that the Plaintiff was taken by surprise and was not expecting same to be raised on the Plaintiff's application for injunctive relief. In my judgment, notwithstanding the considerable force of Mr. Connolly's argument, it is preferable that the issue be dealt with on the application he then signalled to the Court in June.
I am satisfied on the balance of convenience taking a conspectus view of the evidence as a whole and having reflected carefully on all submissions oral and written that injunctive relief should not be granted in all the substance of the case. The work of the Courts has to continue since the three days in mid-June when the interlocutory hearing took place; regretfully it was not possible for me to give exclusive attention to the preparation of this judgment as I would like to have done.
I will reserve the question of the costs of this interlocutory application.
Approved: Smyth J.
