The Supreme Court has unanimously upheld the constitutionality of controversial new laws enacted to achieve the speedy completion of the South Eastern motorway, which had been delayed by legal challenges aimed at protecting the Carrickmines Castle site.
While noting that the new legislation - section 8 of the National Monuments (Amendment) Act 2004 - "removes a bundle of protections" from national monuments, the five-judge court found the Oireachtas is not prohibited under the Constitution from enacting such laws.
In issuing directions, the Minister for the Environment was entitled to balance the benefits of archaeological preservation against the wider public interest that would accrue as a result of the road development.
Section 8 effectively provided that the works affecting the Carrickmines Castle site were to be carried out on the Minister's directions. Provided the Minister exercised his discretion under section 8 in a constitutional manner, he could give such directions as he thought fit, the court found.
The consequence of the new legislation was that the works at Carrickmines Castle were no longer to be regulated under the National Monuments Acts, the court said. Carrickmines Castle, it noted, was accepted as being a national monument and the road works would mean a large part of a moat discovered at the site would cease to exist.
Under section 8, Dún Laoghaire Rathdown County Council, as landowner, did not need consent from any statutory body for undertaking the works and Oireachtas approval was not necessary. There was also no requirement to obtain a licence under the 1930 National Monuments Act and An Bord Pleanála was precluded from considering whether proposed works were likely to have a significant effect on the environment and from directing an environmental impact statement.
There was "only the requirement that the works be carried out on the directions of the minister", the court said. It rejected claims that those directions - issued by the Minister, Dick Roche, in August, 2004 - breached provisions of European Commission environmental directives and were therefore null and void.
The Supreme Court was delivering its judgment on an appeal against the High Court's rejection in September 2004 of a challenge by Dominic Dunne, Collins Square, Benburb, Dublin, both to section 8 and to the ministerial directions.
After the dismissal of his appeal, Mr Dunne said he was "very very disappointed". "The situation now is that this case will now proceed to where it belongs - to the European courts."
