Mulcreevy v Minister for Environment

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 27 January 2004
• Neutral Citation: [2004] IESC 5
• Court: Supreme Court
• Docket Number: [S.C. No. 15 of 2004]
• Date: 27 January 2004

[2004] IESC 5

THE SUPREME COURT

Keane C.J.

Hardiman J.

McCracken J.

15/04

MULCREEVY v. MINISTER FOR ENVIRONMENT & DUN LAOGHAIRE/RATHDOWN COUNTY COUNCIL

BETWEEN

MICHAEL MULCREEVY

APPLICANT / APPELLANT

AND

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

RESPONDENTS

Citations:

NATIONAL MONUMENTS ACT 1930 S26

NATIONAL MONUMENTS (AMDT) ACT 1994

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

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

HERITAGE (TRANSFER OF FUNCTIONS OF COMMISSIONERS OF PUBLIC WORKS IN IRELAND) ORDER 1996 SI 61/1996

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

RSC O.84 r21(1)

RSC O.84 r20(4)

LANCEFORT LTD V AN BORD PLEANALA (NO 2) 1999 2 IR270

DE ROISTE V MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

G V DPP 1994 1 IR 374

MASS ENERGY LTD V BIRMINGHAM CC 1994 ENV LR 298

R V COTSWOLD DISTRICT CO 1998 75 P&CR 515

GORMAN V MIN ENVIRONMENT 2001 1 IR 306

NATIONAL MONUMENTS ACT 1930 S14(1)

NATIONAL MONUMENTS ACT 1930 S14(1)(A)

NATIONAL MONUMENTS ACT 1930 S14(1)(B)

NATIONAL MONUMENTS ACT 1930 S14(1)

Synopsis:

JUDICIAL REVIEW

Ultra vires

Locus standi - Promptness - National monuments - National monuments Act, 1934 to 1994 - Whether the Environment Minister was empowered to make an Order which purported to amend the legislation already in force (15/2004 - Supreme Court - 27/1/2004)

Mulcreevy v Minister for Environment - [2004] 1 IR 72 - [2004] 1 ILRM 419

Facts: The second named respondent was engaged in a major road scheme known as "The South Eastern Motorway Scheme", which involved the construction of a motorway that traversed part of the Carrickmines Castle site. Carrickmines Castle was a "national monument" within the meaning of the National Monument Acts, 1930 to 1994. The construction of the motorway would ultimately necessitate the removal of some of the remains of the castle, however, it was the intention of the second named respondent to reconstruct whatever remains were removed and in this regard archaeological excavations were carried out on their behalf. In previous proceedings in the High Court the plaintiffs sought but were refused injunctive relief restraining the local authority from removing any parts of the monument. However on appeal to the Supreme Court the plaintiffs were granted the aforementioned injunctive relief. Thereafter, a joint consent was given by the local authority and the Environment Minister to the carrying out of the construction work and on 3rd July, 2003 the Environment Minister made the National Monuments (Approval of Joint Consent) Order, 2003. This order was required to be laid before both Houses of the Oireachtas for approval before the construction works could proceed and accordingly the order did not come into effect until 2nd December, 2003. The injunction granted by the Supreme 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. Consequently, on 23rd December, 2003 the applicant applied to the High Court for leave to issue proceedings by way of judicial review. Specifically the applicant sought an order of certiorari quashing the Order made on 3rd July, 2003, and order prohibiting the local authority from interfering in any way with the monument and also an injunction to the same effect as the previous injunction against the local authority. The applicant submitted against other grounds that the approval order was ultra vires the provisions of the National Monument Acts, 1934 to 1994. The High Court refused to grant the relief sought on the basis that the applicant had not instituted proceedings promptly. The applicant appealed against this decision to the Supreme Court.

Held by the Supreme Court (Keane C.J., Hardiman, McCracken JJ) in allowing the appeal:

1. That despite that fact that the applicant had no private interest in the proceedings, he did have locus standi. It is not in the public interest that decisions by statutory bodies which are of at least questionable validity should wholly escape scrutiny because the person who seeks to invoke the jurisdiction of the court by way of judicial review cannot show that he is personally affected, in some sense peculiar to him, by the decision.

Lancefort Ltd. v An Bord Pleanala No. 2 [1999] 2 IR 270 distinguished.

2. That where proceedings concern a large infrastructural project and substantial expense may result to the public as a result of unnecessary delay, the obligation on an applicant to bring an application for judicial review promptly, requires special consideration. In this regard the applicant could not be regarded as having acted unreasonably in not instituting proceedings to challenge a statutory consent/ approval which was devoid of legal effect until the relevant period for determining the validity of such order had expired.

3. That the Oireachtas plainly intended, that in cases where neither archaeological considerations nor public health and safety could be invoked, the Environment Minister should enjoy a wide residual discretion to permit the interference with the national monument, subject to the qualification that his order had to be laid before the Houses of the Oireachtas.

4. That where the Oireachtas empowers a Minister or other statutory body to make regulations for the purpose of carrying into effect the principles and policies of the parent legislation, such delegated legislation cannot make, repeal or amend any law and to the extent that the parent Act purports to confer such a power, it will be invalid having regard to the provisions of the Constitution. In such circumstances, the courts, where it is possible to do so, will adopt a construction of the parent statute which does not empower the making, repeal or amendment of any law by a form of delegated legislation.

5. That the 1996 order purported to amend Section 15 of the National Monuments (Amendment) Act, 1994 Act by substituting a new statutory regime, whereby the consent or approval of two bodies only, the local authority and the Arts Minister was required to permit any interference with a national monument. In this regard the applicant established an arguable ground of challenge to the 1996 order.

6. That the nemo iudex in causa sua principle does not have any necessary application to administrative procedures. Accordingly the applicant failed to establish a stateable case on the ground that in permitting the Environment Minister to make a decision granting an approval in respect of a consent to which he was already a party, the 1996 order and the 2002 orders violated the requirement as to fair procedures guaranteed by Article 40.3 of the Constitution

Reporter: L.O'S.

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

2 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, 1930to 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.

3 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 1 ^st September, 2002 until 11 ^th October, 2003 swore an affidavit in which he takes issue with the approach adopted by Dr. Keeley.

4 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...