Licences, Constitutional, Environmental Impact Assessments
Section 8 of the National Monuments (Amendment) Act, 2004, introduced a special provision in relation to the South Eastern Route of the M50 C-Ring motorway around Dublin with a view to facilitating the completion of works at or adjacent to an archaeological site at Carrickmines Castle. This appeal is concerned with questions as to whether that section offends Articles 5, 10, 15 and 40 of the Constitution, whether it offends EC law in particular the provisions of Council Directive 85/337/EEC of 27th June, 1985 on the assessment of the effects of certain public and private projects on the environment as amended by Council Directive 97/11/EC of 3rd March, 1997. Further, even if the first two questions are answered in the negative, whether certain directions issued by the Minister for the Environment pursuant to the section are null and void having regard to the requirements of the Directives in relation to environmental impact assessment. The Supreme Court was delivering its judgement on an appeal against the High Court's rejection in September 2004 of a challenge by Dominic Dunne, both to section 8 and to the ministerial directions. That judgment rejected Mr Dunne’s bid to stop construction of the motorway over the ruins of the castle because it was unconstitutional and against EU directives. In its substantive judgment on the merits in this case the Court unanimously upheld the judgment of the High Court Judge and dismissed the appeal, recognizing the constitutionality of new laws affecting the preservation of the Carrickmines Castle site. While noting that the new removes a bundle of protections" from national monuments, the five-judge court found the Oireachtas is not prohibited under the Constitution of Ireland from enacting such laws. The Court found that in issuing directions, the Minister for the Environment, Heritage and Local Government was entitled to balance the benefits of archaeological preservation against the wider public interest that would accrue as a result of the road development. Section 8 effectively provided that the works affecting the Carrickmines Castle site were to be carried out on the Minister's directions. Provided the Minister exercised his discretion under section 8 in a constitutional manner, he could give such directions as he thought fit, the Court found. This effectively meant that the road works at Carrickmines Castle were no longer to be regulated under the National Monuments Acts, the court said, although the castle was accepted as being a national monument and the works would mean a large part of a moat discovered at the site would cease to exist. Under section 8, Dún Laoghaire-Rathdown County Council, as landowner, did not need consent from any statutory body for undertaking the works and Oireachtas approval was not necessary. There was also no requirement to obtain a licence under the 1930 National Monuments Act and An Bord Pleanála was precluded from considering whether proposed works were likely to have a significant effect on the environment and from directing an environmental impact statement. There was "only the requirement that the works be carried out on the directions of the minister", the court said. It rejected claims that those directions breached provisions of European Commission environmental directives and were therefore null and void.