Wicklow County Council was not entitled to construct a dual carriageway through the Glen of the Downs without changes to legislation which had designated lands there as a nature reserve, it was claimed in the Supreme Court yesterday.
It was wrong for a High Court judge to find that the legislation designating the lands a nature reserve could be amended or revoked after the proposed roadworks were carried out, said Mr Paul Sreenan SC.
If this was correct it would make a nonsense of the protection afforded to a nature reserve. It would mean that lands which formed part of a nature reserve could be lawfully interfered with on the presumption that the works, once carried out, would be validated by the relevant Minister for Arts, Heritage, Gaeltacht and the Islands.
This presumed the Minister would make the required order amending the designation of the lands as a nature reserve and took away the Minister's discretion.
He was presenting an appeal by Mr Dermot Murphy, a Galway computer technician, against Ms Justice Kearns' decision in the High Court in March that the £18.5 million dual carriageway could proceed despite the council's failure to adhere to all appropriate statutory procedures when advancing the scheme. Mr Justice Kearns ruled the council's mistakes could be readily rectified.
Following the High Court decision, the lands were finally transferred in August from the ownership of the Minister for Agriculture to that of Wicklow County Council.
The council has undertaken not to proceed with the roadworks pending the determination of Mr Murphy's appeal, which concluded yesterday afternoon before the five-judge Supreme Court. Judgment was reserved.
The appeal rests on the interpretation of Statutory Instrument SI178 of 1980, designating the Glen of the Downs a nature reserve. The land was said to include a woodland ecosystem of scientific interest.
By SI178, all the lands known as the Glen of the Downs other than any part "which forms part of a public road" were established as a nature reserve.
Mr Sreenan, for Mr Murphy, claimed Mr Justice Kearns was wrong in holding that SI178 did not prevent the council from carrying out the proposed roadworks without first amending the terms of SI178.
He also argued the judge was wrong in holding that SI178 could not be amended until after construction of the proposed road. After construction, the integrity of the nature reserve would be fundamentally undermined and any amendment would serve no useful purpose.
The council was proposing to remove part of the designated nature reserve and to transform it into a dual carriageway. That proposal directly extinguished part of the nature reserve and not, as the council claimed, part of a public road or future public road.
He said what the council was proposing could not be legitimised by mere consultation with the relevant Minister. The planned road scheme was inconsistent with the nature reserve and required either amendment of SI178 or its revocation.
Mr James Connolly SC, for Wicklow County Council, said it was not necessary at all to amend SI178 to allow the proposed roadworks proceed as the SI expressly excluded the roadway passing through the glen and also envisaged a road-widening scheme. The proposed road scheme simply involved additions to the existing highway.
If the Supreme Court found an amendment was necessary before roadworks could be carried out, he submitted, the High Court was correct in determining that the appropriate time for such an amendment was after the roadworks were complete.
Mr Connolly said the Wildlife Act, 1976, stated that consultation was required before doing anything to affect a nature reserve. His clients had consulted with the relevant Minister prior to carrying out any roadworks at the glen. The claim by Mr Murphy that the roadworks would diminish the area available for the nature reserve was more than offset by the obligations for consultation.
