Dunne v Dun Laoghaire-Rathdown County Council

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 24 February 2003
• Neutral Citation: [2003] IESC 15
• Date: 24 February 2003
• Court: Supreme Court
• Docket Number: [S.C. No. 49 of 2003]

[2003] IESC 15

THE SUPREME COURT

Hardiman J

Geoghegan J.

McCracken J.

49/2003

DUNNE & LUCAS v. DUN LAOGHAIRE-RATHDOWN CO COUNCIL [CARRICKMINES CASE]

Between:

DOMINIC DUNNE

and

GORDON LUCAS

Plaintiffs/Appellants

and

DUNLAOGHAIRE-RATHDOWN COUNTY COUNCIL

Defendants/Respondents

Citations:

NATIONAL MONUMENTS ACT 1930 S14

NATIONAL MONUMENTS (AMDT) ACT 1994 S15

NATIONAL MONUMENTS (AMDT) ACT 1994 S15(3)

NATIONAL MONUMENTS (AMDT) ACT 1994 S15(3)(A)

NATIONAL MONUMENTS (AMDT) ACT 1994 S15(3)(C)

HERITAGE (TRANSFER OF FUNCTIONS OF COMMISSIONERS OF PUBLIC WORKS IN IRELAND) ORDER 1996 SI 62/1996

HERITAGE (TRANSFER OF DEPARTMENTAL ADMINISTRATION & MINISTERIAL FUNCTIONS) ORDER 2002 SI 356/2002

NATIONAL MONUMENTS ACT 1930 S14(1)(A)

NATIONAL MONUMENTS ACT 1930 S14

NATIONAL MONUMENTS ACT 1930 S26

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 1998 3ED 758

MCGARRY, AG V SLIGO CO COUNCIL 1991 1 IR 99

CAMPUS OIL LTD V MIN FOR INDUSTRY & ENERGY (NO 2) 1983 IR 88

Synopsis:

PRACTICE AND PROCEDURE

Interlocutory injunction

Standing of the plaintiffs - Laches - Balance of convenience - Whether remains constituted national monument - National Monuments Act, 1930, section 14 (49/2003 - Supreme Court - 24/2/03)

Dunne v Dun Laoghaire-Rathdown County Council - [2003] 1 IR 567 - [2003] 2 ILRM 147

Facts: The plaintiffs objected to the proposed removal by the defendants, as part of a road building scheme, of the remains of a castle. They sought an interlocutory injunction restraining the proposed removal. They argued that the remains of the castle were a "national monument" and sought the relief claimed to prevent the unlawful interference with the monument.

Held by the Supreme Court (Hardiman J., nem. Diss.) in granting relief restraining the defendant from interfering with the remains until further order that the plaintiffs had established a fair and bona fide question for determination and damages were an inadequate remedy. The Court emphasised that, in dealing with an interlocutory motion, the Court was not finally deciding any factual or legal aspect of the controversy.

1 JUDGMENT of Hardiman J. delivered the 24th day of February, 2003 . [NEM DISS]

2 The Plaintiffs object to the proposed removal by the defendants, as part of a road building scheme, of certain parts of a monument constituting the remains of Carrickmines Castle, Co. Dublin. By Notice of Motion issued shortly prior to the 10 ^th February, 2003 they sought:-

3 2 "(1) Interim/interlocutory injunction restraining the defendant ... from demolishing or removing or disfiguring defacing altering or in any manner injuring or interfering with the national monument and/or archaeological remains situated on lands owned by the defendants, forming part of Folio 5005....

4 (2) An interim/interlocutory injunction restraining the defendant ... from excavating, digging, ploughing or otherwise disturbing the ground within, around or in proximity to the national monument situated on lands owned by the defendants and forming part of Folio 5005...".

The statutory background.

5 The relief claimed mirrors the wording of the National Monuments Act, 1930as amended. Section 14 of that Statute provides:-

6 (1) "It shall not be lawful for any person ... to do any of the following things in relation to a national monument of which the Commissioners or a local authority are the owners or the guardians ..., that is to say:

7 (a) To demolish or remove wholly or in part or to disfigure, deface, alter, or in any manner injure or interfere with any such national monument without or otherwise than in accordance with the consent hereinafter mentioned or

8 (b) To excavate dig plough or otherwise disturb the ground within around or in proximity to any such national monument without or otherwise than in accordance with the consent hereinafter mentioned ...

9 (2) The consent herein before mentioned is ... in the case of a national monument of which a local authority are the owners or the guardians, the joint consent in writing of the Commissioners and such local authority.

10 (3) The Commissioners and every local authority are hereby respectively authorised to give such consent as is mentioned in the foregoing subsection if and whenever they think it expedient in the interests of archaeology or for any other reason to do so and are hereby further authorised to attach to any such consent all such conditions and restrictions as they think fit."

11 The Act was subsequently amended, by Section 15 of the National Monuments (Amendment) Act 1994by the insertion of new subsections after sub-s. (3), of which the following are relevant:-

"(3A) The consent referred to in sub-s. (2) of this Section shall not be given by the Commissioners or the Commissioners and a local authority, in a case referred to in paragraph (a) of sub-s. (1) of this Section, unless it is in the interests of archaeology to do so or the Minister has approved of the giving of that consent.

(3C) On being requested to approve of a consent under this Section, the Minister may approve of the consent referred to in sub-s. (3A) of this Section in a case referred to in paragraph (a) of sub-s. (1) of this Section where he thinks it expedient to do so in the interests of public health or safety".

12 It will be seen that this amendment considerably reduces the scope for the granting of consent by the substitution of the above for the former power to consent if the Commissioners thought it "expedient in the interests of archaeology or for any other reason". In other words, the very wide residual discretion in the Act of 1930, has been replaced by a strictly confined discretion, and the matters to be considered have been strictly limited.

13 By the Heritage (Transfer of Functions of Divisionals of Public Works in Ireland) Order 1996, the Taoiseach transferred the functions of the Commissioners under, inter alia, the National Monuments Act to the Minister for Arts, Culture and the Gaelteacht. By the Heritage (Transfer of Departmental Administration and Ministerial functions) Order 2002 the Taoiseach transferred the functions of that Minister, inter alia, to the Department of Environment and Local Government, where it remains.

14 The effect of the foregoing is that the consent of the defendant local authority and of the Minister for the Environment is required if any of the matters mentioned in sub-s. (1)(a) of s.14 of the National Monuments Act, 1930are lawfully to be done. The consent must be the joint consent of the Minister and the local authority and each are constrained in the way set out in the statutory citations above in the reasons by reference to which they can grant consent. It is undisputed that the defendant County Council is the owner of the relevant lands.

Contentions of the parties.

15 The plaintiff says that the defendant, in the course of a huge road building project, is about to contravene s.14. Specifically, and without limiting their contentions in any way they say that the defendants are admittedly about to remove the revetments of a medieval fosse. They say that this, together with the other remains of Carrickmines Castle, is a "national monument" and that interference with it is a criminal offence under s.14 of the 1930 Act. They seek the relief claimed to prevent this unlawful Act.

16 The defendants say they will dispute that the relevant remains of Carrickmines Castle are a national monument, or part of such a monument. However, they concede that an arguable case has been made for the view that they are a national monument. They say that no case "can now be made, by virtue of the efflux of time, and to the continuation of licensed excavation to near completion", for the relief the plaintiffs claim. They contend that the Minister has already exercised an independent function under the Acts by granting a licence under s.26 of the National Monument Act, 1930, for excavation and by doing so has evidenced his consent in writing. They say that the plaintiffs have been guilty of delay and that the balance of convenience hugely favours the local authority especially having regard to the considerable expense which would or might be incurred if work is stopped. They dispute the adequacy of the plaintiffs' undertaking as to damages.

A National Monument?

17 As noted above, the defendants concede that an arguable case has been made out for the proposition that the relevant remains at Carrickmines constitute a national monument, though they deny that in fact they do so. This rather odd position was necessitated by the present state of the evidence in the case. In my view it is of some relevance in the assessment of the strength of the case to consider briefly what that evidence is.

18 The case made by both parties relies heavily on expert evidence, that of Dr. Sean Duffy FTCD for the plaintiff and that of Ms. Valerie J. Keely, proprietor of Valerie J. Keely Ltd. Archaeological Consultants, on behalf of the defendant. Dr. Duffy's affidavit asserted in strong terms that the archaeology on the relevant site "is a national monument". Furthermore, at paragraph 27 of his affidavit he referred to the fosse where the revetments previously referred to are found and said that "If the only feature found at Carrickmines was the fosse and the other parts of the defensive structure, such remains would constitute a national monument within the meaning of the national monuments legislation. This elaborate defence structure is unique in Ireland and unknown in Britain or continental Europe".

19 Furthermore, the first quoted averment was preceded by eleven paragraphs of material supportive of the conclusion quoted. Moreover, at the beginning of his affidavit Dr. Duffy stated specifically, by way of flagging, that he intended to offer an opinion as to the status of the archaeology on the site in terms of the National...