High Court of Ireland Decisions

 
THE HIGH COURT

HC 304/04

2004 No. 18593 P

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

Judgment of Miss Justice Laffoy delivered on 7^th September, 2004.

Background

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.

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^th October, 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.

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.

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 date of €12.7 million on archaeology in connection with the South Eastern Route.

The plaintiff in these proceedings was one of the co-plaintiffs in the first action in relation to Carrickmines Castle, which is reported as Dunne v. Dun Laoghaire-Rathdown County Council [2003] 1 IR 567. For the sake of clarity I will refer to these proceedings as "Dunne No.1". That was a plenary action which was initiated on 5^th February, 2003, more or less contemporaneously with the completion of the archaeological investigations which had been ongoing for two and a half years. On the date the proceedings were initiated the plaintiffs brought a motion seeking an interlocutory injunction to prevent the Council from demolishing, removing, altering or in any manner injuring or interfering with the national monument at Carrickmines Castle or from excavating, digging or otherwise disturbing the ground around or in the proximity of the national monument. The relief was refused at first instance. On appeal to the Supreme Court an interlocutory injunction was granted in the terms sought with the addition of the words "without a valid consent under s. 14 of the National Monuments Act, 1930, as amended". That addition encapsulates the sole basis on which the interlocutory relief was granted. The Supreme Court held that there was a fair and bona fide question to be determined as to whether the absence of a consent by the Minister under s. 14 of the National Monument Act 1930 (the Act of 1930), as amended, precluded the activities the subject of the injunction notwithstanding that the Minister had previously granted a licence pursuant to s. 26 of the Act of 1930 for excavation of another part of the site.

Dunne No. 1 never went to plenary hearing. The response of the Council and the State was to put a consent in place. Section 14(2) of the Act of 1930, as originally enacted, provided that in the case of a national monument of which a local authority was the owner, the joint consent in writing of the Commissioners of Public Works and such local authority was necessary to render lawful activities of the type restrained by the interlocutory injunction. Section 14 was amended by s. 15 of the National Monuments Act, 1994 (the Act of 1994) which prohibited the giving of a consent under s. 14(2) "unless it is in the interest of archaeology to do so or the Minister has approved of the giving of that consent . . .". At the time the amendment was enacted the relevant minister was the Minister for Arts, Culture and the Gaeltacht. By 2003 two changes had occurred. First, in 1996, by a Government order purported to be made under the Ministers and Secretaries Act, 1924, the functions vested in the Commissioners for Public Works under the Act of 1930 and the Act of 1994 were transferred to the Minister for Arts, Culture and the Gaeltacht. Secondly, in 2002 by a Government order purported to be made under the Ministers and Secretaries (Amendment) Act, 1939 the functions previously vested in the Minister for Arts, Culture and the Gaeltacht under the Act of 1930 and the Act of 1934, and which were then vested in the Minister for Community, Rural and Gaeltacht Affairs, were transferred to the Minister. On 3^rd July, 2003 a joint consent was given by the Council and the Minister to the carrying out of the works which had been restrained by the interlocutory injunction. On the same day the Minister made the National Monuments (Approval of Joint Consent) Order, 2003 approving the works in question. That order required to be laid before both Houses of the Oireachtas and 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 did not become effective until 2^nd December, 2003. On 8^th December, 2003 the interlocutory injunction which had been granted by the Supreme Court in Dunne No. 1 was discharged and the Council proceeded to implement the approval given by the Minister.

This provoked the second proceedings, which are reported as Mulcreevy v. Minister for Environment, Heritage and Local Government and Dun Laoghaire-Rathdown County Council [2004] 1 ILRM 419. In those proceedings, the applicant sought various reliefs by way of judicial review, including an order of certiorari quashing the Minister's approval order of 3^rd July, 2003 and injunctive relief restraining certain activities at Carrickmines Castle. The application for leave to seek the reliefs in issue by way of judicial review was on notice to the respondents. Leave was refused at first instance. On appeal to the Supreme Court the applicant was given leave to apply by way of judicial review for an order of certiorari quashing the Minister's approval order on the ground that the order of 1996 was ultra vires in that it purported to effect an amendment of the statutory scheme established under s. 15 of the Act of 1994 – in that it purported to substitute for the statutory regime requiring the consent of three distinct and independent statutory bodies provided for in the Act of 1994 a regime requiring the consent of only two such bodies.

Subsequently, the substantive application in the judicial review proceedings was heard in this court by Kearns J. While the order of Kearns J. had not been put before the court, I understand that its effect was to quash the Minister's approval order.

There is one further procedure in the background to these proceedings to which it is necessary to advert in order to give a complete picture. In line with the stance adopted by the Council and the State in the previous proceedings, the position of the defendants in these proceedings is that the strategy for the archaeological resolution of Carrickmines Castle as set out in the 1997 EIS envisaged the preservation by record of any archaeological features discovered on the line of the motorway and associated local roads, which I understand to mean full excavation and recording. It envisaged that areas not within the area of construction would be preserved in situ, although the evidence before the court indicates that preservation in situ may involve preservation under the roadworks when completed. In September, 2002 the Minister for Transport directed the modification to the design of a roundabout adjacent to a number of stone structures on the Carrickmines Castle site which were uncovered in the course of the archaeological works. In these proceedings evidence adduced by the Minister indicate that the purpose of the modifications was to allow the preservation in situ of these structures and of a feature which was highlighted in the earlier proceedings, a revetted fosse, where it runs under the roundabout. The modifications were the subject of an application for a direction by Stephen Deveney to An Bord Pleanála (the Board) under s. 50(1)(b) of the Act of 1993. Section 50(1)(b) provides:

"Where the Minister considers that any proposed road development (other than development to which paragraph (a) applies) consisting of the construction of a proposed public road or the improvement of an existing public road would be likely to have significant effects on the environment, he shall direct the road authority to prepare an environmental impact statement in respect of such proposed road development and the authority shall comply with such direction."

The functions of the Minister under s. 50(1)(b) were vested in the Board by
s. 215 of the Planning and Development Act, 2000. On 21^st March, 2003 the Board decided not to direct the preparation of an environmental impact statement in respect of the proposed modifications to the approved road development. The reasons ascribed for the decision were that the modifications proposed –

(i) do not significantly alter the proposed road development from that previously approved and that the development remains in essence the same as that for which approval has previously be obtained, and

(ii) would not of themselves have significant adverse effects on the environment and, accordingly, do not comprise a project specified at para. 13 of Annexe II of Directive 85/337/EEC, as amended by 97/11/EC.

National Monuments (Amendment) Act, 2004

The National Monuments (Amendment) Act, 2004 (the Act of 2004) came into force on 18^th July, 2004. It amends the Act of 1930 by substituting a new provision, set out in s. 5, for s. 14. It introduces a special provision in relation to the South Eastern Route, s. 8, which provides as follows:

"(1) The consent of the Minister under section 14 and any further

consent or licence under any other provision of the National Monuments Acts, 1930 to 2004 shall not be required in relation to the carrying out of any works affecting any national monument in connection with the completion of the South Eastern Route (as described in the Third Schedule of the Roads Act, 1993 (declaration of National Roads) Order 1994 (S.I. No. 209 of 1994) by Dun Laoghaire-Rathdown County Council but any such works shall be carried out on the directions of the Minister.

(2) In considering to issue directions under subsection (1) of this

section –

(a) the Minister is not restricted to archaeological

considerations but he is entitled to consider the public interest notwithstanding that such exercise may involve –

(i) injury to or interference with a national monument,

or

(ii) the destruction in whole or in part of a national monument,

(b) the Minister may have regard to the following to the extent that they appear to the Minister to be relevant in exercising discretion to issue directions in respect of a national monument:

(i) the preservation, protection or maintenance of the archaeological, historical or other cultural heritage or amenities of, or associated with the national monument,

(ii) the nature and extent of any injury or interference with the national monument,

(iii) any social or economic benefit that would accrue to the State or region or immediate area in which the national monument is situated as a result of the carrying out of the road development,

(iv) any matter of policy of the Government, of the Minister or of any other Minister of the Government,

(v) the need to collect or disseminate information on national monuments or in respect of heritage generally,

(vi) the cost implications (if any) that would, in the Minister's opinion, occur from the issuing of a direction, or not issuing a direction, under subsection (1) of this section.

(3) Where an archaeological object is found as a consequence of work undertaken by Dun Laoghaire-Rathdown County Council relating

to work on the South Eastern Route, then section 8 of the National Monuments (Amendment) Act, 1994 shall not apply to the land or any premises under which or in the vicinity of which the archaeological object has been found.

(4) Section 50(1)(b) of the Roads Act, 1993 shall not apply in respect of the South Eastern Route."

Section 9 of the Act of 2004 provides that the National Monuments Acts, 1990 to 1994 and the Act of 2004 shall be construed together as one Act. Section 3 of the Act of 2004 introduces a new definition of "Minister" for the purposes of the National Monuments Acts. The first named defendant is the relevant minister for the purposes of s. 8.

Events post the coming into operation of the Act of 2004

On 21^st July, 2004 the Council applied to the Minister for directions under s. 8. The application set out the works which the Council, subject to the terms and conditions of any direction which the Minister might issue, proposed to carry out to the site of Carrickmines Castle. It was stated that the works in question are in respect of "outstanding archaeological resolution measures at the site". Subsequently, by letter dated 12^th August, 2004, the chief archaeologist in the National Monument Section of the Minister's department agreed method statements submitted by the Council. On 5^th August, 2004 the Council was informed that the Minister had issued directions "in respect of the remaining works as they affect any national monument" and the directions were set out in an appendix attached to the letter. In the appendix the directions were described as being for archaeological resolution of Carrickmines Castle site. The position of the State and the Council in these proceedings is that the directions relate solely to the archaeological mitigation of the site. They do not contain or involve any alteration, material or otherwise, to the road development approved under the Act of 1993. Works recommenced at Carrickmines Castle on 16^th August, 2004. The position of the defendants is that the works in question are archaeological works and they were being carried out in accordance with method statements submitted by the Council and their archaeological consultants and approved by the National Monuments Section of the Minister's department. Some method statements remain to be submitted by the Council.

These Proceedings

In these proceedings which were commenced on 18^th August, 2004 the plaintiff seeks the following reliefs:

(1) A declaration that s. 8 of the Act of 2004 is invalid having regard to the provisions of the Constitution and, in particular, Articles 5, 10, 15 and 40 thereof.

(2) A declaration that s. 8 of the Act of 2004 is invalid and of no legal effect having regard to the provisions of European law and, in particular, the provisions of Directives 85/337/EEC, 97/11/EC, 2001/42/EC and/or 2003/35/EC, as amended. At the hearing it became clear that the plaintiff is only relying on the 1985 Directive and the 1997 Directive, which will be collectively referred to as "the Directive".

(2)(A) In the alternative, a declaration that the directions of the Minister pursuant to s. 8 of the Act of 2004 are a nullity and of no effect and invalid by reason of the failure of the Minister to comply and/or to have regard to the requirements of the Directive in relation to environmental impact assessments.

(3) An injunction restraining the Council from demolishing, removing (in whole or in part), disfiguring, defacing, altering, injuring or interfering with a national monument, the property of the Council, being the remains of Carrickmines Castle.

On the same day, 18^th August, 2004, the plaintiff issued a motion seeking an interlocutory injunction. By consent of the parties, it was ordered that the plenary hearing of the matter should commence on 26^th August, 2005.

The Council has given an undertaking to the Court in the terms of the interlocutory injunction sought by the plaintiff pending this judgment.

Analysis of the relevant statutory provisions

Awareness of the importance of ancient monuments and historic sites and the desirability of preserving them for posterity is not a phenomenon of the 20^th and 21st centuries. The earliest legislative provisions which protected ancient monuments in Ireland were contained the Ancient Monuments Protection Act, 1882. That Act enabled the appointment of the Commissioners of Public Works in Ireland as guardians of monuments to which the Act applied, with a duty to maintain the monument. It also empowered the Commissioners to purchase monuments and accept gifts or bequests of monuments. It provided a criminal sanction for injuring or defacing a monument. The monuments to which the Act applied were those listed in a Schedule to the Act "and any other monuments of a like character". Among the ancient monuments in Ireland listed in the Schedule were Grianan Aileach, Staigue Fort, and Newgrange. Monuments which featured in litigation in the last three decades also featured: the earthworks on the Hill of Tara, the graves at Carrowmore and Knocknarea. By an amendment in 1892 the powers of the Commissioners under the Act of 1882 were extended to "any ancient or mediaeval structure, erection or monument, or any remains thereof" where the Commissioners were of opinion that preservation thereof was a matter of public interest by reason of the historic, traditional, or artistic interest attaching to it. There was a further amendment in 1910 which further extended the powers of the Commissioners.

The Act of 1930 repealed the Act of 1882 and the amending Acts. In its long title it was described as:

"An Act to make provision for the protection and preservation of national monuments and the preservation of archaeological objects in Soarstát Éireann and to make provision for other matters connected with the matters aforesaid."

It defined the word "monument" and the expression "national monument". When Dunne No. 1 was before the Supreme Court, although conceding that an arguable case had been made out for the proposition that Carrickmines Castle constituted a national monument, the Council denied that it was (see judgment of Hardiman J. at p. 572). When Mulcreevy was before the Supreme Court it was not in dispute that Carrickmines Castle is a national monument (see judgment of Keane C.J. at p. 419). In these proceedings it is accepted by the Council that certain remains of Carrickmines Castle constitute a national monument. The Minister admits that certain of the remains of the fortification structures come within the definition of national monument. In any event, the whole raison d'etre of s. 8 and the Minister's directions thereunder is that the works to which they relate are works to a national monument.

In the context of these proceedings the most important provision of the Act of 1930 is s. 14. In outlining the background to these proceedings earlier, I have touched on the provisions of s. 14, as amended by s. 15 of the Act of 1994. The provisions as originally enacted, and the amendments wrought by the Act of 1994 were considered by Keane C.J. in Mulcreevy at pp. 430-432. For present purposes, suffice it to say that the amendment enacted in 1994 more rigorously controlled the granting of consent to the demolition, removal, disfigurement, defacement, alteration or any manner of injury to or interference with a national monument in the ownership or guardianship of the Commissioners of Public Works or a local authority or which was the subject of a preservation order. The breadth of discretion which had hitherto reposed in the statutory bodies in relation to the grant of consent was greatly curtailed and, where the activity proposed was not in the interests of archaeology or, in the opinion of the relevant Minister, expedient in the interests of public health or safety, the tacit approval of the Oireachtas was necessary. I use the expression "tacit approval" as shorthand for the requirement of laying a ministerial approval consent before both Houses of the Oireachtas while conscious of the fact that such a requirement was described as "something of a blunt instrument" by Keane J., in the Laurentiu case referred to later.

The structure of s. 14 as now contained in s. 5 of the Act of 2004 in broad outline is that s. 14 re-enacts the existing s. 14 with amendments, s. 14A introduces supplementary provisions in relation to road development, s. 14B augments s. 14A in dealing with directions which the Minister may make under s. 14A, and s. 14C deals with grant of consent in the interest of public health and safety.

Section 14 regulates activities in relation to national monuments of the type which were protected by the original s. 14: national monuments in the ownership or guardianship of the State or a local authority or which are subject to a preservation order. Broadly speaking the activities regulated are the activities regulated by s. 14 as originally enacted: demolition and so forth and injury or interference with the monument in any manner; excavation, digging and so forth; sale for exportation or exportation; and an additional category of activity, renovation and restoration, which was first introduced in 1987. Any of the foregoing activities are unlawful without a consent under sub-s. (2). Under sub-s. (2), the Minister is given a discretion to consent to the doing of any of the activities referred to in sub-s. (1). However, he is obliged to consult with the Director of the National Museum before granting consent. The consent may be subject to conditions and restrictions. The exercise of the discretion to grant consent is of the same amplitude as the consideration of the issuing of directions under s. 8(2)(a), which I have quoted earlier. Moreover, the Minister may have regard to the factors listed in s. 8(2)(b) to the extent that they appear to him to be relevant, subject to one variation: he may have regard to any environmental, cultural and recreational benefit that would accrue, in addition to any social or economic benefit as referred to in s. 8(2)(b)(iii). Subsection (5) of s. 14 renders it a criminal offence to contravene sub-s. (1), which is triable summarily or on indictment.

Section 14A would appear to reflect the experience of the State and local authority in relation to the South Eastern Route. The combined effect of sub-ss. (1) and (2) in relation to an approved road development is similar to the effect of s. 8(1) in relation to the South Eastern Route: consent under s. 14, any further consent or licence under the National Monuments Act is not necessary, but any works of an archaeological nature that are carried out must be carried out in accordance with the directions of the Minister. However, s. 14(2) contains a safeguard which is not found in s. 8(1): the Minister is obliged to consult with the Director of the National Museum before issuing directions. Sub-section (4) deals with the situation where a national monument is discovered in the course of the carrying out of an approved road development where neither approval under s. 51 of the Act of 1993 nor the environmental impact statement to which the approval relates deals with the national monument. In such case, there is a duty on the road authority to report the discovery to the Minister and to desist from works which would interfere with the monument except such as are urgently required to secure its preservation in accordance with such measures as may be specified by the Minister. The substantive provisions in relation to a discovery to which sub-s. (4) applies are contained in sub-ss. (4), (5), (6) and (7) of s. 14A and in s. 14B. Neither a consent under s. 14 nor any consent nor any licence under the National Monuments Acts (with one exception) is required. The Minister may, at his discretion, issue directions to the road authority concerning certain activities in relation to the monument – preservation, renovation or restoration, excavation and such like, recording it, and demolition, removal, alteration and any manner of injury or interference with it. There are a number of safeguards, however. The exercise of the discretion is subject to similar provisions as those set out in s. 8(2) in relation to the consideration of the issuing of directions under s. 8.

The exceptions and safeguards embodied in ss. 14A and 14B in relation to discovered monuments are as follows:

(1) A road authority is not absolved from obtaining a licence under s. 25 of the Act of 1930 as amended, which, in broad terms, is a licence to alter an archaeological object.

(2) The Minister is obliged to consult with the Director of the National Museum before issuing directions.

(3) Where the Minister has issued directions, he is obliged to inform the Board of those directions and of any change in the approved road development necessitated by the directions. The Board is required to determine, as soon as practicable, whether in consequence of the directions there is a material alteration to the approved road development. There appears to be a slight drafting infirmity in s. 14B(2). However, for present purposes, if the Board determines that no material alteration arises to the approved road development, it is obliged to so advise the road authority. Alternatively, if it determines that a material alteration arises, it is then obliged to further determine

(4) whether or not to modify the approval for the purposes of permitting any changes to the route or the design of the approved road development, and

(5) whether or not the material alteration is likely to have significant adverse effects on the environment.

Where it makes the determination that a material alteration is not likely to have significant effects on the environment, it is obliged to give its approval subject to any modifications and additions determined in accordance with (a). Where it makes the determination that a material alteration is likely to have significant adverse effects on the environment, then it is obliged to require the preparation of an environmental impact statement. The remainder of s. 14B contains provisions which govern the environmental assessment of the consequences of the directions and culminates either in –

(i) confirmation of the approved road development as affected by the directions, or

(ii) approval, with or without modifications, of a change to the approved road development, or

(iii) the refusal to confirm the approved road development as affected by the Minister's directions (sub-s. (8)).

In the event of a refusal to confirm, the road authority is not obliged to comply with the directions.

Section 8 of the Act of 1994, which is referred to in s. 8(3) of the Act of 2004, provides that where the finding of an archaeological object has been reported to the Director of the National Museum he, or a designated person on his behalf, may inspect the locus of the find and do all things as may be reasonably necessary for performing his functions under the National Monuments Acts, including excavation where he considers that an archaeological object, or the site thereof, is in immediate danger of destruction or decay.

Effect of Section 8

On its proper construction, in my view, the effect of s. 8 is that, insofar as any works necessary in connection with the completion of the South Eastern Route impact on Carrickmines Castle, such works are totally free from regulation under the National Monuments Acts other than the provisions of sub-ss. (1) and (2) of s. 8. The only regulation which may be imposed under sub-ss. (1) and (2) is that any such works must be carried out on the directions of the Minister.

It was submitted on behalf of the Minister that he has a discretion as to whether he makes directions under s. 8 or not, a construction with which counsel for the plaintiff agreed. On this construction, it was submitted on behalf of the Minister, that if the Minister chose not to make directions, or, alternatively, if the directions which he made on 5^th August, 2004 were found to be invalid, the Council would have a carte blanche as to how it would carry out such works. I do not accept that proposition. It is expressly mandated in sub-s. (1) that such works "shall be carried out on the directions of the Minister." It is implicit in subs. (1) that the Minister must give directions. Absent directions of the Minister, in my view, there would be a lacuna which would prevent the completion of the South Eastern Route. Accordingly, in the event that the directions which were made on 5^th August, 2004 being invalid, the Minister would be constrained to make valid directions. That the Minister was not intended to have a discretion under s. 8(1) as to whether to issue or not to issue directions, in my view, is borne out by the terms in which subs. (2) introduces the scope of his obligation – "in considering to issue directions…". Neither the reference to the exercise of his "discretion" in s. 8 (2) (b) nor the reference to the cost implications of not issuing a direction in sub-para (vi) of para (b) that subsection bears out the contention of all the parties that the Minister is not obliged to issue directions. In my view, those references relate to the contents of the directions. Even if I am wrong in interpreting s. 8 (1) as imposing an obligation on the Minister, that does not affect any of the conclusions which I reach later in this judgment.

Although the Minister must issue valid directions if such are necessary for the completion of the South Eastern Route, which clearly is the case, his consideration as to the content of the directions is untrammelled by archaeological considerations even to the extent that he may direct the destruction in whole or in part of the national monument at Carrickmines Castle, taking account of the public interest.

As a matter of construction, no part of s. 14, as now contained in s. 5 of the Act of 2004, governs the completion of the road development the subject of s. 8. Failure by the Council to comply with directions given under s. 8(1) would not constitute an offence under s. 14(5). Counsel for the Minister explained the rationale underlying the absence of a criminal sanction in s. 8 by submitting that the Council, being a creature of statute, may not do what it is not statutorily empowered to do.

By comparison to the situation which prevailed under s. 14, as originally enacted and amended by the Act of 1994, and given that the order of 1996 struck down in the Mulcreevy case was ultra vires, from the perspective of the preservation and protection of a national monument, the completion of the road development works in connection with the South Eastern Route under s. 8 is virtually uncontrolled in that -

(a) the Council, the landowner, does not need the consent of any distinct and independent statutory body to the carrying out of the works, nor is the approval of a third independent statutory body necessary, nor is the tacit approval of both Houses of the Oireachtas necessary,

(b) there is no requirement to obtain a licence under s. 25 or s. 26 of the Act of 1930 which might otherwise be necessary,

(c) the statutory measure to safeguard the locus of an archaeological find provided for in s. 8 of the Act of 1994 is dissapplied, and

(d) disapplication of s. 50 (1) (b) of the Act of 1993 precludes the Board from considering whether the completion of the development works would be likely to have a significant effect on the environment and of considering whether to direct an environmental impact statement.

Of course, as against the foregoing deregulation, and, in particular, the lack of requirement for the tacit approval of both Houses of the Oireachtas, the Oireachtas has expressly sanctioned the regulation of the national monument aspects of the completion of the South Eastern Route by the Minister solely.

Further by comparison to the manner in which national monument considerations in connection with future road development will be regulated in accordance with s. 14(A) and (B), the completion of the South Eastern Route in accordance with s. 8 is virtually bereft of independent safeguards, in that neither the Director of the National Museum nor the Board has or will have, any function, although, as regards the Board, this comment must be qualified by a recognition (without, of course, making any finding) of the improbability of the scenario such as provided for in s. 14(A)(4) (the discovery of a national monument which has not been dealt with in the 1997 EIS) arising in relation to the South Eastern Route given the degree of archaeological investigation which has taken place at Carrickmines Castle and in the development area in general to date. Further, national or local environmental, cultural or recreational consideration need not play any part in the Minister's deliberations under s. 8.

On its face, when considered in the context of the entire National Monuments Acts code and, in particular the provisions of the Act of 2004, in my view, the meaning and effect of s. 8 is absolutely clear. The history of the South Eastern Route, which is partially recounted earlier, leaves one in no doubt as to the policy by which the enactment of s. 8 was driven. It was to ensure the completion of the South Eastern Route without any input in relation to national monument protection implications from any party external to the Minister and his advisors and the Council and its advisors. Prima facie, the Oireachtas has given statutory force to that policy in s. 8. What this case is about is whether that was permissible having regard to the Constitution and European Union law. The answer turns primarily on legal issues.

The evidence

No oral evidence was adduced at the hearing of the action. As I understand the position, the question of evidence was not addressed on 19^th August, 2004 when, by agreement of the parties, the matter was listed before full plenary hearing one week later, although a time frame was imposed on the parties in relation to pleading and suchlike.

At the hearing, the following affidavits were open to the court by consent of the parties:

(a) On behalf of the plaintiff, an affidavit of the plaintiff, an affidavit of John D. Prynce, who observed the works being carried on at Carrickmines Castle on 16^th August, 2004 and three affidavits of Dr. Mark Clinton, an archaeologist, who was a site director for Phase 1 of the archaeological investigations at Carrickmines Castle;

(b) On behalf of the Minister and other State defendants, an affidavit of Kevin Cullen, Principal Officer in the National Monuments section of the Minster's department, which dealt with, inter alia, the factual background; and

(c) On behalf of the Council, affidavits of Rory O'Sullivan and Michael Noonan, engineers involved in the road development works and two affidavits of Gary Conboy, an archaeologist, who is now the Site Director at the Carrickmines site on behalf of Valerie J. Keeley Limited, who are the archaeological consultants to the Council.

The court was referred to order 39, rule 1 of the Rules of the Superior Courts, 1986 which provides as follows:

"In the absence of any agreement in writing between the solicitors of all parties, and subject to these rules, the witnesses at the trial of any action…shall be examined viva voce and in open court, but the court may, at any time for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court may think reasonable…."

All of the parties were agreed that the matter should be heard on affidavit evidence. While conflicts of evidence were disclosed on the affidavits, because of the course adopted by the defendants in their pleadings, the issues of fact which arise for determination are minimal.

It is appropriate to record that there was a conflict between the archaeological experts, Dr. Clinton and Mr. Conboy, as to the best way forward from an archaeological point of view. What constitutes best archaeological practice in relation to the management of the Carrickmines Castle site having regard to the current state of knowledge as to its significance is not a matter for determination by the court.

Although the matter proceeded on affidavit, counsel for the plaintiff laid particular emphasis on the third affidavit of Dr. Clinton sworn on 27^th August, 2004, the second day of the hearing, to which I will return later. Counsel for the plaintiff proffered Dr. Clinton for cross-examination on that and his other affidavits. The defendants did not avail of the opportunity to cross examine Dr. Clinton or seek to respond, by affidavit or otherwise to the facts deposed to in the affidavit of 27^th August, 2004.

E.U. Law Challenge

In outline the contention of the plaintiff is that s. 8 is incompatible with European Union Law in failing to require the Minister to consider whether an environmental impact assessment is necessary in accordance with the provisions of the Directive and to carry out such an assessment in accordance with those provisions before issuing directions. In the alternative, the plaintiff contends that the directions given on 5^th August, 2004 and the method statement agreed on 12^th August, 2004 are invalid by reason of the failure of the Minister to comply with the provisions of the Directive.

The provisions of the Directive which are of particular relevance in the context of the issues which arise in these proceedings are as follows:

Article 1(2), which contains definitions.

"Project" is defined as meaning the execution of construction or other installations or schemes and other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources. In the case of a public project "developer" means the public authority which initiates the project. The expression, "development consent" is defined as meaning:

"…the decision of the competent authority or authorities which entitle the developer to proceed with the project".

Article 1(5), which exempts from the Directive-

"…projects, the details of which are adopted by a specific act of national legislation, …"

The rationale for the exemption is set out in Article 1(5) is that the objectives of the Directive, including the supplying of information are achieved through the legislative process.

Article 2(1), which is now contained in Article 1(1) of the 1997 Directive, which provides as follows:

"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4".

Article 3, which is now contained in Article 1(5) of the 1997 Directive, and provides:

"The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:

- human beings, fauna and flora;

- soil, water, air, climate and the landscape;

- material assets and the cultural heritage;

- the interaction between the factors mentioned in the first, second and third indents."

Article 4, which is now contained in Article 1(6) of the 1997 Directive. Article 4(1) makes it mandatory to conduct an environmental impact assessment in the case of the projects listed in Annex I. Motorway construction is included in Annex I. Article 4 (2) provides that for projects listed in Annex II the Member State shall determine through –

(a) a case-by-case examination or

(b) thresholds or criteria set by the Member State

whether the project shall be made subject to an assessment in accordance with Article 5 to 10.

Point 13 in Annex II refers to

"any change or extension of projects listed in Annex I or Annex II, already authorised, executed or in the process of being executed which may have significant adverse effects on the environment".

Article 4 (3) provides that when a case-by-case examination is carried out or thresholds or criteria are set, the relevant selection criteria set out in Annex III shall be taken into account. Annex III under the heading, "Location of Projects" requires that the environmental sensitivity of geographical areas likely to be affected by projects must be considered having regard, in particular, to the factors listed, including, "landscapes of historical, cultural or archaeological significance". Under the heading of "Characteristics of Potential Impact", Annex III requires that the potential effects of projects be considered in relation to the criteria previously set out and having particular regard to, inter alia, the reversibility of the impact.

In the case of motorway and certain road development the provisions of the Directive are transposed into Irish law by ss. 50 and 51 of the Act of 1993. As has been previously stated, since the enactment of the Planning and Development Act, 2000 the decision maker as to whether an environmental impact statement should be prepared is the Board. Prior to that change, an environmental impact assessment was carried out in relation to the South Eastern Route scheme under s. 51, in tandem with the approval of the road scheme under s. 49, the relevant orders being dated 19^th October, 1998 referred to earlier. Those orders cannot now be challenged, nor can the determination of the Board of 21^st March, 2003 referred to earlier. It was submitted on behalf of the Minister that there is implicit in the plaintiff's case a challenge to the adequacy of the environmental impact assessment carried out in 1998. Counsel for the plaintiff resolutely rejected this argument. In my view, no such challenge is implicit in these proceedings.

The plaintiff's challenge to s. 8 and the directions made thereunder is predicated on the following propositions:

(1) That the works referred to in s. 8 (1) – "works affecting any national monument in connection with the completion of the South Eastern Route." - constitute a project within Article 4 (2) in respect of which there is an obligation on the State to adopt the measures prescribed in the Directive. As I understand it, this proposition is founded entirely on point 13 of Annex II.

(2) That the directions made on 5^th August, 2004 constitute a development consent as defined in the Directive.

It seems to me that in analysing the authorities cited by counsel and in applying the relevant principles to the factual situation in relation to Carrickmines Castle, it is not always possible to treat these propositions as being mutually exclusive.

Two of the authorities cited arose from a U.K. statute of 1991 which required owners of old planning permissions in relation to quarries and mining to apply within a stipulated period to the local mineral planning authority (MPA) for registration of the old permission and for determination of conditions to which the planning permission would thereafter be subject, failing which the old permission would cease to have effect.

The decision of the House of Lords in Reg. v. North Yorks. C.C., ex p. Brown [2000] 1 AC 397 concerned a planning permission dating from 1947 in relation to a quarry in Yorkshire which was located near a designated conservation area. The relevant MPA registered the permission under the 1991 statute and, after initiating a consultation process, determined the conditions. The applicants were local landowners who sought, by way of judicial review, a declaration that the determinations were unlawful on account of the failure of the MPA to conduct an environmental impact assessment in accordance with the Directive. The issue before the House of Lords was whether the determination of the conditions was a development consent. Quarrying falls within Annex II of the Directive. Lord Hoffman, having observed that the source of the developer's right to proceed with the project was and remained the planning permission of 1947, even after conditions had been imposed, but that, nonetheless, the developer could not proceed unless the planning authority had determined the appropriate conditions, continued as follows (at page 404):

"So that although the determination does not decide whether the developer may proceed but only the manner in which he may proceed, it is nevertheless a necessary condition for his being entitled to proceed at all.

Is this sufficient to bring it within the European concept of a development consent? I think it is. The purpose of the Directive, as I have said, is to ensure that planning decisions which may affect the environment are made on the basis of full information. In Aannemersbedrijf P.K. Kraaijeveld BV v. Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996] E.C.R. 1-5403, 5444, para. 3 the European Court of Justice said that 'the wording of the Directive indicates that it has a wide scope and a broad purpose.'

A decision as to the conditions under which a quarry may be operated may have a very important effect on the environment …

The position would be different if, upon a proper construction of the United Kingdom legislation, the determination of conditions was merely a subsidiary part of a single planning process in which the main decision likely to affect the environment had already been taken. In such a case, the environmental impact assessment (if any) would have been made at the earlier stage and no further assessment would be required…

The principle in this and similar cases seems to me to be clear: the Directive does not apply to decisions which involve merely the detailed regulation of activities for which the principal consent, raising the substantial environmental issues, has already been given….

It [the principle] seems to me, clear, however, that it can have no application to this [case]. The procedure created by the Act of 1991 was not merely a detailed regulation of a project in respect of which the substantial environmental issues had already been considered. The purpose of the procedure was to give the mineral planning authority a power to assess the likely environmental effects of old mining permissions which had been granted without, to modern ways of thinking, any serious consideration of the environment at all. It is true that the power to deal with these effects was limited to the imposition of conditions rather than complete prohibition. But the procedure was nevertheless a new and freestanding examination of the issues and could therefore, in my opinion, require the information provided by an environmental impact assessment. It was therefore a 'development consent' within the meaning of the Directive."

A similar issue arose in Wells v. Secretary of State for Transport, Local Government and the Regions (Case C- 201/02) in which, on a reference from the English High Court, the European Court of Justice gave judgment on 7^th January, 2004. The factual situation in this case was slightly more complex. It also concerned a 1947 planning permission in relation to a quarry in an environmentally sensitive area. In 1991 the owner of the quarry procured its registration under the Act of 1991 and he followed this with an application to the competent MPA to determine the new planning conditions. By a decision in 1994 the MPA imposed conditions. These were more stringent than had been submitted by the owners of the quarry, who appealed to the Secretary of State. By a decision of 1997 the Secretary of State imposed planning conditions, leaving some matters to be decided by the competent MPA. Those matters were approved of by the competent MPA by a decision of 1999. In its judgment the European Court referred to the decision of the Secretary of State of 1997, together with the decision of the MPA of 1994 as "the decision determining the new conditions" and the subsequent decision of the MPA in 1999 as "the decision approving matters reserved by the new conditions." Neither the MPA nor the Secretary of State had carried out an environmental impact assessment pursuant to the Directive. At no stage was a formal environmental impact statement considered. The issue of the admissibility of the questions as to whether the decisions in question could be classified as a development consent was raised. The Court held that the questions were admissible (para. 38). On the substance of the questions, it stated as follows at paras. 44 to 47 inclusive of its judgment.

"44. In the main proceedings, the owners of Conygar Quarry were obliged under the Planning Compensation Act 1991, if they wished to resume working of the quarry, to have the old mining permission registered and to seek decisions determining new planning conditions and approving matters reserved by those conditions. Had they not done so, the permission would have ceased to have effect.

45. Without new decisions such as those referred to in the previous paragraph, there would no longer have been consent, within the meaning of Article 2 (1) of Directive 85/337, to work the quarry.

46. It would undermine the effectiveness of that directive to regard as mere modification of an existing consent the adoption of decisions which, in circumstances such as those of the main proceedings, replace not only the terms but the very substance of a prior consent, such as the old mining permission.

47. Accordingly, decisions such as the decision determining new conditions and the decision approving matters reserved by the new conditions for the working of Conygar Quarry must be considered to constitute, as a whole, a new consent within the meaning of Article 2 (1) of Directive 85/337, read in conjunction with Article 1 (2) thereof."

The Court recognised that, as the consent procedure comprised several stages, to provide the referring court with a complete answer as regards the obligation created by the Directive, it was necessary to consider the question as to when the assessment must be carried out. The Court answered this question in paragraphs 50 to 52 of its judgment as follows:

"50. As provided in Article 2 (1) of Directive 85/337, the environmental impact assessment must be carried out before consent is given.

51. According to the first recital in the preamble to the directive, the competent authority is to take account of the environmental effects of the project in question at the earliest possible stage in the decision-making process.

52. Accordingly, where national law provides that the consent procedure is to be carried out in several stages, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which the project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure."

Counsel for the State emphasised two features which distinguish the Brown and Wells cases on the facts from this case: both Brown and Wells concerned very old planning permissions, in both cases permissions which were over 40 years old; and there had been no environmental impact assessment of any sort in either case when the permissions were granted. A case based on facts which, in some respects, are akin to circumstances in this case, which was relied on by counsel for the Minister, was R (Prokopp) v. London Underground Limited [2004] 1 P. & C.R. 31 479, a decision of the English Court of Appeal. In that case, the respondent, London Underground Limited had planning permission for the construction of a railway line extension, referred to as "ELLX". It was not in dispute that a proper environmental impact assessment and consultation process in accordance with the Directive had taken place prior to the coming into existence of the planning permission. The respondent commenced construction works in breach of a condition of the permission. The permission lapsed. However, the respondent was unwilling to submit any new planning application because of the probability of delay and the risk of losing funding. The condition which had been breached could fairly be described as creating a "catch 22" type situation. It provided that the development was not to commence until certain lands were landscaped for use as open space; the landscaping could not be carried out until a railway station was closed; but that could not sensibly be done until ELLX was completed. In those circumstances, the relevant Borough Councils entered into an agreement with the respondent, and passed resolutions, not to take enforcement action in respect of the breach of condition. The appellant, Mr. Prokopp was interested in a goods yard, which contained a viaduct which had recently been listed as a building of architectural interest. He sought to have the respondent's decision to demolish part of the yard and the decisions of the Borough Councils to refrain from taking enforcement action quashed by way of judicial review. He argued that the resolutions of the Borough Councils not to take enforcement action amounted to a development consent, which could only been granted after a full environmental impact assessment. The Court of Appeal rejected that argument. In his judgment, (at page. 495), Buxton L.J. said:

"In our case, both in law and in common sense terms, the "project" is the whole of the ELLX. For that reason…the fact that by a rule of domestic law of a particular member state further permission is required in the course of the project though for reasons unconnected with its environmental impact, does not mean that the granting of such permission must be treated as a "development consent". Indeed, quite the reverse. The relevant and only consent in terms of the Directive was the original decision that permitted the project to go forward in the first place.

Further, it is even less likely that not a formal permission in the course of the project, but what we have here, a failure to interrupt the project, is a development consent in terms of the Directive. Both [counsel] pointed to aspects of the wording of the Directive that supported that view. Thus such a failure does not entitle the developer to proceed, but merely leaves him to proceed at his peril. They said that it was difficult or impossible to fit that circumstance into not merely the formal wording but also the scheme of the Directive which requires the consent to be proceeded by a detailed application. No such "application" in the terms envisaged by the Directive was made or would be appropriate, or, indeed, comprehensible where what was sought was an assurance that enforcement action would not be taken."

Counsel for the Minister submitted, by way of general observation, that there is no authority for an interpretation of the Directive which necessitates an extra environmental impact assessment if extra information in relation to environmental issues comes to hand, or for successive assessment in relation to the same project. If the Directive was open to such interpretation, when would there be an end to the requirement for assessment, he asked rhetorically. The requirement of the Directive, it was submitted, is for an environmental impact assessment which is a single process and which precedes the planning or development decision. The purpose of the environmental impact statement is to inform the decision maker. It is not an end in itself. Counsel laid particular emphasis on the following passage from the speech of Lord Hoffman in Berkeley v. Secretary of State for the Environment [2001] 2 AC 603 at page 617:

"A point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language."

Counsel for the Minister also pointed to the decision of the Board on Mr. Devaney's application as being instructive.

It seems to me that in determining whether the plaintiff has established that the measures provided for in s. 8 fail to give effect to the requirements of, and are compatible with, the Directive, the two key questions are the following:

(1) Has the plaintiff established that the approved road development has been altered or extended in a manner which may have adverse effects on the environment?

(2) Has the plaintiff established that it is the directions issued by the Minister pursuant to s. 8 that now entitle the Council to proceed with an approved road development.

On the first question, it is the change in the body of knowledge in existence as to the historical and archaeological significance of the Carrickmines Castle site between 1997 and 1998, when the 1997 EIS was prepared and the order was made under s. 51 of the Act of 1993, and August 2004, when the Minister made the directions, which the plaintiff contends brings the matter within the ambit of point 13 of Annex II. The Minister has, in effect, admitted that such a change has occurred in his defence in that he has pleaded as follows:

"The extensive excavations have uncovered a series of outer defence ditches or fosses into which the local river may have been diverted so as to create water filled moates and a section of medieval wall and other medieval structures. The substructure of various buildings were also revealed including what may potentially be the remains of the castle chapel, workshops, kilns, wells and store rooms. A large volume of pottery pieces, coins, worked flints and leather footwear were also discovered, as well as human remains. The extensive excavations have not unearthed the foundations of the castle proper, nor any associated internal areas of habitation."

The Minister makes the point that the excavation was prescribed as part of the mitigation measures under the environmental impact assessment process. Counsel for the Minister suggested that there is a certain irony in this.

In Dr. Clinton's uncontroverted affidavit of 27^th August, 2004 it is averred that what was known by the Minister on 5^th August, 2004 was, in archaeological terms, radically different from the state of knowledge reflected in the 1997 environmental impact statement, as approved by his predecessor on 19^th October, 1998. I find as a fact that there has been a radical change. In particular, the extent of the revetted fosse was not known. It is not in dispute, that in consequence of the works, a large part of that fosse would seek to exist.

However, I believe that there is a fault line running through the plaintiff's contention that there is a necessity for a further environmental impact assessment because of this change in that it seems to me that two concepts are conflated: archaeological assessment and the assessment of the environmental effects generally. It is clear that what the Directive envisages is that the environmental impact statement should be based on current knowledge at the time of its preparation. The fact that, as happened here, in consequence of the steps taken on foot of the environmental impact assessment there is a considerable accretion to that knowledge, does not, of itself, change the project.

The project is the road development. Section 8 does not empower the Minister to change the project, and, as a matter of fact, the directions have not changed the project. Accordingly, the answer to the first question is negative.

In relation to the second question, it is the orders of 19^th October, 1998 which entitle the Council to proceed with the project, which is the road development, not anything contained in or done pursuant to s. 8. It was submitted on behalf of the Minister that the constraints imposed by the National Monuments code, including s. 8, are an extra layer of regulation separate and distinct from the regulatory regime to which planning and development decisions give effect. In the context of the application of the Directive, in my view, that submission is correct, even if, in the case of s.8, it is less rigorous than the layer of regulation provided for in s. 14A. I think that this becomes obvious if one considers what would have been the position if, say, early in 2003 the provisions of s. 14 of the Act of 1930, as amended, had been properly complied with, but on the basis that the relevant functions were exercisable without regard to the changes purported to be effected by the order of 1996. If the necessary consent and approval of the consent, including the tacit approval of both Houses of the Oireachtas, had been properly put in place, in my view, it could not be seriously contended that it was compliance with the requirement of s. 14 which enabled the road development to proceed. The fact that a multiplicity of functions under various enactments are reposed in the same member of the Executive, the Minister, may give rise to an incorrect perception as to the source of the authority to complete the South Eastern Route. If that is the case, the following passage from the judgment of Hardiman J. in Dunne No. 1 should dispel the perception:

"No doubt, it is a somewhat odd position that a Minister with an interest in the road building programme is the person who requires to give consent under the National Monuments Act, even in relation to a monument whose removal or alteration, in whole or in part, is proposed for road building purposes. However, the Court must presume that the Minister would correctly direct himself, if asked for a consent under s. 14, that he was then discharging a freestanding statutory function to which many of the considerations which properly influenced him in other capacities were irrelevant or improper to consider."

On the basis of the foregoing answers to what I consider to be the two key questions, I conclude that the works regulated in accordance with s. 8 do not fall within the ambit of point 13 of Annex II and that the directions which have been issued by the Minister under s. 8 do not constitute a development consent and, accordingly, that the implementation of the directions will not contravene the Directive.

In the light of the conclusions I have reached in relation to the applicability of the Directive to the procedure provided for in s. 8, it is unnecessary to consider the alterative argument advanced on behalf of the Minister that the Directive does not apply to the works the subject of s. 8 by virtue of Article 1 (5) because the environmental impact of those works has been considered as part of the legislative process in the Dáil and Seanad. I would merely comment that this argument is advanced on the basis that the works do constitute a project, which is totally at variance the primary submission made on behalf of the Minister.

Finally, it is not necessary to consider what the appropriate remedy would be if s. 8 was found to be in conflict with the Directive.

Application for reference

At the hearing, counsel for the plaintiff requested the court to refer the question whether the giving of directions by the Minister pursuant to s. 8 is a development consent for the purposes of the Directive to the European Court of Justice under Article 234 E.C. for a preliminary ruling. At the end of the hearing, draft questions were submitted. The formulation of the questions was not debated at all at the hearing and I make no comment on them. It was submitted on behalf of the Minister that this court does not need the assistance of the European Court on any question of interpretation of Community law and that the decision of the European Court in Wells gives sufficient guidance.

In Wells, in concluding that the question whether the decision determining the new conditions and the decision approving matters reserved by the new conditions constituted a development consent within the meaning of Article A 1 (2) of the Directive was admissible, the European Court stated at (para. 37):

"The question whether the decision determining new conditions and the decision approving matters reserved by the new conditions constitute development consent within the meaning of Article 1 (2) of Directive 85/337 is a question concerning the interpretation of Community law. The Court has consistently held that, in light of both the principle that Community law shall be applied uniformly and the principle of equality, the terms of a provision of community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope is normally given throughout the Community an autonomous and uniform interpretation which must take into account the context of the provision and the purpose of the legislation in question…"

As is clear from the portions of the judgment of the Court which dealt with the substantive issue, which I have quoted earlier, it was held that, as a matter of Community law, the new decisions constituted a development consent because they replaced not only the terms but the very substance of the prior consent, the 1947 permission. As a matter of fact the directions made by the Minister neither replace nor alter the approved road development. Whether the consent procedure for projects which fall within the ambit of the Directive is to be carried out in several stages is determined in accordance with national law. As Hardiman J. pointed out in Dunne No. 1, the Minister's function in relation to regulating interference of national monuments is a freestanding function. Directions given under s. 8 are not a stage of the consent procedure for the implementation of the South Eastern Route scheme.

Accordingly, on the basis that the proper interpretation and application of Community law is clear, I do not accede to the application for a reference under Article 234 E.C.

Constitutional challenge in outline

In asserting that s. 8 is invalid having regard to the provisions of the Constitution, the plaintiff advanced two separate and discrete bases of alleged repugnancy:

(1) That in vesting in the Minister the power to make directions, s. 8 is in conflict with Article 15.2;

(2) That s. 8 is in conflict with the duties and rights recognised and protected by the combined effect of Articles 5, 10 and 40.

I propose to deal with each of these distinct challenges separately.

Section 8, being a provision of a post 1937 statute, carries a presumption of constitutionality.

CHALLENGE BY REFERENCE TO ARTICLE 15.2

Article 15.2 provides as follows:

"1° Sole and exclusive power of making laws for the State is hereby invested in the Oireachtas: no other legislative authority has power to make laws for the State.

2° Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures."

The plaintiff's challenge founded on Article 15.2 was directed to the power conferred by s. 8 to the Minister to issue directions in relation to the carrying out of works to which s. 8 relates. That power, it was contended, is an impermissible delegation to the Minister contrary to Article 15 (2) in that –

(a) the Minister is empowered to issue directions which are inconsistent with the principles and policies enshrined in the National Monuments Acts 1930 – 2004, namely that the code thereby created is for the protection, preservation and safeguarding of the historical, architectural, traditional, artistic and archaeological heritage of the State,

(b) paragraph (a) of subs. (2), in not confining the Minister to consideration of archaeological issues but in allowing him to take into account the public interest notwithstanding that the destruction in whole or in part of a national monument may ensue, does not provide any guiding principle or policy by which he is obliged to balance the public interest and the underlying principles and policies of the code,

(c) paragraph (b) of subs. (2) gives the Minister power to act at large and in a manner unrelated to and incompatible and inconsistent with the principles and policies underlying the code, and

(d) the Minister is empowered to act on the basis of a range of criteria, including unspecified policies of the Government or of any other Minister, and no guidance is given as to how the various criteria are to be prioritized or weighed in the balance.

The response of counsel on behalf of the Minister and the other State parties was that the plaintiff's reliance on Article 15.2 was misconceived. The jurisprudence invoked by the plaintiff was concerned with delegated legislation. Section 8 does not give rise to delegated legislation at all. Rather it is concerned with the making of an administrative decision – the giving of directions. In exercising his power under s. 8 the Minister exercises a statutorily conferred discretion. The exercise of that discretion is open to challenge by way of judicial review. A secondary response was that, in any event, the principles and policies governing the making of directions are clearly set out in s. 8: the legislature has provided that the desirability of preservation must yield to the exigencies of the common good, including the public interest in socially or economically beneficial development.

The classical exposition of the permitted parameters of delegated legislation under Article 15.2 is the following passage from the judgment of O'Higgins C.J. in Cityview Press v. An Chomhairle Oiliúna [1980] I.R. 381 (at pp. 398/399):

"The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever-changing situations which confront both the Legislature and the Executive in a modern state. Sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulation or order-making process, provides that any regulation or order which is made should be subject to annulment by either House of Parliament. This maintains a measure of control, if not in Parliament as such, at least in the two Houses. Therefore, it is a safeguard. Nevertheless, the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within permitted limits – if the law is laid down in the statute and the details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power."

Counsel for the Minister laid particular emphasis on the reference in the above quotation to the giving of powers to a designated Minister "to make regulations or orders".

More recently, the test to be applied in determining whether delegated legislation comes within the boundaries stipulated in Article 15.2 was considered by the Supreme Court in two cases in which the constitutionality of s. 5 (1) of the Aliens Act, 1935 was at issue.

In the earlier of the two, Laurentiu v. the Minister for Justice [1999] 4. I.R 26 the provision at issue was paragraph (e) of s. 5 (1). The subsection provided that the relevant Minister might, if and whenever he should think proper, do by order (an aliens order) all or any of the things set out in the succeeding paragraphs in respect either of all aliens or of aliens of a particular nationality or otherwise of a particular class, or of particular aliens. The matter covered by paragraph (e) was to –

"make provision for the exclusion or the deportation and exclusion of such aliens from Saorstát Éireann and provide for and authorise the making by the Minister of orders for that purpose."

It was held by the majority of the Supreme Court, following the Cityview Press decision, that the Oireachtas was the sole body with power to legislate and it was for the Oireachtas to establish the principles and policies of legislation. Administrative, regulatory and technical matters only might be delegated. The principles and policies test was to be applied in accordance with constitutional presumptions as to the interpretation of legislation and that the actions of ministers and officials were presumed to be constitutional. The test to be applied was whether that which was challenged as an unauthorised delegation of parliamentary power, was more than the mere giving effect to principles and policies contained in the statute itself. If so then it was not authorised. A special feature of the power under consideration was that the power to expel or deport aliens inhered in State as a sovereign state and not because it had been conferred on particular organs of the State by statute. The power to deport aliens was of an executive nature as it could be exercised by the executive in the absence of legislation. In setting out her conclusions, Denham J. stated (at page 63) that the legislature had grasped the power over aliens from the executive and then delegated inadequately to the Minister. It had abdicated its power. Earlier (at p. 62) she had stated that principles and policies such as those discussed in the Cityview Press case were not present. Standards, goals, factors and purposes such as those set out in Mistretta v. United States (1989) 488 U.S. 361 were absent.

The provision at issue in the later case, Leontjva v. DPP and Ors., in which judgment was delivered by the Supreme Court on 23^rd June, 2004, was paragraph (h) of s. 5 (1) which empowered the relevant Minister to –

"require such aliens to comply, while in Saorstát Éireann, with particular provisions as to registration, change of abode, travelling, employment, occupation and other like matters."

In his judgment, Keane C.J. distinguished the decision in the Laurentiu case in the following passage:

"In Laurentiu where the constitutional validity of s. 5 (1) (e) was in issue, the majority were of the view that, in delegating to the Minister the exclusive power of making provision for the exclusion or deportation of aliens (including aliens of a particular nationality), the legislature had abdicated its policy making rule in the entire area of exclusion and deportation to the Minister. In my judgment in that case, I emphasised that the provision under attack could not be construed as a formulation of the policy of the State in relation to the exclusion and deportation of aliens, leaving the detailed aspects of the policy to be filled in by subordinate legislation. Since the right to exclude and deport aliens derived from the character of Saorstát Éireann as a sovereign state, it was not vested in the State by virtue of the 1935 Act. It followed that the only policy being implemented by the 1935 Act and the delegated legislation purportedly made thereunder was the regulation of the exercise of that sovereign power by the executive. Conferring the exclusive right so to regulate its exercise on the Minister was not the choice of a particular policy by the legislature: it was the assignment by the executive to the legislature of exclusive responsibility for determining policy in that specific area, including decisions as far reaching as the exclusion from the State of all persons of a particular nationality.

No such considerations, in my view, arise in the case of s. 5 (1) (h). The policy enunciated is plain: the desirability of regulating the registration, change of abode, travelling, employment and occupation of aliens while in the State and the further desirability of regulating 'other like matters'.

The court held that s. 5 (1) (h) was not inconsistent with Article 15.2."

In Casey v. Minister for Arts [2004] 2 ILRM 260 the Supreme Court considered a challenge to the lawfulness of an administrative scheme which regulated access to Skellig Micheál, a national monument in the ownership of the Minister by commercial boat operators. The constitutionality of a statutory provision delegating power was not at issue. The argument was that the administrative scheme failed to meet the test laid down by the Supreme Court in the Cityview Press case. In dealing with this argument, Murray J., as he then was, stated as follows as p. 277:

"The fundamental issue in this case therefore remains whether in introducing a system for the grant of permits of certain boat operators by way of administrative arrangements the respondent was acting intra vires her powers and obligations under the National Monuments Acts, 1930 – 1974. Although there are parallels to be drawn between the criteria which may be applied to ascertain whether an administrative act by a Minister in the carrying out of his or her statutory functions falls properly within the ambit of his/her statutory powers and the exercise of a delegated power to make legislation, such as the principles and policies criteria, the question of whether what the respondent did in this case involved an unconstitutional delegation of power to legislate or the exercise of a delegated legislative function in an unconstitutional manner does not arise. We are not concerned here with the making or the enforcement of a legislative instrument. The preservation and protection of national monuments is quintessentially an administrative matter to be achieved by implementing policy decisions."

In my view, the primary submission made on behalf of the Minister and the other State parties is correct: s. 8 does not confer any power to make law on the Minister. What it does is to confer power on him to do administrative acts – to issue directions for the carrying out of the works to which the section applies. Indeed, on the basis of what I believe to be the correct construction of s. 8, it mandates him to do administrative acts.

It is clear on the face of s. 8 what the policy of the Oireachtas is in relation to the completion of the South Eastern Route. As I have already stated, it is to ensure its completion without any input in relation to national monument implications from any party external to the Minister and his advisors and the Council and its advisors. The manner of implementation of that policy is set out in s. 8. It is that the works affecting the Carrickmines Castle site will be carried out by the Council on the directions of the Minister. The implementation of this policy undoubtedly effects a change in the law. Moreover, it creates special legislative arrangements in relation to a segment of the South Eastern Route. It is undoubtedly within the competence of the Oireachtas under Article 15.1 to make such a law, assuming it does not infringe any other provision of the Constitution.

The policies and principles by reference to which the directions are to be issued are stipulated in s. 8. Paragraph (a) of subs. (2) defines the scope of the directions. Paragraph (b) sets out the criteria which may inform the Minister's decision. While the Minister is given a wide discretion both in terms of the scope of the directions and the criteria to which he may have regard, assuming again that no other provision of the Constitution is infringed, it is within the competence of the Oireachtas under Article 15.2 to make a law giving such a wide discretion. It is presumed, of course, that the discretion will be exercised in a constitutional manner.

If, by reference to the judgment of O'Higgins C.J. in the Cityview Press case, a question is posed as to where and by what authority the law which implements the obvious policy in relation to the completion of the South Eastern Route was made, in my view, there can be only one answer. It was made in Leinster House and signed into law in Áras an Uachtarán and it was made on the authority of the Oireachtas.

Accordingly, I am satisfied that the challenge to s. 8 based on Article 15.2 fails.

Constitutional challenge by reference to articles 5, 10 and 40

Article 5 provides:

"Ireland is a sovereign, independent, democratic state".

Article 40.3.1° provides:

"The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and to vindicate the personal rights of the citizen."

Although the plaintiff has invoked Article 10, it was acknowledged by his counsel that that Article is of debateable relevance in the context of this case.

Counsel for the Minister submitted, not unfairly in my view, that the plaintiff's claim based on Articles 5, 10 and 40 is nebulous and hard to pin down. The plaintiff's own counsel acknowledged, realistically in my view, that it is an ambitious claim and that it sails into uncharted waters.

In support of this basis of constitutional challenge the following argument was advanced on behalf of the plaintiff. There is a duty on the State to preserve and protect the national heritage, including monuments of historic and archaeological interest. However, the duty is not absolute or unqualified. There is a correlative right in the People and in individual citizens to have such monuments preserved and protected. The right of the individual citizen is one of the unenumerated personal rights protected by Article 40.3. It is recognised that such duty and right may come into conflict with other duties and rights imposed and protected by the Constitution. When legislating, the Oireachtas must balance the competing rights. The power of the court to intervene is governed by the following principles:

(1) The principle enunciated by the Supreme Court in Tuohy v. Courtney [1994] 3 I.R. 1 (at page 47) in the context of a challenge to the constitutionality of certain provisions of the Statute of Limitations, 1957 in the following terms:

"The Court is satisfied that in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function [of constitutional rights and duties], the role of the courts is not to impose their view of the correct or desirable balance in substitution with a view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual's constitutional rights."

(2) The principle of proportionality as enunciated by Costello J. in Heaney v. Ireland [1994] 3 I.R. 593 (at p. 607) in the following terms.

"In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society….The object of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:-

(a) be rationally connected to the objective and not arbitrary, unfair or based on irrational considerations;

(b) impair the right as little as possible; and

(c) be such that their effects on rights are proportional to the objective…"

As I understand the plaintiff's argument it is that s. 8 should be struck down under both principles because it is a disproportionate interference on his right as a citizen that the State should protect and preserve the national heritage so far as is reasonably achievable and that it is not an interference which can be adjudged reasonable by applying an objective standard. As I understand it, the specific complaint is that the Oireachtas did not provide in s. 8 for an evaluative process which gives appropriate weight to the protection of the heritage and to the status of Carrickmines Castle and does not incorporate any appropriate safeguards, such as the obligation to consult with the Director of the National Museum.

In response, counsel for the Minister argued that reliance on Articles 5 and 40 does not give the plaintiff standing to challenge the constitutionality of s. 8. The challenge to the constitutionality of s. 8 must be predicated on the plaintiff establishing that he has a constitutionally protected personal right. The plaintiff has not established any constitutionally protected right capable of being invoked. He is inviting the court to stray into the realm of policy which is the sole domain of the legislature under the doctrine of separation powers.

Counsel for the plaintiff submitted that the courts have an honourable record in protecting national monuments. He referred to the decision of the Supreme Court in Tormey v. Commissioners of Public Works, in which judgment was delivered in the Supreme Court on 21^st December, 1972 by Ó Dálaigh C.J., which is now set out as an appendix to the report of Howard v. Commissioners of Public Work at [1993] I.L.R.M. 703. That case concerned a challenge to a compulsory purchase order made under the Act of 1930 in relation to lands forming part of the Hill of Tara. He also referred to the decision of the Supreme Court in Attorney General (McGarry) v. Sligo County Council [1991] 1 I.R. 99 in which the proposed use of a quarry as a refuse dump at the site of the Carrowmore, passage graves was restrained on various grounds, including that it was a breach of s. 14 of the Act of 1930. I do not find either authority to be of any particular relevance to the matters to which the plaintiff is canvassing on this aspect of his claim.

The plaintiff principally relies on a number of authorities which his counsel submitted establish the constitutional context in which the duty and right which he contends for can be identified or, at any rate, be seen to be germinating.

Chronologically, the earliest of the authorities is O'Callaghan v. Commissioners of Public Works [1985] I.L.R.M. 364. In that case the plaintiff was challenging the making of a preservation order under s. 8 of the Act of 1930 in relation to a prehistoric promontory fort in North County Dublin, which was part of a plaintiff's farm, on the ground, inter alia, that s. 8, which included no provision for the payment of compensation for the owners of land containing national monuments, was an unjust attack on the property rights of citizens within the meaning of Article 40.3.2° of the Constitution. He failed both in the High Court and the Supreme Court. The plaintiff referred to the following passage from the judgment of O'Higgins C.J. on the constitutional issue (at p. 367):-

"It cannot be doubted that the common good requires that national monuments which are prized relics of the past should be preserved as part of the history of our people. Clearly, where damage to such monuments is a probable result of unrestricted interference by the owners or other persons, a conflict arises between the exigencies of the common good and the exercise of property rights. This is particularly so where, as in this case, the interference initiated by the owner involves the ploughing and consequent destruction of that which constitutes the monument."

The principal source of the constitutionally protected right for which he contends suggested by the plaintiff is the decision of the Supreme Court in Webb v. Ireland [1988] IR 353, in which the State's entitlement to possession and ownership of the Derrynaflan Hoard was at issue. Expressing the majority view of the Court Finlay C.J. stated as follows (at p. 383):-

"It would, I think, now be universally accepted, certainly by the People of Ireland, and by the people of most modern states, that one of the most important national assets belonging to the people is their heritage and knowledge of its true origins and the buildings and objects which constitute keys to their ancient history. If this be so, then it would appear to me to follow that a necessary ingredient of sovereignty in a modern state and certainly in this State, having regard to the terms of the Constitution, with an emphasis on its historical origins and a constant concern for the common good should be an ownership by the State of objects which constitute antiquities of importance which are discovered and which have no known owner. It would appear to me to be inconsistent with the framework of the society sought to be created and sought to be protected by the Constitution that such objects should become the exclusive property of those who by chance may find them."

Finlay C.J. invoked both Article 5 and Article 10, which provides that, inter alia, "all royalties" within the jurisdiction belong to the State, when construed in the light of Article 5, to support his conclusion that there exists in the State a right or prerogative of treasure trove having the characteristics of treasure trove as known at common law.

In his judgment in Webb, Walsh J., while disagreeing with the majority view that Article 10 ruled the case, expressed a full agreement with the views set out in the passage of the judgment of Finlay C.J. quoted above. He set out his concept of ownership in the State of antiquities of importance in the following passage at p. 390:-

"When I speak of ownership in this context, I speak of a claim of ownership as against all the persons except those who can establish a title by succession to the original owner of the chattels and other materials which make up this heritage. However, I do not wish to be understood as saying that it would not be within the competence of the Oireachtas to vest ownership in the State in the interest of the common good in accordance with Article 43 of the Constitution, and subject to the payment of just compensation, if in the circumstances justice required the payment of compensation. I fully agree that when the Chief Justice says that it would be inconsistent with the framework of the society which is created by the Constitution and which has sought to be protected by that Constitution that such objects could become the exclusive property of those who by design or by chance discover them and take possession of them. In my view that opinion applies to the owners of the land in or on which they are found or to any other persons who find them in or upon the lands. But unless and until legislation be enacted the State must be regarded as owners in the sense of having a better right to possession than anyone else. I am content to base my opinion upon what I believe to be the fundamental duty of the State to safeguard all the national assets whether truly in the ownership of private individuals and more importantly, where the owner is not known or cannot be ascertained."

Having outlined his views on the non-applicability of Article 10, Walsh J. summarised his views as follows (at p. 393):

" I am satisfied that the People as the sovereign authority having by the Constitution created the State, and by Article 5 declared it to be a sovereign state, have the right and duty, acting by the State which is the juristic person capable of holding property by virtue of the Constitution, to exercise dominion over all objects forming part of the national heritage, whether they be found or not, subject always to the lawful title of the true owner if and when the true owner is discovered and to exercise full rights of ownership when no true owner can be ascertained.

It is within the power of the Oireachtas, acting on behalf of the People, to make such arrangements as it sees fit by legislation for the disposal or other use of all such objects, subject to all the provisions of the Constitution, as the Oireachtas deems proper in the interest of the common good. While it is not for this Court to indicate to the Oireachtas how this power should be exercised, it is the duty of this Court to state that pending any such legislation the State is entitled to possession of all such objects unless and until the true successors in title of those who hid them for safekeeping can be ascertained."

Finally, counsel for the plaintiff referred to the decision of this Court (Barr J.) in In Re La Lavia" [1999] 3 I.R. 413 in which, following Webb, Barr J. held that maritime archaeological wrecks and related artefacts found on or under the sea-bed in Irish territorial waters, like similar objects discovered on land, are the property of the State. Barr J. also held that the Commissioners of Public Works, in whom the relevant function was then vested under the National Monuments Acts, as agents for the State, had a duty to take all reasonable steps to investigate, regulate, protect and safeguard archaeological finds made in Irish territorial waters and, where possible, to cause such objects to be retrieved, conserved and displayed for the benefit of the Irish people and other interested persons.

It is necessary at this juncture to comment generally on the challenge of the Minister and the other State parties to the standing of the plaintiff. In their defence, these defendants pleaded that the plaintiff does not have sufficient interest or locus standi to maintain a challenge to the provisions of the Act of 2004, in that he is not, it was alleged, able to point to any personal right of his affected by that Act, nor is he a person affected by the proposed road development or proposed works as a neighbouring land owner or otherwise. Further, it was pleaded that the plaintiff does not have sufficient locus standi to maintain a challenge based on the Directive, in circumstances where the plaintiff did not participate in the 1997 EIS process. At the hearing, counsel on behalf of these defendants clarified the position and confirmed that their position was that the plaintiff does not have standing to invoke Article 40.3 or to invite indirect scrutiny of the orders made on 19^th October, 1998. As I consider that the plaintiff has not indirectly raised the issue of the adequacy of those orders, that last point does not arise.

There is a very helpful introduction to the discussion on the topic of locus standi for constitutional challenges in Kelly on the "Irish Constitution", 4^th edition, at p. 807 in the following terms:

"The question of locus standi of a party wishing to challenge the invalidity of an Act of the Oireachtas (or the constitutionality of a pre-Constitution statute) has received much consideration in a series of recent decisions. Although the law in this area is still evolving and lacks precision, the following principles seem to emerge. First, the courts will only entertain a constitutional challenge where it is demonstrated that the litigants' rights have been either infringed or threatened. Secondly, the courts will only listen to arguments based on the plaintiff's own personal situation and will generally not allow arguments based on a jus tertii. However, since 'every member of the public has an interest in seeing that the fundamental law of the State is not defeated' the courts will permit a citizen to challenge an actual or threatened breach of a constitutional norm where there is no other suitable plaintiff or where the threatened breach is likely to affect all citizens in general."

The decision of this court (O'Hanlon J.) in Madigan v. Attorney General [1986] I.L.R.M. 136 is cited as authority for the second proposition and was relied on by counsel for the Minister and the other State parties in this matter. In Madigan and the associated matter which was tried with it, the plaintiffs challenged the validity of provisions of the Finance Act, 1983 which imposed a residential property tax on the basis that it infringed rights of the person and family, and of property and privacy, to be found in Articles 40 and 41 of the Constitution. Having reviewed the law on locus standi, O'Hanlon J. held that he must leave out of consideration any matters relied on the plaintiffs in their challenge which were not relevant to the circumstances of the plaintiffs themselves, or any of them.

The issue of locus standi was raised both in Dunne No. 1 and Mulcreevy. In Dunne No. 1, Hardiman J. held that, for the purposes of the interlocutory application, it was indisputable that an arguable case for the plaintiffs standing had been established (p. 574). Mulcreevy, as stated earlier, was an application for leave to issue judicial review proceedings on notice. Keane C.J. held that the plaintiff did have locus standi to institute the proceedings. In dealing with the issue at (p. 426) he stated as follows:

"While the applicant accepts that he has no private interest in these proceedings, it is not suggested that he has brought them for any other reason than to ensure that the national monument is not damaged irreparably, as he claims it would be, by the local authority carrying out the motorway project without the necessary statutory consents, approvals and licenses.

It has been made clear in decisions of the High Court and this court in recent times that it is not in the public interest that decisions by statutory bodies which are of at least questionable validly should wholly escape scrutiny because a 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. …

It is at the same time essential to bear in mind that, while it is undesirable that invalid legislation or unlawful practices should escape scrutiny because of the absence of an indisputably qualified objector, it is also important to ensure that unfounded and vexatious challenges are not entertained."

Keane C.J. went on to point out features which distinguished Mr. Mulcreevy's situation from that of the plaintiff in Lancefort Ltd. v. An Bord Pleanála (No. 2) [1999] 2 IR 270. It is perhaps worth noting that no issue of constitutional validity of a statute arose in the Supreme Court in the Lancefort case.

The essence of this aspect of the plaintiff's claim, as I understand it, is that, in enacting s. 8, the Oireachtas has put in place arrangements which are inimical to, and fail to safeguard and protect, a monument which is part of the natural heritage in contravention of the States obligation derived primarily from Article 5 of the Constitution. I am of the view that there is authority for the proposition that he has locus standi to maintain this challenge.

It is beyond doubt that it is a constitutional imperative that the State safeguard the national assets, including monuments of cultural and historical significance. The plaintiff properly recognises that that duty is not unqualified. In Mulcreevy, an argument that, where the interference with a national monument could not be justified on the ground that it was in the interests of archaeology or was required in the interest of public health or safety, the approval of the Minister under s. 14 of the Act of 1930, as it was in force before the enactment of the Act of 2004, could only be given for the protection and preservation of national monuments and archaeological objects, got short shrift. Keane C.J., in a passage (p. 334), which is also apposite to the argument advanced by the plaintiff in relation to the challenge under Article 15(2), stated as follows:

"I am satisfied that this argument is entirely misconceived and that the applicant has failed to establish a stateable or arguable case to support this ground. 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 both Houses of the Oireachtas. To confine the exercise of his discretion to cases in which it could be said that he was ensuring the protection or a preservation of a national monument or the preservation of archaeological objects would be to render that residual discretion entirely meaningless, since the acts contemplated by the approval – the destruction, removal, etc. of the monument in whole or in part – far from protecting or preserving the monument would have precisely the opposite effect. If this argument were well founded, no such approval could ever be given."

Of course, what was at issue in Mulcreevy was not the validity of a statutory provision having regard to the provisions of the Constitution, but the validity of the exercise of a statutory discretion. However, as the passage shows, historically, in regulating the protection of national monuments, the Oireachtas has given a considerable degree of latitude to the decision maker. As is clear from Webb, it is for the Oireachtas to determine the policy for the protection of the national heritage consistent with the provisions of the Constitution and in the interest of the common good.

I cannot see, however, how the duty of the State to safeguard the national heritage can translate into a personal right of the type which, although unspecified, is protected by Article 40.3. In my view, the plaintiff has not established that he is entitled to invoke Article 40.

It is not inconceivable that in a hypothetical case, a person in the position of the plaintiff, a concerned private citizen, could successfully challenge a statutory measure on the basis that it purported to permit a clear-cut breach of the State's duty to protect the national heritage. This is not such a case. In inviting the court to review s. 8 in the light of the State's duty to safeguard the national heritage and the other requirements of the common good, the plaintiff is asking the court, to use the metaphor used by Keane C.J. in TD v. Minister for Education [2001] 4 IR 259 at 288, to cross a Rubicon and to undertake a role which is conferred by statute on the Oireachtas under the Constitution. The court cannot do that.

Accordingly, the plaintiff's claim that s. 8 is invalid by reference to Articles 5, 10 and 40 fails.

Decision

The plaintiff is not entitled to any of the reliefs claimed.

Approved: Laffoy J.