McGarr Solicitors - Dublin Solicitors Ireland » Department of Environment

Du.. Du.. Dubonnet!

Edward McGarr — Thu, 04 Nov 2010 09:00:26 +0000

In 2007 McGarr Solicitors represented Catherine Murphy and Finian McGrath in a High Court challenge (Murphy & Anor -v- Minister For Environment & Ors [2007] IEHC 185) to the failure of the Oireachtas to revise the constituency of Dublin West (among others) due to the increase of population since the previous election. On a revision, based on the latest Census of Population, Dublin West would have had an extra Dail seat.

The Defendants were the Minister for the Environment, Ireland and the Attorney General. Under the Constitution, the “real” culprit was the Oireachtas. The Court said;

“It is important to note, firstly, that the obligation is one on the Oireachtas rather than the Government.”

It is notorious that this view of the Oireachtas is seriously deficient, although Constitutionally correct. The Oireachtas is powerless without the active support of the Government. Failures of the Oireachtas are in fact failures of the Government.

Our plaintiffs, Catherine Murphy and Finian McGrath failed in their challenge to defend democratic principles; Pearse Doherty has not.

Leaving aside issues as to the differences in a failure to move a writ for a bye election and a failure to revise a constituency, were we asking for the wrong “order”?

A sometime television advertisement showed a customer in a crowded pub catching the attention of the barman by asking for a Du.. Du.. Dubonnet, and being heard.

No more pints of Guinness!

Gormley’s man (woman?)

Edward McGarr — Thu, 03 Jul 2008 09:00:19 +0000

What qualifications will Mr. Gormley’s independent inspector need?

Well, familiarity with Through the Looking-Glass would be helpful.

There, Humpty Dumpty explains himself to Alice:

I don’t know what you mean by ‘glory,’” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!’”
“But `glory’ doesn’t mean `a nice knock-down argument,’” Alice objected.
“When I use a word,” Humpty Dumpty said in a rather a scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is,” said Alice, “whether you can make words mean different things.”
“The question is,” said Humpty Dumpty, “which is to be master — that’s all.”
Alice was too much puzzled to say anything, so after a minute Humpty Dumpty began again.
“They’ve a temper, some of them — particularly verbs, they’re the proudest — adjectives you can do anything with, but not verbs — however, I can manage the whole lot! Impenetrability! That’s what I say!”

The first word to be examined by the Inspector is the word “independent�?, as in “independent inspector�?.

Independent of what or whom? Not Mr. Gormley; he is doing the choosing and appointing.

The next word for examination is “literate�?, as in “read the contract, Inspector�?.

The contract is, of course the contract under which the AB consortium installed Dublin’s sewage treatment plant in Ringsend. The first word the Inspector should look for in the contract is “confidential�?. Is Dublin City Council bound to keep the terms and issues of the contract secret?

The next word is “re-negotiate�? or cognate words.

In short, what provisions, if any, were there to prevent the consortium from seeking more money.

That’s the question.

Quarries

Edward McGarr — Fri, 09 May 2008 09:00:17 +0000

Section 261 of the Planning and Development Act 2000 made special provision for the control of quarries. A quarry is as defined in the Mines and Quarries Act 1965.

On the coming into force of Section 261 (on 28th April 2004) a quarry to which Section 261 applied (most quarries), had to be registered with the local planning authority within one year of 28th April 2004. Failure to register rendered the quarry an unauthorised development. “Registration�? refers to the supply of the required information, not the entry on the register. (S. 261 (10) (a)).

The section set out the information which had to be supplied on registration, with provision for the planning authority to make further enquiries. Failure to provide the further requested information also will render the quarry an unauthorised development.

Under S. 261 (12) provision was made as follows:

(12) The Minister may issue guidelines to planning authorities regarding the performance of their functions under this section and a planning authority shall have regard to any such guidelines.�?

The Minister has issued guidelines to the planning authorities on quarries. The guidelines emphasise that “registration�? does not authorise an unauthorised development.

Under S. 261 (7) provision was made, in respect of quarries the “extracted area�? of which was greater than 5 hectares; or was on a European site or other protected site; and that commenced operation before 1st October 1964; and would be likely to have significant effects on the environment, for the planning authority to require, within one year of registration, that the owner apply for a planning permission and to submit an environmental impact statement.

The effect of Section 261 of the Planning and Development Act 2000 is to establish a baseline for the operations of registered quarries. (Assuming the information furnished with the “registration�? is accurate). The public may compare the current operation of any quarry with the details in the register (which details relate to a period in 2004) and they or the planning authority may take action if the comparison shows intensification of use.

Irish Planning and Development

Edward McGarr — Tue, 13 Nov 2007 09:00:32 +0000

It is not clear that the true history of Irish land development has been written. Consider the contents of the 2006 Annual Report of An Bord Pleanala.

The report highlights the failures of local planning authorities to take into consideration very important planning aspects in granting permissions for development. The results include improper zoning; consequential flooding; unplanned town development; and water pollution.

If that is what we see now in 2007, what major failures lie in the past?

One failure is pointed to in the setting of penalties of up to €500,000 for local authorities (the very people granting the questionable planning permissions) that pollute water resources.

It now appears that everybody has known for years that the local authorities were (and are) the major polluters of Irish waters before, (or is that after?) farmers.

And what of personal living spaces? Well, they need revision.

What’s to be said? In the words of Alexander Chase:

The peak of tolerance is most readily achieved by those who are not burdened with convictions.

The Constituency Commission

Edward McGarr — Wed, 15 Aug 2007 09:00:24 +0000

The High Court enjoined the Oireachtas to URGENTLY revise the constituencies.

By that time the Minister for the Environment, Hertiage and Local Government had established the usual Constituency Commission to furnish a report on the necessary changes to be made to some constituencies.

Presumably it URGENTLY asked for submissions from interested parties. Presumably they URGENTLY delivered those submissions.

Now the Commission will URGENTLY submit a report to the Minister.

In the middle of all this urgency we can see that there is no urgency in fact. The Commission has six months to do its work, and presumably, following form, will use all of the time to do that.

Where is it written that the world of politics stands still for this kind of process?

Rocket Science?

Edward McGarr — Sat, 28 Jul 2007 17:53:51 +0000

Ireland is a democracy (the Constitution prescribes it). A democracy implies equality of voting in parliamentary elections.

The 2006 Census showed wide disparities between the actual population of many constituencies and the “official�? populations of those constituencies.

In the light of that knowledge the Government did nothing. (It is a legal fiction that the Oireachtas is responsible for the revisions; the initiative lies with the Minister for the Environment, Heritage and Local Government).

Consequently, the recent General Election was fought on the basis of inaccurate constituencies (from the point of view of a democrat).

In April 2007 the Minister for the Environment, Heritage and Local Government appointed a new Constituency Commission to revise the constituencies in the light of the “final�? 2006 Census results issued by the Central Statistics Office.

The Constituency Commission is currently sitting. It has had a new member appointed.
What it has not done is to acknowledge the need for urgency in its task, as pointed out by the High Court.

The Irish High Court has found that the Oireachtas has a constitutional duty to urgently revise electoral constituencies in the wake of any census revealing the need for such changes. Failure to revise means there is inequality of votes amongst the electorate.

The previous Commission reported in 2004, having digested and processed the results of the 2002 Census. Thereafter, it took the Oireachtas about eighteen months to transpose the report into an Electoral Act establishing the revisions in law.

During the hearing of Murphy & McGrath v The Minister for the Environment, Heritage and Local Government & Ors the Court heard evidence from Odran Flynn that he was equipped to do a full constituency revision for all Ireland in about three days (in his bedroom).

Is it not time to co-opt him to the services of the Commission?

PS. It is inaccurate to say of Murphy & Anor v The Minister for the Environment, Heritage and Local Government & Ors., that it “authorised” the use of preliminary Census figures in preparation for use on receipt of the “final” figures from the CSO. It, in fact, enjoined the use of those figures in the interests of speed and urgency. More to the point, it endorsed the obvious: use accurate figures when they become available.

Constituencies Constitutional Challenge – The Judgment

Edward McGarr — Fri, 06 Jul 2007 12:39:59 +0000

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

Defendants

5th July 2007

1. The Judgment of the High Court is available HERE

Constituencies Constitutional Challenge – Costs (no bad PILL)

Edward McGarr — Mon, 25 Jun 2007 16:35:00 +0000

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

Defendants

25th June 2007

1. The Defendants have agreed to meet and discharge the legal costs of the Plaintiffs in the action.
2. The Court, on being informed of this, endorsed the decision of the Defendants, saying the case raised significant issues of public importance.
3. What was the case about? The case turned on two questions: (a) What is a census (within the meaning of the Constitution)? (b) Who cares?
4. A census is the officially ascertained result by the Central Statistics Office. For the purposes of the Constitution the ascertainment of the population results by electoral area by the CSO is the census, not the publication of those results by the CSO.
5. Who cares?: the Oireachtas must care, to discharge its urgent obligation to ensure equality of voting and therefore the claim that Ireland is a democracy.
6. The urgency of the obligation on the Oireachtas indicates that the very reliable preliminary census figures should be the trigger for the commencement by the Oireachtas of the preparatory work of constituency revision (if necessary). If such were done there would be no delay on revising constituencies where revision is indicated and required.
7. PILL means “Public Interest Law & Litigation”. A person litigating such a public law issue, in the interest of all, should be awarded costs, and usually is.

Reversing Roche

Edward McGarr — Wed, 20 Jun 2007 09:00:47 +0000

Before the honeymoon was over the Green Party found out what their new partner in government was like.

Before leaving office the (demoted) Minister for the Environment Heritage and Local Government signed an order to destroy the pre-historic site at Lismullen, to facilitate the building of the M3 motorway.

The chattering classes [journalists, this time] declared it was irreversible. (So did the new Attorney General, apparently).

But for an alternative view see Daithí Mac Síthigh HERE.

Constituencies Constitutional Challenge – Judgement Delivered

Edward McGarr — Thu, 07 Jun 2007 16:04:33 +0000

THE HIGH COURT
RECORD NO. 2819P/2007

Between

CATHERINE MURPHY and
FINIAN McGRATH

Plaintiffs

And

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL

Defendants

7th June 2007

1. The High Court (Clarke J.) delivered reserved judgment in the action this 7th June 2007. The judgement was read out by the judge; the written copy will become available shortly. The following is a concise synopsis of the essential points of the judgement. (Readers should note that the Defendants denied that the publication of “The Principal Demographic Results” triggered any obligation on them to act.)

2. He declined to grant the Declarations sought by the Plaintiffs.

3. He found that, for the purpose of the Constitution, the relevant Census 2006 figures were ascertained at least by 29th March 2007, the day “The Principal Demographic Results” were published by the Central Statistics Office. Although the Preliminary Results from the CSO in 2006 were of a high order of accuracy they did not trigger the obligation to revise the constituencies.

4. However, the obligation on the Oireachtas to undertake the necessary revision is such that it could, and possibly should, indicate that the Oireachtas ought to commence the necessary work of revision based on the Preliminary Results and act urgently on the ascertainment of the “Principal Demographic Results”.

5. Although the Electoral Act 1997 and the system for appointing the Constituency Commission is reasonable it does not excuse the Oireachtas from addressing the need to urgently revise constituencies and to act in the light of that urgency as circumstances dictate.

6. The application of the Defendants for costs is adjourned to 22nd June 2007. The Court indicated that he did not view the merits in the case as being all on one side. The Plaintiffs stated they would be looking for their costs against the Defendants on 22nd June next.