Mulcreevy -v- Minister for Environment, Heritage and Local Government & anor, [2004] IESC 5 (2004)

Docket Number:15/04
Party Name:Mulcreevy, Minister for Environment, Heritage and Local Government & anor
Judge:Keane C.J.


Keane C.J.

Hardiman J.

McCracken J.




JUDGMENT delivered the 27th day of January 2004, by Keane C.J.

The lands at Carrickmines, Co. Dublin, which are the subject of these proceedings, contain the remains of Carrickmines Castle, a site which is clearly of considerable historical and archaeological interest. The second named respondents (hereafter "the local authority") are engaged in a major road scheme known as "The South Eastern Motorway Scheme". It is not in dispute in these proceedings that the construction of the motorway has been authorised under the relevant legislation and that it forms a strategic element of the national road network, providing a high speed link between the N11 and other national primary routes around Dublin. The route of the motorway traverses part of the Carrickmines Castle site and, since the route was decided upon, extensive archaeological works have been carried out by consultants appointed by the local authority at sites affected by the motorway. It is not in dispute that the remains of Carrickmines Castle are a "national monument" within the meaning of the National Monument Acts, 1930 to 1994, and that the construction of the motorway, as it proceeds, will necessitate the removal of some of the remains, including, in particular, what is described as a granite stone masonry revetment forming part of the defensive structures of the castle, and some of which has already been removed. It is the intention of the local authority to reconstruct that section elsewhere on the site which they own. It should be added that it is also not in dispute that the archaeological excavations carried out on behalf of the local authority have involved an expenditure of in excess of 6 million and the employment of up to 200 archaeologists.

The fact that the motorway works have, and will, result in the removal or destruction of part of the archaeological remains in question has led to much controversy. In previous proceedings in the High Court and in this court arising out of the construction of the motorway, to which it will be necessary to refer in more detail at a later stage, it emerged that there was a sharp difference of view between Dr. Valerie J. Keeley, an archaeologist who was the director of a consultancy firm retained by the local authority, and a historian, Dr. Séan Duffy, as to the extent and significance of the removal or destruction. Dr. Keeley was of the view that the archaeological procedures implemented on the site had been entirely appropriate, contrary to the view of Dr. Duffy. In these proceedings, Dr. Mark Clinton, an archaeologist who was the site director for the excavation programme from 1st September, 2002 until 11th October, 2003 swore an affidavit in which he takes issue with the approach adopted by Dr. Keeley.

It is not necessary for this court to attempt to resolve this difference of opinion between professionally qualified and experienced archaeologists, any more than it was necessary for the High Court to do so. Not is it necessary for the court to determine where the balance must be struck between the preservation of what is acknowledged to be a site of great archaeological and historic interest and the implementation of a major infrastructural project.

To understand the issues which have arisen in the High Court and again in this court, it is necessary at the outset to summarise briefly the history of the earlier proceedings to which I have already referred and which are now reported under the title Dunne & Anor -v- Dun Laoghaire - Rathdown County Council [2003] 1 IR 567. In that case, the plaintiffs issued proceedings in which they sought injunctive relief restraining the local authority from removing parts of the monument. Their application for an interlocutory injunction granting them that relief pending the hearing of the action was refused in the High Court. Their claim was essentially that the plaintiffs, before proceeding with the works, required the joint consent of the first named respondent in these proceedings (hereafter "the Environment Minister") as the successor of the Commissioners of Public Works in Ireland (hereafter "the Commissioners") and the local authority. It was conceded on behalf of the local authority that the consent of the Environment Minister had not been obtained, but in addition to advancing other arguments based on matters such as the standing of the plaintiffs, laches and the balance of convenience, it was also urged on behalf of the local authority that the consent of the Environment Minister was in any event unnecessary since it was that minister who had authorised the road project in question and that they had also been granted an excavation licence to carry out archaeological digging under another provision of the legislation. That submission was rejected by Hardiman J. with whom the other members of the court, Geoghegan J. and McCracken J. agreed, and the court also rejected the other arguments advanced on behalf of the local authority against the granting of the injunctive relief.

Thereafter, the local authority applied to the Environment Minister for the necessary consent. A joint consent of the local authority and the Environment Minister was given on 3rd July, 2003 and on the same day the Environment Minister made the National Monuments (Approval of Joint Consent) Order, 2003. The order stated that it was being made by the Minister because he considered

"that the public interest in the construction of the South Eastern Motorway along the approved route justifies the carrying out of works described in the joint consent impacting on archaeology at the site …"

It is agreed in this case that, before the works restrained by the interlocutory injunction could proceed, it was necessary that this order should be laid before both Houses of the Oireachtas and that it would not become effective until 21 sitting days of both Houses had elapsed during which no resolution to annul the order had been passed by either House. It is accepted that, accordingly, the order did not come into effect until the 2nd December, 2003. The interlocutory injunction granted by this court was discharged by the High Court on 8th December, 2003 and, on that day, the local authority stated that it would be taking the appropriate steps to implement the approval given by the Environment Minister.

On 23rd December, 2003 an application was made on behalf of the plaintiffs to the High Court for leave to issue proceedings by way of judicial review claiming inter alia

(i) An order of certiorari of the National Monuments (Approval of Joint Consent) Order, 2003 made on 3rd July, 2003 (hereafter "the approval order");

(ii) An order of prohibition prohibiting the local authority from in any way demolishing, removing (in whole or in part), disfiguring, defacing, altering, injuring or interfering in any way with the monument;

(iii) An injunction against the local authority to the same effect pending the hearing of these proceedings.

The grounds on which the relief were claimed were as follows:

(i) The approval order was ultra vires the provisions of the National Monument Acts, 1934 to 1994, since it was neither in the interests of archaeology nor in the interest of public health or safety to make the order and there was no other ground on which the order could be made;

(ii) The ground given by the Environment Minister for making the approval order - that it was in the public interest that the South Eastern Motorway should be constructed along the route in question - was not a ground which could lawfully justify the granting of the approval order;

(iii) The Heritage (Transfer of Functions of Commissioners of Public Works) Order, 1996 (SI 61 of 1996) (hereafter "the 1996 order") and the Heritage (Transfer of Departmental Administration and Ministerial Functions) Order, 2002 (SI 356 of 2002) (hereafter "the 2002 order") whereby the functions of the Commissioners and the Minister for Arts, Culture and the Gaeltacht (hereafter "the Arts Minister") relating to the grant of the approval order were purportedly transferred to the Environment Minister were ultra vires the parent legislation and of no effect;

(iv) The said works were being carried out without a licence under s. 26 of the National Monuments Act, 1930, which was required for digging or excavating for any archaeological purpose.

The applicant, who lives in Kerry, said in a grounding affidavit that he had no private interest in the proceedings but was seeking as a citizen to ensure that a national monument was not, as he put it, irreparably damaged by the local authority without having obtained the necessary statutory approvals, consents and licenses.

The application for leave to issue the proceedings by way of judicial review was made on notice to the Environment Minister and the local authority and was heard by Gilligan J. While satisfied that the applicant had standing to institute the proceedings, he was of the view that, although in so far as they sought relief by way of certiorari, they were brought within the period of six months prescribed by Order 84, Rule 21(1) of the Rules of the Superior Courts, they had nonetheless not been brought sufficiently promptly and he accordingly refused to grant any of the reliefs sought. From that judgment, the applicant has now appealed to this...

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