THE HIGH COURT
JUDICIAL REVIEW
			1992 No.  149 JR
BETWEEN
GLENCAR EXPLORATION PLC AND ANDAMAN RESOURCES PLC
			APPLICANTS
AND
THE COUNTY COUNCIL OF THE COUNTY OF MAYO
			RESPONDENT

JUDGMENT of Mr. Justice Kelly delivered the 20th day of August 1998.

INTRODUCTION
	This is a claim for damages of £1,938,264.  It arises in the wake of the judgment of Blayney J. given in these proceedings on the 13th November, 1992.  By his Order of that date that judge declared that the inclusion of what has come to be called a mining ban which was inserted in paragraph 3.6.1 of the County Mayo Development Plan on the 17th February, 1992 was ultra vires the Respondent and was null and void.
	Having obtained that decision in their favour the Applicants now assert that they are entitled to recover damages against the Respondent.  They claim the recovery of monies expended by them (agreed in the sum already set forth) on the basis that in inserting the ban the Respondent was guilty of at least one of five different wrongs.  These wrongs are misfeasance in public office, breach of statutory duty, negligence, breach of legitimate expectation and wrongful interference with the Applicants' constitutional rights.  Each of these claims will have to be considered in turn.
BACKGROUND
	The Applicants are respectively a public company registered in Dublin and a public company registered in Belfast.  They are both involved in prospecting and mining ores and minerals.
	On the 30th May, 1986 the Applicants obtained from the Minister for Energy ten prospecting licences.  These were obtained for the purposes of exploring for gold in townlands south of Westport in County Mayo.  These licences have been renewed from time to time.
	By the 17th February, 1992 the Applicants had spent the amount claimed in these proceedings on an exploration programme in the areas authorised by the licences.  As a result of their exploration, the Applicants formed the view that gold in commercial quantities existed in the areas prospected.  However, in order to bring matters a stage further substantial sums would require to be expended.  To this end, they engaged in negotiations with a company called Newcrest Mining Limited which at that time was one of the largest Australian gold producers.  It ranked in the top fifteen gold-mining companies in the world.  Having considered and evaluated the Applicants' work on the licensed lands, that company thought that the Applicants' results warranted a considerable amount of additional work being done.  Newcrest felt the potential ore size was striking and the geological evidence was regarded as spectacular.
	As a result of this, Newcrest entered into a joint venture agreement with the Applicants.  It agreed to expend at least £1.6 million on further exploration.  It was to receive a 51% interest for so doing.  This agreement was made in November 1991.  In February 1992, however, Newcrest pulled out of the joint venture because, it is said, of the mining ban having been included in the County Development Plan.
	When the Applicants first obtained their prospecting licences, the Respondent's 1984 Development Plan was in existence.  It did not contain any mining ban.
	In 1990, a new Development Plan was published.  It was put on public display between the 2nd April, 1990 and the 31st July, 1990.  Paragraph 3.6.1 of that draft plan dealt with mineral extraction.  It was in the following terms:-

	"It is clear that there are large potential mineral resources within the county from the scale of exploration currently underway.  Development of these resources will have major implications for the environment, water resources, acquaculture, tourism and employment. 

	Policy
	It is the policy of the Council that where mining and quarrying developments would seriously injure the visual environment, water resources, acquaculture, tourism, sites of archaeological, geological, historical, religious or scientific interest, the development shall not be permitted.

	It is the policy of the Council that, as part of any planning application for the large scale extraction of minerals an environmental impact assessment under EC Directive 85/337/EC and S.I. 349 of the 1989 European Communities (Environmental Impact Assessment) Regulations, 1989 shall be required by the Mayo County Council.

	Objectives
	It is an objective of the Council to ensure, through control of mineral extraction developments that the physical environment, flora and fauna is reinstated, on a phased basis, and with land, farms and vegetation in keeping with the natural environment.

	It is an objective of the Council to ensure that all forms of  discharges from mineral extraction shall be strictly controlled and monitored and that any breaches of such controls be prosecuted in accordance with the appropriate legislation.
		
	It is an objective of the Council to ensure that adequate environmental safeguards are enforced to minimise disturbance and nuisance during operations.

	It is an objective of the Council that features of archaeological interest are protected and preserved and if this is not possible that they be properly surveyed and recorded".

	The ban was introduced as an amendment to this section of the plan.  It was to be inserted between the two sub-paragraphs in the policy section.  A motion adopting the ban was passed at a meeting of the Respondent held on the 11th March, 1991.  The ban was inserted under the heading "Policy" in paragraph 3.6.1 of the Plan and was under the heading "Mineral Extraction".  It read as follows:-

	"It is the policy of the Council that no development and/or work shall take place in relation to minerals (as defined by the Minerals Act, 1940, as amended) in the areas shown dotted on Map 10A".

	The Development Plan incorporating this amendment was then put on public display from the 2nd April, 1991 to the 6th May, 1991.  On the 2nd May, 1991 the Applicants wrote to the Respondent objecting strongly to the amendment being included in the Development Plan.
	A meeting of the Respondent was held on the 11th November, 1991.  The members considered the written representations received in relation to this amendment but decided nonetheless to include it in the Development Plan.  The County Secretary informed the members that the County Development Plan as amended would be placed before them for their formal ratification at their December meeting.  That meeting was held on the 16th December, 1991.  On that day it was resolved to defer the ratification in order to give the members of the County Council an opportunity of considering a letter dated the same date which had been received from the Department of Energy.  That letter made the views of the Minister for Energy known in no uncertain terms.  The relevant parts of the letter stated:-

	"I am directed by the Minister to state that he views with grave concern the draft policy statement in relation to minerals development in parts of County Mayo.  The statement runs contrary to stated Government policy that mineral resources should be explored for and should be exploited where this can be done in an environmentally acceptable manner.  The statement, which implies that planning permission will be automatically refused to any mining project means that there will, in fact, be no exploration investment whatsoever .....".
The letter went on:-

	"The Minister is of the view that there is in principle nothing fundamentally wrong with the existing planning procedures and that it should be possible to accommodate the needs of both the mining industry and those concerned with the environment within the current legal and procedural framework.

	Finally I am directed by the Minister to state that it is his official view that the statement proposed for the draft Development Plan should be deleted".

The meeting having adjourned on the 16th December, 1991 six members of the Respondent put down a motion to rescind the resolution of the 11th November, 1991 which had approved the Development Plan with the mining ban included in it.  Their motion, if passed, would have removed the mining ban from paragraph 3.6.1 of the Plan.  
	At a meeting of the Respondent on the 17th February, 1992 that motion was defeated by 22 votes to 8.
	Thus the mining ban came into force and in turn led to these proceedings.  Later on in this judgment I will have to give much more detailed consideration to many aspects of the Respondent's behaviour in relation to the imposition of this ban.  The foregoing is merely the general background against which this litigation can be understood.

THE PRESENT PROCEEDINGS
	The Applicants were given leave to commence these proceedings which began on the 12th May, 1992.  Judgment was delivered on the 13th November, 1992.  In his judgment Blayney J. made it clear that he was fully aware of the strong feelings which existed in County Mayo on the question of whether or not mining should be permitted in the Doolough area of that county.  However, he pointed out that it was not the Court's function to decide between the different interests.  What it had to do was to determine the legal issue without regard to the relative merits of each side.
	Having considered the relevant statutory provisions, Blayney J. said:-

	"These provisions make clear the nature of a development plan.  It is a plan consisting of a written statement and plan indicating the development objectives for the area of the planning authority.  And since development is defined as meaning 'the carrying out of any works on, in, or under land ....' development objectives must be seen in that context.  So they must be objectives which have as their aim the carrying out of works on, in, or under land, which means that they must be positive in character.  And if one considers the nature of the objectives referred to in subsection (2) of Section 19 and in the Third Schedule to the Act, one finds that with very few exceptions they all answer this description.
	This being the nature of the relevant plan which the planning authority is required to make, this is what the planning authority is empowered to do when it comes to make its plan.  Its power derives from the statutory obligation imposed on it so it cannot go outside what it is obliged to do.  And since its obligation is to make a plan indicating the development objectives for its area, the question that has to be considered is whether the mining ban can be said to be a development objective.

	It is not in my opinion necessary to decide the wider question raised by the applicants, namely, whether a planning authority is entitled to include matters of policy in its plan.  The terms 'policy' and 'objective' are not mutually exclusive.  A statement of policy may amount also to the definition of an objective.  What is termed a policy may sometimes be equally accurately described as being an objective.  What has to be considered here is whether or not the contested provision can properly be described as being a development objective.  If it can be, then it may be included in the development plan;  otherwise it may not.  When this test is applied to the mining ban, I am satisfied that the result must be a finding that the County Council did not have power to include it in the Development Plan.  It is not a development objective.  As I stated earlier such an objective must be positive in character.  The mining ban is not.  It is entirely negative.  Its purpose is to prevent development not to have it as an objective.  It would have totally prevented any further exploration in a substantial part of the county.  For these reasons I am satisfied that it was ultra vires the County Council".  ([1993] 2 I.R. 237 at p. 245).

	Blayney J. then went on to other considerations which in his view led to the same conclusion.  He considered certain statutory provisions and regulations made thereunder as a result of which he came to the following conclusions (at pp. 247-248):-

	"It is clear from these Articles that the use of land for the purpose of the winning and working of minerals is prima facie exempted development.  That being so, the County Council has no power to prohibit such development.  And while mining which has the effect specified in Article 11 sub-article (1)(a)(vii) ceases to be exempted development, the question as to whether or not any particular development would come within that provision is not one which the County Council could decide.  Under Section 5 subsection (1) of the 1963 Act (as amended) any question as to what is or is not exempted development has to be referred to  and decided by the planning board.  So, in purporting to prohibit all mining in a particular area, the County Council is purporting to prohibit exempted development, which it has no power to do, and if the County Council is treating the mining works it is purporting to prohibit as not being exempted development, it is making a decision in regard to what it or is not exempted development, something which it has no power to do either.  It follows in my opinion that it has no power to include the ban in its development plan.

	The only way which the County Council might achieve its aim of stopping mining in this part of the county would be by making a special amenity area order in respect of it.  Article 11, sub-article (1)(b)(iii) of the 1977 Regulations provides that in an area to which a special amenity area order relates mining is not exempted development.  The County Council did have a detailed discussion at its meeting on the 22nd October, 1990 as to the merits or otherwise of making a special amenity area order in respect of the Westport area, and it was agreed to consider the matter further at a later meeting but no decision to make such an order was ever taken.  The Development Plan does however list in paragraph 3.13.1 as one of the matters to be undertaken by the County Council 'to prepare action plans for selected areas of special scenic importance, where it is proposed to make a special amenity area order'."

	Having decided that the mining ban was ultra vires, Blayney J. did not consider the other detailed submissions which were addressed to him.  He did, however, comment on a further aspect of the case.  It was by reference to the letter from the Department of Energy of the 16th December, 1991 from which I have already quoted the relevant extracts.  The letter was addressed to the County Manager and asked that it be brought to the attention of the Council members, which indeed it was.  Counsel for the Applicants submitted to Blayney J. that a further reason for nullifying the mining ban was the fact that the Respondent, in including it in the Development Plan, had failed to comply with the provisions of Section 7 of the Local Government Act, 1991.  The relevant part of that section is as follows:-

	"7(1)  Subject to subsection (2), a local authority, in performing the functions conferred on it by or under this or any other enactment, shall have regard to -
	(e)	policies and objectives of the Government or any Minister of the Government insofar as they may affect or relate to its functions.
	  (2)  A local authority shall perform those functions which it is required by law to perform and this section shall not be construed as affecting any such requirement".

Blayney J. dealt with this argument as follows (at p. 248):-

	"The Government's policy had been set out clearly in the letter of the 16th December, 1991 from the Department of Energy, i.e. that mineral resources should be explored for and should be exploited where this can be done in an environmentally acceptable manner.  Counsel for the County Council submitted that since the members of the County Council had adjourned the meeting of the 16th December, 1991 specifically for the purpose of considering the Department's letter, they had had regard to the policy of the Government as required by the section.  I am unable to accept that submission.  Without attempting to define precisely the meaning of the phrase 'shall have regard to', I am satisfied that a local authority could not be said to have had regard to the policy of the Government in regard to mining when it adopted as part of its Development Plan a policy which was totally opposed to that policy.  The members of the County Council may have considered the Government's policy but, having considered it, instead of having regard to it, it seems to me that they totally disregarded it.  However, in view of my having decided on other grounds that the mining ban is ultra vires, it is not necessary for me to come to any conclusion as to the effect of the County Council having acted in breach of Section 7 of the Act of 1991, but it is a further indication of the vulnerability of the decision to include the ban in the Development Plan".

	Having thus succeeded in having the mining ban set aside, the Applicants then continued with these proceedings claiming damages under the various headings which I have already identified.

THE LEGAL BASIS FOR THIS CLAIM
	Blayney J. annulled the mining ban in the Respondent's Development Plan.  He did so because the Respondent acted ultra vires.  The effect of his judgment was to make void ab initio the offending provision.  But it does not follow automatically that because a declaration of invalidity has been given that that of itself gives rise to a cause of action in damages.  There is no direct relationship between the power of the High Court to quash a decision of an inferior tribunal or body and a liability being visited on the Respondent in such a situation to pay damages.  The Applicants largely accept this general proposition and they cite the decision of Finlay C.J. in  Pine Valley Developments Limited v. The Minister for the Environment, Ireland and the Attorney General [1987] ILRM 747.  The Chief Justice there said (at pp. 757-758):-

	"I would adopt with approval the clear summary contained in the Fifth Edition of HWR Wade, Administrative Law at page 673, when the learned author states as follows:
		
		'The present position seems to be that administrative action which is ultra vires but not actionable merely as a breach of duty will found an action for damages in any of the following situations:
		
		1.	If it involves the commission of a recognised tort, such as trespass, false imprisonment or negligence.
		2.	If it is actuated by malice, e.g. personal spite or a desire to injure for improper reasons.
		3.	If the authority knows that it does not possess the power which it purports to exercise'.

	I am satisfied that there would not be liability for damages arising under any other heading.

	It is, of course, conceivable that proof of what has been submitted in this appeal as a gross abuse of the exercise of a statutory power of decision, or proof of a wholly unreasonable exercise of that power, would be taken by a Court to be evidence that the authority knew or must have known that it did not possess the power which it purported to exercise.

	I am quite satisfied, however, that the exercise by the defendant of this power in 1977, in the manner in which he did, and having regard to the legal advice which he sought and obtained prior to doing so, could not possibly constitute such a gross abuse of power or wholly unreasonable exercise of power as to lead to an inference that he was aware that he was exercising a power which he did not possess.  The only evidence led in this case quite clearly indicated the contrary, and that the Minister was of the belief that he was exercising a power which he possessed.

	Not only am I satisfied that this is the true legal position with regard to a person exercising a power of decision under a public statutory duty, but it is clear that there are and have always been weighty considerations of the public interest that make it desirable that the law should be so.  Were it not, then there would be an inevitable paralysis of the capacity for decisive action in the administration of public affairs.  I would quote with approval the speech of Moulten L.J. in Everett v. Griffiths [1921] 1 AC 631 where he states:-

		'If a man is required in the discharge of a public office to make a decision which affects, by its legal consequences, the liberty or property of others, and he performs that duty and makes that decision honestly and in good faith, it is in my opinion, a fundamental principle of our law that he is protected.  It is not consonant with the principles of our law to require a man to make such a decision in the discharge of his duty to the public and then to leave him in peril by reason of the consequences to others of that decision, provided that he has acted honestly in making that decision'."

	The Applicants recognise the strength of this statement but assert that they fall within one or other if not all of the categories identified in it as giving an entitlement to recover damages in respect of an ultra vires act.
	I turn now to consider the behaviour of the Respondent in imposing the mining ban with a view to ascertaining the true factual position.  I will then consider whether my findings of fact support the Applicants in their various allegations of wrongdoing against the Respondent.

THE BEHAVIOUR OF THE RESPONDENT IN IMPOSING THE MINING BAN
	There is no doubt but that in the early part of this decade the topic of mining in County Mayo was a heated one.  This was particularly so in the Westport electoral area.  I am satisfied on the evidence that there was great concern amongst the population concerning the  question of mining development in the area.  The area is scenic and attracts a considerable number of tourists.
	Perhaps the single most important manifestation of mining activity which gave rise to this reaction was the work carried out by Burmin Exploration and Development PLC and Tara Mines PLC.  They had a joint gold-mining prospect on the slopes of Croagh Patrick.  As a result of their activities a scouring was created on the side of that mountain.  The evidence of Messrs Hughes and Kenny, both of whom were members of the Respondent at the relevant time, satisfies me that once this scouring became apparent, the general public reacted against it.  Mr. Kenny said it was described in the national media as "The Rape of the Reek".  He said :-

	"This was because of the self-evident scouring of the mountain in an illegal fashion by the company, which conducted a public relations disaster in this matter.  Not only was it evident to me, but it was evident to everybody who could see from the entire Westport region, and for the many visitors who pass the road from Westport to Louisburgh in proximity to the national shrine".

Later he said:-

	"I think that the activities of Burmin in the way they conducted their business on the slopes of Croagh Patrick conditioned the minds of the people in the entire region to the activities of the mining in general".

Later in his evidence Mr. Kenny said:-

	"I was at the end of the receipt of a flood of queries, comments, and representations from ordinary people, from organisations, about the activities both on the reek and on the possibility of further activity in the general area".

There was also considerable concern and discussion about an entity called Ivernia West which, through its subsidiary Talc Technology Limited, had a talc prospect about a mile south east of the Westport Urban District area.  A planning application to develop that prospect was considered and refused by the Respondent.  On appeal, it was again refused by An Bord Pleanala.  Amongst the reasons given for that refusal by An Board Pleanala was one that the development would be "detrimental to the interests of the tourist industry and to the long-term development potential of that industry".  Mayo County Council refused planning permission to Talc Technology Limited on the 20th February, 1990 and the appeal to An Bord Pleanala was decided on the 14th January, 1991.  All of these matters were very much in the mind of the members of the Respondent when they were considering the question of the mining ban in early 1991.
	Both members of the Respondent Council who have given evidence, namely, Mr. Hughes, who represented Fianna Fail and Mr. Kenny, who represented Fine Gael, made it clear that having regard to the concern that was being expressed about the Burmin and Talc activities and about mining activities in general, they wished to bring about a situation where in the event of planning permission being sought in respect of any mine, it would be the councillors rather than the officials of the Respondent who would deal with such an application.  They were of the view that if the mining ban were included it would mean that any applicant for planning permission would have to seek a variation of that plan and that was a decision which would have to come before the elected representatives and could not be dealt with by the County Manager or his officials.  This was the mind-set which was present on the part of many of the councillors and was to a considerable extent dictated by the concern about mining activities which was all too evident both from their dealings with their constituents and from newspaper coverage in the local press.
	Two answers which were given in evidence, one from each of the two members of the Respondent who gave evidence, indicate their approach. 
	Mr. Hughes representing the Fianna Fail interest said (Question 176, 10th December, 1997):-

	"When we firstly started looking at the draft development plan we recognised, as councillors, here was the opportunity for the next five to seven years to bench-mark what we have in our county, to decide what developments we would like to promote, encourage, control and generally to decide policies and objectives, and we also fully recognised the fact that it was a reserved function.  Being a reserved function we would have to give very close attention and time and effort to ensuring that once we resolved what was to be in our draft plan that it was to be the  bible for the next five or seven years".

	Mr. Kenny in his evidence (11th December, 1997 at Question 79) said:-

	"Well, when it was first mooted to be included in the draft plan my clear understanding was that this plan would be put on display for public viewing, as is required under the law, and that all of those who wished to make comments, or contributions, or objections, or whatever, to it, could then do so.  And my further understanding was that if they were to be finally adopted in the County Development Plan, the issues I have mentioned earlier, either of an appeal to An Bord Pleanala, a material contravention dealing with the matter, or the Minister for the Environment to exercise his power under Section 22 of the '63 Act, come into play.  My central focus on it was that given the environmental priority, as outlined by Government, and as referred by me earlier on, My Lord, that the councillors, the councillors who, after all, have the responsibility to draft the County Development Plan and who are, after all, the elected representatives of the people, should be able to take into account the people's wishes, the community's desires, and reflect that and deal with it in as far as was possible in that".

	It was Mr. Hughes who appears to have been one of the prime movers in introducing the notion of a mining ban.  He first asked Council officials to prepare a report on the possibility of making a special amenity area order to cover the area in question.  However, he formed the view that if the Council were to resolve to make a special amenity area order, the Respondent would have to commit huge resources to carry out the necessary examination.  He took the view, having regard to an experience which was related to him involving an attempt to make a special amenity area order for the Liffey Valley in Dublin, that there was no practical solution to be found by following that course.  
		The possibility of a special amenity area order was first discussed at a meeting of the Respondent held on the 22nd October, 1990.  By the time of  its meeting of the 25th February, 1991 the Respondent had decided not to make the special amenity area order.  Instead, at that meeting of February 1991 Mr. Hughes first proposed the mining ban.  His proposal was seconded by Mr. O'Toole.  In order to make sense of the ban it was necessary that a new map of the area to be covered by it be prepared.  That came to be known as Map 10A.  The original Map 10 formed part of the original draft development plan and indicated areas of special scenic importance in Mayo.  This new map was prepared and it is quite clear that the area covered by it was enormous.  It covered approximately three hundred square miles.  This was about one hundred square miles in excess of the area which was in contemplation when the special amenity area order was being considered.   It is clear from the evidence of Mr. Dunleavy that Map 10A was prepared on the direction of the councillors.  There was no discussion on the drawing of the map.  As far as he was concerned it was drawn in the context of a lot of agitation and with emphasis on the Westport electoral area.  The map was drawn without any further study being carried out.  The area covered was extended to cover, for example, the area of the talc mine even though that was not an area of special scenic importance included in Map 10.
	By the next meeting of the Respondent held on the 11th March, 1991 the map had been prepared and the mining amendment was adopted as part of the draft plan.  The vote of the Respondent on this occasion was unanimous.  
	As I have already stated, the draft plan in its amended form was then put on display and the appropriate statutory notices were published.  Various representations and objections were received and these in turn were circulated to the Council.  They were also examined by officials of the Respondent and they in turn made recommendation to the elected members on foot of their consideration.  Amongst the representations received were ones from the Confederation of Irish Industry Mining Exploration Group, the Institute of Mining and Metallurgy, Ivernia West, Burmin Plc. and the Irish Mineral Exploration Group.  A letter was also received from the Applicants but outside the statutory period for the receipt of such representations.  It was circulated directly by the Applicants to the elected councillors.  I will return to the question of the recommendations made to the elected members by the officials of the Respondent in due course.  
	At its meeting of the 11th November, 1991 the Respondent resolved, having considered the written representations received in relation to mining in the Westport electoral area, that the mining ban be inserted in the development plan.  The County Secretary informed the Council that the draft plan as amended would be placed before the December meeting of the Council for formal ratification.  That indeed was done and the matter was on the agenda for the next meeting of the Respondent of the 16th December, 1991.  It was on that date that the letter was received from the Department of Energy.  The elected members were advised by the County Manager that they were obliged by Section 7 of the Local Government Act, 1991 to have regard to the Minister's letter.  Accordingly the ratification of the draft plan was adjourned initially to a meeting in January 1992 and ultimately to a meeting of the 17th February, 1992.  I have already recited in summary form what occurred on that occasion.  It is now necessary to look at that in some greater detail.
	The meeting, in so far as it dealt with the issue in suit, lasted for a number of hours.  The first matter that fell for attention was the Motion of the six members of the Respondent which sought to rescind the resolution of the previous November which had approved the development plan with the mining ban included in it.  The only way the matter could be reopened so as to allow the issue to be further debated and the Minister's letter to be considered was by a Motion rescinding the amendment submitted for inclusion on the Agenda.  This required the consent of two-thirds of the members of the Council.  This was obtained following advice given to the Council by the County Manager in the following terms as recorded in the minutes:-

	"It is essential that the Council reopen debate on the matter and that the necessary consent of two-thirds of the members be given as required by standing order 27(C).  He stated that if this consent is not given, the Council will have failed to have regard to the Minister's letter and will have acted contrary to law.  He further stated that the Council may be liable to legal action either from the Minister for Energy who may seek a declaration that the resolution adopting the plan is invalid or third party options which may claim that the Council acted contrary to law and unfairly".

	A lengthy discussion then ensued.  It is recorded in the minutes in the following terms:-

	"Councillors in favour of removing the ban on mineral extraction pointed out that they were not proposing that mining should take place where it would have an adverse effect on the environment.  They stated that the Motion only enabled mining companies make application for the consideration of the Council officials.  They also stated that controlled mining operations would reduce employment in the county and also reduce emigration which was a major problem in the west of Ireland.  It was also stated that a ban on mining would discourage mineral exploration.

	Reference was also made to the Council's obligations to have regard to Government policy on this matter.

	Speakers against the Motion referred to the adverse effect which mining would have on the environment in the environmentally sensitive areas in the Westport electoral area.  

	They stated that any increase in employment as a result of mineral extraction would be counteracted by a reduction in tourism jobs as a result of the likely drop in the tourist numbers to the area.  They also stated that a substantial majority of people in the Westport electoral area were against mining.

	The speakers further stated that while they were having regard to Government policy on mineral extraction, they were not statutorily obliged to comply with Government policy.  

	It was also stated by councillors in favour of the Motion that a developer would still have the right to make an application for planning permission to develop a mine and that the County Manager could put the matter before the elected members for a contravention of the development plan.  

	A number of councillors referred to the fact that all the councillors in the Westport electoral area were united in their views on the adverse effect that mineral extraction would have in their area".

	So much for the views expressed by councillors at that meeting.  The result of the meeting is well known and has given rise to these proceedings.
	I now turn to a consideration of the advice furnished to the councillors by  senior officials of the Respondent prior to their making the decision of the 
17th February, 1992.

THE APPROACH AND ADVICE OF THE RESPONDENT'S OFFICIALS
	The evidence on this aspect of the case points in one direction only.  The ban was imposed by the elected members of the Respondent against the advice of the County Manager, the Senior Executive Planner, the County Engineer and County Solicitor.  It was also imposed in the teeth of the letter from the Minister for Energy.  
	The advice of the County Manager was given to the elected representatives in no uncertain terms at the fateful meeting of February 1992.  It is recorded in the minutes in the following terms:-

	"The County Manager stated that at its meeting of the 11th March, 1991, the Council included a provision in the draft development plan to ban mineral extraction in an area outlined in Map 10A.  He said that he had advised in a report dated the 5th March, 1991 inter alia that the effect of a total ban would be to:

	(a)	Impose a complete ban on the working, development and extraction of minerals as defined by the Minerals Development Acts in an area of approximately three hundred square miles or about one-seventh of the total area of Co. Mayo i.e. the area covered by Map 10A.
	(b)	It would be unlikely that mining companies would be prepared to carry out any prospecting within this area as the likelihood of refusal of permission was very real.
	(c)	That it is in the interests of the Council, through prospecting activities, to find out what minerals are actually in the County irrespective of whether or not permission to extract was forthcoming.
	(d)	The policy statement in the first draft of the County development plan gave adequate power to the planning authority to deal with any application received.  Any application for mining would require consideration by the planning authority having due regard to 
		EC Directives on all aspects of the environment, and also the preparation of an environmental impact statement.

	He pointed out that each and every planning application to this planning authority should be judged on its merits and that adequate provisions are in place to ensure that a mining application receives a fair and detailed appraisal.  He said that this Council has nearly thirty years experience in dealing with the planning acts and has always done so in a professional and efficient manner and that applications such as Ashai (sic) in Killala and Talc, Westport, were an example.  He stated that he had complete confidence in the planning staff of this Council to deal with any application, on whatever subject, in an impartial and professional manner and that expertise not available to this Council can and will be engaged if required.  

	He further pointed out that it has been stated that if a ban on mining is included in the County Development Plan, that any application for mining must be brought to the attention of the elected members for decision.  He stated that this opinion is not correct.  An application where deemed desirable but contrary to the County Development Plan, can only be brought to the elected members if the County Manager, for the time being, so decides.

	He said that, once adopted, the plan and all its provision (sic) will be held to be binding on the Council as a matter of law.  The Council is obliged by 
	Section 22 of the 1963 Act to take such steps as may be necessary to secure the plan's objective.  Once a blanket prohibition is in the plan, it would be difficult to imagine a credible case for a change of mind by the Council to contravene this provision in the plan by agree (sic) to consider an application for a mine.  He stated that he was further advised that an objector may establish in Court that the Council were behaving irrationally and illogically in contravening this Section of the plan.

	He further stated that he was obliged to advise the Council when they propose to undertake any action which is against stated Government policy".

	This advice could not have come as news to the elected members.  For almost a year beforehand, similar views were expressed by senior officials of the Planning and Engineering Departments.  For example each of the written representations received from interested parties while the draft plan was on display was the subject of consideration and recommendation by Council officials.  All of the mining interests who wrote in time protesting the inclusion of the mining ban were supported in their stance by Council officials.  The recommendations in each case, which were communicated to the elected members, were that the prohibition on mining be not accepted and that the original policy in the draft development plan stand.  In the context of the letter from the Clew Bay Tourism co-ordinating Committee of the 2nd April, 1991, which was supportive of the mining ban, the officials of the Council commented in writing to the elected members as follows:-

	"The report circulated to Council at the last meeting on the Draft Development Plan outlined the following:

	(a)	The effect of the adoption of the amendment to Section 3.6.1 and Map 10A will be to impose a complete ban on the working, development and extraction of minerals as defined by the Minerals Development Acts in an area of approximately three hundred square miles or about one-seventh of the total area of Co. Mayo.

	(b)	If this amendment to the policy is put into the County Development Plan, it would then be expected that mining companies will not be prepared to carry out any prospecting within this area as there would be no point in prospecting for minerals of any type in an area where they could expect to be refused planning permission in accordance with the County Development Plan Policy.'

		This is not a good policy as it would be in the interest of the Council to find out from the activities of prospecting companies what minerals are actually in the county.  Whether or not the County Council would be prepared to give permission for their extraction could be decided at a later date when planning applications would be submitted by the developers.  

	(c)	The policy expressed in paragraph 1 of the Policy section of 
		3.6 .1 and in the policy section of 3.10.9 prior to the amendment would give adequate powers to the County Council to deal with any applications for mining developments and to refuse to grant planning permission for proposals which would be seriously injurious to the locality.

	(d)	Within such an extensive area as that shown on Map 10A, it is quite possible that some mining developments could be accommodated without causing any harm, and all proposals of this type could be examined on their merits rather than having this complete ban imposed on the County Development Plan.

	(e)	The amendment would prohibit the exploitation of minerals that would not have the same effects on the environment as precious metals e.g. quartz, which is one of the minerals referred to in the Minerals Acts, was extracted on Achill Island and exported.  This kind of activity would not be permitted under the policy now proposed for the area on Map 10A.
	
	(f)	By identifying just one electoral area for special attention, the Council could be accused of lack of balance in its approach to the preservation of the environment throughout the county.

		If the county is to develop industrially, it should not prohibit the development of natural resources in a specified area of the county.  
	RECOMMENDATION:
	That the amendments to the prohibition of mining in Section 3.6.1 and 
	Map 10A NOT be accepted and the original policy in the draft stand".

	It is not necessary to refer to the other occasions upon which similar advice was furnished to the elected members of the Council.  It was all one way.  Existing procedures and controls and the statements in the original draft plan were sufficient to accommodate the concerns of the councillors and it was both unwise and unnecessary to adopt the mining ban.  

LEGAL ADVICE
	Given the state of concern on the part of the County Manager and the other officials it is hardly surprising that legal advice was sought by them on the topic.
	On the 15th May, 1991 the County Secretary, Mr. Hughes, wrote to 
Mr. Michael Brown, Solicitor, enclosing copies of letters received from Ivernia West Plc. and Glencar Exploration following the display of the draft Development Plan.  He asked 
Mr. Brown to advise him and the Council on the status and implications of the Motion passed by the Council at its meetings on the 25th February, 1991 and the 11th March, 1991.
	Within five days Mr. Brown responded in writing as follows:-

	"Dear Mr. Hughes,
	
	I refer to your letter of the 15th May and I note objections received from Ivernia and Glencar to the resolution passed amending the plan at 3.6.1 to effectively prohibit mining in parts of the Westport Electoral Area.  

	The objectors may succeed in having this resolution declared invalid or 		contrary to law for one or other of the following reasons:-

	(i)	that the councillors have not acted in an unbiased and impartial manner and therefore the resolution is invalid.

	(ii)	that the resolution is ultra vires Section 19 of the 1963 Act.

	(iii)	that the resolution is in breach of Article 43 of the Constitution.

	(iv)	that the resolution may have frustrated a legitimate expectation of the companies affected.

	The option of being able to deal with the mining application later in the Westport area as a material contravention may not be available to the Council later.

	I have set out my reasons in support of the above in the attached memo.

	If any such application is successful on even one of these grounds it would be after protracted litigation which might well be expensive for the Council both in terms of costs and damages.

	RECOMMENDATIONS:-

	1.	Further information would be needed on

		(a)	the actual debate on the resolutions passed.
		(b)	full particulars of the professional advice from the Council's engineering and planning staff tendered.
		(c)	the Council's actual knowledge of mining and prospecting activity.
		(d) 	the resources available to the Council's planning and engineering staff internally and by consultation in assessing an application involving mining.

		I am aware that there was an application regarding retention of permission for the road on Croagh Patrick by Burmin which probably gave some details of their proposals at Croagh Patrick.  If there has been any formal contacts from any other of the persons holding prospecting licences, I would be obliged for details of same.

		Is there any procedure whereby the issue of prospecting licences is brought to the attention of the Council in any way?

	2.	In view of the risks to the Council in adopting this resolution as an objective of the plan and the many and complex areas of law involved I would require some time to complete enquiries outlined above, to consider further the implications and to submit a detailed case for the opinion of the appropriate senior counsel."

	Attached to that letter was a detailed memorandum dealing with the question of validity of the resolution, whether it was inter vires the planning acts, the possible breach of Article 43 of the Constitution, the doctrine of legitimate expectation and the possibility of material contravention.  
	The Respondent was well served in the legal advice which it obtained from Mr. Brown.  Unfortunately for it, it decided not to follow his advice.  On the question of the validity of the resolution, he stated:-

	"The councillors would be aware of at least three proposed mining operations capable of being affected by this resolution ... (2) Glencar - who to public knowledge have been prospecting in Doolough for some time .... the above adversely affected mining companies could therefore claim that the resolution violates natural and constitutional justice and may be successful in an application for judicial review of this resolution".

	Mr. Brown was furnished with additional information by the County Secretary and was authorised to instruct senior counsel to advise on the topic.  He did so.  He retained Mr. Philip O'Sullivan S.C. as he then was who, of course, was one of the foremost experts in the country on planning law.  As a matter of urgency Mr. O'Sullivan provided a written opinion.  Whatever documents he was supplied with it is clear that he never had sight of
Map 10A.  The crucial part of his opinion reads as follows:-
	He said:-

	"I have not seen Map 10A referred to in the resolution proposing the amendment to the mineral policy in the draft plan, but the wording refers to areas in the plural and I make the assumption that the map refers to a number of locations where mining activity is to be excluded.  This suggests that the map was prepared with the degree of attention to detail and care to limit the exclusionary prohibition to specified high amenity locations rather than by reference to a crude exclusionary policy.  In my opinion a planning authority is perfectly within its rights to make a decision in principle in its development plan that no mining would take place in particular areas where they perceive such mining activities are in conflict with amenity or other natural resources and to have a policy in the development plan stating this.  A planning authority in general is under a positive obligation to formulate policies and to express them in the development plan, and in my opinion the proposed amendment is doing just this.  I assume the proposal is reasonable in the sense that it is made by reference to objective criteria.  It does not have to be the best policy or a policy which a judge would approve, or a policy which no one could criticise or which could not improved.  Providing it is based on objective criteria and is made bona fide, having regard to the proper planning and development of the area then, in my opinion, it is within the powers of the planning authority to have such a policy and the jurisdiction to make it is contained in Part III of the 1963 Planning Act as amended".

	Had Mr. O'Sullivan seen Map 10A, comprising as it does three hundred square miles or one-seventh of the total area of Co. Mayo, and had he been privy to the evidence in this case, I have little doubt but that he would have concluded, as indeed do I, that this ban was nothing more than a crude exclusionary policy.  The map was not prepared with a degree of attention to detail.  Care was not taken to limit the exclusionary prohibition to specified high amenity locations.  Neither could the proposal be regarded as reasonable because it was not made by reference to objective criteria.
	It is clear from the foregoing that in essence the legal advice was to the effect that there was no power to impose it.  That said, I am by no means satisfied that the import of Mr. O'Sullivan's advice was understood by the Respondent.  His advice as to the legal ability to include the ban was clearly conditional on the matters addressed in that part of the opinion from which I have just quoted.  The conditions were not met.  Yet the Respondent appears to have concluded that the advice was to the effect that there was power to proceed.  This is particularly clear when one reads the minutes of the meeting of the 17th February, 1992.  There, there is set forth the advice of the County Manager on the procedural aspect of that meeting.  In the course of his recital of the events giving rise to the motion being proposed , he is reported to have said:-

	"The Council considered the written representations following the last public display, at a meeting held on 11th November, 1991.  The Plan contained a ban on mineral extraction in a specific area as outlined in Map 10A.  The Council was informed that it was legally entitled to include such a ban although advised not to do so".

	This strongly suggests that Mr. O'Sullivan's advice was understood as an imprimatur for the proposal whereas, properly understood, it did not even amount to a nihil obstat.
	In any event, I am of opinion that the Respondent believed (wrongly) that it had power to impose the ban.

THE MINISTERIAL LETTER - GOVERNMENT POLICY
	The approach of the Respondent to the letter from the Department of Energy of the 16th December, 1991 has already been considered by Blayney J.  I have reproduced the part of his judgment where he stated his conclusions.  Having had the benefit of a good deal more evidence than was available to that Judge, I have come to the same conclusion as he did, namely, that the Respondent could not be said to have had regard to the policy of the Government in respect of mining when it adopted as part of its development plan a policy which was totally opposed to Government policy.  

KNOWLEDGE OF THE APPLICANTS' ACTIVITIES AND ATTITUDES 
	FROm at least as far back as July 1990 Mr. McCullough, the managing director of the first Applicant, was writing to the Respondent pointing out that the Applicants' exploration work in south Mayo was well advanced and that they hoped to develop a gold mine in the area.  The elected members of the Respondent also had the Applicants' letter of the 2nd May, 1991 circulated directly to them.  Much of what is contained in that letter had already been covered in documents received from the other organisations which opposed the imposition of the mining ban and to which I have already referred.  
	On the 5th December, 1991 the Applicants again wrote to the Respondent.  In the course of that letter Mr. McCullough said:-

	"The Mayo County Council has adopted a Motion which refers to areas described in Map 10A as 'mining prohibited areas'.  We note that the only areas which appear to be included in this Map 10A are the areas of Mayo which have been of particular interest to explorations/mining companies.

	We believe that the Mayo County Council's decision to adopt the Motion including the new policy statement will very severely affect all explorations/mining activities in Co. Mayo.  We believe that the modern mining industry - as shown by Tara Mines - has a record of environmental responsibilities second to none in Ireland.  We believe that the Mayo County Council has not had reasonable regard to the recent environmental performance of Irish mines.  We believe that mining companies' environmental record in recent years is superior to the record of manufacturing companies.  The adoption of the new policy statement in its Mayo County Development Plan 1990 would be an unreasonable and unfair act by Mayo County Council which was not supported by recent experience or evidence.

	We wish to point out to Mayo County Council that the new policy statement uses a definition which includes all mining activities including exploration activities.  We do not accept that the Mayo County Council has the power to impose controls over exploration.  The County Council has exceeded its legal powers in adopting the Motion including the new policy statement.  
	We wish to protest against the recent action by Mayo County Council in accepting the Motion to include the new policy statement in the draft Mayo Development Plan, 1990.  The County Council's recent act contending that it has power to control exploration has gravely damaged our ability to secure financing to continue exploration at Cregganbaun in Co. Mayo.  We will hold the Mayo County Council responsible for any loss we may suffer as a result of this action by the Council.

	We are committed to the development of mines in an environmentally responsible manner and the employment of Irish people in all positions.  We do not believe that the current unemployment level of two hundred and sixty five thousand can be reduced if companies with an established record of environmental responsibility are prevented from the orderly pursuit of their reasonable and proper business interests.  

	Accordingly, we request that the Mayo County Council;
	-   withdraws the new policy statement from the draft Development Plan, and
	-   meets with Glencar to discuss how the development of Mayo's minerals can
	    be expedited in the interests of all parties.  

	If Mayo County Council adopts a Mayo development plan, 1990 which includes the new policy statement, and Glencar suffers loss as a result, then Glencar will take action to recover such losses and thereby protect the interests of its shareholders.  

	We greatly regret the need to write to you about this matter.  We have at all times kept the County Council advised of the status of our work.  We co-operated with all people in the area.  We have not received even one environmental complaint about out activities over the five years we have been working in Co. Mayo".

EXPOST FACTO RATIONALISATION OF THE BAN
	I have already recorded the fact that the officials of the Respondent were, without exception, opposed to the imposition of the ban.  In the course of the evidence there were suggestions made by some of them that really the ban made little difference in reality.  All were of the view that an applicant for planning permission for a mine under the original development plan would only have obtained permission with difficulty.  They attempted to suggest that the matter was little different after the imposition of the ban because it was not truly a ban at all.  This approach is perhaps exemplified by reference to the evidence of 
Mr. Ian Douglas, the town planner with the Respondent.  
	On the 1st March, 1991 he wrote in a memorandum pertaining to the proposed ban the following:

	"I would then expect that mining companies will not be prepared to carry out any prospecting within this area as there would be no point in prospecting for minerals of any type in an area where they could expect to be refused planning permission in accordance with County Development planning policy".

	Although  he denied it in evidence there was, in my view, something of a change of mind on the part of this witness concerning this topic by the time of the trial.  Rather than asserting that any Applicant could expect to be refused planning permission because of the existence of the ban he said that an Applicant for such a permission could "expect difficulty" (evidence 9th December, 1997) question 571.  He said that an Applicant would not necessarily be refused.  Rather he said there would be a fair expectation of being refused.  What he had in mind was that an Applicant could seek a material contravention of the plan and if refused at first instance by the Respondent could then go to An Bord Pleanala.
	Whilst this is undoubtedly so it does not appear to me to be borne out in reality by the views expressed by the officials of the Respondent Council themselves when advising on the inappropriateness of the ban.  Indeed, the advice of the County Manager spoke about a total ban and its effect as being to "impose a complete ban on the working, development and extraction of minerals as defined by the Minerals Development Acts in an area of approximately 300 square miles or about one seventh of the total area of County Mayo, i.e. the area covered by map 10a".  Neither does it appear to have been the view of the Minister for Energy as communicated in his letter of the 16th December, 1991 where he said "the statement, which implies that planning permission will be automatically refused to any mining project means that there will, in fact, be no exploration investment whatsoever".
	Indeed this is a matter which was addressed in the final part of Mr O'Sullivan's opinion under the heading of Material Contravention.  He said:-

	 "I have already referred to the possibility that a particular development can be granted planning permission notwithstanding the fact that it is in contravention of an objective in the development plan.  It is suggested that if the Councillors adopt a particularly tough stance against mining in particular areas of the development plan, it will be impossible for them to change their minds by way of granting permission for a development which contravenes such a policy.  I see the force of this, but I do not think that it is entirely correct.  I think the very fact that the Planning Acts acknowledge that permission may on occasion be granted for a particular development which materially contravenes an objective in the development plan is an admission that there will be exceptions which may not be foreseeable or which for some other reason should be allowed.....  However, no matter how absolute the phraseology of a policy in the development plan, there is jurisdiction to breach that policy in particular cases, and whilst I see some force in the argument that administrative and policy consistency leads inevitably to the conclusion that no permission could be given by way of material contravention if the proposed ban on mining is made part of the development plan, I think that is taking too rigid and logical a view of the jurisdiction which allows the Councillors on particular occasions to authorise material contraventions thereof".

	There is no doubt but that Mr O'Sullivan's view as to the legal position is correct.  Indeed, Mr Douglas's view as stated in the course of the trial is in full accord with it.  But the reality is that everybody involved in advising the elected members of the Respondent took the view that the mining ban was in reality  what it was intended to be, namely, a total ban on mining in the designated area.  It was so interpreted by everyone concerned.
	Again in the course of evidence, the elected representatives allowed for the possibility of an application for material contravention.  Whilst this was technically possible, I think that any reasonable applicant could have had little hope of ever achieving such.  Indeed, in view of some of the strongly stated views of a number of the elected members of the Respondent and the possible use of the Party Whip (which indeed was used on the occasion that the ban was imposed) a reasonable prospect of a fair hearing on an application for material contravention must have been in some doubt.

The Applicants and their Claim
	Each of the Applicants have as their objectives the exploration, prospecting for and the mining of ores and minerals.  In June 1986 they acquired the ten prospecting licences from the Minister for Energy for the purposes of exploration for gold in townlands south of Westport.  These licences where renewed from time to time and were in force at the time when the mining ban was imposed.
	There is no dispute but that the Applicants carried out extensive prospecting on foot of these licences and that they achieved encouraging results.
	They took the view that it would not be prudent to continue to fund additional exploration and analysis costs out of their own resources and so they sought out a partner who would be prepared to invest and to provide technical expertise for the enterprise. In  November 1991, Newcrest entered into the joint venture with the Applicants.  It agreed to invest at least £1.6 million  and to provide specialist technical expertise in the further exploration of the areas in question.  
	Mr. David Jones of that firm was the principal person involved.  He met with representatives of the Applicants, reviewed the geological data and visited the sites in question.  He formed a very favourable impression of the results.  He took the view that the potential ore size was the most striking thing demonstrated.  His conclusion was that the Applicants had a very fine property which warranted a very considerable amount of additional work being done on it.  He furthermore took the view that it had the potential to meet the parameters which Newcrest would regard as a minimum to meet its economic requirements for development.  Newcrest agreed to invest at least £1.6 million.  That would bring the project on to its next stage of development.  It would involve testing along as much
of the prospect zone as was possible.  That would enable the areas of most interest to be identified and would have put Mr. Jones in the position of being able to go to his board to ask for a very large sum of money which would be required to carry out very detailed exploration so as to bring the deposit to a reserve status.
	Draft heads of agreement were prepared as of early October 1991 and this was followed by a visit to Ireland by the Chief Executive of Newcrest, Mr. Quinn and Mr. Jones
in November 1991.  
	Not long thereafter, Mr. Jones was told by Mr. McCullough that Mayo County Council had introduced the mining ban into the Development Plan and that it included all of the area that was covered by the Applicants' licences.  Mr. Jones' reaction was clear.  He did not really believe that it could possibly come to pass and he found it quite shattering when it did.  When asked what effect this had on him as a prospective investor he said:-

 	" Well in all the countries that I have listed in this that I have worked in we have never, ever, come across an officially sanctioned mining ban over such a very large area on virtually nil grounds.  You can understand if, a small area has exceptional scenic beauty or is world heritage listed or whatever, that it should be preserved from mining. But to ban mining over an area of nearly 800 sq kilometers with really no reason was just unbelievable and it, I think it certainly shattered my confidence in our ability ever to get something going in County Mayo.  And it had the same effect on John Quinn and our board in Australia.  They had never seen anything like this before either. And I think it destroyed their confidence in the project". 

Mr. McCullough kept Newcrest apprised of developments.  Newcrest itself also became involved by making submissions directly to the Minister for Energy.  Newcrest was aware of Government policy in relation to mining in Ireland because Mr. Jones had had discussions with representatives of the Geological Survey Office.  As far as he was concerned the official view on mining in Ireland was very positive and he took the view that that was already demonstrated by the fact that at that time Ireland was the largest producer of zinc in the European Community.  
	Newcrest were kept informed of the legal challenge that was mounted and of its success.  But that success did not change Mr. Jones' mind.  When asked why, he said:-
	
	"It really didn't give us a huge degree of comfort, not sufficient comfort to want to take up the property again.  There are two aspects to this; one was that it had taken a Court to force the Council to effectively withdraw the ban, so obviously the Council would forever, or for as long as one could see, have this anti-mining stance and that was going to create problems; and secondly, there appeared to our reading of that judgment, whether correct or otherwise, that Justice Blayney had, in fact, indicated to the Council that although a ban on mining was illegal in the way they had tried to do it, that there were other ways in which they could achieve the ends that they were trying to achieve.  And it seemed to us that that didn't provide much comfort". 

 He gave evidence, which I accept, that the element of confidence is all important in making decisions to invest in a mining venture.  He said that the mining ban convinced his company that it did not wish to continue with work in County Mayo.  He formed the view that if the Council had been prepared to institute a ban by illegal means it would be illogical that they would then turn around when you made a planning application and not do everything in their power to prevent mining going ahead regardless of the merits of the project.  
	Following the signing of the heads of agreement in November 1991, Newcrest did in fact carry out some work on the project and invested some money in it.  Such work as they carried out did not devalue the technical merit of the property.
	By the 21st February, 1992 Newcrest was making its views clear.  In a letter of that date to the Applicants it said:-

	 "After giving this matter careful consideration Newcrest does not believe that it can proceed with the joint venture with Glencar and Andaman  in the face of the prohibitions contained in the adopted development plan.  Accordingly, and with the utmost regret, I must advise you that I am suspending all joint venture activities under Newcrest control and being undertaken at Newcrest cost effective today.  In the event that the development plan is rescinded and replaced by a new plan not containing prohibitions on mining, or that the Irish Government over-rules the County Mayo Council with  the effect of eliminating the mining prohibition, Newcrest would be prepared to reconsider its position.  To this end I have agreed to maintain contact with you on a monthly basis in the hope that this matter may unravel itself in a more acceptable way".

Notwithstanding the judgment of Blayney J., however, the attitude of Newcrest did not differ.  The die was finally cast by a letter of the 22nd January, 1993.  In the course of that letter Mr. Jones said:- 

	"Notwithstanding the judgment in Glencar's favour in the High Court action brought against the insertion of a "mining ban" in the Council's Development Plan, Newcrest is not convinced that the Mayo County Council will cease its attempts to prevent mining development.  Indeed, the comments of Blayney J. in his judgment have drawn attention to the Council's power to make specific special amenity orders to achieve its aims.

	 You have mentioned that in your conversations with Des Mann (sic), the Mayo County Manager, Mr. Mann (sic) has indicated that the granting of a permit to continue exploration is up to the manager and his staff, not the members of the Council.  However, the Council still retains the power to pass a motion to over-rule the County Manager, and there is no guarantee that this power would not be used if the Manager unilaterally granted a planning application for a mine development.
  
	It is also disappointing to see that there has been little encouragement for foreign investors to take the view that the Government of Ireland is sufficiently supportive of resource development in Ireland.  The response of your own initiative in taking up this matter with Mr. Reynolds in August last year has been, in Newcrest's view, lukewarm at best.

	There continues to be sufficient uncertainty over the future actions of the Government and the Mayo Council in relation to a potential mine development at Cregganbaun such that Newcrest cannot risk its shareholders' funds in committing to the project.  You have expressed the view that you would prefer Newcrest to withdraw from the project if its commitment were to be any less than to a major, full blooded programme. 

	In view of the above, the purpose of this letter is to finally and formally confirm to you that Newcrest Mining Limited is not in a position to retain any continuing interest in the above property or in a joint venture agreement with Glencar and Andaman".

	The Applicants sued Newcrest in respect of its refusal to proceed with the joint venture.  Those proceedings were settled by a payment of £85,000 to the Applicant Companies inclusive of costs.  It was also a term of the settlement that Newcrest would provide a witness, if required, to attend and give evidence in the current proceedings.  It seems clear that this was in effect a nuisance value type settlement given what was involved in the joint venture and the amount claimed in those proceedings.  
	I am satisfied on the evidence that Newcrest lost confidence in the whole venture as a result of the imposition of the mining ban and notwithstanding the judgment of Blayney J. in favour of the Applicants, there was simply no persuading that company that it should become further involved in the project.
	The imposition of the ban also brought the share price of the Applicants down and as Mr. McCullough put it colourfully in evidence:-

	" The perception of the company in the market place was that we were now attached to a dead duck in Mayo.  We had spent a considerable sum of money on the property.  The market place and the shareholders and others knew that we would never be able to bring that to fruition so the whole perception of the company as a company which had, up to that point in time been viewed as a successful gold exploration company which had succeeded in finding a gold deposit of some considerable promise, as it was described by Mr. Bates and Mr. Jones, that we, that we were now, as I say, tied with now an albatross of a property, that while it had great technical merit, could never be brought to production".

	Mr. McCullough made further valiant efforts notwithstanding these setbacks.  He wrote to four or five other companies of significant size only one of which demonstrated any interest.  That was a company called LAC Minerals of Canada.  That company was represented in Dublin by Mr. Christopher Bates who was the first witness in the case.  In 1994 he was asked by his superiors to look at the project and did so in April and May of that year.  He reviewed the data and visited the site.  He took the view that the deposits were of technical merit as far as his company was concerned but a good deal more work was required to be done.  He knew that the Applicants had spent between £1.6 and £1.9 million and if his company were prepared to become involved with them, he would probably have sought to match that spending in order to get a 50% interest in the working.  He looked at the situation both technically and non-technically.  He recommended to his superiors that the project had good technical merit but was not worth the risk because of the Council decision being anti- mining.  He therefore declined any further involvement. He indicated that he probably would have recommended proceeding further with the matter were it not for the mining ban history.  LAC would be prepared to do business with the Applicants but not in the circumstances.  Even though the mining ban had been removed by Order of this Court, he took the view that the sentiments of the County Council had not changed, at least not of its own volition.  Again, he reiterated, as did many of the other witnesses, that confidence is critical in the mining industry in order to ensure a return of investment.  In cross-examination he expressed the view that he did not discern any change of heart on the part of the Respondent notwithstanding the Order of the Court.  If the project were to progress, it would probably continue to run into problems with the County Council in getting planning permission.  They were at that time of course years and millions of dollars away from being in a position to apply for planning permission.  
	The failure to persuade another investor to become involved effectively sounded the death knell for this project.
	At the time of the hearing before Blayney J. ten prospecting licences were in being and held by the Applicants.  By the time of this hearing they had been reduced to six.  Four were surrendered by the Applicants and they have not been taken up by any other applicant.  Six licences continued to be held in the areas where most of the expenditure had been made and where the principal deposits of gold had been located.  Mr. McCullough said that he was holding onto these licences for two reasons, one because  he believed that it was necessary to maintain a physical property presence in the area so as to sustain these proceedings and, secondly, because if there was any chance of settling the matter between Mayo County Council they might be used as part of the settlement.  However, the Applicants have no further interest in carrying out any more work on the area of these licences.
	The evidence from Mr. Pyne, an officer of the Department of Energy, satisfies me that the Department of Energy was aware of the expenditure of about £2 million on exploration activity by the Applicants.  In terms of monies typically spent by Irish companies on exploration that was a large sum.  The Department was completely happy with the way in which the Applicants carried out their work.  They never gave the Department any cause for concern in relation to any aspect of their work, technical, environmental or otherwise.  They were fully co-operative with the Department both in terms of making reports to it and co-operating in field visits.  They were, to use Mr. Pynes description, "faultless".  They were as he said "top drawer".  The company spent many times more money than they were obliged to spend under the terms of the licences and they were renewed without difficulty.  His evidence furthermore satisfies me that whilst the holder of a prospecting licence does not have a guarantee of obtaining a mining lease in respect of the prospect, nonetheless if it is proven that there are reserves there, there is a high likelihood of the mining lease being granted to the holder of the prospecting licence.
	Finally, I should say that I am quite satisfied that the Applicants have no intention of participating further in carrying out any work in the area the subject matter of the prospecting licences in suit notwithstanding the attempt to suggest otherwise by the Respondent.
	Before departing from this aspect of the case there is one other matter that I ought to deal with.  I am satisfied that throughout its involvement the Applicants were endeavouring to dissuade the Respondent from engaging in the activity complained of.  They made representations not merely to the Minister for Energy but also to the Minister for the Environment.  Whilst the Minister for Energy wrote the letter of December 1991, which I have already reproduced, it is clear that the Minister for the Environment was not prepared to use his powers to put matters right thereby forcing the Applicants to have resort to this Court.
	
Did the Adoption of the Mining Ban cause the project to collapse?
	In my view, this question must be answered in the affirmative.  Mining is a high risk business at the best of times.  Much expenditure can be made without an ultimate return.  Whilst confidence is always an important ingredient in a decision on whether or not to invest in any project, that is particularly so in the world of gold mining.  I am satisfied that the activities of the Respondent in imposing the mining ban gave rise to a collapse in confidence concerning the Applicants' project. 
	This collapse in confidence is evidenced by the withdrawal of Newcrest, the drop in the share price of Glencar, the failure of the Applicants to secure any other joint venture partner, the refusal of LAC to become involved even though the project was technically interesting to them and the gradual surrender by the Applicants of their licences.  I do not believe that gold prices had much, if any, part to play in this.
	I am satisfied that even the judgment of Blayney J., whilst it resulted in a quashing of the mining ban, did not restore confidence in the venture.  Hence, the failure of Newcrest to reaffirm the joint venture even in circumstances where they were being sued in respect of an alleged breach of it.  The refusal of LAC to become involved was a further exemplification of the collapse in confidence which had been brought about.
	Whilst of course it can be said that as a matter of high probability even in the absence of a mining ban, planning permission was unlikely to be granted by the Respondent and that recourse would have to be had to An Bord Pleanala and furthermore that it would be that body that would ultimately decide an appeal from the Respondent in respect of a failure to grant a material contravention of the Development Plan which included a mining ban, such a view did not appeal in fact to the real world of commerce.  The fact is that confidence did collapse.  Indeed it was predicted by the senior officials of the Respondent themselves and in the letter from the Minister for Energy of the 16th December, 1991.  
	 I regard the evidence of Mr. Jones as being of some considerable significance on this aspect of the matter.  He was aware of a certain anti-mining lobby before entering into the joint venture agreement.  He had noticed anti-mining slogans for example prominently displayed when he visited the area.  Environmental opposition would have been part and parcel of any Mining Company's difficulties.  What was unique was a regulator adopting an anti-mining policy and using statutory powers to implement it.  
	I am therefore satisfied that the decision of Newcrest to withdraw and further work to be stopped resulted from the mining ban.
	No claim is made in these proceedings for any loss of future profits sustained by the Applicants.   The Applicants simply claim recovery of the monies which they expended prior to the imposition of the ban.  They say the imposition of the ban was a wrongdoing a result of which they have lost the benefit of that expenditure.
	I turn now to consider whether as a matter of law they are entitled to recover that or any sum against the Respondent.
	
MISFEASANCE IN PUBLIC OFFICE
	The Applicants seek to recover damages against the Respondents on the basis that the imposition of the mining ban constituted the tort of misfeasance in public office.
	The tort of misfeasance in public office is committed where an act is performed by a public official, either maliciously, or with actual knowledge that it is committed without jurisdiction and is so done with the known consequences that it would injure the Plaintiff (see Keane J. in McDonnell -v- Ireland unreported, Supreme Court, July 23rd 1997).  
	The tort was defined by Smith J. in Farrington -v- Thompson [1959] V.R. 286  at 293 where he said:-

	 "If a public official does an act which, to his knowledge, amounts to an abuse of his office, and he thereby causes damage to another person, then an action in tort for misfeasance of public office would lie at the suit of that other person". 
More recently, the ingredients of this tort have been considered both by the High Court of Australia in Northern Territory -v- Mengel (1995) 185 CLR 307 and the High Court in England in Three Rivers DC -v- Bank of England (No 3) [1996] 3 All ER 558.  
	I am of opinion that the following passage from the judgment of Brennan J. given in the Northern Territory's case accurately summarises the tort.  He said:-

	"Misfeasance in public office consists of a purported exercise of some power or authority by a public officer otherwise than in an honest attempt to perform the functions of his or her office whereby loss is caused to a Plaintiff.  Malice, knowledge and reckless indifference are states of mind that stamp on a purported but invalid exercise of power the character of abuse of or misfeasance in public office.  If the impugned conduct then causes injury, the cause of action is complete".   

	In the Three Rivers' case, Clarke J. said (at p. 632):-

	"The tort of misfeasance in public office is concerned with a deliberate and dishonest wrongful abuse of the powers given to a public officer.  It is not to be equated with torts based on an intention to injure, although, as suggested by the majority in Mengel, it has some similarities to them".

	In the present case, the Applicants have not made out that in imposing the ban the elected members of the Respondent were actuated by malice against the Applicants or had a realisation that what they were doing amounted to an abuse of office.  I do not believe that the evidence establishes that there was a deliberate and dishonest wrongful abuse of the powers given to the elected members.  I am of opinion that whilst considerable criticism can be made of the elected members of the Respondent and their whole approach to the subject the Applicants have not satisfied me that there was any malicious intent on their part or that there was any realisation that by imposing the ban they were abusing their office.  To adopt the approach of Brennan J. in the Australian High Court, the evidence here does not demonstrate a dishonest attempt to perform the functions of office.  On the contrary, I am of the view that they were responding bona fide to the pressures put on them by their electorate.  In so doing they sought to achieve a specific end.  Whilst they did so unlawfully, they did so honestly.  Furthermore, they believed they had legal authority to so do.
	Accordingly, insofar as a claim is made for damages for misfeasance in public office it fails.
	
BREACH OF STATUTORY DUTY
	Insofar as the Respondent was guilty of a breach of statutory duty it appears to arise, if at all, under Section 19 of the Local Government (Planning and Development) Act, 1963 and Section 7(1)(e) of the Local Government Act, 1991.  Section 19 of the 1963 Act deals with the obligation of the Local Authority to make a plan indicating development objectives for their area.  Section 7 of the 1991 Act requires a local authority, in performing the functions conferred on it under that or any other enactment, to have regard to policies and objectives of the Government or any minister of the Government.  
	As far as Section 19 of the Act is concerned, I am of opinion that it creates a duty in favour of the general public to devise a plan.  Nowhere do I find either expressly or by implication that it creates any duty which the legislature intended to be enforceable by an individual in a claim for damages.  The duties imposed are ones which fall to be discharged towards the public.  The dictum of Finlay C.J. in Pine Valley Developments Limited -v- Minister for the Environment [1987] IR 23 at 36, is in my view wholly relevant to this case.  He said:-

	"The Minister in making his purported decision to grant outline planning permission was exercising a decision-making power vested in him for the discharge of a public purpose or duty.  The statutory duty thus arising must, however, in law, be clearly distinguished from duties imposed by statute on persons or bodies for the specific protection of the rights of individuals which are deemed to be absolute and breach of which may lead to an action for damages". 

In other words, if the duty is owed to the public at large then no action for breach of duty lies.
	Insofar as Section 7(1)(e) of the 1991 Act is concerned, I am likewise of the view that it does not create any enforceable statutory duty save in favour of the Government or a Minister in question.  Such being the case any claim for breach of the duty therein prescribed on the part of an individual is fatally flawed.  
	Accordingly insofar as the Applicants assert an entitlement to damages for breach of statutory duty, it likewise fails.  

NEGLIGENCE
	Damages for common law negligence are claimed.  It is no understatement to say that the topic of liability for the negligent exercise of a statutory power is one which has given rise to much controversy.  This area of the law is beset with many judgments, not all of them easy to reconcile one with the other.  
	In England one has seen the topic authoritatively decided (or so one thought) by the House of Lords in Anns -v- Merton London Borough Council [1978] AC 728.  There, Lord Wilberforce set out the famous "two-tier test" for liability.  In order to bring home a claim for damages under the Anns doctrine one had to show as a prerequisite to liability the fact that the act complained of was ultra vires.  Once that was established, the second part of the test had to be satisfied.  This involved inter alia a consideration of whether the subject matter of the case involved a discretionary rather than an operational matter.  Once that was established, it had to be considered in the context of the usual requirements of the tort.
	Within a few years of that decision, the English Courts were in full blooded retreat from it and ultimately it was over-ruled by the House of Lords in Murphy -v- Brentwood District Council [1991] 1 AC 398.  Happily, I can confine my consideration of this topic to decisions in this jurisdiction although it must be said that some of them are difficult to reconcile one with the other by times also.
	The first thing to note is what I have already stated in this judgment namely that there is no direct relationship between the doing of an ultra vires act and the recovery of damages for that act.  There are very good reasons why that should be so and they are touched upon by Finlay C.J. in his decision in Pine Valley Developments Limited -v- Minister for the Environment [1987] IR 23 at 38 where he said:-

	"I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims for compensation where they act bona fide and without negligence.  Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved".

	That statement, of course, does not exclude an entitlement to recover damages in circumstances where the impugned act was carried out negligently.  
	I have come to the conclusion that the imposition of the mining ban in the present case was done negligently.  Whatever may have been the motives of the elected members, they set about achieving their goal in a way which, in my view, no reasonable local authority in receipt of the advice which they obtained would have done.  It is not the function of  elected representatives to slavishly give effect to their constituents' demands come what may.  They must exercise a degree of judgment in any particular case.
	In this case, the evidence demonstrates that the provision of the mining ban was unnecessary.  The existing planning code was sufficient to protect all legitimate planning interests.  This was the advice they received from their officials.  It was also the view made clear to them by the Minister for Energy.  Not merely was it unnecessary from a planning point of view, but the evidence was that it was in fact contrary to the best interests of the county because it would drive away investment in exploration and the county would lose the chance of evaluating the benefits of any project put forward for planning permission.  Furthermore, there was in my view no objective justification for the adoption of the ban.  It was to operate in respect of all minerals, regardless of their method of extraction, value or the quantity likely to be extracted.  The ban was of enormous span and it was clear, particularly from the evidence of Mr Dunleavy, that little or no thought went into the nature or the extent of the ban.  It was nothing more than a crude exclusionary policy.
	In concluding that the Council were negligent in the sense that they did something which no reasonable authority would have done, I have yet to address the question as to whether that negligent act was done in the context of a duty of care being owed to the Applicants.  It is only in such context that a right to damages would arise.  
	The leading case on the topic is Ward -v- McMaster [1985] IR 29 in the High Court and [1988] IR 337 in the Supreme Court.  
	In the High Court Costello J. (as he then was) reviewed the relevant authorities and reached the following conclusions concerning the principles to be applied:-

	"A.	When deciding whether a Local Authority exercising statutory functions is under a common law duty of care the Court must firstly ascertain whether a relationship of proximity existed between the parties such that in the reasonable contemplation of the authority carelessness on their part might cause loss.  But all the circumstances of the case must in addition be considered, including the statutory provisions under which the authority is acting.  Of particular significance in this connection is the purpose for which the statutory powers were conferred and whether or not the Plaintiff is in the class of persons which the statute was designed to assist.
	B.	It is material in all cases for the Court in reaching its decision on the existence and scope of the alleged duty to consider whether it is just and reasonable that a common law duty of care as alleged should in all the circumstances exist".  ([1985] IR 29 at pp. 49-50).

	The decision of Costello J. was appealed to the Supreme Court.  The appeal was dismissed.  In the course of his judgment, Henchy J. having found that the Local Authority were plainly in breach of their public duty went on to say:-
	"However, the breach of such a public duty would not in itself give a cause of action in negligence to the Plaintiff; see Siney -v- Corporation of Dublin [1980] IR 400.  It is necessary for him to show that the relationship between him and the Council was one of proximity or neighbourhood which cast a duty on the Council to ensure that, regardless of anything left undone by the Plaintiff, he would not end up as the mortgagor of a house which was not a good security for the amount of the loan.  A paternalistic or protective duty of that kind would not normally be imposed on a mortgagee in favour of a mortgagor, but the Plaintiff was in a special position". ([1988] IR 337 at 342).

	McCarthy J. in the course of his lengthy judgment indicated that whilst Costello J. had rested his conclusion on the "fair and reasonable test", he preferred to express the duty as one arising from "the proximity of the parties, the foreseeabililty of the damage and the absence of any compelling exemption based on public policy".  On the duty of care he said (at p. 351):-

	"The proximity of the parties is clear.  They were intended mortgagors and mortgagees.  This proximity had its origin in the Housing Act, 1966, and the consequent loan scheme.  This Act imposed a statutory duty upon the County Council and it was in the carrying out of that statutory duty that the alleged negligence took place.  It is a simple application of the principle in Donoghue -v- Stephenson [1932] AC 562 confirmed in Anns -v- Merton London Borough [1978] AC 728 and implicit in Siney -v- Corporation of Dublin [1980] IR 400 that the relationship between the first Plaintiff and the County Council created a duty to take reasonable care arising from the public duty of the County Council under the statute.  The statute did not create a private duty but such arose from the relationship between the parties".

	In seeking to apply these principles to this case, there must be weighed heavily in the scales against the Applicants the fact that the statutory powers which were conferred and operated here are in my view ones which were to be operated for the benefit of the public at large.  They were not directed towards a particular class or group of persons of which the Applicants are a member.  That of course is not necessarily the end of the matter if it can be shown that a duty of care arose not from the statute per se but from the relationship between the parties.  Whether one adopts the "fair and reasonable test" preferred by Costello J. or the "proximity of the parties, foreseeability of the damage and the absence of any compelling exemption based on public policy" test preferred by McCarthy J., in my view the answer in this case is the same. 
	It would be neither fair nor reasonable nor would the proximity of the parties suggest that there was any duty of care extant between the Respondent and the Applicants when the mining ban was imposed.  The Applicants were not even then applicants for a planning permission and indeed there was no guarantee that they would ever become so.  The most that can be said of them were that they were prospectors who had a hope, nay even an expectation of being applicants for planning permission at some stage in the future.  It is indeed true that they had made representations to the Respondent seeking to avoid the imposition of the ban and pointing out that they would sue in respect of any loss which they might sustain as a result of it.  But that of itself does not appear to me to give rise to a proximity in the legal sense which would result in an entitlement to damages for a negligent act.  Accordingly, I have come to the conclusion that the purported exercise of the statutory powers in question by the Respondent was not one which gave rise to a duty of care in the law of torts at the suit of the Applicants against the Respondent.

LEGITIMATE EXPECTATION
	The claim which is made here is that some legitimate expectation of the Applicants was frustrated by the Respondent thereby giving rise to an entitlement to damages.  When asked to identify precisely what legitimate expectation the Applicants were relying on and what exactly it was alleged the Respondent did to generate that expectation, they replied as follows:-

	"The Applicants had a legitimate expectation:-
	(a)	that the Respondent would act lawfully;
	(b)	that the Respondent would have regard for the Government and Ministerial policy;
	(c)	that the Respondent would only include development objectives in the Development Plan;
	(d)	that the Respondent would pay due regard to the advices of the County Manager, County Engineer, Senior Executive Planner and Solicitor advising Mayo County Council;
	(e)	that the Respondent would seek legal advice before inserting the mining ban in the draft Development Plan and putting same on public display;
	(f)	that the advices of the solicitor retained on behalf of Mayo County Council would be brought to the attention of Mayo County Council before they voted to ratify the plan with the proposed amendment in relation to the mining ban;
	(g)	that the Mayo County Council would seek and obtain the advices of their legal advisers in relation to their obligations at law in the light of the letter from the Minister for Energy dated the 16th December, 1991;
	(h)	that Mayo County Council would not act contrary to their legal obligations having received the letter from the Minister for Energy dated the 16th December, 1991;
	(i)	that Mayo County Council would not seek to circumvent the statutory procedure for the making of a special amenity area order by the misuse of their powers to make a Development Plant;
	(j)	that Mayo County Council would not seek to prejudge all applications for the development of mines within a substantial part of the area for which they were responsible.
	
	The Applicants had dealings from time to time with Mayo County Council.  Those dealings, the inevitable necessity for a planning application to Mayo County Council to develop a mine within the areas covered by the Applicants' mining licences, and the statutory position enjoyed by Mayo County Council all gave rise to the legitimate expectation claimed".

	Just like the topic which I discussed in the immediately preceding part of this judgment, legitimate expectation has hosted a large number of decisions in varying jurisdictions, not all of them easy to reconcile one with the other.
	Happily, I may confine myself to an examination of the law in this jurisdiction with a view to ascertaining whether or not the Applicants have made out a case under this heading.
	The starting point for any such examination must be the decision of the Supreme Court in Webb v. Ireland [1988] IR 353.  Finlay C.J. said this (at p. 384):-

	"It would appear that the doctrine of 'legitimate expectation', sometimes described as 'reasonable expectation', has not in those terms been the subject matter of any decisions of our Courts.  However, the doctrine connoted by such expressions is but an aspect of the well recognised concept of promissory estoppel (which has been frequently applied in our Courts), whereby a promise or representation as to intention may in certain circumstances be held binding on the representor or promissor.  The nature and extent of that doctrine in circumstances such as those of this case has been expressed as follows by Lord Denning M.R. in Amalgamated Property Company v. Texas Bank [1982] QB 84, 122:-

		'Where the parties to a transaction proceed on the basis of an underlying assumption - either of law or of fact - whether due to misrepresentation or mistake makes no difference - on which they have conducted the dealings between them - neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so.  If one of them does seek to go back on it, the Courts will give the other such remedy as the equity of the case demands'."

	Later in his judgment Finlay C.J. said:-
	
	"The plaintiff's claim for compensation rests solidly on the fact that the assurance given to Mr Webb that he would be honourably treated (which should be held to mean that he would be reasonably rewarded) was an integral part of the transaction whereby he deposited the hoard in the National Museum.  It would be inequitable and unjust if the State were to be allowed to repudiate that assurance and give only a meagre and disproportionate award".

	There are a number of important matters to bear in mind when reading the aforesaid passages.  No statutory powers of the State were involved in the case.  A positive assurance had been given to Mr. Webb as to how he would be treated.  The case concerned itself with substantive rather than procedural rights.  Finally, its roots were firmly planted in the soil of promissory estoppel.
	There have been many cases decided subsequent to Webb in this jurisdiction.  Some seek to confine the application of the principle to the area of procedural rather than substantive rights.  This is so particularly where a conflict might arise between the granting of a substantive right and the principle that the beneficiary of a statutory power may not fetter his freedom to exercise that power by estoppel.
	Of the subsequent decisions in this Court, the one which I find to be of greatest assistance to me is that of Costello J., as he then was, in Tara Prospecting Limited and Another v. Minister for Energy, Ireland and the Attorney General [1993] ILRM 771.
	The case is remarkable because it is dealing with the same subject as this one, namely, gold mining in County Mayo.  The Minister granted prospecting licences in 1981 and 1984 to Tara in respect of areas which included Croagh Patrick.  Letters from the Minister made it clear that the renewal of these licences would be conditional on certain matters such as Tara's work commitments.  Tara and the second named applicant in that case, Burmin, entered into a joint venture agreement.  Gold was found in the Croagh Patrick area.  There was much public opposition to their mining proposals.  Efforts were made to use planning legislation to block any mining in the area.  There was also opposition on religious grounds as Croagh Patrick is a traditional place of pilgrimage.  The problems were discussed between the prospecting companies and the Department of Energy.  The Minister announced in May 1990 that he had decided to use his powers under Section 12 of the Minerals Development Act, 1940 to exclude Croagh Patrick from the prospecting licence because of the unique importance of it as a pilgrim site, a part of the national, cultural and religious heritage.
	The Minister conveyed his decision to the applicants and excluded any further prospecting licences in respect of that mountain.  He also clearly implied that no State mining lease would ever be granted in the excluded areas.  A challenge was brought to the Minister's decision on the basis that it was ultra vires.  It was also said that it was in breach of the principles of natural and constitutional justice and contrary to the legitimate expectations which the Minister had caused the applicants to entertain in relation to the licences sought.
	Costello J. rejected the challenge to the Minister's decision and dismissed the claim for Judicial Review.  In the course of his judgment on the topic of legitimate expectation he said the following (at p. 783):-

	"It is unnecessary to examine here how legitimate expectations may be created.  What is important to stress is that the case law developed in England has established that a duty to afford a hearing may be imposed when such expectations are created by public authorities.  The correlative right thus arising is therefore a procedural one.  And it is important also to recognise that the claim I am now considering is a very different one.  It is not that the legitimate expectations which the applicants held entitled them to a fair hearing (such a right arising from constitutional and well established common law principles I have already considered), but that they created a right to the benefit itself which should be enforced by an Order of Mandamus".

	Costello J. then went on to consider authorities both in the United Kingdom and in Australia, together with a number of further Irish authorities.  It is not necessary for me to rehearse what he had to say concerning those cases and I confine myself to the conclusions which he drew.  He said (at p. 788):-

	"I can summarise the legal principles which I think are to be derived from the authorities to which I have referred and which are relevant for the purposes of this case as follows:

	1.	There is a duty on a Minister who is exercising a discretionary power which may affect rights or interests to adopt fair procedures in the exercise of the power.  Where a member of the public has a legitimate expectation arising from the Minister's works and/or conduct that (a) he will be given a hearing before a decision adverse to his interests will be taken, or (b) that he will obtain a benefit from the exercise of the power then the Minister also has a duty to act fairly towards him and this may involve a duty to give him a fair hearing before a decision adverse to his interests is taken.  There would then arise a correlative right to a fair hearing which, if denied, will justify the Court in quashing the decision.
	2.	The existence of a legitimate expectation that a benefit will be conferred does not in itself give rise to any legal or equitable right to the benefit itself which can be enforced by an Order of Mandamus or otherwise.  However, in cases involving public authorities, other than cases involving the exercise of statutory discretionary powers, an equitable right to the benefit may arise from the application of the principles of promissory estoppel to which effect will be given by appropriate Court order.
	3.	In cases involving the exercise of a discretionary statutory power, the only legitimate expectation relating to the conferring of a benefit that can be inferred from words or conduct is a conditional one, namely, that a benefit will be conferred provided that at the time the Minister considers that it is a proper exercise of the statutory power in the light of current policy to grant it.  Such a conditional expectation cannot give rise to an enforceable right to the benefit should it later be refused by the Minister in the public interest.
	4.	In cases involving the exercise of a discretionary statutory power in which an explicit assurance has been given which gives rise to an expectation that a benefit will be conferred no enforceable equitable or legal right to the benefit can arise.  No promissory estoppel can arise because the Minister cannot estop either himself or his successors from exercising a discretionary power in the manner prescribed by Parliament at the time it is being exercised".

	The observations which I have just quoted from these two judgments must be borne in mind when examining the assertions made by the Applicants as to legitimate expectation (which I have already reproduced in this part of the judgment) and the evidence in the case.  There is neither allegation nor evidence supporting any promise, express or implied, on the part of the Respondent.  It was never represented to the Applicants that they would obtain planning permission.  Furthermore, the Applicants could not, in my view, have had a legitimate expectation that planning permission would be given for mining even in the absence of the mining ban.  In fact, the evidence suggests that great difficulties would be encountered even in getting to the stage of making an application for planning permission never mind the actual obtaining of such permission.  Just as the applicants in the Tara case, from which I have already quoted, had no legitimate expectation that their exploration licences would be renewed by the Minister, neither, in my view, can there be any legal basis for holding that the Applicants in this case had a legitimate expectation that planning permission would be granted.  It is only on that basis that a claim for damages could succeed for reasons which I will explain when I come to the question of damages.
	The only possible legitimate expectation which the Applicants might have had was that if they applied for planning permission they would get a fair hearing.  Indeed, after the judgment of Blayney J. there were never even informal overtures made to the Respondent on this topic.  These Applicants were nowhere near even making a decision in principle as to whether it would be commercially feasible to apply for planning permission. 
	I am of opinion that none of the ingredients required in order to mount a successful claim for the existence of a legitimate expectation have been made out in this case.  It seems to me that it is an attempt to carry this doctrine to a distance never achieved before and probably not contemplated by the Supreme Court in Webb.  The views of O'Hanlon J. in Association of General Practitioners Limited v. Minister for Health [1995] 1 IR 382 have much to recommend them where he said that if a plea of legitimate expectation were "allowed its head" it could "introduce an unwelcome element of uncertainty into well defined law concerning rights of property, rights of contract and other matters".
	Even if I am wrong in the view which I have come to as to the existence of a legitimate expectation not having been established, I am of opinion that damages would not  be available for its breach in the absence of a subsisting contractual or equivalent relationship.  The cases in which damages have been awarded such as Webb, or Duggan v. An Taoiseach [1989] ILRM 710 are distinguishable from this case because the applicants there were in long-term contractual or equivalent relationships with the respondents and the wrongs done were akin to a breach of contract.  There is no such equivalent relationship between the parties to this litigation. 
	Reliance was placed on the decision of Blayney J. in Ahern v. Kerry County Council [1988] ILRM 392 to support the Applicants' case but I derive no help from that since Blayney J. expressly refused to express a conclusion on the point that might help the Applicants.
	Accordingly, I reject the claim which is made here on the basis of a legitimate expectation having been defeated.  I hold that there was no legitimate expectation such as is contended for and even if there was, damages would not be available as a remedy in respect of it because of the absence of a contractual or similar relationship between the parties.  In fact, the relationship between the parties here was no more than one of planning authority and prospective applicant for planning permission.

CONSTITUTIONAL RIGHTS
	The final claim which is advanced by the Applicants is one which alleges that their property rights under the Constitution have been unlawfully interfered with.  They say that in such an event they should be entitled to damages.  These rights have allegedly been unjustly attacked and their value has been damaged to a significant extent by the unlawful acts of a State authority.  In the course of their written closing submissions, the Applicants elided the issue of legitimate expectation with their claim in respect of constitutional rights.  They said this:-

	"The doctrine of legitimate expectation and its application in the Irish Courts can be seen as a manifestation of its jurisprudence that those who suffer loss as a result of blameworthy conduct by State authorities have a right to a remedy and the inability to bring the facts of a case within the four corners of an existing tort is not a complete answer to a claim for damages".

	This seems to me to go considerably further than what is warranted by the jurisprudence or justified in principle.  
	The property rights of the Applicants here were confined to licences from the Minister for Energy to enable them to prospect.  True it is that if the Minister was satisfied as to the results of that prospecting, a mining lease might well have been expected.  But even then the development of a mine would of course be subject to the obtaining of planning permission.  It seems to me that the prospecting licence was the only matter which they had as of right at the time that this ban was imposed.  Their enjoyment of that was not jeopardised save in a most indirect way in that their joint venture partners pulled out.  This is certainly very far from a case of any form of direct interference with or expropriation of the property right such as it was.
	The property right in respect of the licence must be seen in context.  A prospecting licence is of itself of little value even though substantial sums of money may be sunk on foot of it in exploration.  It becomes of substantial commercial value only when a return can be achieved from it.  The evidence in the present case is that before one could get to that stage, a huge amount of additional work would have had to be done with uncertain results, a mining lease procured and a planning permission obtained.  The mine would then have to be put into operation and a profit derived from it.  It is only at that stage that one could speak in any realistic way of a commercial value attaching to the prospecting licence. 
	In these circumstances, I have come to the conclusion that no case for damages has been made out in respect of an alleged interference with the Applicants' constitutional property rights.

DAMAGES
	As is clear from the views that I have already expressed, the Applicants fail in this claim for damages.  Lest, however, I am wrong in all or any of the views which I have expressed to date, I will proceed to state my conclusions on the question of damages. 		The claim which is made is for the full sum expended by the Applicants on prospecting in the areas affected by the ban.  It comes to just short of £2 million.  They seek to be recompensed in the entirety of that sum by the Respondent.  They assert that in assessing damages the Court should do so as of the date upon which the ban was imposed rather than the date of trial.  The importance of this submission will become clear in a moment.
	McGregor on Damages (15th Edition, 1988) at page 7 endorses the governing principle as stated by Lord Blackburn that damages are "that sum of money which will put the party who has ..... suffered in the same position as he would have been in if he had not sustained the wrong for which he is not getting his compensation or reparation".
	As is clear from the evidence, prospecting for gold is a high risk enterprise.  It is speculative.  It is uncertain.  On Mr. McCullough's own evidence, the prospects of success in mining projects on average is one out of one hundred.  In the present case he said that they had established that there was gold in very significant quantities present and that figure was reduced to more like one in ten or somewhere in that region.  Accordingly, at the time when the ban was imposed, there was only a one in ten prospect that the gold found was going to be what he described a commercial deposit.  Even assuming that such a commercial deposit was found at the end of all of the prospecting, planning permission would then have to be sought for the mine and in my view that was never going to be easy.  One then has to postulate that if planning permission were granted, the mine would then be established.  One must then assume that it would trade profitably.  It is only at that stage that a return of the original monies expended in prospecting would be likely to be recovered.
	In these circumstances, it seems to me that even if the Applicants were wholly successful on the question of liability, before any damages could be awarded to them they would have to demonstrate, on the balance of probabilities, that their venture would have been successful and would at least have yielded amounts sufficient to recoup the expenditure made.  No such evidence was forthcoming.  Indeed, Mr. McCullough's own estimate of a one in ten chance of a commercial deposit being found speaks for itself.  In the light of this, it appears to me to be a bold claim to seek to recover from the Respondent the entire sum expended.   To award damages in the amount claimed would in effect constitute the Respondent as a form of insurer for expenditure incurred which on the balance of probabilities would never have be recovered.
	I accept that the evidence of gold was promising but it only demonstrated a one in ten chance of a commercial deposit being found.  That means that there was a nine in ten chance that the money expended would never have been recovered but rather would have been lost.  To make an award of damages in these circumstances would seem to me to be perverse since the Applicants have not demonstrated on the balance of probabilities that these monies would ever have been recoverable by them.  If I were to award them the sum claimed they would have recovered the entire expenditure made by them which, if no wrong had been done to them, they had at best a one in ten chance of recovering in any event.
	If I am incorrect in the views which I have just expressed, it seems to me that putting the Applicants' case at its highest, the most that they could hope to recover given the probabilities set forth in evidence by Mr. McCullagh would be one-tenth of the expenditure incurred, namely, £193,826.40.  That would be the sum recoverable if damages were assessed as of the date of the mining ban.  If, however, the date of trial was the more appropriate date, I am satisfied that it would have to be reduced even further.  I have already indicated that the prospects of obtaining planning permission were not very good but in the light of the evidence which I had concerning the European Union Habitat Directive, I am satisfied that the prospects of obtaining planning permission would have diminished even further by the time it might be applied for.  At most, it appears to me that the Applicants could hope to recover only one-twentieth of the expenditure.  However, in the light of the views which I have already expressed, this is not a case in which damages should be awarded and consequently this claim is dismissed.