Supreme Court upheld High Court ruling that Minister's refusal of wreck site licence was ultra vires and void.

THE SUPREME COURT

No. 393/2005 JR

No. 395/2005 JR

Fennelly, J.

Macken, J.

Finnegan, J.

BETWEEN:

F. GREGG BEMIS

RESPONDENT/RESPONDENT

-AND-

THE MINISTER FOR ARTS, HERITAGE, GAELTACHT AND

THE ISLANDS, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/APPELLANTS

Judgment of Macken, J. delivered on the 27th day of March 2007

1 This appeal concerns a decision taken by the first named Appellant on the 22nd May 2001 refusing the Respondent a licence,

sought pursuant to S.3(5) of the National Monuments Act 1987 (“the Act of 1987”), to carry out certain works at the site of a

shipwreck off the coast of Cork, and is brought against the decision of Herbert, J. in his judgment delivered on the 17th June 2005, by

which he found that the said decision was ultra vires, void and of no effect, and against the order made on the 15th July 2005,

following upon the decision.

The Background Facts:

2 The ship known as the “R.M.S. Lusitania” was scuttled off the coast of the State in 1915, by torpedo. The wreck of the ship still

remains on or in the seabed, several miles off the Old Head of Kinsale in Co. Cork, and, it would appear, lies at a depth of just under

100 metres. The wreck is owned by the Respondent. Dealings with wrecks, or with certain sites surrounding them - called restricted

areas - including, inter alia, diving to inspect wrecks, removing them or any items from them, carrying out works on or in them or in a

restricted area, as well as dealing with archeological objects, things or wrecks in a restricted area, are all subject to statutory control

pursuant to the provisions of fairly wide ranging legislation. The relevant legislation for the purposes of this appeal is more fully

referred to below. Those same activities which are otherwise prohibited may nevertheless be permitted, subject to a licence issuing

under the appropriate legislation from the Respondent, The Minister for Arts, Heritage, Gaeltacht and The Islands (“The Minister”),

whose functions in that regard were formerly vested in the Commissioners for Public Works.

3 Over a period of several years, persons who were interested in the wreck of the Lusitania have applied to the Minister for licences

to dive and/or inspect (survey) it, with the knowledge and indeed in some cases with the cooperation or approval of the Respondent.

In respect of most, if not all such applications, the Minister notified the Respondent of them, and liaised with him concerning, inter

alia, the scope or the terms of those licences. It is common case between the parties that at all times the Respondent did not, and

still does not, accept that the Minister is entitled to control or limit his access, as owner, to the wreck, or to limit or control what he,

the Respondent, does with the wreck, whether by removing parts of the wreck itself, or items from it, or by exporting the same, or

indeed by freely dealing with his personal property in any manner he sees fit. The Minister does not agree that the Respondent has

such an untrammelled right and relies, inter alia, on the provisions of certain legislation and case law in that regard. Further, since at

least 2000, and even earlier, the Minister has prepared, or has had prepared for him, expert and other reports in respect of the

manner in which the wreck of the Lusitania ought to be dealt with, including proposals as to access to it, the nature and control of

such access, and the handling of its contents. As part of that exercise, a draft set of proposals was prepared and sent to the

Respondent’s solicitors in the year 2000, and correspondence and meetings ensued.

4 As a result of the foregoing, there was a large dossier of documents before the High Court and now before this court, including

reports, as well as correspondence between the parties, which forms a particular and perhaps peculiar backdrop or context to the

current dispute, and on which both the Minister and the Respondent rely, at least in part.

5 Despite the foregoing history, the Respondent himself applied to the Minister for a licence in respect of the wreck of the Lusitania,

by way of application dated the 7 March 2001. This was made on a standard printed form emanating from the Minister’s department,

and which the Respondent altered, or amended, by deleting portions thereof, a matter to which I will return later in this judgment.

This form was supplemented by two additional typed pages headed respectively “Licence Application Part I” and “Licence Application

Part 2”, which were referred to in the printed application form itself under the headings (a) “survey”. The stated “Mission” of

Application Part I document was:

“to undertake the complete forensic examination of the wreck of the Lusitania to determine the apparent location and

cause of the massive second explosion which led to its rapid sinking”.

6 Of additional relevance was the statement as to the “targets for research” which were described under ten different headings.

7 The “methodology” proposed was described in the following terms:

“A full scale saturation diver complex with either dynamic positioning or 4 point moor to accomplish:

(a) Thorough removal of silt and other deterrents to visual inspection and video;

(b) Entrance into the wreck at all appropriate locations for close on hand inspection, either by cutting through or

blasting through such barriers as may prevent access to necessary sites, either from the deck level or from the port

side.”

8 The licence was sought in respect of the period from June 2001 through September 2006, in other words, for an extended period, in

excess of five years, and supervision was to be by the Respondent.

9 The stated Mission under Application Part II, was, in brief, to promote the history and importance of the Lusitania by means of the

display of exhibits from the wreck in museums, through a travelling exhibition, inter alia, in the United States, and elsewhere outside

the State, and in addition, to undertake on a limited basis, sales to collectors of maritime valuables, to defray the cost borne by the

Respondent.

10 The “methodology” in this part of the application was stated as being

“The primary work method will be the utilization of Tech divers proceeding to the site using lift bags to bring the

recovered materials to the surface with supplementation from saturation divers.”

11 The Minister replied by letter dated the 22nd May 2001, stating he was refusing the application for a licence. It is necessary to set

out in full the relevant portions of this letter. They read:

“We note, first of all, that you have altered our application form thereby effectively changing the terms of the application

from a non-intrusive approach implicit in such an application to one which is now associated with your accompanying

method statement.

The investigation proposed in your method statement involving: ‘Through removal of silt and other deterrents to visual

inspection and video. Entrance into the wreck at all appropriate locations for close on hand inspection, either by cutting

through or blasting through such barriers as may prevent access to necessary sites, either from the deck level or from the

port side’ is not appropriate to a non-intrusive dive licence application. For this reason, we regret that we must deem

your application invalid and as a consequence your licence application is hereby refused.

You are, of course, free to submit a new application for non-intrusive diving licence. We would re-iterate, however, that if

intrusive investigation is proposed you will also need to submit a separate application for an archaeological excavation

licence. In this regard, we would have to say that the method statement accompanying your letter of 7th March 2001

would require far more detail and that the applicant for the excavation licence should be the person directing the

investigation.

We are enclosing new application forms to assist you in this regard and once again, we repeat our offer to provide you

with guidance in making your application in relation to the preparation of the method statement and conservation

strategy.”

12 Accompanying that letter were three printed forms. The first was entitled “Application to Dive on Sites covered by the Provisions

of… the Act of 1987”. This is in a format very similar but not quite identical to the one used by the Respondent who had deleted, inter

alia, this title from the form used by him. The other two covered (a) an application to use a detection device, (b) an application for a

licence to excavate. Both these latter documents are headed “National Monuments Acts 1930-1994.” No other form referring

specifically to the Act of 1987 was sent or referred to. The “application to dive” form included a section which required any applicant

to guarantee that the dive was for “observation purposes only”, and also to guarantee “not to interfere with the site or remove any

part of the wreck”. This latter portion covering guarantees had also been excised by the Respondent from the form he submitted on

the 7th March 2001.

The Application for Judicial Review

13 The application for leave to issue judicial review proceedings was granted to the Respondent, as Applicant, on the 31st July 2001

by Order of the High Court (Butler J.) challenging the Minister’s decision, and seeking the following reliefs:

1. Certiorari in respect of the quashing of the refusal of the Minister of the 22nd May 2001, to grant a licence pursuant to

Section 3 of the Act of 1987;

2. A declaration that the purported decision of the Minister of the same date was ultra vires void and of no force or

effect;

3. A declaration that the Respondent is entitled to the licence specified in Section 3 of the National Monuments

(Amendment) Act 1987, in accordance with the terms of the application of the 7th March 2001; and

4. A declaration that the application of the 7th March 2001 was a valid application.

14 These reliefs were sought on the grounds, inter alia, that the refusal to grant a licence was unreasonable, irrational and ultra

vires; that the Minister adopted a fixed and inflexible policy which did not take into account the requirements of Section 3(5) of the

Act 1987; that he had failed to furnish reasons upon which the licence was refused or the application was not made in a valid format;

that the refusal was not a proportionate response; and finally that the refusal was invalid because there was no requirement for an

excavation licence under s.26 of the National Monument Act 1930 in the context of an application for a Section 3(5) licence under

the Act of 1987.

15 The Minister opposed the application for judicial review on several grounds, which can be briefly grouped together as follows: that

the refusal was consistent with policies found in national law and in relevant international standards; that the Respondent had not

made a valid application and that the application had not been made in a valid format. The Minister denied that he had failed to

consider the merits of the application. The Minister pleaded he was precluded from considering the merits of the works proposed, or

from exercising any discretion in favour of granting a licence due to the absence of detail; that the Respondent required a S. 26

licence in respect of certain of the activities proposed but had failed to apply for the same; that in the exercise of its discretion, the

Court should refuse the relief sought by the applicant in light of the history of the dealings between the parties; and finally that the

application was moot by reason of the absence of information necessary to enable the Minister to assess the merits of the application

made, which compelled him to refuse the application.

16 After a hearing in the High Court lasting several days, the learned High Court judge delivered judgment on the 17th June 2005 in

which he found, inter alia, that the decision of the Minister of the 22nd May 2001 refusing the licence, was ultra vires, void and of no

force or effect, and made a declaration in accordance with the second of the reliefs sought, by order dated the 15th July 2005. No

other relief was granted.

17. Briefly, the learned trial judge in his judgment, which is divided into two separate sections, made the following relevant findings.

The main findings, which the learned trial judge considered sufficient for the purposes of resolving the issues between the parties, are

followed by supplemental findings which the learned trial judge considered he ought to deal with because these findings followed upon

the argument made by the parties at the hearing. I will return to these latter findings later in the judgment. As to the main findings,

these are:

(a) the Minister had wrongly rejected the application for a licence in limine and without considering the application on its

merits;

(b) the sole ground of objection to the application was that a form of application was wrongly used, the application being

therefore invalid;

(c) the Minister had wrongly interpreted section 3(3) and section 3(5) of the Act of 1987. That section covered both

intrusive and non intrusive works;

(d) the Minister had wrongly interpreted section 26 of the Act of 1930 in holding that every application for an intrusive

licence required an applicant to apply for an excavation licence pursuant to the said section.

(e) the works actually sought to be carried out by the Respondent did not fall within Section 26 of the Act of 1930;

The learned trial judge found in respect of the foregoing that the Minister had acted, variously, either irrationally or unreasonably, in

the legal sense, and/or that he had ultra vires his powers.

18 From that judgment and Order of the High Court, the Minister appeals. The Respondent filed a Notice to Vary, or cross-appeal, in

respect of one finding of the learned High Court judge. However that cross-appeal was not proceeded with.

The Legislation

19 The relevant legislation governing the works in question is encompassed predominantly in the following three statutes:

(a) National Monuments Act 1930; (“the Act of 1930”)

(b) National Monuments (Amendment) Act 1987; (“the Act of 1987”)

(c) National Monuments (Amendment) Act 1994. (“the Act of 1994”)

20 The Act of 1930, by its long title, was passed to make provision for the protection and preservation of national monuments and for

the preservation of archaeological objects and related matters. An “archaeological object” is defined in Section 2 as being “any

chattel … which by reason of the archaeological interest attaching thereto or of its association with any Irish historical event or

person has a value substantially greater than its intrinsic … value, ….” Section 26 of the Act of 1930 provides:

“(1) It shall not be lawful for any person, without or otherwise than in accordance with a licence issued by the

Commissioners under this section, to dig or excavate in or under any land (whether with or without removing the surface

of the land) for the purpose of searching generally for archaeological objects or of searching for, exposing or examining

any particular structure or thing of archaeological interest known or believed to be in or under such land or for any other

archaeological purpose.”

(2) The Commissioners may at their discretion issue to any person a licence to dig or excavate in or under any specified

land for any specified archaeological purposes and may insert in any such licence such conditions and restrictions as they

shall think proper.

(3) Any person who digs or excavates in or under any land in contravention of this section shall be guilty of an offence

under this section and shall be liable … .”

21 The Act of 1987 extended the protection and preservation of national monuments and architectural objects and made provision for

the protection and preservation of historical wrecks. A “wreck” under Section 1 is defined as “a vessel, or part of a vessel, lying on, in

or under the sea bed or on or in land covered by water, and any objects contained in or on the vessel and any objects that were

formerly contained in or on a vessel and are lying on, in or under the sea bed or on or in land covered by water.”

22 Sections 3(1) and 3(3) and 3(5) of the Act of 1987 provide as follows:

“(1) Where the Commissioners are satisfied in respect of any place on, in or under the sea bed of the territorial waters of

the State …, or on or in land covered by water that –

(a) it is or may prove to be the site where a wreck or an archaeological object lies or formerly lay, and

(b) on account of the historical, archaeological or artistic importance of the wreck or the object, the site ought to

be protected, they may by order (in this section referred to as “an underwater heritage order”) designate an area

of the sea bed, or land covered by water, around and including the site as a restricted area.

(3) Subject to the provisions of this section, a person shall not, in a restricted area, do any of the following, that is to

say:

(a) tamper with, damage or remove any part of a wreck or any archaeological object,

(b) carry out diving, survey or salvage operations directed o the detection, location or exploration of a wreck or

archaeological object or to recovering it or a part of it from, or from under, the sea bed or from land covered by

water, as the case may be, or use equipment constructed or adapted for any purpose of diving, survey or salvage

operations,

or … .

(4) Subject to the provisions of this section, a person shall not, at the site of a wreck (being a wreck which is more than

100 years old), or of another object (being an archaeological object) that is lying on, in or under the sea bed or on or in

land covered by water….”

23 The remainder of Section 3(4) prohibits, in relation to the site of a wreck or an archaeological object, the activities corresponding

to those prohibited under Section 3(3).

24 Section 3(5) however permits the licensing of the above prohibited activities, and reads as follows:

“3(5) (a) Upon application therefor to the Commissioners by any person and upon being furnished by him with such

information in relation to the application as they may reasonably require and upon payment to them by the person of the

prescribed fee (if any), the Commissioners may, at their discretion, after consultation with (in the case of application

relating to the sea bed) the Minister for the Marine and with such other (if any) persons having a special knowledge of or

interest in the matter as they consider ought to be consulted, grant or refuse to grant a licence in writing to a person

authorizing the doing by (as may be specified in the licence) that person or that person and his servants or agents,

subject to such conditions as the Commissioners may think fit and specify in the licence –

(i) in a specified restricted area or a specified part of such an area of the acts specified in paragraphs

(a), (b) and (c) of subsection (3) of this section or

(ii) of such of them as may be specified, or

at a specified site to which …

(a) …

(b) A licence under this subsection shall remain in force for such period as may be specified in the licence

(c) A licence under this subsection may-

(i) be made subject to such conditions (if any) as the Commissioners think fit and specify in the licence,

and may be revoked at any time by the Commissioners …”

25 The Minister made An Underwater Heritage Order on the 25th January 1995 under which the site where the wreck of the Lusitania

lies or did lie, having regard to its historical importance, was declared a “restricted area” within the meaning of that term in Section

3(1)(a) of the Act of 1987.

The Appeal

26 The Minister invoked 22 grounds of appeal in his Notice of Appeal dated the 21st November 2005. The grounds of appeal of the

Minister may be grouped, essentially, under several distinct headings:

a. the futile nature of the proceedings, which The Minister submits are moot in light of the abandonment by the

Respondent of his claim to a default licence, and/or in light of a subsequent more detailed application for a licence made

by the Respondent to the Minister, which application had also been refused and which refusal had not been challenged;

b. the failure of the learned trial judge to take into account the background history and exchanges between the parties

prior to the application of the 7th March 2001, in particular having regard to the failure by the Respondent to furnish the

level of detail and expertise required for the grant of such a licence, a requirement made evident by those extensive

exchanges.

c. the failure of the learned trial judge to have adequate regard to the expert, unchallenged evidence adduced on behalf

of the Minister in the course of the proceedings;

d. the wrongful finding by the learned trial judge that the Minister had determined that every invasive investigation of the

wreck required an excavation licence; and the related finding that the works proposed did not, in fact, constitute such

excavation pursuant to Section 26 of the Act of 1930;

e. the wrongful finding by the learned trial judge that the Minister had failed to consider the application on its merits or

within the prescribed statutory period;

f. the alleged irreconcilable differences within the judgment itself;

The Argument of the Parties

27 In his submissions, both written and oral, the Minister’s main contention is that the learned trial judge erred in law in his

interpretation of Section 3 of the Act of 1987 and of Section 26 of the Act of 1930; that he misdirected himself in not finding the

application made was an invalid application, since the Respondent could not through mere ignorance have failed to complete a proper

application, given the history between the parties, it being clear that he had no intention to do so. Rather, the Respondent had

applied on an amended form so as to avoid giving the undertakings which would otherwise have been required: the real intention of

the Respondent up to the date of the High Court hearing was to secure a licence to do the works proposed, by means of a default

mechanism, without conditions attaching to such a licence. As to the latter, it should be pointed out that at the commencement of

the hearing in the High Court the Respondent withdrew the ground of relief seeking a declaration that he had secured or was entitled

to secure a licence by default. That relief is no longer live.

28 Counsel for the Minister further submits in oral argument that while an excavation licence is required pursuant to Section 26 of the

Act of 1930, the Minister would nevertheless at all times have been prepared to permit certain items to be removed from the wreck by

the Respondent, provided the appropriate licences first existed, and with appropriate consultation, but that while this had been

permitted in the past, during other dives, the permission to do so had been misused or exceeded by the Respondent or by his agents.

Moreover, it is argued that, on a correct reading of the Minister’s letter of the 22nd May 2001, it was not contended by him that an

excavation licence pursuant to Section 26 of the Act of 1930 was required in the case of every application for an intrusive licence.

The true meaning of what was contended was to be read from a consideration of the entire letter, in particular that part of the letter

which referred specifically to the type of works proposed by the applicant, and set out in part in the body of the letter.

29 Counsel for the Respondent contends that the true construction of the legislation above referred to is that an application to do

the works proposed by him is one falling exclusively within the ambit of Section 3(5) of the Act of 1987; that the provisions of Section

26 of the Act of 1930 do not apply at all because the provisions of the Act of 1987 make it clear that a new and self contained

legislative scheme was thereby introduced to deal exclusively with wrecks; and that both the forms attached to the Minister’s letter

of the 22nd May 2001 to the Respondent, as well as the letter itself, are to be correctly read as supporting his contention that the

Minister misunderstood and misapplied the clear provisions of S.3(3) and 3(5) the Act of 1987, and failed to consider the latter

provisions at all in refusing the application sought.

The Meaning and Application of the Legislative Provisions and the Judgment:

30. The principal issue before the High Court on the Order granting leave to issue judicial review proceedings was quite a net issue

and centred on the correct construction of the aforesaid letter and the legal consequences flowing from the Minister’s response.

Sometime before the oral hearing in the High Court, as the case developed, numerous affidavits were exchanged between the parties,

including in them vast quantities of expert and other evidence, going quite some distance beyond the scope of the relief and the

grounds for judicial review actually permitted. It must be borne in mind that it was against that background that the learned trial

judge made his findings.

31 Among the legal issues for determination on this appeal is the meaning of Section 3 of the Act of 1987 and of Section 26 of the

Act of 1930 and their application. In addition, having regard to the findings on those issues, the court must then consider the learned

judge’s findings in the context of the grounds of appeal. Each of the sections is drafted in such a way as to make it clear that any

licence granted is one issuing exclusively pursuant to the provisions of one or other section. This is copperfastened by the use of the

words “under this section” in the respective section of each statute, there being nothing in the later statute or in any other

legislation brought to the attention of the court, suggesting that the legislature ever modified the earlier, or indeed either provision, in

any relevant manner.

32 As to the Act of 1930, the long title to the Act is referred to above and its intention is clear on its face. Section 26 of the Act of

1930 prohibits any person from “digging” or “excavating” in or under land, inter alia, “for the purposes of exposing or examining any

particular structure or thing of archaeological interest”, or “for any other archeological purpose”. Digging and excavation are self-

explanatory words, and there appears to me to be little doubt but that items in on or around “the Lusitania” and probably even the

Lusitania itself, come within the ordinary meaning of the words in the Section.

33 Applying those provisions to the wreck of the Lusitania, it is peculiarly within the ambit of the Minister’s powers, when he examines

an application for an intrusive licence on its merits, on the basis of advices given to him, to take a view on whether the works

proposed are digging or excavation works in respect of an archeological thing within Section 26 of the Act of 1930 or are not, and for

the Respondent, on his expert advice, to seek to persuade the Minister otherwise, if in disagreement with the latter’s views. Only if

the Minister adopts a wholly unreasonable approach, for example, or reaches wholly irrational findings on such an issue, or otherwise

fails to comply with any obligation imposed on him in that regard by law, in the course of examining the merits of an application,

should the court then intervene.

34 In the multitude of affidavits filed in these proceedings, a great deal of expert or technical information was adduced in the High

Court, and it is therefore wholly understandable that the judgment of the learned trial judge detailed factual issues argued in the

course of the actual hearing, and that he dealt with all the affidavits before him. The Minister complains in this appeal that the

learned High Court judge did not have adequate regard to the expert unchallenged evidence filed on his behalf, while contending at

the same time that the learned High Court judge was correct in holding the court was not entitled to examine the merits of the

application. In general, in judicial review proceedings of this nature where it is alleged that a decision ought to be quashed, and where

the basis for the reliefs sought is that the decision was reached in an irrational manner, it is not always helpful, and indeed is

frequently unhelpful, to have such large tracts of technical and/or expert evidence, since the court is being asked to condemn the

decision on the basis, as here, that there was no proper consideration at all of the application on its merits, not to determine

whether, had there been such an examination, the Minister had in that regard, acted lawfully.

35 While certain findings of fact were therefore understandably made by the learned trial judge in such circumstances, as to the

extent of the excavation intended by the Respondent according to the licence application and/or the evidence adduced in the High

Court, it seems to me that this is not a matter upon which the High Court or this Court, on appeal, should express any concluded

view, having regard to the nature of the proceedings and the relief sought and actually granted.

36 Turning to the application of Section 26 of the Act, the learned High Court judge was in my view correct in finding that not all

works which fall within Section 3(3), or which are the subject of a licence application under section 3(5) of the Act of 1987,

necessarily also require an excavation licence under Section 26 of the Act of 1930. This must depend on the particular nature and

scope of the works sought to be licensed, as he properly found. This is clearly so, having regard to the plain words of the section

itself, and whether the works proposed constitute either “digging” or “excavating” for the purposes mentioned in Section 26 of the

Act of 1930.

37 I find that the learned High Court judge also correctly held that it was not a function of the Court to consider the merits of the

Respondent’s application of the 7th March 2001, this being entirely within the ambit of the Minister’s powers. It certainly would not be

a function of the High Court or of this Court, on appeal, to adjudicate on the merits of that application, and that, despite the plethora

of affidavits filed by both parties, presented apparently on the basis that the learned trial judge would indeed do precisely that.

38 As to the learned trial judge’s finding that the Minister contended in the letter of the 22nd May 2001 that all applications to carry

out intrusive works required an applicant to apply for an excavation licence, I am not persuaded that, on a true reading of the letter,

although ambiguously worded, this finding is a correct one, and I am in disagreement with it. It is true the statement is made, in such

terms, in one paragraph of the letter. If it were correct to confine the context to that particular statement, if made in isolation, I

would be in full agreement with the learned trial judge and for the reasons which he gave. However, I do not consider that this

statement, correctly reflects the Minister’s position. The main body of the letter sets out part of the proposals of the Respondent. It

can reasonably be said that they must be the particular proposals which concerned the Minister most since they are cited in the

letter. They are highlighted by him as causing concern. I am of the view that a more correct reading of the letter is that the two

comments, that is to say, those highlighting the proposals and the subsequent comment on the need to apply for a licence pursuant

to s.26 of the Act of 1930 must properly be read and considered together. The Minister was not thereby claiming that every intrusive

licence must be accompanied by an application for an excavation licence. That being so, the Minister was entitled to contend, on the

basis of what was proposed by the Respondent, as cited in the letter, that those works were ones which would required the

respondent to apply for an excavation licence pursuant to the provisions of Section 26 of the Act of 1930. Whether such an

application was to be made concurrently or later or whether the provisions of the Act of 1930 should be complied with pursuant to a

condition imposed in a licence or independently, is not in my view relevant at this time, and was not considered in detail as part of

the Minister’s letter.

39 I now consider the learned trial judge’s subsequent finding that the actual works proposed in the instant case by the Respondent

were nevertheless, in fact, not within the scope of Section 26. On that ruling, I find myself also in disagreement with the learned trial

judge. The Minister is and was entitled to contend that what was proposed by the Respondent as set out in his application of April

2001 required him to apply for a licence pursuant to Section 26 of the Act of 1930. The works, prima facie, are capable of falling

within the ambit of this section and are therefore not permitted without such a licence. It is not necessary to go beyond the ordinary

meaning of the above words to reach such a conclusion. Any work proposed which comes within the ordinary meaning of “digging” or

of “excavation” engages the section, once it is the case that an object or structure of archeological interest, such as items in or

around the wreck of the Lusitania or even the Lusitania itself, lie in or under or partly under land beneath the sea, and once the

purpose of the dig or excavation is known.

40 On the face of letter of the 22nd May 2001, no finding on the merits was made by the Minister on the issue whether what was

proposed was either digging or excavation, within the ambit of Section 26 of the Act of 1930, not even in the most outline manner –

there being no reference at all to that Section in the letter, and the application being rejected on the basis that it was an invalid

application.

41 Having regard to the absence of any finding by the Minister on the works sought to be done by the Respondent, or as to the

merits of any application yet to be made pursuant to Section 26 of the Act of 1930, I consider that the ruling of the learned High

Court judge, on the issues of fact concerning the works proposed in 2001, for the purposes of the latter section, cannot bind the

Minister in the exercise of his power to adjudicate on any future application for an excavation licence which may be made by the

Respondent in respect of the same or similar works, pursuant to Section 26 of the Act of 1930.

42 Considering now the provisions of Section 3 of the Act of 1987, and its meaning, I repeat that this section too is self contained, in

the sense that while it prohibits, in the case of a restricted area, a range of activities covering the wreck of the Lusitania or

archaeological objects, it nevertheless permits the same activities, provided they are undertaken pursuant to a licence “issued

pursuant to this section”.

43 On its face, Section 3(3) contains a very simply prohibition. The word “tamper”, used in the context in which it is used, can be

readily understood by reference to its dictionary meaning, namely to “interfere or meddle, usually followed by with”. Section 3(3)(b) of

the Act of 1987 also prohibits anyone from carrying out diving, survey or salvage operations with a view to the detection location or

exploration of a wreck or with a view to recovering it from or under the sea bed, or even to use equipment for such operations, in a

restricted area. This subsection is not perhaps as clear as might be desired, but, on its most obvious meaning, it covers, prima facie,

at least part of what the Respondent proposed in his March 2001 application. These very same activities are, however, permitted if

done with a licence issued pursuant to Section 3(5).

44 Counsel for the Respondent submits that the terms of Section 3 of the Act of 1987 are such that they cover every activity

contemplated by the Respondent, both intrusive and non intrusive: that the Section constitutes a self-contained mechanism for

licensing both or either works and there is and was no requirement to seek or have any licence under Section 26 of the Act of 1930.

He argues that this is clearly the intention of Section 3(3)(b) of the Act of 1987 which, being adopted by the legislature with full

knowledge of the earlier legislation, must be taken to have the meaning contended for. Counsel submits that there are no other

activities affecting a wreck which could be contemplated, save those provided for under the subsection, and that since it specifically

covers licensing of both “salvage” and “recovery” of a wreck, a licence to do either of those must encompass all lesser works such as

those proposed by the Respondent, including any works in the nature of “excavation”. If it were otherwise, there would be little

meaning attaching to the words actually used. In the alternative counsel submits, given the special regime in the 1987 Act, it would

be inappropriate to use the mechanism of the Act of 1930 even if permitted to do so by its words, relying on the judgment in Mulcahy

v Minister for the Marine (unreported, the High Court, 4 November 1994) in that regard.

45 I have difficulty accepting the logic and the legal reasoning underlying these latter arguments. The subsection does not include

excavation, in express terms, and does not either, in express terms, exclude the application of s.26 of the Act of 1930 to works

covered by Section 3(3)(b). What is contended for on behalf of the Respondent is that excavation should be understood as being

implicitly encompassed in the subsection by virtue of the use of words such as “salvage” or “recovery”, and therefore excavation

works are to be similarly licensed pursuant to section 3(5). I consider that the wording of the subsection is not such as to make the

interpretation contended for by the Respondent obvious. The case law makes it clear that the starting point is that the statute

should be construed according to the intention expressed by the words of the relevant provision. In Howard v. Commissioners of

Public Works [1994] 1 I.R. 101 Blayney J., in the Supreme Court quoted with approval from Craies on Statute Law (1971) (7th Ed. ) at

p. 65:

“The meaning which words ought to be understood to bear is not to be ascertained by any process akin to speculation:

the primary duty of a court of law is to find the natural meaning of the words used in the context in which they occur,

that context including any other phrases in the Act which may throw light on the sense in which the makers of the Act

used the words in dispute.”

Equally, the case law requires that in order to include excavation in the subsection, or to find that Section 26 of the Act of 1930 is

not or is no longer applicable to the works in question, this can only be considered to be so if it can be established by the words

actually used, even adopting a purposive construction test, that the legislature intended this and such intention must nevertheless be

obvious from the words actually chosen, as is clear from DPP (Ivers) v Murphy [1999] 1 IR 98.

46 I do not consider that any such intention can be gleaned from the terms or the wording of subsection 3(3) of the Act of 1987,

read in context. Having regard in particular to the absence of any indication in the Act of 1987 that the provisions of Section 26 of

the Act of 1930 were no longer to apply, or were not to apply in the case of a wreck sought to be salvaged or recovered, I reject the

interpretation contended for on behalf of the Respondent, and find that the works prohibited or permitted by Sections 3(3) and 3(5)

of the Act of 1987 will, depending on their nature, be subject also to the provisions of Section 26 of the Act of 1930.

Conclusion

47 In light of these findings on the meaning of the legislation, I now turn to the main issue in these proceedings, namely the

application of the legislation to the Respondent’s application for a licence and the findings of the learned High Court judge in that

regard, and the legal effect of the decision of the Minister as found in his letter to the Respondent of the 22nd May 2001, refusing

the application for a licence.

48 Commencing with the letter, the Minister took the view that the application was not a valid application at all. This is the clear

meaning to be attached to the content of the three main paragraphs of page 1 of his letter of that date, already set out. It would be

more correct to say that the Minister rejected the application for a licence on the grounds of invalidity, rather than to say, as he did

in his letter, that he refused to grant a licence.

49 As to the contention on the part of counsel for the Minister that the application was correctly considered to be an invalid

application because a form, issued from the Minister’s own Department, was altered to avoid giving the guarantees required, or that it

was not altered bona fide, but was in reality a mechanism adopted to avoid complying with the conditions of which the Respondent

was well aware, and which would ordinarily be imposed in the event a licence, applied for on such a form, issuing, the learned High

Court judge found, as a fact, that this was not so. It is an unfortunate element in this case that both the application made, and the

response of the Minister, came about against the background of the copious exchanges between the parties, previously mentioned.

There was, it appears, a degree of obduracy on the part of the Respondent, arising from his views of his rights as owner of the wreck

of the Lusitania, even if bona fide held by him, and a degree of perhaps exasperation on the part of the Minister’s Department which

had offered, inter alia, to establish a liaison committee to agree a modus operandi for dealing with licences concerning the wreck,

considered by the Minister’s advisers to be in the Respondent’s interest. No arguments or persuasive grounds however have been

presented on this appeal which could support a submission that the learned judge’s finding of fact, on this ground, was incorrect in

law.

50 Moreover, I do not think it appropriate to dwell on the history between the parties, save to say that it clearly was the background

and the context for the application made and for the response given by the Minister. It was not, however, the reason given for the

rejection of the application. That reason is found in the letter of the 22nd May 2001 itself, and is clear. A reading of the letter

rejecting the application as being invalid makes it clear that the Minister took the view that the particular works sought to be carried

out simply could not be done under the provisions of a licence granted pursuant to s.3(5) of the Act of 1987. Although the letter

suggests that if works, other than “non intrusive works” were to be carried out, a licence under the Act of 1930 would “also” be

required, the letter, read in its entirety and especially when read in conjunction with the forms attached to it, show that the Minister

took the view that only a non intrusive diving licence (called non invasive in the judgment) could, or perhaps even would, be issued

by him under the Act of 1987. The only form issued with that letter, and covering a “licence” under the Act of 1987, was also one for

“diving”, accepted by counsel for the Minister as being a non intrusive activity. Apart from its title, already referred to, the conditions

appearing in that form were those also appearing in the form used by the Respondent, even if on the form used by him, the conditions

had been excised. No other form, of a type suitable for a licence to carry out “intrusive” works under a Section 3(5) licence was

included. Even at the stage of this appeal, it is apparent that no form exists in respect of any activity caught by the provisions of

Section 3(3), but permitted pursuant to Section 3(5), save in respect of works of a non intrusive nature, that is to say mere diving or

surveying. It was argued by counsel for the Minister however, that it was necessary to understand the Minister would in practice also

permit certain activities of an intrusive nature, limited in extent, to be carried out, and that the Minister had, in the past, actually

permitted the raising, recovery and removal of certain items from the wreck.

51 While it is perfectly understandable that a licence holder might be permitted to take certain items, with the knowledge and

agreement of the Minister, a licence under Section 26 of the Act of 1930 could not constitute a permission to do any of the acts

prohibited by Section 3(3) of the Act of 1987, and nor could a licence to carry out works of a non intrusive nature such as diving,

issued pursuant to Section 3(5) of the Act of 1987, carry with it permission to carry out works of an intrusive nature, even those

which could have been permitted under the same subsection, if a licence to do so had issued. The legislation specifically envisages

the granting of licences in respect of the works – or those which fall within Section 3(3) of the Act of 1987 – proposed in the

Respondent’s application and which happened to be, at least in part, intrusive in nature and scope.

52 An indication of the Minister’s approach to the 1987 Act, however, is found in at least two documents which were before the High

Court and before this court on appeal. The first is a document dated January 2000 entitled “Decisions required in relation to the

restricted area of the wreck of the Lusitania”, and the second is the letter from Ms. O’Neill of the Minister’s Department to the

Respondent’s solicitors Messrs. Ronan, Daly, Jermyn (date). The first document, sets out in two parts, a summary and a more detailed

report, what are called certain “policies and actions which are now required”. The parts cover firstly, proposals on issues of licences

“to dive”. Secondly there are proposals on “excavation” within the site. This part includes a reference to the clearing of silt and the

cutting of a hole to expose interior feature of the wreck, which are, according to the report, within what the Minister’s Department

considers “excavation”. Thirdly, there are proposals regarding “alteration or export of material”. And finally the fourth part covers the

granting of permissions to “interfere with the wreck (general)”. This states that a Section 3 licence to the Respondent for an

extended period should allow for such interference and removal of material provided approval is “sought and obtained in advance from

the Minister… in respect of each diving operation” which commentary is found both in the full report and in the above summary.

(emphasis added)

53 In the letter to the Respondent’s solicitor, the same indication is given, namely that, for an extended period, only a licence to dive

will be given, but not a licence to interfere. The only permission to interfere will be granted, or not, at a future date, further to a

future application made at what the Minister considers the relevant time that is, prior to each proposed or permitted further dive. The

Minister appears to have taken the view that he was not permitted to, or would not grant either at all, or over any extended period of

time, any licence to “interfere”, within the ambit of Section 3(5) of the act of 1987.

54 In the course of the judgment the learned trial judge considered also the response of the Minister to the subsequent application

for an excavation licence made by the Respondent and which was refused. It was agreed by the parties that while that application

did not form part of the proceedings, and had not been the subject of any proceedings, it could be of relevance in understanding the

refusal of the March 2001 application. To the limited extent that it is of such relevance, but not otherwise, I note that while the

application for a licence to excavate was refused on a number of grounds, the Minister again suggested that the Respondent apply for

a licence to dive-survey, that is to say a licence to carry out works of an non-intrusive nature only.

55 While not wishing to prejudge consideration of any valid application which might be made for a licence to carry out “intrusive”

works including any tampering with or interfering with the wreck or its contents, such a policy of a blanket refusal to grant such a

licence, or such a practice of a series of refusals to do so, and only to consider the grant a licence to dive for an extended period, is

not in compliance with the legislative scheme which permits such a licence to be granted in respect also of intrusive works. I find that

each of the works which the Respondent wished to undertake fell, on their face, within the ambit of Section 3(5) of the Act of 1987,

whether or not certain of the works also properly required an application for a licence under Section 26 of the Act of 1930. That being

so the Respondent was legally entitled to have his application determined fully on its merits, and granted or refused, or granted

subject to conditions, as appropriate.

56 Having regard to the foregoing I am driven to the view that the Minister erred in considering and/or holding that a combination of a

licence of an non intrusive nature only, for diving, issued pursuant to Section 3(5) of the Act of 1987, even with a licence to dig

and/or excavate, if granted pursuant to Section 26 of the Act of 1930, was the legislative mechanism provided for by statute, or was

the only mechanism he would approve, for carrying out the works proposed by the Respondent in his application of March 2001. I find

that the Minister both misunderstood the scope of the licensing scheme in Section 3(5) of the Act of 1987, and/ or failed to apply

that section in a rational or reasonable manner, and thereby misdirected himself in his approach to the application made, and in his

rejection of it on grounds of invalidity.

57 In consequence, I find the his refusal to consider the application made to be a valid application, because it was submitted on an

inappropriate form, or because it was not accompanied by an application for a licence pursuant to Section 26 of the Act of 1930,

constituted an error in law on his part and his decision in that regard was void and of no effect, and that this was correctly so found

by the learned High Court judge. The rejection of the application outright, and in limine, without any consideration of its merits was

also irrational, in the legal sense, and the learned High Court judge was also correct in so finding. The failure of the Minister to

consider, on its merits, the application to “interfere” with the wreck in the restricted area, being intrusive works, and his refusal to

consider the granting of such a licence, as is implicit from the terms of his letter of the 22nd May 2001 and the accompanying forms,

was also a failure on his part correctly to apply the provisions of the same subsection of the Act of 1987 which envisages such a

licence, even one subject to appropriate conditions.

58 The Minister was of course fully entitled to require further information, more detailed information, greater explanation of the works

proposed, and any other material which he might reasonably require to be made available, in order to come to a view as to the extent

or scope of any licence sought pursuant to Section 3(5) of the Act of 1987, although he did not do so, choosing wrongly to reject

the application in limine.

59 The Minister submits nevertheless, in relation to the correct application of Section 3 of the Act of 1987 that there are

inconsistencies in the judgment of the High Court, having regard to certain findings, in particular that the Minister was entitled to

expect from the Respondent an application which “specifies what he wishes to do and how he intends to do it in sufficient detail … to

enable the Minister to make a properly informed determination, including whether and what conditions to annex, and to give reasons

for that decision, within the time allowed, based on facts and not surmise” as the judgment states. The Minister was entitled, it is

argued, particularly against the backdrop set out above, to expect an appropriate standard of “co-operation, transparency and

professionalism”. In the absence of the same the Respondent was not entitled to the declaration made in his favour.

60 It is submitted further by counsel for the Minister, and was apparent from the lengthy affidavits filed on his behalf, and from the

argument advanced in the High Court, and before this court, that the Minister and his advisers took the view, having regard to the

extensive history existing between him and the Minister’s Department, that the Respondent knew full well what was required by the

Minister as a valid and proper application, that the paucity of the information in the application could not have been as a result of any

ignorance of the requirements on the part of the Respondent having regard to that background, and that he therefore was not, and

could not have been in any way disadvantaged by the terms of the letter of refusal. The Respondent had, in reality, therefore placed

the Minister in a position of not being able to examine the application fully on its merits or to exercise his discretion in relation to its

grant or refusal. In such circumstances, the Respondent, having suffered no loss, was not entitled to declaratory relief, even if the

Minister had been technically incorrect in law. In that regard counsel relies on the judgment in The State (Abenglen Properties limited)

v Dublin Corporation [1984] IR 381.

61 As stated above, however, the unusual background context, while perhaps explaining the approach of both parties, nevertheless

was not the reason for the Minister’s rejection of the application itself, and the background history of the dispute, or its context,

cannot alter that. The learned trial judge correctly held that no additional information had been sought by the Minister of the

Respondent. The case of The State (Abenglen Properties Limited) v Dublin Corporation, supra, makes it clear that a discretion always

remains with the court to grant or refuse certiorari, especially if the conduct of a Respondent for relief has been such as to disentitle

him to that relief or if the relief is not necessary to protect the right invoked. The learned trial judge found, as a fact, that there was

no mala fides on the part of the Respondent in applying as he did, on the forms used. In the absence of any request for more

particular or detailed information, and in the face of a rejection of the application in limine on the basis of its alleged invalidity, the

Minister has not established that the Respondent, on the material before the High Court, conducted himself in such a way to be

disentitled to relief he sought, or that the learned trial judge erred in any way in his finding. Nor do I consider the relief to be

unnecessary in the sense of that judgment, in particular since in that case a decision was in fact made and given on the merits of the

application. In light of the foregoing, the declaration made by the learned trial judge in this case was a proper declaration correctly

made in law.

Supplemental Argument

62 The judgment of the learned trial judge was, as mentioned above, divided into two parts. The first dealt with the material strictly

necessary for the purposes of determining the meaning and application of the relevant provisions of the Act of 1930 and of the Act of

1987, and for resolving the legal consequences flowing from the Minister’s letter of the 22nd May 2001. The second part of his

judgment was introduced with the caveat that the learned trial judge dealt with the subsequent matters on the basis that he felt

obliged to deal with certain issues before him. I propose to deal with only some elements of this part of the judgment very briefly,

while not affirming any of the legal findings of the learned trial judge, they being entirely obiter.

63 Firstly, counsel for the Respondent made a detailed argument on the particular property rights which are claimed by him, as owner

of the wreck, in the course of the High Court hearing, and these were repeated before this Court, both in oral and in written

submissions. In light of the findings which I have made, I am not satisfied that it is correct that this court should embark on what is,

in effect, a type of advisory exercise which might affect future applications. The merits of the licence application lodged not having

been considered, it is sufficient to state on this topic that there is ample case law on the correct exercise by a Minister of his

statutory powers in the case of the private property of an individual, when balancing any right to a licence in respect of the same

against the interests of the State in protecting, maintaining or controlling the use of that property, for the common good. Nor would it

be correct in the context of this case to express any concluded view on the extensive property rights which the Respondent invokes,

nor the breadth of those rights in the context of such a licence application, or on the specific obligations claimed to constrain the

Minister when he exercises powers pursuant to duly enacted legislation. The first stems from a position where the precise nature of

any future application is unknown and when the particular concerns of the Minister on the works involved in such an application

cannot be known. Secondly, it was stated in the course of the appeal before this court by counsel for the Respondent, that there are

proceedings now in being before the High Court, commenced by the Respondent and raising constitutional claims in respect of

ownership of and property in the Lusitania, and the consequences which flow from the same. On this claim by the Respondent, I

merely hold that the extensive findings of the High Court judge on the obligations resting on the Minister or on the equally extensive

rights of the Respondent which he found to exist, either in respect of property rights in general or in respect of particular items of

property, such as rivets, and/or as to the importance to be attached to particular items over other items, cannot bind the Minister on

any future application. It would be wholly inappropriate for this Court, against the history of the current dispute to pronounce on the

claimed property rights in advance of the constitutional claim being determined.

64 Finally, it is alleged by the Minister that the proceedings are moot. Ordinarily, this would be the first matter determined in an

appeal. However, given the basis for this ground, it is appropriate to deal with it at this point. This ground is based on the following

argument, namely (a) the paucity and inadequacy of information provided in the application meant that the Minister could not

evaluate the application or conclude that it was appropriate to grant a licence; (b) the Respondent submitted a subsequent

application for a licence which contained far more detail. The latter application was refused by letter dated the 8th January 2003,

with reasons for the same. The Respondent has not challenged that refusal in the present proceedings, or at all. In the

circumstances, the Minister submits these proceedings are moot since, if the Respondent could not secure a licence pursuant to an

application which contained far greater information or detail, he could not seek to secure a licence in respect of the present “lesser”

application or complain about the Minister’s refusal, in particular when he has abandoned his claim for a licence by default.

65 Having regard to my findings on the correct interpretation of Section 26 of the Act of 1930 and of Sections 3(3) and 3(5) of the

Act of 1987, the subsequent application by the Respondent for a licence and its rejection on its merits, which application is not

before this court at all, does not affect this court’s determination of the legal consequences flowing from the decision of the Minister

contained in the letter of the 22nd May 2001, rejecting as invalid the application made by Respondent for a licence pursuant to

Section 3(5) of the Act of 1987, on the stated grounds therein contained. I would express no view whatsoever on the later

application, save in the context mentioned above. Nor do I express any concluded view, nor should I do so, as to whether any of the

material presented by the Respondent ought to be considered to be sufficient or adequate for the purposes of granting a licence

pursuant to the Act of 1987, for so long as no decision on its merits has been made by the Minister, who is at large – within the ambit

of the legislation and the law applicable to the same – to examine any such application which comes before him. The issues raised are

not moot in consequence of the later application for a licence filed by the Respondent, or by reason of his having withdrawn his claim

to be entitled to a licence by default, or for any of the reasons claimed.

66 Although I have found that in certain respects as concerns Section 26 of the Act of 1930 the learned trial judge was incorrect,

the Minister has not persuaded me that the judgment of the learned trial judge on any of the acts or matters which led to the

declaration made was incorrect in law. In the circumstances, I reject the appeal of the Appellant and affirm the order of the High

Court.