The Supreme Court has granted an interlocutory injunction against Dún Laoghaire-Rathdown County Council preventing the authority from carrying out further work at the medieval Carrickmines Castle site in south Dublin.
In a unanimous ruling, the court granted an order halting any interference with the ditch at the castle without a valid consent under the National Monuments Act (NMA).
In its ruling, the court yesterday noted that Dún Laoghaire-Rathdown County Council was aware last September of concerns that interference with the ditch required a written consent under Section 14 of the NMA, but had failed to address the matter then.
The court also noted the "somewhat odd position" that a Minister with an interest in a road building programme is the same person required to consent to the removal or alteration of a national monument for road building purposes.
The Court upheld an appeal by Mr Dominic Dunne, Collins Square, Benburb Street, Dublin, and Mr Gordon Lucas, Willbrook Lawn, Rathfarnham, Dublin, against the High Court's refusal of the injunction.
They claimed the council was committing "a criminal offence" in continuing certain works at the castle without having a Section 14 consent.
The interlocutory order applies pending the procuring of a Section 14 consent or the determination of legal proceedings between the men and the council. The Supreme Court made directions aimed at having an early hearing of that action.
Section 14 of the NMA states it is unlawful for any person to demolish, remove wholly or in part, deface, disfigure, alter or injure in any way a national monument without certain consents.
Where the monument is owned by a local authority, that body has to give the consent. Consent has also to be given by the Minister for the Environment.
The National Monuments (Amendment) Act 1994 provides that the council should not give consent "unless it is in the interests of archaeology to do so".
In opposing the injunction application in the Supreme Court, the council for the first time contended the relevant remains at Carrickmines Castle was not a "national" monument and was instead a recorded monument and, therefore, Section 14 did not apply.
Giving the court's judgment, Mr Justice Hardiman, presiding, with Mr Justice Geoghegan and Mr Justice McCracken, said this "rather odd" position of the council's was necessitated by the state of evidence in the case.
The judge noted the council's affidavits were "silent" on the significant points as to whether the question of the monument's possible status as a national monument was ever considered by them. It was "indisputable" the plaintiffs had established an arguable case to be made at the full hearing.
Mr Justice Hardiman noted that, soon after the Minister for Transport approved the present road scheme about September 2002, solicitors for the plaintiffs wrote to the council raising a number of concerns about the scheme, including the Section 14 consent issue.
Solicitors for the council replied stating they were seeking "specific instructions" on the points raised and would "communicate further".
On January 23rd last, the plaintiffs solicitors again wrote to the council and NRA stating there had been no confirmation the works had a Section 14 consent and threatening legal action which was initiated on February 5th.
There was "ample time" to do that, or decide positively they did not require a consent, without prejudice to the road works. The council did neither.
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