Dominic Dunne, Plaintiff v The Minister for the Environment, Heritage and Local Government and Others

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 25 July 2006
• Neutral Citation: [2006] IESC 49
• Court: Supreme Court
• Docket Number: [S.C. No. 444 of 2004]
• Date: 25 July 2006

[2006] IESC 49

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Kearns J.

444/04

DUNNE v MIN FOR ENVIRONMENT & ORS

BETWEEN

DOMINIC DUNNE

PLAINTIFF / APPELLANT

AND

THE MINISTER FOR THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT, IRELAND AND THE ATTORNEY GENERAL AND DUN LAOGHAIRE-RATHDOWN COUNTY COUNCIL

RESPONDENTS / DEFENDANTS

NATIONAL MONUMENTS (AMDT) ACT 2004 S8

CONSTITUTION ART 5

CONSTITUTION ART 10

CONSTITUTION ART 15

CONSTITUTION ART 40

DIR 97/11/EC

ROADS ACT 1993 S51

DUNNE v DUN LAOGHAIRE RATHDOWN CO COUNCIL 2003 1 IR 567

NATIONAL MONUMENTS ACT 1930 S14

NATIONAL MONUMENTS ACT 1930 S26

NATIONAL MONUMENTS (APPROVAL OF JOINT CONSENT) ORDER 2003 SI 203/1995

MULCREEVY v MIN FOR ENVIRONMENT & DUN LAOGHAIRE/RATHDOWN CO COUNCIL 2004 1 IR 72 2004 1 ILRM 419

NATIONAL MONUMENTS (AMDT) ACT 1994 S15

ROADS ACT 1993 S50(1)(B)

PLANNING & DEVELOPMENT ACT 2000 S215

DIR 85/337/EEC ANNEXE II PAR 13

NATIONAL MONUMENTS (AMDT) ACT 2004 S5

CONSTITUTION ART 15.2

NATIONAL MONUMENTS (AMDT) ACT 1994 S8(1)

NATIONAL MONUMENTS (AMDT) ACT 1994 S8(2)

NATIONAL MONUMENTS ACT 1930 S25

CONSTITUTION ART 15.2.1

NATIONAL MONUMENTS (AMDT) ACT 1994 S8(2)(A)

NATIONAL MONUMENTS (AMDT) ACT 1994 S8(2)(B)

LAURENTIU v MIN JUSTICE 1999 4 IR 26

CITYVIEW PRESS v AN COMHAIRLE OILIUNA 1980 IR 381

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

CONSTITUTION ART 40.3.1

WEBB v IRELAND 1988 IR 353

MCGIMPSEY v IRELAND 1990 1 IR 110

HORGAN v AN TAOISEACH & ORS 2003 2 IR 468 2003 2 ILRM 357

D (T) v MIN EDUCATION 2001 4 IR 259

DIR 85/337/EEC ART 1(1)

DIR 85/337/EEC ART 1(2)

DIR 85/337/EEC ART 1(5)

DIR 85/337/EEC ART 2(1)

DIR 85/337/EEC ART 3

DIR 85/337/EEC ART 4

DIR 97/11EC ART 1(6)

DIR 85/337/EEC ANNEXE I PART 7

DIR 85/337/EEC ANNEXT II P 13

DIR 85/337/EEC ART 4(3)

DIR 85/337/EEC ANNEXE III

ROADS ACT 1993 S50

ROADS ACT 1993 S49

DIR 85/337/EEC ART 49(2)

ROADS ACT 1993 S55(A)

ROADS (AMDT) ACT 1998 S6

R (WELLS) v SECRETARY OF STATE FOR TRANSPORT 2004 1 CMLR 1

R v NORTH YORKSHIRE CO COUNCIL, EX PARTE BROWNE 2000 1 AC 397

R (PROKOPP) v LONDON UNDERGROUND LTD 2004 1 P & CR 31 479

BERKELEY v SECRETARY OF STATE FOR THE ENVIRONMENT 2001 2 AC 603

MURPHY v WICKLOW CO COUNCIL UNREP KEARNS 19.3.1999 2001/16/4358

CILFIT v MIN HEALTH 1982 ECR 3415

EC TREATY ART 234

- 2007 1 ILRM 264

The appellant sought a declaration that section 8 of the 2004 Act, which introduced special provisions regarding road works on the South Eastern Route of the M50 road (Carrickmines Castle area) was unconstitutional in that it provided for a delegation of legislative power contrary to the provisions of Article 15.2.1 of the Constitution. The appellant also argued that section 8 offended Articles 5,10 and 40 of the Constitution and the provisions of Council Directive 85/337/EEC as amended by Council Directive 97/11/EC. The learned trial judge held that section 8 did not confer any power to make law on the Minister but simply allowed him to issue directions for the carrying out of works in connection with the completion of the South Eastern Route of the M50.

Held by the Supreme Court (Murray C.J., Denham, Hardiman, Geoghegan, Kearns JJ) in dismissing the appeal:

1. That section 8 of the 2004 Act did not give rise to delegated legislation but merely concerned the making of an administrative decision, which was not governed by Article 15 of the Constitution. Consequently, the learned trial judge was correct in holding that the challenge to section 8 based in Article 15.2 must fail. Furthermore, the appellant's arguments relating to Articles 5,10 and 40 of the Constitution must also fail.

2. That section 8 was not in conflict with European Law by failing to require the Minister to consider whether an environmental impact assessment was necessary because the Minister's directions did not constitute a project for the purposes of the environmental impact assessment but merely regulated works of excavation and removal and therefore regulated activities for which the principal consent of the Minister had already been given. Furthermore, as the directions did not constitute a development consent, the implementation of the directions would not contravene the European directives.

Reporter: L.O'S.

1 JUDGMENT of the Court delivered on the 25th day of July, 2006 by Murray C.J.

Background

2 Section 8 of the National Monuments (Amendment) Act, 2004, (the Act of 2004) introduced a special provision in relation to the South Eastern Route of the M50 C-Ring motorway around Dublin with a view to facilitating the completion of works at or adjacent to an archaeological site at Carrickmines Castle. This appeal is concerned with questions as to whether that section offends Articles 5, 10, 15 and 40 of the Constitution, whether it offends EC law in particular the provisions of Council Directive 85/337/EEC of 27th June, 1985 on the assessment of the effects of certain public and private projects on the environment as amended by Council Directive 97/11/EC of 3rd March, 1997. Further, even if the first two questions are answered in the negative, whether certain directions issued by the Minister for the Environment pursuant to the section are null and void having regard to the requirements of the Directives in relation to environmental impact assessment.

3 The section of motorway in question forms a strategic element of the National Road Network, providing a link between the N11 and other national primary routes around Dublin. The South Eastern Route lies within the functional area of the fourth named defendant. Part of the South Eastern Route motorway traverses the archaeological site known as Carrickmines Castle, the ownership of which is also vested in the fourth named defendants. Following a public enquiry in January, 1998, the predecessor of the first named defendant approved the Council's scheme for the construction of the South Eastern Motor Route subject to certain modifications. In October, 1998, the Minister's predecessor, pursuant to s. 51 of the Roads Act, 1993 (the Act of 1993), approved that scheme having considered an Environmental Impact Statement (EIS) of September, 1997 which was submitted by the Council, the submissions which were made and the report and recommendations of the person who conducted the public inquiry as to the likely effects on the environment of the development.

4 The 1997 EIS was issued in accordance with Directive 85/337/EEC, as transposed into Irish law by the Act of 1993.

5 In relation to archaeology, it was recorded in the EIS that the Carrickmines interchange design had been modified so that Carrickmines Castle could be retained in an open area and that minimal disturbance would be caused to the more significant areas. It was further recorded that wherever possible the engineering design had avoided all identified sites. Where this could not be achieved, a series of ameliorative measures were proposed to be carried out prior to construction to mitigate the impact of the proposed route on archaeology. These included investigative excavation to determine the exact nature and significance of the sites and whether a full archaeological excavation was required on the basis of the results of the initial investigation.

6 Initial investigations were conducted at Carrickmines Castle in early 2000. Archaeological excavations commenced in August 2000 and continued over the following two years and six months.

7 The plaintiff in these proceedings was one of the co-plaintiffs in the first action in relation to Carrickmines Castle, which was reported as Dunne v. Dun Laoghaire-Rathdown County Council [2003] 1 I.R. 567 (Dunne No. 1). In those proceedings it was held by the Supreme Court that there was a bona fide question to be determined as to whether the absence of a consent by the Minister under s. 14 of the National Monument Act, 1930 (the Act of 1930), as amended, precluded the activities being carried on at the site, notwithstanding that the Minister had previously granted a licence pursuant to s. 26 of the Act of 1930 for the excavation of another part of the site.

8 While the hearing in relation to the granting of an interlocutory injunction did reach the Supreme Court, the main proceedings never went to plenary hearing. Instead, the Council and the State put a consent in place in purported compliance with the statutory requirements. This was in the form of a joint consent given by the Council and the Minister to the carrying out of the works which had been restrained by the interlocutory injunction. The Minister then made an order pursuant to the National Monuments (Approval of Joint Consent) Order, 2003 approving the works in question. That order required to be laid before both Houses of the Oireachtas and did not become effective until the 2nd December, 2003. On the 8th December, 2003, the interlocutory injunction which had been granted by the Supreme Court in Dunne v. Dun Laoghaire-Rathdown County Council was discharged and the Council proceeded to implement the approval given by the Minister.

9 This in turn provoked the second proceedings in relation to Carrickmines Castle, namely, Mulcreevy v. Minister for Environment, Heritage and Local Government & Dun Laoghaire-Rathdown County Council [2004] 1 I.R 72. In those proceedings the applicant sought various reliefs, including an order of certiorari quashing the Minister's approval order of the 3rd July, 2003. These proceedings were ultimately successful and resulted in the quashing of the Minister's approval order on the basis that the same purported to effect an amendment of the statutory scheme established under s. 15 of the Act of 1994 by purporting to substitute for the...