Patrick Keane and Patrick Naughton (applicants) v An Bord Pleanala and The Commissioners of Irish Lights (respondents) and Clare County Council, Paul, Considine, Valerie Considine and The Minister for the Marine (notice parties).

Judicial Review - Statutory corporation Proposal to build aid to navigation based on system of electro-magnetic impulses - Statutory power to build and maintain lighthouses, buoys and beacons - Whether power extended to proposed system - Whether proposed development ultra vires Merchant Shipping Act 1894(57& 58 Vict., c. 60), sections 634, 638, 742.

Statute Interpretation - Meanings of "lighthouse". "buoy" and "beacon" - Whether system to aid navigation based on electromagnetic impulses a lighthouse, buoy or beacon - Merchant Shipping Act 1894 (57 & 58 Vict., c. 60), section 742.

The High Court (before Mr Justice Murphy); judgment delivered 14 October 1995.

A SYSTEM to aid navigation on the seas and in the air whose essence is the transmission of elctro-magnetic impulses as part of a complex scheme does not come within the definition of "lighthouse", "buoy" or "beacon" as defined by the Merchant Shipping Act 1894, which definitions refer to lights, marks and signs of the seas exhibited for the guidance of ships. While it is necessary and desirable, in interpreting Iegislation, to construe the legislation, .where possible, in a manner that up-dates its terms to admit of technological innovation, such an approach ought not be allowed to alter the meaning of particular words contained in the statute.

Mr Just ice Murphy so held in declaring that the Commissioners of Irish Lights had no statutory power, either express or implied, to undertake the development and management of a planned navigation aid known as the Loran-C system.

Iarfhlaith O'Neil SC and Desmond Long BL for the applicants; Paul Sreenan SC and Maurice Collins BL for the Commissioners of Irish Lights; John Wilde Crosbie BL for Clare County, Council Liam Reidy SC and David Barniville BL for the Minister for the Marine.

MR JUSTICE MURPHY said that these proceedings concerned whether the Commissioners of Irish Lights ( the commissioners") had the requisite, statutory power to construct, maintain and operate navigation equipment known as, the Loran-C system. He said that in 1994 the commissioners, as agents of the Department of the Marine, had applied to Clare County Council for permission to build the system comprising a radio mast, ancillary, facilities and a caretaker's house in County Clare. The application was refused but that decision was reversed on appeal to An Bord Pleanala which granted the permission subject to certain conditions.

The applicants had challenged the decision of An Bord Pleanala, by way ofjudicial review, and Mr' Justice Murphy said that he had made a determination on that issue in a judgment delivered on 20 June 1995. In addition, the applicants had sought to challenge the power of the commissioners to operate the Loran-C system and leave had been granted to apply for orders ofjudicial review of that issue on two grounds: (a) that the construction and maintenance of the Loran-C system was ultra vires the powers of the commissioners; and (b) that the purchase of lands to facilitate such construction was ultra vires the powers of the commissioners.

Mr Justice Murphy went on to outline the statutory history behind the erection and maintenance of lighthouses around the Irish coast. By virtue of the Dublin Port Act 1867, the commissioners were set up as the body to exercise control over lighthouses, buoys or beacons and the superintendence thereof in Ireland and its adjacent seas. The position was further formalised by the Merchant Shipping Act 1894 section 638 of which stated that the commissioners had power to erect lighthouses or beacons together with all necessary works, roads and appurtenances, to add to, alter or remove any lighthouse or beacon and to vary the character of any lighthouse or the mode of exhibiting any lights therein. The legislation went on to define "lighthouse" to include "in addition to the ordinary meaning of the word. .any floating and other light exhibited for the guidance of ships, and also sirens and any other description of fog signals, and also any addition to a lighthouse of any improved light, or any siren, or any description of fog signal"; "buoys" and "beacons" were defined to include "all other marks and signs of the sea".

Before Mr Justice Murphy, the applicants had contended that the general purpose and intent of the Act of 1894 did not envisage that the commissioners would or could exercise any functions in deep sea areas as was planned with the Loran-C system. It was further contended that the physical dimensions of the Loran-C system, along with its dependence upon additional structures differentiated it from any navigational aid foreseeable in 1894. The applicants' main submission, however, was that the impugned system did not constitute a lighthouse, buoy or beacon as defined in the Merchant Shipping Act 1894, when construed in accordance with the accepted canons of construction.

In the view of Mr Justice Murphy the position with respect to the powers of a corporation created by statute, like the commissioners, was that they are limited by the terms of such statute or statutes and anything not expressly or implied authorised is taken to be prohibited. Having referred to a number of definitions of "beacon", Mr Justice Murphy said that he would have no difficulty with the proposition that the commissioners had power to erect the impugned mast were it designed or intended to constitute a physical sign or guide to mariners at sea.

Mr Justice Murphy said that the Loran-C system was a low frequency electronic positioning-fixing system which had been developed since the second world war and consisted of a master transmitting station and two subsidiary or "slave" stations; the system would enable aircraft, and ships to confirm their positions in the air or at sea. The court, therefore, had to ask itself whether the commissioners were empowered to construct and maintain equipment, the essence of which was the transmission of electro-magnetic impulses as part of a highly complex scheme; he noted that such a scheme, being unknown at the time of the enactment of the Merchant Shipping Act 1894, was not incorporated in the general terminology of the Act.

In legal argument reference had, been made to a rule or canon of statutory interpretation known as the presumption in favour of updating; Mr Justice Murphy recognised the desirability and necessity of such a rule saying that where terminology used in legislation is wide enough to capture a subsequent invention, there was no reason to exclude it from the ambit of the legislation. Such an approach should not, however, go so far as to alter the meaning of words used in the statute. Indeed the authorities cited in argument indicated that this had always been the practice of the courts.

In Attorney General v Edison Telephone Company (1880) 6 QBD 244, the word "telegraph", as used in the Telegraph Act 1863, was interpreted to include "telephone" even though the latter was not invented before 1869. Mr Justice Murphy said that in that case, the word "telegraph" had been defined sufficiently widely to anticipate the invention of the telephone and that the court's conclusion had been justified by the ordinary application of the canons of statutory interpretation.

Reference had also been made by counsel to Grant v South Western and County Properties [1975] Ch 185 where it had been held that a tape-recording of a telephone conversation constituted a "document". Mr Justice Murphy referred to passages from the judgment of Mr Justice Walton in that case which indicated that the basis for reaching such a conclusion was his view that, under normal English usage, a person would be entitled to describe a tape-recording as "documentary proof" of something such as a conversation.

Mr Justice Murphy noted that an Irish court had, in Mc Carthy v O'Flynn [1979] IR 127, agreed with much of what had been said in the latter case. Here the Supreme Court had decided that an X-ray constituted a "document" for the purpose of the discovery of documents; Mr Justice Kenny had, expressed the view that the fundamental characteristic of a document is that it is something that gives information, stating that the form which it takes is immaterial.

Mr Justice Murphy said that it was the commissioners' submission that the overriding object of the Merchant Shipping Ace #84 was to enable them, in the interests of the safety of mariners, to provide all necessary aids for navigation, but he did not accept that it was possible to interpret the legislation or determine the statutory powers of the commissioners by reference to such a wide general principle. The Act of 1894 conferred powers of a local rather than international nature on the commissioners which powers were exercisable by reference to precise equipment, viz., lighthouses, buoys and beacons and not by reference to navigational aids in general terms. Had the possible form of Iighthouses been defined in the legislation to include the electro-magnetic waves used by the Loran-C system, then, on the authorities opened, to him, Mr Justice Murphy might have held with the commissioners. As matters stood, neither the general's scheme of the Act -nor the range of express and implied powers conferred on the commissioners permitted them to erect and maintain the Loran-C system.

Finally Mr Justice Murphy considered an argument made on behalf of the Minister for the Marine to the effect that, were it to be found that the commissioners did not have the necessary power with respect to the Loran-C system, then the minister had such power himself and that his inherent jurisdiction could make good the deficiency. Mr Justice Murphy said that this argument ignored the issues debated in the proceedings which had simply concerned the extent of the commissioners'

statutory powers. He said that the applicants were entitled to an order declaring that the commissioners lacked the power to erect the Loran-C system.

Solicitors: Michael Nolan (Kilrush) for the applicants; Maxwell Weldon & Darley (Dublin) for the Commissioners of Irish Lights; Houlihan McMahon (Ennis) for Clare County Council; Chief State Solicitor for the Minister for the Marine.

Paul Greene

Barrister