The Supreme Court dismissed an appeal by the Minister for Arts, Heritage, Gaeltacht and the Islands, Ireland and the Attorney General, and affirmed the High Court order in a dispute over an application for a licence to carry out activity involving a wreck.
In a judgment delivered on 27 March 2007, Mr Justice Fennelly said he agreed with the reasoning of Ms Justice Macken that the appeal should be dismissed. His judgment also set out his own reasons.
The Minister had deemed the respondent’s application invalid. A decision letter dated 22 May 2001 said the respondent had altered the application form, changing the proposed approach from “non-intrusive”. It also said the proposed investigation was not appropriate for a non-intrusive dive licence.
The judgment said the Minister’s counsel accepted that section 3(5) of the National Monuments (Amendment) Act 1987 gave the Minister power to grant intrusive licences. The letter’s reasoning could therefore be read either as wrongly suggesting that no such power existed, or as reflecting a fixed policy against granting those licences. Fennelly J said a refusal based on either interpretation was invalid. The fact that no application form for an intrusive licence was available, while the respondent was criticised for altering the only available form, compounded the problem.
The Court also considered the relationship between the 1987 Act and section 26 of the National Monuments Act 1930. Fennelly J agreed with Macken J that whether intrusive activity authorised under the 1987 Act also required a licence under the 1930 Act depended on the facts. The 1930 provision concerns digging or excavation to search for archaeological objects; the judgment said that activity permitted under the 1987 Act—tampering with, damaging or removing part of a wreck or archaeological object—did not appear to amount to that kind of digging or excavation.
The Minister’s counsel accepted that not every activity requiring a licence under the 1987 Act also required one under the 1930 Act, giving removal of silt as an example of activity that would. Fennelly J said a licence for intrusive activity could, where appropriate, include a condition requiring an application for corresponding permission under the 1930 Act.
Fennelly J added that the respondent’s property rights were a relevant consideration. However, he agreed that the Court should not pronounce on that issue at this stage. The judgment records the dismissal of the appeal and affirmation of the High Court order; it does not specify the terms of that order.