Dunne v Minister for Environment and Others

JurisdictionIreland
CourtHigh Court
JudgeMiss Justice Laffoy
Judgment Date07 Sep 2004
Neutral Citation[2004] IEHC 304
Docket NumberHC 304\04.

[2004] IEHC 304

THE HIGH COURT

Laffoy

HC 304\04.
No. 18593 P 2004
DUNNE v. MINISTER FOR ENVIRONMENT & ORS
BETWEEN/
DOMINIC DUNNE
PLAINTIFF

AND

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

Citations:

ROADS ACT 1993 S49

ROADS ACT 1993 S51

EEC DIR 85/337

DUNNE & LUCAS V DUN LAOGHAIRE RATHDOWN CO COUNCIL 2003 1 IR 567 2003 2 ILRM 147

NATIONAL MONUMENTS ACT 1930 S14

NATIONAL MONUMENTS ACT 1930 S26

NATIONAL MONUMENTS ACT 1930 S14(2)

NATIONAL MONUMENTS ACT 1994 S15

MINISTERS & SACREATRIES ACT 1924

NATIONAL MONUMENTS ACT 1930

MINISTERS & SECRETARIES (AMDT) ACT 1939

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

ROADS ACT 1993 S50(1)(b)

PLANNING & DEVELOPMENT ACT 2000 S215

EEC DIR 85/337 ANNEX II

EEC DIR 97/11

NATIONAL MONUMENTS (AMDT) ACT 2004 S5

NATIONAL MONUMENTS (AMDT) ACT 2004 S8

NATIONAL MONUMENTS (AMDT) ACT 2004 S9

CONSTITUTION ART 5

CONSTITUTION ART 10

CONSTITUTION ART 15

CONSTITUTION ART 40

EEC DIR 2001/42

EEC DIR 2003/35

ANCIENT MONUMENTS (PROTECTION) (IRL) ACT 1882

ANCIENT MONUMENTS (PROTECTION) (IRL) ACT 1892

ANCIENT MONUMENTS (PROTECTION) (IRL) ACT 1910

NATIONAL MONUMENTS ACT 1930 S14(A)

NATIONAL MONUMENTS ACT 1930 S14(B)

NATIONAL MONUMENTS ACT 1930 S14(C)

NATIONAL MONUMENTS ACT 1930 S14(1)

NATIONAL MONUMENTS ACT 1930 S8(2)(a)

NATIONAL MONUMENTS ACT 1930 S8(2)(b)

NATIONAL MONUMENTS ACT 1930 S8(2)(b)(iii)

NATIONAL MONUMENTS ACT 1930 S14(5)

NATIONAL MONUMENTS ACT 1930 S8(1)

NATIONAL MONUMENTS ACT 1930 S14(4)

NATIONAL MONUMENTS ACT 1930 S14(6)

NATIONAL MONUMENTS ACT 1930 S14(7)

NATIONAL MONUMENTS ACT 1930 S14(B)(2)

NATIONAL MONUMENTS ACT 1994 S8

NATIONAL MONUMENTS (AMDT) ACT 2004 S8(3)

NATIONAL MONUMENTS ACT 1930 S8(2)

NATIONAL MONUMENTS ACT 1930 S8(2)(b)(vi)

NATIONAL MONUMENTS ACT 1930 S14(5)

NATIONAL MONUMENTS ACT 1930 S25

NATIONAL MONUMENTS ACT 1930 S14(A)(4)

CONSTITUTION

RSC O.39 r1

EEC DIR 85/337 ART 1(2)

EEC DIR 85/337 ART 1(5)

EEC DIR 85/337 ART 2(1)

EEC DIR 97/11 ART 1(1)

EEC DIR 85/337 ART 3

EEC DIR 97/11 ART 1(5)

EEC DIR 85/337 ART 4

EEC DIR 97/11 ART 1(6)

EEC DIR 85/337 ART 4(1)

EEC DIR 85/337 ANNEX II POINT 13

EEC DIR 85/337 ART 4(3)

EEC DIR 85/337 ANNEX III

ROADS ACT 1993 S50

ROADS ACT 1993 S51

PLANNING & COMPENSATION ACT 1991 (UK)

R V NORTH YORKSHIRE CO COUNCIL, EX PARTE BROWN 2000 1 AC 397

AANNEMERSBEDIJF PK KRAAIJEVELD V GEDEPUTEERDE STATEN VAN ZUID-HOLLAND 1996 ECR 1–5403

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

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

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

TREATY OF ROME ART 234

CONSTITUTION ART 15.2

CONSTITUTION ART 5

CONSTITUTION ART 10

CONSTITUTION ART 40

NATIONAL MONUMENTS ACTS 1930–2004

CITYVIEW PRESS V COMHAIRLE OILIUNA 1980 IR 381

ALIENS ACT 1935 S5(1)

LAURENTIU V MIN JUSTICE 1999 4 IR 26

ALIENS ACT 1935 S5(1)(e)

MISTRETTA V UNITED STATES 1989 488 US 361

LEONTJAVA & CHANG V DPP & ORS 2004 1 IR 615

ALIENS ACT 1935 S5(1)(h)

CASEY V MIN FOR ARTS 2004 1 IR 402 2004 2 ILRM 260

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3

TUOHY V COURTNEY 1994 3 IR 1

STATUTE OF LIMITATIONS 1957

HEANEY V IRELAND 1994 3 IR 593

TORMEY V COMMISSIONERS FOR PUBLIC WORKS 1993 ILRM 703

MCGARRY, AG V SLIGO CO COUNCIL 1991 1 IR 99

O'CALLAGHAN V CMSR PUBLIC WORKS IN IRELAND 1985 ILRM 364

WEBB V IRELAND 1988 IR 353

CONSTITUTION ART 43

KING V LA LAVIA 1999 3 IR 413

KELLY THE IRISH CONSTITUTION 4ED 807

MADIGAN V AG 1986 ILRM 136

FINANCE ACT 1983

LANCEFORT LTD V BORD PLEANALA & TREASURY HOLDINGS LTD 1999 2 IR 270 1998 2 ILRM 401

D (T) V MIN EDUCATION 2001 4 IR 259

Abstract:

Constitutional law - European Union - National monuments - Whether section 8 of National Monuments (Amendment) Act 2004 unconstitutional - Whether section 8 contravened EC directive - Application for Article 234 reference - National Monuments Act 2004 - Directive 85/337/EEC - Bunreacht na hEireann, Articles. 5, 10, 15 and 40

Facts: This was the third occasion on which the jurisdiction of the court had been invoked in connection with the construction of the motorway at the location where it traversed and adjoined the archaeological site known as Carrickmines Castle. The plaintiffs sought inter alia a declaration that s. 8 of the National Monuments (Amendment) Act 2004 was unconstitutional and a declaration that s. 8 was invalid having regard to the provisions of European law and in particular, the provisions of Directive 85/337/EEC.

Held by Laffoy J. in refusing the relief sought that the works regulated in accordance with s. 8 did not fall within the ambit of point 13 of Annex II and that directions which had been issued by the Minister under s. 8 did not constitute a development consent and accordingly that the implementation of the directions did not contravene the Directive. Section 8 was not in conflict with Article 15.2 of the Constitution or the duties and rights recognized and protected by the combined effect of Articles 5, 10 and 40.

Application for Article 234 reference

The Court refused to accede to the application for a reference under Article 234 EC stating that the proper interpretation and application of Community law was clear.

Reporter: R.W.

1

Miss Justice Laffoy delivered on 7th September, 2004 .

Background
2

This is the third occasion on which the jurisdiction of this Court has been invoked in connection with the construction of the South Eastern Route motorway at the location where it traverses and adjoins the archaeological site which is colloquially known as Carrickmines Castle.

3

The South Eastern Route is the final part of the M50 C-ring motorway around Dublin. As has been recognised in earlier proceedings, it forms a strategic element of the national road network, providing a high-speed link between the N11 and the other national primary routes around Dublin. The South Eastern Route is within the functional area of the fourth named defendant (the Council). Ownership of Carrickmines Castle and the land the subject of these proceedings is vested in the Council. On 19 th October, 1998, following a public local inquiry in January 1998, which was held over nine days, the predecessor of the first named defendant (the Minister), pursuant to s. 49 of the Roads Act, 1993 (the Act of 1993) approved the Council's scheme for the construction of the South Eastern Route subject to certain modifications. On the same day, 19 thOctober, 1998, the Minister's predecessor, pursuant to s. 51 of the Act of 1993, approved that scheme, having considered the Environmental Impact Statement of September, 1997 (the 1997 EIS) submitted by the Council, the submissions which had been made and the report and recommendations of the person who conducted the public local inquiry as to the likely effects on the environment of the development.

4

The 1997 EIS was expressed to be issued in accordance with EC Directive 85/337, as transposed into Irish law by the Act of 1993 (para. 1.3). In its "Non-Technical Summary" it dealt with archaeology and disclosed that archaeological investigations and surveys had been carried out on the area affected by the proposed scheme, which was described as part of a landscape rich in archaeological and historical material. Topographical and geophysical surveys, which have been carried out, indicated that in three locations, which included Carrickmines, a complex of archaeological features was likely to exist. It was stated that investigative excavation was proposed for the relevant sites to determine their exact nature and significance. On the basis of the excavations full archaeological excavation would be carried out if required on the areas of the sites affected by the proposed scheme prior to the commencement of the construction works. During construction an archaeologist would be retained with full watching brief. Chapter 17 dealt in detail with the results of the archaeological investigations and surveys which had previously been conducted. The location, features, impact of the route on, and recommendations in relation to, selected sites, including the sites at Carrickmines Castle were summarised in tabular form (table 17.2.1). The ameliorative measures proposed were detailed. (para. 17.2.5). In chapter 18 the proposed environmental measures were summarised. In relation to archaeology, it was recorded that the Carrickmines Interchange design had been modified so that the castle remnant could be retained in an open area and minimum disruption would be caused to the more significant areas. Further, it was recorded that where 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 full archaeological excavation if required on the basis of the results of initial investigation.

5

Initial archaeological investigations were conducted at Carrickmines Castle during April and May, 2000. Archaeological excavations commenced on 28 th August, 2000 and were conducted over the following two years and six months. As has been acknowledged on the previous occasions on which the jurisdiction of this court has been invoked, a large team of archaeologists, up to 200, has been involved in, and considerable resources, in excess of €6 million up to January, 2003, and approximately €9.6 million as of now, have been committed to, the archaeological resolution of Carrickmines Castle. This is part of a total expenditure to...

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