Salafia v Minister for Environment, Heritage & Local Government and Others
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 01 March 2006 |
| Neutral Citation | [2006] IEHC 61 |
| Court | High Court |
| Date | 01 March 2006 |
[2006] IEHC 61
HIGH COURT
and
NATIONAL MONUMENTS ACT 1930 S14A(2)
NATIONAL MONUMENTS ACT 1930 S14A
NATIONAL MONUMENTS (AMDT) ACT 2004 S5
NATIONAL MONUMENTS ACT 1930 S14(A)4
NATIONAL MONUMENTS ACT 1930 S14
RSC O.84 r21
NATIONAL MONUMENTS (AMDT) ACT 2004 S14A(4)(d)
DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33
DEKRA EIREANN TEORANTA v MIN FOR ENVIRONMENT & SGS (IRL) LTD 2003 2 IR 270 2003 2 ILRM 210
O'CONNELL v ENVIRONMENTAL PROTECTION AGENCY & DUNGARVAN ENERGY LTD 2001 4 IR 494 2002 1 ILRM 1
MULCREEVY v MIN FOR ENVIRONMENT & DUN LAOGHAIRE/RATHDOWN CO COUNCIL 2004 1 IR 72 2004 1 ILRM 419
MCBREARTY v MORRIS & AG UNREP HIGH COURT 13.5.2003 2003/39/9373
SIAC CONSTRUCTION LTD v NATIONAL ROADS AUTHORITY UNREP HIGH COURT KELLY 16.7.2004 2004/47/10661
RSC O.84 r21(1)
O'DONNELL v DUN LAOGHAIRE CORPORATION 1991 ILRM 301
SOLAN v DPP 1989 ILRM 493
O'FLYNN v MID-WESTERN HEALTH BOARD 1991 2 IR 223
SLOAN v BORD PLEANALA 2003 2 ILRM 61
RSC O.84 r20(7)
CAHILL v SUTTON 1980 IR 269
LANCEFORT LTD v BORD PLEANALA & TREASURY HOLDINGS LTD 1999 2 IR 270 1998 2 ILRM 401
RSC O.84
ROADS ACT 1993 S55A
ROADS (AMDT) ACT 1998
CONSTITUTION ART 40
CONSTRUCTION INDUSTRY FEDERATION v DUBLIN CITY COUNCIL 2005 2 ILRM 256
PLANNING & DEVELOPMENT ACT 2000 S50
WOODS, STATE v AG 1969 IR 385
ROCHE v MIN FOR INDUSTRY & COMMERCE 1978 IR 149
M v BORD UCHTALA 1977 IR 287
MURPHY v ROCHE 1987 IR 106
BULA LTD & ORS v TARA MINES LTD & ORS UNREP HIGH COURT LYNCH 6.2.1997 1997/1/219
CENTRAL DUBLIN DEVELOPMENT ASSOCIATION LTD v AG 1975 109 ILTR 69
ART 26 OF THE CONSTITUTION & PART v OF PLANNING & DEVELOPMENT BILL 1999, RE 2000 2 IR 321 2001 1 ILRM 81
NATIONAL MONUMENTS (AMDT) ACT 2004 S14B
NATIONAL MONUMENTS (AMDT) ACT 2004 S14B(5)
ROADS ACT 1993 S49
ROADS ACT 1993 S51
NATIONAL MONUMENTS (AMDT) ACT 2004 S14A(3)
KEEGAN v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642 1987 ILRM 202
O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237
NATIONAL MONUMENTS (AMDT) ACT 2004 S14(2)(a)
CONSTITUTION ART 40.3.1
O'CALLAGHAN v COMMISSIONER FOR PUBLIC WORKS 1985 ILRM 364
LA LAVIA, RE 1999 3 IR 413
CONSTITUTION ART 5
MCGIMPSEY v IRELAND 1990 ILRM 441 1990 1 IR 110
MULCREEVY v MIN FOR ENVIRONMENT & DUN LAOGHAIRE/RATHDOWN CO COUNCIL 2004 1 IR 72 2004 1 ILRM 419
HEANEY v IRELAND 1994 2 ILRM 420
HEANEY v IRELAND 1996 1 IR 580 1997 1 ILRM 117
WEBB v IRELAND 1988 IR 353 1988 ILRM 565
CONSTITUTION ART 40.3
DUNNE v MIN FOR ENVIRONMENT & ORS UNREP HIGH COURT LAFFOY 7.9.2004 2004/14/3114
NATIONAL MONUMENTS (AMDT) ACT 2004 S8
NATIONAL MONUMENTS ACT 1930 S25
NATIONAL MONUMENTS ACT 1930 S26
ROADS ACT 1993 S50(1)(b)
TOUHY v COURTNEY 1994 3 IR 1
ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360
CONSTITUTION ART 15.2.1
CONSTITUTION ART 15.2
CITYVIEW PRESS v COMHAIRLE OILIUNA 1980 IR 381
CASEY v MIN FOR ARTS 2004 2 ILRM 260 2004 1 IR 402
NATIONAL MONUMENTS (AMDT) ACT 2004 S14(A)6
NATIONAL MONUMENTS (AMDT) ACT 2004 S14(A)(6)(a)
LEONTJAVA & CHANG v DPP & ORS 2004 1 IR 591
LAURENTIU v MIN FOR JUSTICE 1999 4 IR 26
KEANE v BORD PLEANALA 1998 2 ILRM 241 1997 1 IR 184
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.
For MR. VINCENT SALAFIA:
MR. G. HOGAN SC MR. F. CALLANAN SC MR. C. MacEOCHAIDH BL MR. J. HENNESSY BL
Instructed by:
MR. BOB COFFEY HUGHES & LIDDY
2 UPPER FITZWILLIAM ST DUBLIN 2.
For the MINISTER FOR ENVIRONMENT, HERITAGE & LOCAL GOVERNMENT, MEATH COUNTY COUNCIL, IRELAND AND THE ATTORNEY GENERAL:
MR. J. CONNOLLY SC MR. G. SIMONS BL
Instructed by:
MS. K. DUGGAN
CHIEF STATE SOLICITORS OFFICE OSMOND HOUSE LITTLE SHIP STREET DUBLIN 8
FOR MEATH CO. CO.:
MR. P. GALLAGHER SC MR. M. COLLINS SC MR. T. CLARKE BL
Instructed by:
MR. R. McENTEE REGAN McENTEE & PARTNERS
HIGH STREET TRIM CO. MEATH
FOR THE NATIONAL ROADS AUTHORITY:
MR. D. O'DONNELL SC MR. B. MURRAY SC MR. D. McGRATH BL
Instructed by:
MS. MICHELLE DOYLE & MS. PAULA FEARON McCANN FITZGERALD
2 HARBOURMASTER PLACE IFSC DUBLIN 1
| Page | |
| The Proceedings | 5-8 |
| General Factual Background | 8-11 |
| The Applicant's case | 11-24 |
| Delay | 25-32 |
| Locus Standi | 32-42 |
| The Legislative Framework | 45-51 |
| The Grounds for Judicial Review | |
| 1. Are the Minister's directions unlawful and a nullity because they invoke the wrong section of the Act? | 52-63 |
| 2 Is Section 14A(2) of the National Monuments Act 1930 (as substituted) constitutional? | 64-80 |
| 3. The section the Minister sought to have invoked is in any event unconstitutional | 80-84 |
| 4. The Minister failed to have regard to the State's obligation in the matter of National Monuments | 84-89 |
| 5. The Minister misdirected himself in law and/or had regard to irrelevant considerations in issuing directions pursuant to Section 14A(2) of the National Monuments Acts 1930-2004 | 89-90 |
| 6. The Minister failed to consider whether National Monuments had been discovered | 90-92 |
On 4th July 2005 McKechnie J. granted the Applicant leave to apply for judicial review for the following reliefs:-
(I) An order of certiorari of the decision and order for the Minister of the Environment and Local Government pursuant to Section 14A(2) of the National Monuments Act 1930-2004 entitled "The Directions to Meath County Council for archaeological works on the M3 Clonee to North of Kells (Dunshaughlin to Navan section)approved road development" dated 11th May 2005;
(II) The following declaratory reliefs:
(a) That Section 14A of the National Monuments Act 1930 as inserted by Section 5 of the National Monuments (Amendment) Act 2004 is unconstitutional and consequently void;
(b) That the purported direction of the First Named Respondent under Section 14A(2) of the National Monuments Act 1930 as substituted do not authorise the carrying out of work to the national monument or complex or series of national monuments at or in the vicinity of the Hill of Tara and Skryne Valley in that such directions would require to have been made under Section 14(A)4 of the Act as substituted.
(c) That the purported directions of the First Named Respondent are a nullity and of no effect.
(d) That the purported directions of the First Named Respondent are ultra vires.
(e) That Section 14 of the National Monuments Act 1930, as inserted by Section 5 of the National Monuments (Amendment) Act 2004 is unconstitutional and that the Directions made by the First Named Respondent are in consequence void and of no effect;
(f) That the Hill of Tara/Skryne Valley constitutes a national monument and a complex of national monuments within the meaning of the National Monuments Act 1930-2004;
(g) That Meath County Council acted unlawfully in failing to report the discovery of a national monument or a series of national monuments during the carrying out of a road development.
(III) An order (if necessary) staying the operation of the decision of the Minister for the Environment and Local Government pending the determination of these proceedings.
The grounds upon which that relief was sought were as follows:-
i I. The Minister's directions are unlawful and a nullity because they invoke the wrong section of the Act.
ii II. The unconstitutionality of Section 14A(2) of the National Monuments Act, 1930 (as substituted).
iii III. The section the Minister ought to have invoked and may in future invoke is, in any event, unconstitutional.
iv IV. The Minister failed to have regard to the State's obligations in the matter of national monuments.
v V. The Minister misdirected himself in law and or had regard to irrelevant considerations in issuing directions pursuant to Section 14A(2) of the National Monuments Act 1930-2004.
vi VI. The Minister failed to consider whether national monuments had been discovered.
The M3 Clonee-North of Kells Motorway Scheme ("the Scheme"), when constructed, is intended to be a major component part of the national primary route network. The Scheme consists of five discrete sections, one of which is the section between Dunshaughlin and Navan which is the subject matter of these proceedings. The development of the Scheme has involved a number of stages which are outlined in the affidavits of Gerry Murphy and Mary Deevy. They can be said to be as follows:-
a A. The route selection process commenced in 1999 with the carrying out of a Constraints Study to establish the constraints effecting the selection of the route. The results of this exercise were complied in a Constraints Study Report (Exhibit "GSM 1" to the affidavit of Gerry Murphy) which was finalised in January 2000. A summary document was then prepared which was used as a basis of a process of public consultation. The issues raised in the course of this consultation process were then evaluated as part of the selection preferred route.
b B. The next stage of the route selection was the selection of a preferred route and, after an emerging preferred route was identified, a summary document was prepared and a further round of public consultation took place in mid 2000.
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