THE SUPREME COURT
Judicial Review No. 25 of 1998
Appeal No. 172/99
Hamilton C.J.
Denham J.
Murphy J.
Lynch J.
Murray J.

BETWEEN
DERMOT MURPHY
APPLICANT/APPELLANT
AND

THE COUNTY COUNCIL OF THE COUNTY OF WICKLOW
RESPONDENT

[Judgments by Denham and Murphy JJ; Hamilton C.J., Lynch and Murray JJ concurring]

Judgment of The Hon. Mrs. Justice Denham delivered the 2nd day of December, 1999.

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

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

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

“D.4. A Declaration that part of the lands comprised in the Compulsory Purchase Order dated the 23rd day of January, 1997 were and/or are at all material times and is at present, and in its present state, a nature reserve within the meaning of s.15 of the Wildlife Act, 1976 which designation arises by virtue of S.I. 178 of 1980.

D.9.	An Order prohibiting the Respondents from carrying out any works which are likely to have a serious or any adverse effect on any part of the lands designated as a nature reserve pursuant to S.I. 178/1980 and Section 15 of the Wildlife Act, 1976 unless and until an order modifying such statutory instrument has been made.”

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

“E.4 The aforesaid lands are primarily consisting of primeval oakwoods with other mature hardwood deciduous trees which trees are native Irish trees and which woodlands are of national and international importance.

E.7	The lands within the ownership of the State have been designated as a nature reserve pursuant to S.I. 178 of 1980 which nature reserve Order has been made pursuant to Section 15 of the Wildlife Act, 1976 which order has not been revoked or modified.

E. 13.	The Respondents have no jurisdiction to carry out works consisting of the cutting down and removal of mature trees, removal of flora and fauna and the construction of a roadway on lands designated as a nature reserve unless and until the requirements of the 1976 Wildlife Act have been fully complied with and in particular the nature reserve established by virtue of S.I. 178 of 1980 has been modified.”

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

“(a) Failing to recognise that the Wildlife Act, 1976 is an Act for the benefit of the public at large and, therefore, not enforceable by private individuals and;

(b)	Determining that the works of roads construction to be carried out by the Respondent, Wicklow County Council, are not exempted from S.I. 178 of 1980 in that the reference to ‘a road’ in the text of the said Statutory Instrument was not referable to any road marked in a map accompanying same but envisaged any road which existed at the time of the making of the Statutory Instrument or was later to be constructed in the future.”

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

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1.	Does Statutory Instrument No. 178 of 1980 have to be modified because of the proposed road widening?

2.	If the Statutory Instrument has to be modified at what time should this be done, before or after the road works?

3.	Can any party other than the Minister enforce the provisions of the Wildlife Act, 1976?

The Law

Statutory Instrument No. 178 of 1980:

“NATURE RESERVE (GLEN OF THE DOWNS) ESTABLISHMENT ORDER, 1980.

I, PATRICK POWER, Minister for Fisheries and Forestry, being satisfied that the land specified in Article 2 of the following Order, being land to which section 15 of the Wildlife Act, 1976 (No. 39 of 1976), applies, includes a woodland ecosystem which is of scientific interest and that the said ecosystem is likely to benefit if measures are taken for its protection and that it is desirable to establish the said land as a nature reserve and that the proper management of the reserve is not precluded by any interest of any other person in or over the land, for the purpose of conserving the said ecosystem do hereby, in exercise of the powers conferred on me by section 15 of the said Act, as adapted by the Lands (Alteration of Name of Department and Title of Minister) Order, 1977 (S.I. No. 29 of 1977), and the Fisheries (Alteration of Name of Department and Title of Minister) Order, 1978 (S.I. No. 195 of 1978), order as follows:

1.	This Order may be cited as the Nature Reserve (Glen of the Downs) Establishment Order, 1980.

2.	(1) It is hereby declared that the land specified in paragraph (2) of this Article shall constitute and there is hereby established a nature reserve.

(2) The lands referred to in paragraph (1) of this Article are all that part of the lands known as the Glen of the Downs situate in the townlands of Bellevue Demesne and Woodlands and county of Wicklow, other than any part thereof which forms part of a public road, and which is referred to in the map contained in the Schedule to this Order and thereon delineated in red.”

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

“All Public Roads bounding or intersecting the lands shown outlined in red are excluded.”

Section 12 of the Wildlife Act, 1976 provides:

“12.-(1) This section applies to-

(a) a local authority,

(2)	Subject to subsection (3) of this section, a Minister of State other than the Minister and every authority or body to which this section applies shall-

(a)	before determining any matter or doing anything which is, in his or their opinion, or is represented by the Minister to the other Minister of State, or the authority or body to be likely or liable to affect, or to interfere with, the suitability for a nature reserve or a refuge, as may be appropriate, of land to which an establishment order, a recognition order or a designation order applies, or the management of land pursuant to and in accordance with an agreement under section 18 of this Act, consult the Minister as regards the avoidance or minimising of such effect or interference, and

(b)	take all practicable steps to avoid or minimise such effect or interference.

(3)	Subsection (2) of this section shall not apply in relation to-(a) any determination made or anything done in an emergency,

(b)	the functions of the Minister for Local Government or of a planning authority under Parts III and IV of the Local Government (Planning and Development) Act, 1963, or under Part V of that Act (other than sections 47, 48 and 49) or under the Local Government (Planning and Development) Act, 1976, or

(c)	the functions of the Board, or

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(d)	the functions of the Commissioners under the Arterial Drainage Acts, 1945 and 1955.

(4)	The Minister may give in relation to a body described in subsection (1)(c) of this section a direction for the purposes of this section and any such direction shall come into force when given and shall continue in force until cancelled by the Minister.

Section 15 of the Wildlife Act, 1976 provides:

“1 5.-(1) This section applies to the following land:

(a)	land (including land covered by inland waters) owned by the State, including land in which the Minister has (whether jointly or severally) any interest,

(2)	Where, after consultation with the Minister for Agriculture and Fisheries, the Minister for Transport and Power and the Commissioners, the Minister is satisfied that-

(a)	land to which this section applies-

(i)	includes the habitat or forms the habitat of part of the habitat of one or more species or community of flora or fauna being a species or community which is of scientific interest, or

(ii)	includes or forms an ecosystem which is of scientific interest, and that the habitat or ecosystem is likely to benefit if measures are taken for its protection,

(b)	it is desirable to establish the land as a nature reserve, and

(c)	the proper management of the land as a nature reserve would not be precluded by any interest of any other person (including a person who is an owner with the Minister) in or over the land,

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he may by order (in this Act referred to as an establishment order) declare that the land shall constitute and that there shall be established by the order a nature reserve: provided that,

(i)	in case the Commissioners have an interest in the land, the order shall be made by the Minister only with the concurrence of the Commissioners, and

(ii)	in case the Minister’s interest in the land is held by him jointly with another person, the Minister in addition to being satisfied as regards the matters aforesaid shall, before making an establishment order in relation to the land, be satisfied that the fact that the other person has an interest in the land will not inhibit the proper management of the land by the Minister as a nature reserve.

(3)	An establishment order shall specify the reason why, and shall indicate the objectives for which, the nature reserve is being established by the Minister.

(4)	The Minister shall manage the land to which an establishment order relates so as to secure, as best as may be, the objectives indicated in the order having regard to and in accordance with the general protection of the natural environment.

(5)	The Minister shall not amend an establishment order unless he considers that the objectives, as regards which the relevant nature reserve was established, require revision because of changes in the features or characteristics of the reserve or in any other circumstance which affects the reserve.

(6)	The Minister shall not revoke an establishment order unless he considers that it is no longer practicable or is no longer desirable to maintain the nature reserve established by the order.

(7)	The Minister shall, as soon as may be after it is made, cause a copy of an order under this section to be sent to the Commissioners, to the Board and to any planning authority within whose area the land comprised in the nature reserve, or any part thereof, is situate.”

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Decision

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

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

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

“The lands ... are all that part of the lands known as the Glen of the Downs situate in the townlands of Bellevue Demesne and Woodlands and county of Wicklow, other than any part thereof which forms part of a public road, and which is referred to in the map contained in the Schedule to this Order and thereon delineated in red.”

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

“The lands referred to in paragraph (1) of this Article are all that part of the lands known as the Glen of the Downs situate in the townlands of Bellevue Demesne and Woodlands and county of Wicklow ... and which is referred to in the map contained in the Schedule to this Order and thereon delineated in red.”

The area excluded being described as:

“other than any part thereof which forms part of a public road,”

and which may be read sequentially to the quotation above. In other words the reference to the map and the delineation in red is in regard to the lands and not to the road.

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

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excluded is “any part” which forms part of a public road. Thus, any widened road, that is a road wider than that in 1980, is excluded. In view of this construction of the meaning of

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

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

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

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

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

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THE SUPREME COURT
JUDICIAL REVIEW
No: 25/98
No: 172/99
HAMILTON CJ
DENHAM J
MURPHY J
LYNCH J
MURRAY J

BETWEEN:
DERMOT MURPHY
APPLICANT/APPELLANT
AND

THE COUNTY COUNCIL OF THE COUNCIL OF WICKLOW
RESPONDENT
Judgment Of Mr Justice Francis D Murphy delivered the 2nd Day of December 1999

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

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

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contending, for a variety of reasons, that its decision to construct the motorway and implement that decision was ultra vires. One ground in particular on which the Applicant relied was his contention that a CPO was ineffective to acquire the State lands adjoining the existing roadway though it was effective and necessary to acquire the lands of other private owners whose rights would be affected by the road widening. Whilst the learned trial Judge decided this important issue in favour of the Applicant the problem of land acquisition is no longer a matter of importance in these proceedings as the Court was informed that in August last the Minister for Agriculture, with all necessary consents as required by the State Property Act, 1954, conveyed to the Council that part of the lands required by the Council as was owned by the State

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

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

In those circumstances two issues arose, namely:-

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1 	Whether the motorway to be erected would on its completion - and also in the course of its construction - constitute a public road so as to fall within the exception or exclusion from the nature reserve. It was argued on behalf of the Council that the intention of the Minister in making the order was to permit the maintenance and improvement of the roadway and any other public roadway for the time being constructed. I would have considerable difficulty in accepting that interpretation.

2 	Whether the managerial role imposed on the relevant Minister by the Act of 1976 and the 1980 Order in respect of the nature reserve and in particular those parts of the reserve adjoining the existing N11 roadway prevented the construction of the planned road unless and until the 1980 Order was revoked or amended.

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

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

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examination of the terms of the Act and not by inferences drawn from the words used in identifying different classifications. Whether or not construction work, or indeed any particular form of agriculture, may be carried out on a nature reserve depends upon the rights and obligations conferred or imposed on different persons by the material provisions of the legislation and by the rights of ownership of the lands in question.

Section 15 of the Wildlife Act, 1976, introduced the concept of a “nature reserve”. The relevant Minister (now the Minister for Arts, Heritage, Gaeltacht and the Islands sometimes hereinafter referred to as the “Minister for Arts”) may by an “establishment order” declare that specified lands shall constitute a nature reserve. Before making such an order the Minister for Arts must satisfy herself as to the existence of four conditions precedent, namely:-

1 	That the lands are owned by the State.

2 	That the lands include a habitat of one or more species or community of flora or fauna or forms an ecosystem which is of scientific interest and is likely to benefit if measures are taken for its protection.

3 	It is desirable to establish the land as a nature reserve.

4 	That the proper management of the land as a nature reserve would not be precluded by any interest which any other person has over the lands.

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

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

1 “The Minister shall manage the land to which an establishment order relates so as to secure, as best as may be, the objectives indicated in the order having regard to and in accordance with the general protection of the natural environment.”
(s.15 s/s.4)

2 “The Minister shall, as soon as may be after it is made, cause a copy of an order under this section to be sent to the Commissioners [of Public Works], to the Board [An Bord Pleanala] and to any planning authority within whose area the land comprised in the nature reserve, or any part thereof is situate.” (s.15 s/s.7)

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

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

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

Under s. 16 the Minister has power to make what is described as “a recognition order”. Such an order is not made in relation to lands owned by the State. The power to make such an order only arises where an occupier of lands satisfies the Minister in relation to the existence on the lands of a habitat or ecosystem and that the person so occupying the lands:-

“... can, in accordance with any conditions which the Minister sees fit to impose, use or manage the land so as to establish and maintain, as may be appropriate a nature reserve on the land.” (s. 16 s/s 1(c))

In relation to lands comprised in a recognition order the Minister has no function save that of notifying the Commissioners, the Board and the relevant planning authority of the making of the order. What is of some significance is that the Minister may revoke a recognition order where the objectives indicated in the order “are not being properly maintained”.

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

Section 17 empowers the Minister to make what is described as “a designation order”.

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

“...include such provisions as the Minister thinks fit which relate to protective measures so specified.”

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

“Any person who contravenes a designation order shall be guilty of an offence.”

Section 18 does not involve a ministerial order. It seeks to achieve a measure of conservation by the Minister entering into a legally binding agreement with a person having

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an interest in land. The purpose of such an agreement (“the section 18 agreement’) is to ensure that the management of the land will be conducted in a manner which “will not impair wildlife or its conservation “.

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

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

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“(a) before determining any matter or doing anything which is, in his or their opinion, or is represented by the Minister to the other Minister of State, or the authority or body to be likely or liable to affect, or to interfere with, the suitability for a nature reserve or a refuge, as may be appropriate, of land to which an establishment order, a recognition order or a designation order applies, or the management of land pursuant to and in accordance with an agreement under section 18 of this Act, consult the Minster as regards the avoidance or minimising of such effect or interference, and

(b)	take all practicable steps to avoid or minimise such effect or interference.”

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

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

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

“any land  to which an establishment order applies and which is land owned by the State but in which the Minster has not a joint or several interest (which land is so referred to as a State land nature reserve)....” (Emphasis added)

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

“Regulations under this section which have effect in relation to land held by the State shall, if the State ceases to hold the land to which they apply, thereupon cease to have effect in relation to the land.”

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

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

“The “minister” was defined in the 1976 Act as being “the Minister for Lands “. 

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

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the Gaeltacht by virtue of S.I. No. 443 of 1994. It was by that circuitous route that the first named respondent became the minister for the purposes of the 1976 Act and the respondent in these proceedings.”

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

“Following further discussions with Council officials and their consultants we can confirm our agreement to the final proposals.”

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

1 	That a fence would be erected along an agreed line before construction work commenced in order to avoid unnecessary encroachment upon the rest of the nature reserve and

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2 	that the contract documentation should specify that the contractor would be required to co-operate fully with national parks and wildlife service personnel in order to avoid or minimise impacts or disturbance to the reserve.

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

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

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

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

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

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

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operation so as to avoid the ambiguity which did arise and may hereafter arise by the use of the words “a public roadway” in that Order.

I would dismiss the appeal.

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