In a significant decision yesterday, the Supreme Court unanimously found that a Co Kerry man had established a "substantial" ground for a further legal challenge to the controversial construction of a roundabout over medieval remains at Carrickmines Castle in Dublin.
Given its decision to allow Mr Michael Mulcreevy bring judicial review proceedings, the court said it will today consider any applications for further orders in the matter. Mr Mulcreevy's lawyers said they had to study the judgment before deciding whether to apply for an injunction to halt the works.
The three-judge court, consisting of the Chief Justice, Mr Justice Keane, Mr Justice Hardiman and Mr Justice McCracken, found that Mr Mulcreevy had established a "substantial" case on which to base a further challenge to the development. They granted his appeal against the High Court's refusal of leave to take judicial review proceedings.
The ground on which Mr Mulcreevy secured leave relates to the constitutionality of 1996 regulations which changed the situation under which consents might be given for the defacing or destruction of a national monument such as Carrickmines Castle.
The effect of the disputed regulations is that the Minister for the Environment may consent to works involving the destruction or defacement of a national monument, and then approve his own consent.
Mr Justice Keane said that for a number of reasons, it was "difficult to avoid the conclusion" that any power had been conferred on the government to make the 1996 regulations, given that they purported to amend an Act by substituting a new statutory regime.
Earlier this month, the High Court ruled Mr Mulcreevy had not brought his application within the legal time limits. It refused leave to bring the proceedings and awarded costs, estimated at €100,000, against him.
Yesterday, the Supreme Court overturned that decision and allowed Mr Mulcreevy's appeal.
Delivering the court's judgment, Mr Justice Keane said there was no dispute that the remains of Carrickmines Castle were a national monument. Nor was there any dispute that archaeological excavations carried out on the site on behalf of Dún Laoghaire-Rathdown County Council had cost more than €6 million.
It was not necessary for the Supreme Court to try to resolve differences of opinion between archeologists as to the extent and significance of the removal or destruction of part of the remains as caused by the motorway works, he added. Nor was it necessary for the court to decide where the balance must be struck between the preservation of a site acknowledged to be of great archaeological and historic interest and the implementation of a major infrastructural project.
The council owned the lands where it was proposed to carry out the works, which required the consent of the Minister for the Environment, he said. A joint consent of the council and the Minister was given on July 3rd, 2003, and on the same day the Minister made the National Monuments (Approval of Joint Consent) Order 2003, which approved his own consent. That order went before the Oireachtas and came into effect on December 2nd, 2003.
The judge rejected a number of grounds on which Mr Mulcreevy sought leave to challenge that order, but said Mr Mulcreevy had made a substantial case on grounds related to the making of regulations in 1996 and 2002.
