Supreme Court of Ireland Decisions

Judgment Title: Dunne -v- Minister for the Environment Heritage and Local Government & ors

Neutral Citation: [2006] IESC 49

Supreme Court Record Number: 444/04

High Court Record Number: 2004 No. 18593p

Date of Delivery: 25 July 2006

Court: Supreme Court

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BETWEEN

“Where the Minister considers that any proposed road development (other than development to which para. (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.”

and

“(1)The consent of the Minister under section14 and any further consent or licence under any other provision of the National Monument 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 the issue of directions under subs. (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, architectural, 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 subs. (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.”

Alternatively, the plaintiff seeks 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 with or to have regard to the requirements of the Directive in relation to environmental impact assessment.

“Awareness of the importance of ancient monuments and historic sites and the desirability of preserving them for posterity is not a phenomenon of the 20th and 21st centuries. The earliest legislative provisions which protected ancient monuments in Ireland were contained in 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

and

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 –

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”.

“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 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 retains 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 the permitted limits – if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body – there is no unauthorised delegation of legislative power.”

“Ireland is a sovereign, independent, democratic State”.

“All natural resources…within the jurisdiction…belong to the State…”

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

“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 the 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 a 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 safe keeping can be ascertained.”

“… the decision of the competent authority or authorities which entitles the developer to proceed with the project”.

“… projects, the details of which are adopted by a specific act of national legislation, since the objectives of this Directive....are achieved through the legislative process”

“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”.

“The environmental impact assessment will 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:

or

“Any change or extension of projects listed in Annex I or Annex II, already authorized, executed, or in the process of being executed which may have significant adverse effects on the environment”

“In our case, both in law and in common sense the “project” is the whole of the ELLX. For that reason, as Mr. Gordon pointed out, the fact that by a rule of the 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 such consent in terms of the Directive was the original decision that permitted the project to go forward in the first place.”

“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 an 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 would undermine the effectiveness of that Directive [i.e., 85/337] 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”. (Emphasis added)

“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”.

“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”

(1) Has the plaintiff established that the approved road development has been changed or extended (i.e., between 1998 and 2004) in a manner which may have “significant 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?