Dunne -v- Minister for the Environment Heritage and Local Government & ors, [2006] IESC 49 (2006)

Docket Number:444/04
Party Name:Dunne, Minister for the Environment Heritage and Local Government & ors
Judge:Murray C.J.
 
FREE EXCERPT

THE SUPREME COURT

Murray C.J. 444/04

Denham J.

Hardiman J.

Geoghegan J.

Kearns J.

BETWEEN

DOMINIC DUNNEPLAINTIFF / APPELLANTAND

THE MINISTER FOR THE ENVIRONMENT,

HERITAGE AND LOCAL GOVERNMENT, IRELAND

AND THE ATTORNEY GENERAL AND

DUN LAOGHAIRE-RATHDOWN COUNTY COUNCILRESPONDENTS / DEFENDANTS

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

Background

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.

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.

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

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.

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.

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.

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.

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 statutory regime requiring the consent of three distinct and independent statutory bodies provided for in the Act of 1994 a regime requiring the consent of only two such bodies.

The strategy for the archaeological resolution of Carrickmines Castle is set out in the 1997 EIS which envisages the preservation by record of any archaeological features discovered on the line of the motorway and associated local roads. It envisaged that areas not within the area of construction would be preserved in situ. In September, 2002, the Minister for Transport directed a modification to the design of a roundabout adjacent to a number of stone structures on the Carrickmines Castle site which were uncovered in the course of the archaeological works. The purpose of these modifications was to allow the preservation in situ of certain structures and of a revetted fosse where it runs under the roundabout. These modifications were the subject matter of an application by Mr. Stephen Deveney to An Bord Pleanála (the Board) that it exercise its powers under s. 50(1)(b) of the Act of 1993, which provides:-

Where the Minister considers that any proposed road development (other than development to which para. (a) applies) consisting of the construction of a proposed public road or the improvement of an existing public road would be likely to have significant effects on the environment, he shall direct the road authority to prepare an environmental impact statement in respect of such proposed road development and the authority shall comply with such direction.

The functions of the Minister under s. 50(1)(b) were vested in the Board by

s. 215 of the Planning and Development Act, 2000. On the 21st March, 2003, the Board decided not to direct the preparation of an environmental impact statement in respect of the proposed modifications to the approved road development. The reasons given for the decision were that the proposed modifications: -

(a) do not significantly alter the proposed road development from that previously approved and that the development remains in essence the same as that for which approval has previously been obtained, and(b) would not of themselves have a significant adverse effect on the environment and, accordingly, do not comprise a project specified at para.13 of Annexe II of Directive 85/337/EEC, as amended by Directive 97/11/EC.Ultimately, and as already noted, the Oireachtas moved to introduce the Act of 2004 which, insofar as it applies to the South Eastern Route, was clearly intended to facilitate and expedite the completion of the roadworks which, by virtue of the various legal challenges, had been held up for a significant time. It amended the National Monument Act, 1930, by substituting a new provision, set out in s. 5, for s. 14. This was the section which, as originally enacted, provided that in the case of a National Monument of which a local authority was the owner, the joint consent in writing of the Commissioners of Public Works and the local authority was necessary to render lawful certain activities. It introduced a special provision in relation to the South Eastern Route when it provided as follows at s. 8:-

"(1)The consent of the Minister under section14 and any further consent or licence under any other provision of the National Monument Acts, 1930 to 2004 shall not be required in relation to the carrying out of any works affecting any national monument in connection with the completion of the South Eastern Route (as described in the Third Schedule of The Roads Act, 1993, (Declaration of National Roads) Order, 1994 (S.I. No. 209 of 1994) by Dun Laoghaire-Rathdown County Council but any such works shall be carried out on the directions of the Minister.

(2) In considering the issue of directions under subs. (1) of this section - (a) the Minister is not restricted to archaeological considerations but he is entitled to consider the public interest notwithstanding that such exercise may involve - (i) injury to or interference with a national monument or

(ii) the destruction in whole or in part of a national monument.(b) the Minister may have regard to the following to the extent that they appear to the Minister to be relevant in exercising discretion to issue directions in...

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