IpsofactoJ.com: International Cases [2007] Part 10 Case 10 [SCIre]


SUPREME COURT OF IRELAND

Coram

Dunne

- vs -

Minister for the Environment,

Heritage & Local Government

MURRAY CJ

DENHAM J

GEOGHEGAN J

HARDIMAN J

KEARNS J

25 JULY 2006


Judgment

Murray CJ

BACKGROUND

  1. Section 8 of the National Monuments (Amendment) Act, 2004, (the Act of 2004) introduced a special provision in relation to the South Eastern Route of the M50 C-Ring motorway around Dublin with a view to facilitating the completion of works at or adjacent to an archaeological site at Carrickmines Castle. This appeal is concerned with questions as to whether that section offends Articles 5, 10, 15 and 40 of the Constitution, whether it offends EC law in particular the provisions of Council Directive 85/337/EEC of 27th June, 1985 on the assessment of the effects of certain public and private projects on the environment as amended by Council Directive 97/11/EC of 3rd March, 1997. Further, even if the first two questions are answered in the negative, whether certain directions issued by the Minister for the Environment pursuant to the section are null and void having regard to the requirements of the Directives in relation to environmental impact assessment.

  2. The section of motorway in question forms a strategic element of the National Road Network, providing a link between the N11 and other national primary routes around Dublin. The South Eastern Route lies within the functional area of the fourth named defendant. Part of the South Eastern Route motorway traverses the archaeological site known as Carrickmines Castle, the ownership of which is also vested in the fourth named defendants. Following a public enquiry in January, 1998, the predecessor of the first named defendant approved the Council’s scheme for the construction of the South Eastern Motor Route subject to certain modifications. In October, 1998, the Minister’s predecessor, pursuant to s. 51 of the Roads Act, 1993 (the Act of 1993), approved that scheme having considered an Environmental Impact Statement (EIS) of September, 1997 which was submitted by the Council, the submissions which were made and the report and recommendations of the person who conducted the public inquiry as to the likely effects on the environment of the development.

  3. The 1997 EIS was issued in accordance with Directive 85/337/EEC, as transposed into Irish law by the Act of 1993.

  4. In relation to archaeology, it was recorded in the EIS that the Carrickmines interchange design had been modified so that Carrickmines Castle could be retained in an open area and that minimal disturbance would be caused to the more significant areas. It was further recorded that wherever 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 whether a full archaeological excavation was required on the basis of the results of the initial investigation.

  5. Initial investigations were conducted at Carrickmines Castle in early 2000. Archaeological excavations commenced in August 2000 and continued over the following two years and six months.

  6. The plaintiff in these proceedings was one of the co-plaintiffs in the first action in relation to Carrickmines Castle, which was reported as Dunne v Dun Laoghaire-Rathdown County Council (Dunne No. 1). In those proceedings it was held by the Supreme Court that there was a 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 being carried on at the site, notwithstanding that the Minister had previously granted a licence pursuant to s. 26 of the Act of 1930 for the excavation of another part of the site.

  7. While the hearing in relation to the granting of an interlocutory injunction did reach the Supreme Court, the main proceedings never went to plenary hearing. Instead, the Council and the State put a consent in place in purported compliance with the statutory requirements. This was in the form of a joint consent given by the Council and the Minister to the carrying out of the works which had been restrained by the interlocutory injunction. The Minister then made an order pursuant to 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 did not become effective until the 2nd December, 2003. On the 8th December, 2003, the interlocutory injunction which had been granted by the Supreme Court in Dunne v Dun Laoghaire-Rathdown County Council was discharged and the Council proceeded to implement the approval given by the Minister.

  8. This in turn provoked the second proceedings in relation to Carrickmines Castle, namely, Mulcreevy v Minister for Environment, Heritage and Local Government & Dun Laoghaire-Rathdown County Council [2004] 1 IR 72. In those proceedings the applicant sought various reliefs, including an order of certiorari quashing the Minister’s approval order of the 3rd July, 2003. These proceedings were ultimately successful and resulted in the quashing of the Minister’s approval order on the basis that the same purported to effect an amendment of the statutory scheme established under s. 15 of the Act of 1994 by purporting 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.

  9. The strategy for the archaeological resolution of Carrickmines Castle is set out in the 1997 EIS which envisages the preservation by record of any archaeological features discovered on the line of the motorway and associated local roads. It envisaged that areas not within the area of construction would be preserved in situ. In September, 2002, the Minister for Transport directed a 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. The purpose of these modifications was to allow the preservation in situ of certain structures and of a revetted fosse where it runs under the roundabout. These modifications were the subject matter of an application by Mr. Stephen Deveney to An Bord Pleanála (the Board) that it exercise its powers under s. 50(1)(b) of the Act of 1993, which provides:–

    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.

  10. 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 the 21st 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 given for the decision were that the proposed modifications:–

    1. 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 been obtained, and

    2. would not of themselves have a significant adverse effect 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 Directive 97/11/EC.

  11. Ultimately, and as already noted, the Oireachtas moved to introduce the Act of 2004 which, insofar as it applies to the South Eastern Route, was clearly intended to facilitate and expedite the completion of the roadworks which, by virtue of the various legal challenges, had been held up for a significant time. It amended the National Monument Act, 1930, by substituting a new provision, set out in s. 5, for s. 14. This was the section which, 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 the local authority was necessary to render lawful certain activities. It introduced a special provision in relation to the South Eastern Route when it provided as follows at s. 8:–

    (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.

  12. The first named defendant is the relevant Minister for the purposes of section 8. On the 21st July, 2004, the Council applied to the Minister for directions under section 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 the 12th August, 2004, the chief archaeologist in the National Monument Section of the Minister’s department agreed method statements submitted by the Council. On the 5th 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. The directions were described as being for archaeological resolution of the Carrickmines Castle site. The various defendants in these proceedings contend that the directions relate solely to the archaeological mitigation of the site and do not contain or involve any alteration, material or otherwise to the road development approved under the Act of 1993. The defendants contend that the works which recommenced at Carrickmines in August, 2004 are archaeological works. Therefore they contend that they are being carried out in accordance with method statements submitted by the Council and their archaeological advisers and approved by the National Monument Section of the Minister’s Department.

  13. In the present third set of proceedings, the plaintiff claims the following reliefs:–

    (a)

    A declaration that section 8 of the Act of 2004 is invalid having regard to the provisions of the Constitution and, in particular, that by investing in the Minister the power to make directions, section 8 is in conflict with Article 15.2 thereof and further that section 8 is in conflict with the duties and rights recognised and protected by the combined effects of Articles 5, 10 and 40 of the Constitution.

    (b)

    A declaration that section 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 and 97/11/EC.

    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.

    (c)

    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.

    ANALYSIS OF THE RELEVANT STATUTORY PROVISIONS

  14. The Court, which has been greatly assisted by the clarity of the judgment of Laffoy J, is entirely satisfied to adopt the following comprehensive analysis of the statutory provisions as elaborated in her judgment in the instant case as follows:–

    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

    (a)

    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

    (b)

    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:

  15. The consequence of section 8 insofar as the South Eastern Route is concerned is that the works at Carrickmines Castle are regulated only by the provisions of sub-ss (1) and (2) of the section. They are no longer to be regulated under the National Monuments Acts. In place of the former consent under s. 14, there is only the requirement that the works be carried out on the directions of the Minister. The Council as landowner does not need consent from any statutory body to the carrying out of the works, nor is the approval of both Houses of the Oireachtas necessary. There is no requirement to obtain a license under s. 25 or s. 26 of the Act of 1930. Furthermore, the 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 from considering whether to direct an environmental impact statement. The provisions of s. 8 of the Act of 1994 designed to safeguard the locus of an archaeological find are also disapplied. Quite obviously section 8 removes a bundle of protections and one now has to consider if this was permissible having regard to the Constitution and to European Union law.

    THE CONSTITUTIONAL CHALLENGE

  16. It is asserted on behalf of the plaintiff that s. 8 of the Act of 2004 represents an unconstitutional delegation of legislative power contrary to Article 15.2.1 of the Constitution. It is further asserted on behalf of the plaintiff that s. 8 offends Articles 5, 10 and 40 of the Constitution.

    (a) Challenge by reference to Article 15.2

  17. 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.

  18. As we have seen, s. 8 of the Act of 2004 empowers the Minister to issue directions in relation to the carrying out of works to which s. 8 relates. The plaintiff contends that the delegation of this power to the Minister is contrary to Article 15.2 in that:–

    1. 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,

    2. 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,

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

    4. 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 prioritised or weighed in the balance.

  19. The learned trial judge in her judgment found that s. 8 did not confer any power to make law on the Minister, but instead allowed him only to issue directions for the carrying out of the works to which the section applies. Going further, the learned trial judge held that, properly construed, s. 8 mandates the Minister to do certain administrative acts.

  20. It goes without saying that if powers had been delegated to the Minister to make regulations or orders which went outside the principles and policies of the Act of 2004, any such measure would be unconstitutional. Thus, in Laurentiu v Minister for Justice, Equality and Law Reform [1999] 4 IR 26, the provisions of s. 5(1)(e) of the Aliens Act, 1935, were declared to be unconstitutional. The subsection had purported to allow for the making of ministerial orders regulating immigration policy generally. This was held to be far more than the mere giving of effect to principles and policies contained in the statute itself and was thus unauthorised.

  21. The permitted parameters of delegated legislation under Article 15.2 were defined in the seminal judgment of O’Higgins C.J. in Cityview Press v An Comhairle Oiliúna [1980] I.R. 381, when he stated (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 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.

  22. The Court is satisfied that s. 8 of the National Monuments (Amendment) Act, 2004, does not give rise to delegated legislation at all. Rather, the section is concerned with the making of an administrative decision which consists of the giving of directions. This is an entirely different legal concept as the exercise of a statutorily conferred discretion is not governed by the provisions of Article 15 of the Constitution, but is instead subject to the requirements of administrative law.

  23. In that regard, the exercise of those powers by the Minister is subject to the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties, namely, the decision maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision: see State (Keegan) v Stardust Victims Compensation Tribunal [1986] I.R. 642, at p.658. Thus understood, the exercise by the Minister of his powers under s. 8 is a discretion which is open to challenge by way of judicial review proceedings in the ordinary way. In order to succeed in any such challenge, it would be necessary to demonstrate that there had been a breach of one or other of the well established principles governing administrative decisions. For example, it would be necessary to demonstrate that the decision maker had failed to have regard to all relevant considerations, had had regard to an improper consideration or had acted irrationally.

  24. The considerations relevant to the making of a decision as to the giving of directions are set out under s. 8 itself. A detailed list of the criteria as specified under s. 8(2)(b). It is obvious from these criteria that in making a decision as to directions, the Minister is entitled to balance the benefits of archaeological preservation against the wider public interest (including social or economic benefit) which would accrue as a result of the carrying out of the road development.

  25. It can hardly be disputed that it is within the competence of the Oireachtas under Article 15.2 to make a law giving the Minister a wide discretion both in terms of the scope of the direction under s. 8 and the criteria to which he may have regard, provided of course that no other provision of the Constitution is thereby infringed.

  26. Having regard to the Court’s conclusions on this matter, it is strictly speaking unnecessary to go further and consider whether the delegated functions fall within the parameters of the principles and policies set out in the National Monuments Acts, 1930-2004. As noted by the learned trial judge, 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. Beset as it had been over a number of years by legal challenges, the intention of the legislature was clearly to ensure the completion of the South Easter Route without any input or further interference from any party external to the Minister and his advisers and the Council and its advisors. It effectively provides that the works affecting the Carrickmines Castle site are to be carried out by the Council on the directions of the Minister. Provided the Minister exercises his discretion under s. 8 in a constitutional manner, he may give such directions as he sees fit subject only to the criteria set out in subs. 2(2)(b) and to the requirement that no other provision of the Constitution is infringed.

  27. This Court is accordingly quite satisfied that the learned trial judge was absolutely correct in holding that the challenge to s. 8 based on Article 15.2 fails.

    (b) Challenge by reference to Articles 5, 10 and 40

  28. Article 5 of the Constitution provides:–

    Ireland is a sovereign, independent, democratic State.

    Article 10 provides:–

    All natural resources .... within the jurisdiction .... belong to the State ....

    Article 40.3.1 provides:–

    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.

  29. The essence of this aspect of the plaintiff’s claim is that, in enacting s. 8 of the Act of 2004, the Oireachtas put in place arrangements which are inimical to the preservation of a monument which is part of the natural heritage and that such failure is in contravention of the State’s obligation derived primarily from Article 5 of the Constitution.

  30. For the purposes of both the Dunne (No. 1) and Mulcreevy cases, it was held that the plaintiff did have locus standi to bring the various challenges already described and his entitlement to so in the present proceedings has not been contested on this appeal..

  31. The plaintiff contends the State is under a constitutional duty and obligation by virtue, inter alia, of Article 5 to safeguard and protect the national heritage, including historic and archaeological monuments. Alternatively, the plaintiff has a constitutional right by virtue of Article 40.3.1 to have this constitutional imperative enforced. In this regard, reliance was placed by the plaintiff on the decision of this Court in Webb v Ireland [1988] IR 353, and in particular on that passage in the judgment of Walsh J. where he stated 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 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.

  32. Insofar as the plaintiff relies on Article 10 of the Constitution it must be emphasised that Article 10 is concerned with natural resources of the State, i.e. air and rivers, minerals and water and sources of energy from same. Indeed, the contention that Article 10 had any particular relevance having regard to the facts of this case does not appear to have been pursued with any vigour in the High Court. The National Monuments legislation limits acts of damage to manmade structures or things or areas associated with or archeologically characterised by the inhabitation of Ireland by its people which are clearly not natural resources within the meaning of Article 10. I think it correct to state that no authority has been invoked in the course of this appeal which identifies any interpretation of the Constitution in a way which restricts the making of legislation which affects heritage structures or national monuments. It is the defendant’s contention that the judgment of Walsh J. delivered in Webb bears out an interpretation of Article 10 of the Constitution which is confined to natural resources. Furthermore, the defendants maintain that the self same judgment only confirms that matters of policy are within the competence of the Oireachtas. In the Court’s view there is nothing in the judgment of Walsh J. which could be interpreted as restricting the Oireachtas from legislating, for policy reasons, in the manner which it did when it enacted s. 8 of the Act of 2004. On the contrary, that judgment expressly acknowledges the power of the Oireachtas to legislate in respect of such matters in the interests of the common good.

  33. The learned trial judge in the course of her judgment found that the duty of the State to safeguard the national heritage could not be translated into a personal right of the type which, although unspecified, is protected by Article 40.3. This view is undoubtedly correct, given that the true position of the plaintiff may be seen as being that of the concerned citizen who seeks to exercise a supervisory role in relation to decision making by the Executive or the Legislature, such as arose in McGimpsey v Ireland [1990] 1 I.R. 110 or in Horgan v An Taoiseach, Minister for Foreign Affairs [2003] 2 IR 468.

  34. The various contentions of the plaintiff under these invoked Articles relate entirely to the plaintiff’s alternative view of the appropriate policy for the protection of the natural heritage of Carrickmines. As noted by the learned trial judge, it is not inconceivable that in a hypothetical case, a person in the position of the plaintiff might 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. As noted by the learned trial judge, 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 on the basis of the other requirements of the common good, the plaintiff is inviting the courts to undertake a policy role which is conferred on the Oireachtas by the Constitution.

  35. As Keane C.J. noted in T.D. v Minister for Education [2001] 4 IR 259 at p. 288, this would be “to cross a Rubicon and to undertake a role which is conferred by statute on the Oireachtas under the Constitution.”

  36. While it is hardly necessary to state it, it follows from the fact that no private or fundamental right of the plaintiff is involved in these proceedings, that there is no question of applying a proportionality test to the legislative measure under attack in the manner suggested on behalf of the plaintiff.

  37. Accordingly, all of the arguments advanced to impugn s. 8 by reference to the provisions of the Constitution must fail.

    (c) Challenge by reference to EC Directives

  38. The plaintiff argues that s. 8 is a provision in conflict with European Union law because it fails to require the Minister to consider whether an environmental impact assessment is necessary in accordance with the provisions of Directive 85/337/EEC as amended by Directive 97/11/EC and to carry out such an assessment in accordance with those provisions before issuing directions. Alternatively, the plaintiff argues that the directions given on the 5th August, 2004, and the method statement agreed on the 12th August, 2004, are invalid by reason of the failure of the Minister to comply with the provisions of the Directive.

  39. The following articles of the Directive are relevant to the issues in these proceedings:–

    1. Article 1(1) which applies the Directive to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment, Article 1(2), whereby “project” is defined as meaning “the execution of construction works 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 entitles the developer to proceed with the project.

    2. Article 1(5), whereby there are exempted from the Directive:–

      .... 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.

    3. Article 2(1), now contained in Article 1(1) of Directive 97/11/EC, whereby:–

      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.

    4. Article 3, now contained in Article 1(5) of the Directive 97/11/EC whereby:–

      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:

      -

      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.

    5. Article 4, now contained in Article 1(6) of Directive 97/11/EC, whereby it is mandatory to conduct an environmental impact assessment in the case of projects listed in Annex I. Motorway construction is included at par 7 of Annex I. Article 4(2) provides that for projects listed in Annex II the Member State shall determine through: –

      1. a case by case examination or

      2. thresholds or criteria set by the Member State whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.

      Point 13 in Annex II refers to:–

      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.

  40. 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.

  41. Insofar as motorway and road development are concerned, the provisions of the Directive are transposed into Irish law by sections 50 and 51 of the Act of 1993. Since 2000, the decision maker as to whether an environmental impact statement should be prepared is the Board. Prior to that time, an environmental impact assessment was carried out in relation to the South Eastern Route scheme under section 51, in tandem with the approval of the road scheme under section 49, the relevant orders under the Act of 1993 being both dated the 19th October, 1998.

  42. The plaintiff effectively contends that the works referred to in s. 8(1), being “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. It is further argued that the directions made on the 5th August, 2004, constitute a development consent as defined in the Directive.

  43. The plaintiff’s contentions in this regard run immediately into the difficulty that the road development has already been the subject matter of an environmental impact assessment. The area of land and the nature of the development, including works affecting archaeological remains, were all properly considered under the EIS prepared in 1997 under the Act of 1993.

  44. In her judgment, the learned trial judge found that the relevant project for the purposes of the Directive was the road development and not the archaeological works. She further found that the Ministerial directions did not constitute a “development consent” within the meaning of the Directive.

  45. The scheme envisaged under domestic Irish law provides that certain road development is subject to the requirement for approval under the Act of 1993. Initially, the legislation provided that the approval was to be granted by the Minister for the Environment. This function was transferred to the Board in 2000. In addition to the requirement for a statutory approval, certain road development was also subject to the requirement for environmental impact assessment. Such an assessment could be carried out in parallel with the statutory approval procedure. Under s. 55(A) of the Roads Act, 1993 (as inserted by s. 6 of the Roads (Amendment) Act, 1998), a person may not question the validity of either an approval order or an order in respect of environmental impact assessment other than by way of statutory judicial review. In the case of the South Eastern Route, the relevant statutory approval and confirmation of the environmental impact statement were given in October, 1998. It was certainly too late for the plaintiff to challenge the adequacy of that EIS in the present proceedings. However, the plaintiff seeks to pursue an alternative approach, arguing that the Minister’s directions constitute a “development consent” in their own right.

  46. This argument, however, does not withstand close scrutiny. The Ministerial directions regulate works of excavation and, in some instances, of removal. They do not constitute a project for the purposes of the environmental impact assessment. The requirement for environmental impact assessment only applies to a limited class of development projects as prescribed under Annex I and Annex II of the Directive. It is manifestly clear that these prescribed projects do not include works of the type permitted under the directions of August, 2004. The project subject to environmental impact assessment is the road development itself. This road development is authorised under the decisions of 1998, not under the directions of August, 2004.

  47. The concept of “development consent” has been considered in a number of cases, including R(Wells) v Secretary of State for Transport, Local Government and the Regions (Case C-201/02) [2004] ECR 1-723, R v North Yorkshire County Council ex parte Browne [2000] 1 AC 397; and R (on the application of Prokopp) v London Underground Ltd[2004] 1 P and C.R. 479, and some of these cases are more fully explored in the judgment of the learned trial judge.

  48. What emerges clearly from these judgments is that the question as to whether or not a particular decision constitutes a “development consent” cannot be determined simply by the application of a “but for” test; in other words, the fact that the development might not be permitted to proceed “but for” the particular decision in issue cannot per se be conclusive. As Lord Justice Buxton stated in Prokopp (at para.60):–

    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.

  49. The essence of the environmental impact assessment is that it occurs at an early stage in the decision making process. Where there are a series of decisions, it may obviously give rise to certain difficulties as to which event in the series of decisions is to be regarded as the “development consent” for the purposes of the Directive. This problem was considered by the House of Lords in R v North Yorkshire County Council ex parte Browne, [2000] 1 AC 397, when the following test was suggested by Lord Hoffman at p.404:–

    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.

    He continued at p.405:–

    .... 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.

  50. In R (Wells) v Secretary of State for Transport, Local Government and the Regions (Case C – 201/02), [2004] ECR 1-723, the European Court of Justice emphasised that:–

    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]

    In considering when the environmental assessment must be carried out, the Court also noted (at para 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.

    Further, as Lord Hoffman noted in Berkeley v Secretary of State for the Environment [2001] 2 A.C. 603 at p. 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.

  51. The Court considers the dicta of Lord Hoffman as correctly interpreting the requirements of the Directives in this regard.

  52. In the present case, it seems clear to the Court that the principal development consent is that of October, 1998. The Court is of the view that the plaintiff is mistaken in suggesting that the decisions of 1998 and the directions given in August, 2004, are in some manner different stages in the same decision-making process. In our view, the decisions of 1998 are stand alone decisions which allow the road development to proceed whereas the directions involve merely the regulation of activities for which the principal consent, raising the substantial environmental issues, has already been given.

  53. The Court is satisfied for the following reasons that the Ministerial directions under s. 8 do not fulfil any of the requirements necessary to constitute a “development consent”:–

    1. Firstly, the Minister does not have power under s. 8 to embark upon a reconsideration of the environmental issues arising for the road development, and, more importantly, does not have power to modify the road development. All that is left for the Minister is a power to regulate the manner in which the works which are necessary to allow the road to proceed are carried out.

    2. Secondly, the project is prescribed for the purposes of the environmental impact assessment Directive as the road development, the subject matter of the 1998 consent. Excavation works of the type the subject matter of the Ministerial directions under s. 8 are not a prescribed project.

  54. Essentially however the Ministerial directions of August 2004 do not in our view give rise to the environmental effects of which the plaintiff complains: it is the construction of the road development which gives rise to the environmental impact, not the archaeological resolution measures contained in the Ministerial directions. Furthermore, the plaintiff has completely failed to make out a case for challenging the adequacy of the 1998 environmental impact assessment. In particular, the plaintiff has failed to adduce any evidence to demonstrate that the methodology employed at that time was inappropriate. Nor is it the case that a fresh environmental impact assessment must be obtained on every occasion where works uncover a site of archaeological interest, provided always that archaeological issues were addressed in the original environmental impact statement. A similar conclusion was arrived at in Murphy v Wicklow County Council (Unreported, High Court, 19 March, 1999) where the eventual identification of a third route through the Glen of the Downs between two alternative routes which were considered in the EIS did not give rise to any requirement to draw up an entirely new EIS. It can hardly be suggested that the Directive requires a succession of environmental impact assessments each time some significant new material is uncovered. Accordingly all of the plaintiff’s contentions on this aspect of the case fail.

    WERE THE DIRECTIONS GIVEN BY THE MINISTER INVALID FOR NON-COMPLIANCE WITH THE DIRECTIVE?

  55. In resolving this issue, the learned trial judge asked herself two questions as follows:–

    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?

  56. If the first question were to be answered in the affirmative, the matter would come within the ambit of point 13 of Annex 11. The learned trial judge found as a fact that there had been a radical change by 2004 in respect of knowledge concerning the archaeological site, which said store of knowledge had, of course, grown as a result of the mitigation measures implemented under the environmental impact assessment process. In particular, the trial judge found that the extent of the revetted fosse had not been previously known. Further, it was not in dispute that, as a result of the works, a large part of the fosse would cease to exist.

  57. However, as Laffoy J. stressed, the archaeological assessment is not to be conflated or confused with the assessment of the environmental effects generally. The accretion to the store of knowledge, ironically brought about by the ameliorating measures, did not convert the project from being a road project into something else. The learned High Court judge pointed out that section 8 does not empower the Minister to change the project and then found as a fact that the directions did not change the project. Accordingly, she found, and this Court also finds, that the first question must be answered in the negative.

  58. In relation to the second question, it would be impossible to conclude that anything contained in or done pursuant to s. 8 forms the basis whereby the Council is entitled to proceed with the project. In reality, it is the orders made on the 19th October, 1998, which authorised the Council to proceed with the road development. The fact that a multiplicity of functions under various enactments are reposed in the Minister does not detract from the position that he is the source of authority for the completion of the South Eastern Route. The fact that he also issues directions under

  59. s. 8 is beside the point. This Court is also of the view therefore 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 could not on any reasonable interpretation of the Directives constitute a development consent and accordingly, that the implementation of the directions will not contravene the Directive.

    ARTICLE 234 OF THE EC TREATY

  60. The issues in this case where mixed questions of fact and law. The Court has upheld the factual finding of the learned High Court Judge that the directions given by the Minister pursuant to s. 8 of the Act of 2004 did not effect the actual road project in a manner which could have “significant adverse effects” on the environment. Apart from this finding of fact, given the nature of the directions issued by the Minister pursuant to s. 8 and their limitation to the kind of works referred to in that section the Court is quite satisfied that they could not be considered a development consent within the meaning of the Directives on any possible or arguable view as to the meaning of the terms of the Directive. The Court is satisfied that there is no scope for reasonable doubt as to the manner in which the Directives fall to be applied in relation to the directions of the Minister in this case and, having regard to the principles set out by the Court of Justice in Cilfit v Ministry of Health [1982] ECR 3415 there is no obligation to make a reference under the third paragraph of Article 234 of the EC Treaty.

    ORDER

  61. The Court will dismiss the appeal against the judgment and order of the learned High Court judge.


Cases

Dunne v Dun Laoghaire-Rathdown County Council (Dunne No. 1)

Mulcreevy v Minister for Environment, Heritage and Local Government & Dun Laoghaire-Rathdown County Council [2004] 1 IR 72

Laurentiu v Minister for Justice, Equality and Law Reform [1999] 4 IR 26

Cityview Press v An Comhairle Oiliúna [1980] I.R. 381

State (Keegan) v Stardust Victims Compensation Tribunal [1986] I.R. 642

Webb v Ireland [1988] IR 353

McGimpsey v Ireland [1990] 1 I.R. 110

Horgan v An Taoiseach, Minister for Foreign Affairs [2003] 2 IR 468

T.D. v Minister for Education [2001] 4 IR 259

R (Wells) v Secretary of State for Transport, Local Government and the Regions (Case C-201/02) [2004] ECR 1-723

R v North Yorkshire County Council ex parte Browne [2000] 1 AC 397

R (on the application of Prokopp) v London Underground Ltd [2004] 1 P and C.R. 479

Berkeley v Secretary of State for the Environment [2001] 2 A.C. 603

Murphy v Wicklow County Council (Unreported, High Court, 19 March, 1999)

Cilfit v Ministry of Health [1982] ECR 3415

Legislations

National Monuments (Amendment) Act, 2004: s.8

Roads Act 1993: s.50, s.51

Directive 85/337/EEC

Planning and Development Act, 2000: s. 215

National Monument Act 1930: s. 25, s.26

Constitution: Art.5, Art.10, Art.15, Art.40

Roads Act 1993: s.55

Roads (Amendment) Act 1998: s.6


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