High Court of Ireland Decisions

1. Skellig Michael, the great Skellig, was the site of one of the most remote monastic settlements of christendom. It remains a place of pilgrimage and veneration for many, has featured internationally as a critical historic site and has featured regularly in the media.

2. It is probable that the island continued to be inhabited as a dependence of Ballinskelligs Abbey after climatic disimprovement, linked to a southern shift in the circumpolar vortex which resulted in colder weather and increased storms on the seas around the Skellig. This factor, together with the development in the Irish church from a monastic to a diocesan structure, signalled the end of the Irish eremitic island colonies resulting in the community of Skellig Michael moving to the mainland. The Prior of Ballinskelligs was still, however, addressed in papal letters as “Augustinian Prior of St. Michael’s, Roche” that is of Sceillec Michael, or the steep rock of St. Michael to whom the Rock was dedicated in the 10th Century

3. Skellig Michael remained in the hands of the Augustinian monks until 1578 when Queen Elizabeth I dissolved certain monasteries that were under the protection of the Earl of Desmond. The Skellig Islands later passed to John Butler.

4. Though the monastery ceased to exist, it continued to be used for pilgrimages.

5. As early as 1790 the Knight of Kerry asked the authorities to light it in order to prevent losses at sea and to distinguish the Skellig from Loop Head.

6. About 1826 John Butler of Waterville sold the rock to the Corporation for Preserving and Improving the Port of Dublin, who were the predecessors of the Commissioners of Irish Lights who erected lighthouses on the Atlantic side and improved landing on the east side and a road that was blasted out on the precipitous southern and western sides of the island made the lighthouses more accessible.

7. In 1880 the Office of Public Works took over the site and continued to maintain and preserve the monastic remains. The Department of Arts Culture and the Gaeltacht assumed the functions and powers of the office of Public Works with effect from 12th March 1996 (Heritage (Transfer of Functions of Commissioners of Public Works in Ireland) Order, 1996.)

8. One striking characteristic of the hermitage constructed on the steep slopes of the south peak is that it was almost invisible from the lower levels of the island. It was, accordingly, an ideal location for the isolation sought by the eremitic monks, as well as possibly providing some protection from attacks by the Vikings.

9. The approaches to the great Skellig are perilous. Access to the monastery on Christ’s Valley or Christ’s Saddle, 130 metres above sea level in the middle of the island, is possible at three points depending on the state of the sea from the east, south and north sides of the island. The three paths seem to be constructed in the same way of steps built up on retaining walls or of steps made simply of large flags held in position by some small stones inserted under them. There are also rock cut steps near the waters edge.

10. Because of its unique features it continues to attract more and more visitors, particularly during the summer months when access is possible.

11. Today the boats land at the pier near the east steps. The present access route to the monastery is through the lighthouse road and south steps. It would appear that both the north and south landings are now disused.

12. The monastery is to the north of Christ’s Saddle while the hermitage, at the south peak is to the west of Christ’s Saddle.

13. Visitor numbers to the monastery have peaked at 12,665 over 107 days in 1995 during the June to September months when guides are established on the island. This followed on works undertaken during 1994 when the island was only open to the public three days per week due to the risks involved and where 5,490 visited the monastery over 45 days. It is estimated that 5 to 10% in addition visit the island but not the monastery.

14. However the increase in visitors necessarily causes deterioration to the monuments and to the access pathways and steps. In 1995 the Department of Arts, Culture and the Gaeltacht, the predecessor of the Respondent in these proceedings, imposed a system of regulation in relation to the landing of passengers which required boats to have a permit to land passengers. Permits were, and are limited to 19 boats.

15. Timothy Casey, the applicant herein, says that in or around 1995 he invested in the acquisition of a boat and expended the sum of £30,000 in its acquisition and refurbishment. He says that he first applied in 1995 for a licence or permit to land passengers on Skellig Michael. He reapplied in subsequent years. His application was not granted. The letter of refusal to his last application was sent to his solicitor on 16th June 1998.

16. The first of the six reliefs sought is for an Order of Certiorari in respect of the refusal by the Minister (the respondent herein) to furnish the applicant with a landing permit.

17. The remaining five reliefs seek declarations that the procedures employed by the Minister in assessing the suitability of the applicant for such a permit was unfair, in breach of natural justice and invalid because it adhered to a rigid policy.

18. Moreover it is claimed that the procedures constituted a breach of the Competition Act, 1991, or the competition rules of the Treaty of Rome.

19. The applicant also seeks a declaration that the Minister has no right to restrict access to citizens of Ireland to publicly owned land.

20. The applicant said that he had a legitimate expectation which had been interfered with by the Minister’s denial to permit him to recover his investment. He had expected to be able to ferry passengers for profit between the mainland and the Skellig Islands and to land passengers on Skellig Michael.

21. Finally, the applicant seeks a declaration from the Court that the purported basis for limiting permits to 19 boats is not justified and that the figure of 19 was arrived at in an arbitrary fashion.

22. He further says that the Minister has operated a policy whereby other persons have been licensed to operate several boats while he has been denied even one permit. He says that the Minister issued permits to persons whose boats have ceased to operate and that the terms and conditions of the permits are not being adhered to or enforced.

23. Moreover, he says the operators of cruise ships do not require permits to land passengers nor is there any limit on the number of passengers which they may land.

24. The applicant claims that the Minister has blindly operated an inflexible policy without regard to the individual circumstances of applicants for permits, has failed to disclose the criteria (if any) by which applications are entertained or declined and, accordingly, has caused significant loss and damage to the applicant’s livelihood. The applicant further says that the Minister has failed to have any regard for the applicant’s constitutional right to earn a living.

25. Mr. Casey filed an Affidavit on the 10th December, 1998 and a supplemental Affidavit of 19th July, 2000. He was then 42 years of age and says that he had earned a modest living as a fisherman based out of Port Magee, in the County of Kerry which is the nearest port to the islands.

26. Mr. Casey deposes that in or about 1995 he expended the sum of £30,000 in acquiring the boat and bringing it up to a standard for carrying passengers. The boat was fully licensed and certified by the Department of Marine for ferrying passengers. He says he is the only person in the village of Port Magee with a boat fully licensed who does not have a permit to land passengers on Skellig Michael. The others, he says, support him. He had a full expectation of being issued with a permit because of the considerable demand for the service.

27. He says that in or around 1995 he first applied for a licence and was persistently refused by letters - five in all - from the 26th June, 1996, to the 16th June, 1998, when, he says, he received the last refusal. He says he was unaware of the basis for the refusal. The letter of the 16th June, 1998, asserted that there were 19 boats operating already. This, the applicant says, is an entirely arbitrary, unreasonable and capricious basis for refusing him.

28. He says the conditions for existing licences are not being adhered to or enforced and that some boats for which permits were issued have ceased to operate.

29. He says there are no guidelines whatsoever as to the exercise of the Minister’s unfettered discretion. This is contested in the Affidavit of Mr. Paul Connolly of 25th July, 2000 in reply to both of the Applicants Affidavits.

30. By Order of the High Court made on the 14th December, 1998, Geoghegan J. gave leave to apply by way of an application for Judicial Review for the Order of Certiorari and the declarations already referred to on the basis of Mr. Casey’s Affidavits.

31. In his Statement of Opposition the Minister denies that he has operated an arbitrary and unfair policy and that he has denied the applicant a fair hearing in relation to the application.

32. The Minister admits that a policy has operated whereby other persons have been issued with permits. The Minister says that such a policy has been appropriate, proper and principled in the context of preserving Skellig Michael and of protecting visitors’ safety.

33. The Minister denies that the applicant has expended considerable resources as alleged. If he did, this was done without the Minister’s knowledge, and was done with the applicant’s knowledge that a permit was required and was not available.

34. The Minister says that application forms for permits for the 1998 season were issued by the Department to the boat operators on the 17th February, 1998, and completed application forms were returned for all 19 boats. The Minister denies the terms and conditions of such permits are not being adhered to or enforced. She admits that cruise ships, who visit very occasionally and irregularly, do not require permits, but denies that, as a result, there is no limit to the number of passengers that may land.

35. It is denied that the Minister has operated an inflexible policy or that the criteria by which applicants for permits are entertained or declined has not been disclosed.

36. The Statement concludes by saying that the respondent’s actions did not result in significant loss or damage to the applicant’s livelihood and that the applicant is not entitled to the relief claimed.

37. This Affidavit deals extensively with the description of Skellig Michael, the protection of the site, the current works programme, and the policy in relation to visitors.

38. The Affidavit deals with a meeting with the boat operators on the 8th December, 1994, arising out of an OPW discussion document sent to boat operators in October of that year. This was entitled Skellig Michael - Access, Safety and Control of Visitors. In that meeting, representatives of the OPW engaged in a wide-ranging discussion, as it was felt that nothing could be achieved without the agreement of the boat operators. Mr. Rourke says that anyone with an interest was invited. Approximately 25 people turned up. The applicant in the current proceedings did not attend. He says that the OPW sought to limit the number of permits to 15 which, the deponent says, was the number of boats making the trip at that stage. However, there were a number of operators present who said they had already purchased boats for the 1995 season and the general feeling was that if there were 19 permits then the boat operators would be satisfied. The OPW agreed to compromise and to issue 19 permits and expressly stated that when and as boat operators retired this number could gradually be reduced to 15. It was agreed, with one dissent, that each boat operator should be restricted to one visit per day and that the boats would only be licensed to carry 12 passengers. Not all of the permits were taken up in the 1995 season. Some had not received their passenger boat licences from the Department of the Marine. Such a licence was a prerequisite for a permit.

39. The minutes of the meeting dated the 13th December, 1994, are exhibited in that Affidavit.

40. On the 21st April, 1995, a letter was sent from the National Monument Services to Mr. Eoin Walsh, Secretary of the newly formed Boat Operators Association, outlining the conditions under which the permits were issued. A list of the 19 operators was appended to that letter. The applicant was not included.

41. On the 21st August, 1995, a letter was sent to each of the 19 boat operators advising them they had been granted a permit subject to the conditions outlined in the letter of the 21st April, 1995. Similar provisions applied in the 1996, 1997 and 1998 seasons. Other applicants also sought permits but were unsuccessful.

42. Representations were made by the applicant (in the current proceedings) to his political representative on the 12th September and 4th October, 1995 and again on the 20th March, 1st April, 2nd April, 29th August and 11th September, 1996.

43. A further letter was sent on the 16th January, 1997. All of these letters were replied to by the respondent. The applicant’s solicitor wrote to the respondent on the 10th June, 1998. A reply was sent on the 12th June, and received on the 16th June, 1998.

44. The first letter of the 12th September requested an application form for the applicant. This was replied to by the Commissioner on the 4th October, 1995, suggesting that the applicant join the Boat Operators Association representing local boat owners who have traditionally ferryed people to the island. The second letter, of the 20th March, 1996, states that the applicant’s representative had written to the Secretary of the Association, Mr. Eoin Walsh, who said that the Association was not operating at all and had no say in relation to the application and that it was a matter for the OPW. The reply to this and subsequent letters referred to the restriction on permits because of the unacceptably high level of visitors in relation to conservation and safety.

45. Mr. Diarmaid McGuinness SC, referred to section 16 of the National Monuments Act, 1930, which applies to Skellig Michael as a national monument.

46. The section provides that the Commissioners of Public Works (the predecessors of the respondent herein) shall, subject to the provisions of the 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.

47. The provisions of section 16 were considered by the Supreme Court in

48. The applicant submits that this power in no way authorises the Minister to impose a quota on boats carrying persons to a national monument based on arbitrary criteria such as were sanctioned in 1995. Moreover, the applicant is the owner of a passenger boat licensed under the provisions of the Merchant Shipping Act, 1992.

49. The applicant submits that the presumption that the Oireachtas did not intend to delegate to an individual member of government the legislative power conferred by the Constitution exclusively on the national parliament applies, and refers to the Judgment of Walsh J. in East Donegal Co-operative Livestock Mart Ltd -v- Attorney General [1970] I.R. 317 at 342/3.

50. Moreover, the Applicant submits that an issue for determination is whether the creation of the boat permit regime is ultra vires the powers of the Minister under the National Monuments Act, 1930, or the Merchant Shipping Act, 1992. Neither of these Acts contemplate what is provided for under the Scheme operated by the Commissioners, whereby access to Skellig Michael is confined to a group of people allegedly identified at a local meeting in December 1994. As such it is ultra vires . The exercise of discretion to impose a regime must be in accordance with the objectives and spirit of the particular empowering Act. The power conferred on the Minister to make bye-laws, as provided for in section 9 of the National Monuments (Amendment) Act, 1987, has not been exercised.

51. Moreover, any regime imposing quotas would have to incorporate a detailed set of criteria for assessing and prioritising applicants as in the case of the Salmon Licences. 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 and should reveal both the scope of the delegated power and the limitations placed on it. The power to limit access is a delegated discretionary power which was considered in Pigs Marketing Board -v- Donnelly (Dublin) Ltd. [1939] I.R. 413 where Hanna J. stated at p. 421 in relation to the delegation of powers by the Legislature to subordinate bodies that:-

52. The test in modern terms was first enunciated by O’Higgins C.J. in City View Press Ltd. -v- An Comhairle Oiliuna [1980] I.R. 381 at p. 399.

53. Murphy J., with whom Hamilton C.J. agreed stated at p. 556:-

54. In the applicant’s submission, applying those tests to the Minister’s decision to constantly and consistently refuse the applicant permission to carry on his licensed passenger boat business to ferry passengers to Skellig Michael is manifestly unreasonable and is based on an inflexible approach to an unjustified policy.

55. The Minister referred to the nature of Skellig Michael as a national monument and the applications under the National Monuments Act, 1930, as of crucial importance in any assessment of the applicant’s claim.

56. A National Monument is defined in the definitions section (Section 2) of the 1930 Act and includes, in addition to the monument itself, the site of the monument and the means of access thereto.

57. The obligation to maintain, also defined in Section 2, is as follows:-

58. This is echoed in section 12(1) of that Act where the Commissioners are required to maintain National Monuments and empowered to do “such acts and things as they may consider necessary or expedient for the maintenance thereof”.

59. The provisions of section 16(1) requiring the Commissioners to admit the public to enter on is subject to payment (if any) for admission and subject to such conditions and limitations as the Commissioners ... shall prescribe.

60. The applicant’s claim for legitimate expectation is, in the respondent’s submission, without foundation.

61. The respondent referred to Tara Prospecting -v- the Minister for Energy [1993] I.L.R.M. 771 where Costello J. (as he then was) stated at p. 789 in relation to the renewal of a prospecting license and the granting of a mineral lease which he agreed the applicants could reasonably have expected if the prospecting was successful:-

62. In relation to the allegation of arbitrary behaviour, the respondent submits that the inclusion of the applicant in the Scheme at this stage would clearly run counter to one of the primary purposes, namely, the reduction of the number of boats permitted to land on the Island.

63. Mr O’Moore SC, for the respondent, concluded that the essence of the applicant’s complaint arose because he appeared to have incurred expenditure and planned the business himself without first ensuring that he would be included among the boatmen permitted to land on the Island.

64. The facts in this case are straight forward. The Applicant applied for a permit after it had been agreed, following on the meeting of boat owners of December 1994 to allocate permits to those who had attended a meeting with the OPW and who had operated the service of ferrying passengers to Skellig Michael in the past. The OPW wanted to restrict the permits to fifteen but in the event compromised with those at the meeting and allowed nineteen with the express provision that, as permit holders ceased to operate no further permits would be granted until the number of boats with permits fell below fifteen. It was a condition of the permits that they be for one year and not be transferable.

65. There is considerable dispute as to when the applicant invested in the purchase and refitting of the boat. Moreover, the evidence of when the boat was licensed under the Merchant Shipping Act was also unclear. On the balance of probabilities it would seem to me that the investment was not made, as is claimed, in 1995, which was the first year in respect of which permits issued after the extensive works on Skellig Michael in 1994.

66. The first documentary evidence of the applicant’s application was the letter of the 12th September, 1995, which asked for the necessary application form on behalf of the applicant.

67. The applicant says, in his supplemental affidavit sworn on the 19th July, 2000, that he had suffered severe financial hardship due to the unreasonable refusal of the respondent to permit him to earn a living. He says that since the spring of 1995 he has lost five years earnings which he estimated from local knowledge to be £15,000 per annum. Moreover, he said, he made an investment of £30,000 in his boat. This boat had been licensed by the Department of the Marine pursuant to section 15 of the Merchant Shipping Act, 1992. He referred to the most recent license (assigned license number 824) the initial or periodical survey of which was made on the 11th June, 1998, and was certified valid until the 10th June, 2000.

68. Technically, it was an Irish load line exemption certificate, subject to the condition that no more than twelve passengers be carried on board, and was stated to be limited to sea anglers. No other certificate was exhibited.

69. The Court finds that the applicant was not, on the balance of probabilities, in a position to provide the services during the summer of 1995. Indeed the evidence in relation to the licence number 824 was to a conditional load line exemption certificate limited to sea anglers. The initial or periodical survey in respect of this licence was made on the 11th June, 1998 and the certificate was valid until the 10th June, 2000. No evidence was given to the Court in relation either to a previous or subsequent certificate. The applicant seeks an Order of Certiorari by way of Judicial Review in respect of the refusal of the Minister to grant him a landing permit. That refusal was made five days after the initial or periodic survey upon which the certificate was based. While there may be some confusion in the applicant’s description of the certificate as an assigned licence, no distinction was made at the hearing before me. It is common ground that no permit to operate a boating service to Skellig Michael was ever made.

70. The net issue in this case relates, not to the applicant’s exclusion from the initial allocation of permits, which were restricted to nineteen, but to the refusal of the Minister to consider his application for a permit in 1998. The Minister, in refusing to consider any additional permits, excluded the applicant without considering his suitability, simply on the grounds that there could, for stated reasons, be no further permits granted.

71. The Oireachtas empowered the predecessor of the Minister, the Commissioners for Public Works, to maintain national monuments and to do all acts or things as they might consider necessary and expedient for the maintenance thereof. It is clear that this power is coupled with an obligation to maintain national monuments. Indeed it is a difficult obligation given the remoteness of monuments and the increase in visitors. Specifically, the Commissioners, pursuant to Section 16(1), may admit the public to enter on monuments subject to such conditions and limitations as the Commissioners shall prescribe. It seems to me to follow that the conditions and limitations may include a limitation of access to sites and, in this particular case, to land at Skellig Michael.

72. The issue is then narrowed as to whether the conditions imposed by the Minister can include a restriction in relation to those who have already supplied the service or not.

73. The provisions of section 16 were considered by Finlay C.J. in Clancy -v- The Commissioners (1992) 2 IR 449. There is an obligation to admit the public to enter on and use such monument. But this is subject to such conditions and limitations as the Commissioners may prescribe. Finlay C J (Hederman J concurring) held that he was satisfied

74. Moreover, the Chief Justice accepted that the Commissioner should impose limitations and conditions to the admission of the public to enter on and view such monument (in that case Donegal Castle where the plaintiff fell through an unenclosed and unprotected aperture), to ensure the preservation of the fabric of the monument itself and that they had also to take reasonable steps to avoid foreseeable risk to persons.

75. It would seem to follow that if there could be restrictions to prevent access for a period or (to a portion of the monument), then there could also be a restriction in numbers visiting.

76. The issue in this case is, of course, the restriction of the means of access to the public rather than a limitation of the public directly.

77. It is significant that no evidence was given as to the unmet demand of visitors: rather the case was made that the applicant has been deprived of participating in a market which, he estimates, would result in a revenue of £15,000 per year to him.

78. The applicant complains that the absence of criteria for assessing and prioritising permit applicants renders the scheme unlawful.

79. The Court takes the view that, once duties and powers have been delegated by the Oireachtas, the delegated body has 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 made to exclude the applicant. It is true, of course, that when the applicant did apply, he was referred to the association which did not appear to be functioning - at least as far as the admission of new applicants were concerned. This does not, of itself, invalidate the exercise by the Minister’s predecessor of its discretion to limit permits. Moreover, to the extent that the applicant complains of a refusal at that stage he is clearly out of time from the point of view of a Judicial Review challenge.

80. What is challenged is the refusal of the 12th June, received on the 16th June, 1998.

81. It is not clear that the refusal complained of differs from the refusal in the letters of the 26th June, 1996, 19th December, 1996 and 16th January, 1997. More significantly the first of these letters does give reasons for the limitation of access. The letter of the 26th June, 1996 states that it is not the intention to issue additional permits, on the basis of visitor numbers having reached an unacceptably high level in 1995. The letter of the 12th June, 1998, received by the applicant on the 16th June, 1998, refers to these previous letters as follows:-

82. That letter concludes as follows:-

83. It is not credible that the applicant should say, given those letters referred to in paragraph 11 of his Affidavit, that he was unaware of the basis for the refusal of a permit to him as stated in paragraph 12 of the same Affidavit.

84. The Court concludes that the Minister has a discretion, has exercised the discretion within her power and has notified the applicant of the reasons for her refusal.

85. Accordingly, for these reasons, the Court cannot allow the applicant’s claim.