IESC 15
THE SUPREME COURT
49 & 52/2003Hardiman J
DOMINIC DUNNE and GORDON LUCAS
DUNLAOGHAIRE-RATHDOWN COUNTY COUNCIL
Defendants/RespondentsJUDGMENT of Hardiman J. delivered the 24th day of February, 2003.
1. The Plaintiffs object to the proposed removal by the defendants, as part of a road building scheme, of certain parts of a monument constituting the remains of Carrickmines Castle, Co. Dublin. By Notice of Motion issued shortly prior to the 10th February, 2003 they sought:-
The statutory background.
“(1) Interim/interlocutory injunction restraining the defendant from demolishing or removing or disfiguring defacing altering or in any manner injuring or interfering with the national monument and/or archaeological remains situated on lands owned by the defendants, forming part of Folio 5005… .
(2) An interim/interlocutory injunction restraining the defendant from excavating, digging, ploughing or otherwise disturbing the ground within, around or in proximity to the national monument situated on lands owned by the defendants and forming part of Folio 5005..”
2. The relief claimed mirrors the wording of the National Monuments Act, 1930 as amended. Section 14 of that Statute provides:-
3. The Act was subsequently amended, by Section 15 of the National Monuments (Amendment) Act 1994 by the insertion of new subsections after sub-s. (3), of which the following are relevant:-
4. It will be seen that this amendment considerably reduces the scope for the granting of consent by the substitution of the above for the former power to consent if the Commissioners thought it “expedient in the interests of archaeology or for any other reason”. In other words, the very wide residual discretion in the Act of 1930, has been replaced by a strictly confined discretion, and the matters to be considered have been strictly limited.
“(3A) The consent referred to in sub-s. (2) of this Section shall not be given by the Commissioners or the Commissioners and a local authority, in a case referred to in paragraph (a) of sub-s. (1) of this Section, unless it is in the interests of archaeology to do so or the Minister has approved of the giving of that consent.
(3C) On being requested to approve of a consent under this Section, the Minister may approve of the consent referred to in sub-s. (3A) of this Section in a case referred to in paragraph (a) of sub-s. (1) of this Section where he thinks it expedient to do so in the interests of public health or safety”.
5. By the Heritage (Transfer of Functions of Divisionals of Public Works in Ireland) Order 1996, the Taoiseach transferred the functions of the Commissioners under, inter alia, the National Monuments Act to the Minister for Arts, Culture and the Gaeltacht. By the Heritage (Transfer of Departmental Administration and Ministerial functions) Order 2002 the Taoiseach transferred the functions of that Minister, inter alia, to the Department of Environment and Local Government, where it remains.
6. The effect of the foregoing is that the consent of the defendant local authority and of the Minister for the Environment is required if any of the matters mentioned in sub-s. (1)(a) of s.14 of the National Monuments Act, 1930 are lawfully to be done. The consent must be the joint consent of the Minister and the local authority and each are constrained in the way set out in the statutory citations above in the reasons by reference to which they can grant consent. It is undisputed that the defendant County Council is the owner of the relevant lands.
Contentions of the parties.
7. The plaintiff says that the defendant, in the course of a huge road building project, is about to contravene s.14. Specifically, and without limiting their contentions in any way they say that the defendants are admittedly about to remove the revetments of a medieval fosse. They say that this, together with the other remains of Carrickmines Castle, is a “national monument” and that interference with it is a criminal offence under s.14 of the 1930 Act. They seek the relief claimed to prevent this unlawful Act.
8. The defendants say they will dispute that the relevant remains of Carrickmines Castle are a national monument, or part of such a monument. However, they concede that an arguable case has been made for the view that they are a national monument. They say that no case “can now be made, by virtue of the efflux of time, and to the continuation of licensed excavation to near completion”, for the relief the plaintiffs claim. They contend that the Minister has already exercised an independent function under the Acts by granting a licence under s.26 of the National Monument Act, 1930, for excavation and by doing so has evidenced his consent in writing. They say that the plaintiffs have been guilty of delay and that the balance of convenience hugely favours the local authority especially having regard to the considerable expense which would or might be incurred if work is stopped. They dispute the adequacy of the plaintiffs’ undertaking as to damages.
A National Monument?
9. As noted above, the defendants concede that an arguable case has been made out for the proposition that the relevant remains at Carrickmines constitute a national monument, though they deny that in fact they do so. This rather odd position was necessitated by the present state of the evidence in the case. In my view it is of some relevance in the assessment of the strength of the case to consider briefly what that evidence is.
10. The case made by both parties relies heavily on expert evidence, that of Dr. Sean Duffy FTCD for the plaintiff and that of Ms. Valerie J. Keely, proprietor of Valerie J. Keely Ltd. Archaeological Consultants, on behalf of the defendant. Dr. Duffy’s affidavit asserted in strong terms that the archaeology on the relevant site “is a national monument”. Furthermore, at paragraph 27 of his affidavit he referred to the fosse where the revetments previously referred to are found and said that “If the only feature found at Carrickmines was the fosse and the other parts of the defensive structure, such remains would constitute a national monument within the meaning of the national monuments legislation. This elaborate defence structure is unique in Ireland and unknown in Britain or continental Europe”.
11. Furthermore, the first quoted averment was preceded by eleven paragraphs of material supportive of the conclusion quoted. Moreover, at the beginning of his affidavit Dr. Duffy stated specifically, by way of flagging, that he intended to offer an opinion as to the status of the archaeology on the site in terms of the National Monuments Acts.
12. Against this background it is in my opinion remarkable that Ms. Keely in a lengthy and closely reasoned affidavit in which she takes detailed issue with some quite minor points in Dr. Duffy’s affidavit, does not address this central question at all. On the contrary, she goes into considerable detail about the surveys carried out by her firm over the past ten years on behalf of the defendants and the excavations carried out by the firm in the period between July, 2000 and January 2003. It is stressed that all of these excavations were carried out under the terms of a licence pursuant to s.26 of the National Monuments Act. In fact, s.26 of the Act is headed “Restriction of excavations for archaeological purposes”. It provides that a licence is required before any person can excavate in or under land “for the purpose of searching generally for archaeological objects or of searching for, exposing or examining any particular structure or thing”. In the course of argument in this Court it was accepted, as apparently was not in the High Court, that the existence of a s.26 licence was a neutral factor and did not dispense one from obtaining a s.14 consent if one wanted to remove or alter wholly or in part a national monument.
13. Nor do I think that the finding of the High Court judge: “Section 14 of the National Monuments Act, 1930 has to be read and assessed with all the work carried out to date, in context of the reports and respective duties of “Duchas and the Minister”, can be supported as a statement of the law. It appears to me that the requirement of s.14 is a freestanding one. Equally significantly, the powers of the local authority and the Minister in considering whether to grant the joint consent referred to in the Section are severely limited in a way that Duchas and the Minister are not limited in other contexts.
14. The Act of 1930 defines the term “monument” and there is no doubt that – and it has been conceded – that the Carrickmines remains constitute a monument. It goes on to define “national monument” as “a monument or the remains of a monument the preservation of which is a matter of national importance by reason of the historical, architectural, traditional, artistic or archaeological interest attaching thereto”.
15. Plainly there is scope for differences of opinion as to whether the preservation of any particular monument is a matter of national importance. But it is essential to the resolution of the present case to note that the strongly expressed and closely argued conclusion of Dr. Duffy to the effect that it is a national monument is uncontradicted by any expert evidence. It must therefore be accepted for the purposes of the present application. It is also difficult to close ones eyes to the fact that a committed expert in a uniquely good position to form a view on this topic, Ms. Keely, has omitted to express any view on this topic on affidavit. This, although she takes issue in a pointed and trenchant manner with other, much less significant, opinions of Dr. Duffy.
16. Insofar as there is any challenge to the expert qualifications of Dr. Duffy in the relevant area, I consider them fully and modestly answered in paragraph 2 of his replying affidavit.
17. Accordingly, I believe that the Court must approach this application on the basis that there is no issue raised, on the present state of the evidence, as to whether or not the relevant site is a national monument. This does not preclude the defendants from taking issue with this proposition at any trial, but for present purposes we must assume that the premises are a national monument and (which is undisputed) that it is proposed to remove or alter it without the consent required by s.14 of the National Monuments Act, 1930, as amended. This provision is part of the law of the land which the Court is bound to uphold.
18. The defendants affidavits are also silent on the significant points as to whether the question of the monuments possible status as a national monument, or the possible need to seek s.14 consent, was ever considered by them.
Standing of the plaintiffs.
19. It was argued by the defendant that, assuming the site to be a national monument, s.14 created a public and not a private right, which the individual plaintiffs had no standing to enforce. Moreover, the Section was a penal one, creating an offence and this must be regarded as the sole method of enforcement.
20. There is learned discussion on the rights of an individual to maintain an action for breach of a public right in Hogan and Morgan “Administrative law in Ireland” 3rd edition pp. 758 – 764, where the evolving state of the law on this matter is traced. However, for the purposes of this interlocutory application I consider it indisputable that an arguable case for the plaintiffs standing has been established. In The Attorney General (at the relation of Frank McGarry and Ors.) v. Sligo County Council  1 IR 99, relief was granted against the development of a dump in Sligo inter alia on the basis that to do so would be to contravene s.14 of the 1930 Act. Although this was a relator action, the individual plaintiffs had been granted an interlocutory injunction before the Attorney General became party to the action. Moreover, McCarthy J. who gave the judgment of the Court stated that “I am not to be taken as supporting or otherwise the apparent view of the High Court Judge that it was necessary to bring these proceedings as a relator action”. In fact, the individual plaintiffs undertook at the interlocutory stage to seek the authority of the Attorney General to institute relater proceedings in respect of certain public rights, and it is open to these parties to do so as well.
Laches and balance of convenience.
21. These points were trenchantly urged by the defendant. They emphasise, firstly, the importance of the project on which they are engaged, the South Eastern Motorway, being the final part of the M50 ring motorway around Dublin. It is part of Euro Route EO1, which will eventually extend from Rosslare via Dublin and Belfast to Larne. This motorway consists of ten kilometres of dual two lane motorway, four motorway interchanges, sixteen bridges and two underpasses. It is a strategic element of the national road network. The Dunlaoghaire-Rathdown County Council South Eastern Motorway scheme of 1997 was approved by the Minister for the Environment in 1999. The Council entered on the lands in August, 2000 and expect to complete it in 2005. An environmental impact statement was prepared on or about the 19th October, 1998. Ms. Valerie Keely’s consultancy has been employed on the scheme since 1992 and has proferred eight archaeological assessment reports. Carrickmines Castle was at all times regarded as an important archaeological site, even before the excavations and was recommended for investigation. The approach favoured by the environmental impact statement was to “resolve” any newly discovered archaeological features by excavation and recording in accordance with proper archaeological practice. Other archaeological aspects were preserved. Concerns such as those of the plaintiffs, it was said, should have been raised at a much earlier stage.
22. It appears that in July 2002 An Taisce submitted a proposal for, amongst other things, the movement of the line of the motorway in order to preserve archaeological features at Carrickmines. The defendant and the National Roads Authority in response produced a report entitled “Preservation of Archaeology at Carrickmines” in August, 2002. The Minister for Transport considered this and “in around September 2002” he approved of the scheme currently being followed.
23. On the 30th September, 2002 the solicitors for the plaintiffs wrote to the defendant raising a number of issues in relation to the scheme, including the s.14 issue. The date of this letter is significant because it was conceded on the hearing of this appeal that, having regard to the date on which the Minister approved the report of the defendants and the National Road Authority, that letter was timely. Accordingly it would appear that the allegation of laches must focus on the period since then. The letter also asked for confirmation of the legal status of the Minister for Transport’s then recent proposals (the approved report) to reduce damage to archaeological remains.
24. The letter specifically called on the council and the National Roads Authority “firstly to confirm by return that the consents referred to above have in fact been obtained and the statutory provisions complied with in full and secondly, to furnish copies of the requisite consents”.
25. This letter was replied to on the 7th October, by Messrs. McCann Fitzgerald solicitors for the defendant. This letter first made the point that the defendant’s contractor had entered the site, not for the purpose of carrying road development works but for the purpose of carrying out archaeological works approved by Duchas, under an archaeological licence made pursuant to the National Monuments Acts. This was the s.26 licence. The defendant’s solicitors letter then summarised the changes of statutory function, detailed earlier in this judgment, and said:-
The letter ended by reiterating that “as indicated above we will communicate further with you when we have received full instructions from our clients on the matter”.
“We are seeking detailed instructions on the specific points raised by you and will respond in due course but wish to note for the record that the works to be carried out on behalf of Dunlaoghaire-Rathdown County Council will be done with the full approval of the relevant government department, that is the Department of the Environment and Local Government”.
26. The correspondence rested there until the 23rd January, 2003, which was a few days before the completion of the archaeological excavations by Ms. Keely’s company. On that day, the plaintiffs solicitors wrote again to the defendant and the National Roads Authority stating that their clients understood that the defendants intended to enter “that part of the site not already being utilised for the purposes of the works shortly, on completion of the archaeological excavation, for the purpose of carrying out road development work ”. They went on to say that the defendants “have failed to confirm whether an appropriate written consent has been obtained for the carrying out of works, which works will injure and/or interfere with the National Monument” which they said was required under s.14 of the 1930 Act as amended. They again threatened proceedings. Shortly after this a number of persons, including one of the plaintiffs, trespassed on the site with a view to preventing works on the fosse. This led to injunction proceedings in which the current defendants were plaintiffs. These were apparently resolved by undertaking and there is now no trespass or occupation on the site. The present proceedings were instituted by a plenary summons issued on the 5th February, 2003.
27. It thus appears that the objection that the works required consent under s.14 was raised by the plaintiffs more than four months before the proceedings were instituted. At that time, as the defendants correspondence makes clear, their contractors were not on the relevant part of the site for road building purposes, but in connection with further archaeological works which did not conclude until the 26th January, 2003. It would therefore have been open to the defendants then to apply for the consent under s.14 if they thought it necessary or prudent to do so or positively to decide not to do so and inform the plaintiffs of this, leaving them to proceed as they thought fit. Given that the archaeological works on the site were to proceed for a further period of just under four months from the 30th September, there was ample time to take either of these courses without prejudice to road works on the relevant part of the site. The County Council had been asked in terms whether they had a s.14 consent, and if so to produce it. They did neither of these things but said, through their solicitors, that in relation to these specific points they would “respond in due course” and “communicate further with your when we have received full instructions from our clients on the matter”. This was never done.
28. I cannot see, in that sequence of events, evidence of laches on the part of the plaintiffs. There was a clear opportunity to resolve the issue of whether s.14 consents were necessary or not, and if necessary to apply for such consent, without interfering with the road building programme, within the period when the site was still in the hands of the archaeologists. In this connection, I note that the defendants consultants obtained additional excavation licenses covering first a period of four week commencing on the 25th November, 2002 and, secondly a period of four weeks commencing on the 15th January, 2003.
29. The defendants solicitors did make the point that everything they were doing or intended to do had the approval of the Department of the Environment and Local Government. But this was not approval under s.14 and specifically was not a consent to remove or alter a national monument or any part of it. It was approval under s.26 as far as archaeological digging was concerned and presumably under the Roads legislation as far as the proposed road building was concerned. Running through the defendants submissions on this appeal was the suggestion that it was pointless to complain about the lack of a s.14 consent. The written submissions quote Dr. Duffy’s affidavit where he stated, in support of the view that a s.14 licence was required that “it is appropriate that the Minister and his officials, being independent of the County Council be given the opportunity to advise on the issues in the context of an application for consent”. The Council then said:-
30. This, it seems to me, amounts to a suggestion that a licence under s.26 could in some way, in law, do duty for a consent under s.14. This ignores the essential facts, firstly that what is authorised under a s.14 consent (including removal or altering a national monument) it is different from what is authorised under a s.26 licence, and secondly, that the Minister in considering whether to consent under s.14 as amended is limited to quite a narrow set of criteria which do not appear to constrain him in any other capacity.
“The responsible Minister/Duchas has exercised its independent function under the Acts by granting the appropriate consent, by way of licence under s.26 of the Acts”.
31. If, in addition, there is a suggestion that it would be pointless to seek s.14 consent because the Minister, having approved the road alignment and having granted the s.26 licences, would be virtually bound to grant the s.14 consent, I would reject that view entirely. Firstly, it is incidental that the Minister for the Environment now discharges the functions, in relation to giving consent under s.14, which were formerly to be discharged originally by the Commissioners of Public Works and subsequently by the Minister for Arts, Culture and the Gaelteacht. No doubt it is a somewhat odd position that a Minister with an interest in the road building programme is the person who requires to give consent under the National Monuments Act, even in relation to a monument whose removal or alteration in whole or in part is proposed for road building purposes. But the Court must presume that the Minister would correctly direct himself, if asked for consent under s.14, that he was then discharging a freestanding statutory function to which many of the considerations which properly influenced him in other capacities were irrelevant or improper to consider. Some might think it better if the function of deciding on an application to remove or alter a national monument in whole or in part was decided by another authority but we must take the statutes as we find them.
32. The defendant argued that, if the plaintiffs are successful in the end, damages will be an adequate remedy for them. They also argue that the Statute provides a remedy for breach of s.14 – criminal prosecution, and the Court should not impose another remedy in the form of an injunction.
33. The plaintiffs do not seek damages in the plenary summons. This is surely realistic, for the claim is to assert a public right and not a private one. Their personal connection with the matter is as citizens. The Attorney General v. Sligo County Council has already been cited: there, a private action by the plaintiffs individually proceeded in tandem with the Attorney General’s proceedings at their relation and no suggestion of an adequate remedy in damages was made. Here, the plaintiffs do not allege they have suffered any substantial individual compensable harm. To use the old terms, they claim they will suffer injuria but only national domnum. Damages are not so much inadequate as irrelevant to their cause of action.
34. The McGarry case also concerned s.14, inter alia, and no suggestion was made that the availability of a criminal remedy prevented injunctive relief. This is surely realistic. The imposition of criminal penalties on a defendant proved to have contravened s.14 will not restore the status quo ante.
Balance of convenience and financial loss.
35. This matter is addressed in the affidavit of Mr. O’Hare, on behalf of the defendants, especially at para. 18. He says:-
36. Later he says:-
“I say that the estimated cost to the council arising from the disruption and delay will be in the region of between €50,000 and €100,000 per week and the contractors claims for disruption to the road construction programme due to the extension of the time allowed for archaeological excavation could increase costs further and in this regard the tender price for construction of the South Eastern Motorway was €144,000,000”.
37. He goes on to refer to the importance of the scheme and the disruption it causes to already overcrowded routes. I have no doubt that, as Mr. O’Hare says, the scheme is one of the largest and most important infrastructural schemes in the history of the State.
“Any further delay in the Council’s contractor taking possession of the site will cause great prejudice to the Council and give rise to significant losses under the contract as previously set out. In addition, there is urgent public need in the interests of the common good that the scheme proceed to completion at the earliest possible date”.
38. He goes on to take issue with the adequacy of the plaintiffs undertakings as to damages.
39. These are important and weighty matters, very proper to be considered by the Court in an application of this kind. But in order to be decisive in terms of the balance of convenience on this application they must be specifically related to the relief actually sought. I do not think that the defendants averments do this with sufficient precision. It is stated that delay in the motorway project would be expensive and more generally prejudicial, and there is no doubt that this is so. But there is no statement as to the precise way in which this claimed injunction and the proceedings commenced will delay the motorway. Nor have the defendants advanced any precise legal or factual basis for the losses they say will be incurred should an injunction be granted. The contract with the contractors has not been produced nor any basis of calculation or estimation suggested. The mention of the huge sum of €144,000,000 as the contract price of the South Eastern Motorway is, no doubt properly, calculated to make any court hesitate on the threshold of interlocutory relief. But neither this figure nor the much smaller still very significant weekly figure quoted have been related in any way to the actual scope of the proposed injunction. Specifically there is no averment that it would cause total stoppage of works that there is no other work capable of being done by the contractor or that, by virtue of any clause in the contract, the level of restriction constituted by the claimed injunction will trigger any particular claim by the contractor. If any of these things were features of the case, Mr. O’Hare is certainly in a position to know it. In my view it is not sufficient, either from the point of view of establishing a balance of convenience or attacking the undertaking, simply to mention huge sums of money without relating them either to the specific relief sought or to the specific liability for which the plaintiffs, by virtue of their undertaking, may become responsible.
Criteria for relief.
40. It remains to consider the above facts and findings in the context of the criteria for the grant of interlocutory relief. These have been authoritatively expressed in Campus Oil Ltd. v. Minister for Industry and Energy  IR 88 and in a line of cases proceeding from it, of which the defendant has particularly referred to Clane Hospital Ltd. and Ors. v. Voluntary Health Insurance Board (High Court Quirke J. unreported 22nd May, 1998). The first question is as to whether the applicant has established a fair and bona fide question for determination. For the reasons set out above it is clear that they have done so. In view of the defendants failure to challenge their principle assertion in relation to the applicability of s.14 I would also consider that they have met the higher criterion for which the losing party in Campus Oil contended, a probability of success at the trial. That, at least, is so in the present state of the evidence, though it must be recalled that the defendants stated that they would challenge at trial whether the site was, or included, a national monument.
41. As to adequacy of damages, I cannot see how, in a case where no damages are claimed and where the right asserted is a public right, it can be said that damages would be an adequate remedy to the plaintiffs.
42. The balance of convenience is said by the defendants to be a critical factor in this case. Clearly, the relief sought by the plaintiff is the preservation of the status quo, and this is normally considered to be an important aspect of the balance of convenience. The defendants say however that the plaintiffs have come very late and that the relief sought would involve a disproportionate interference with a huge public project with consequent expense and prejudice.
43. I stress that these matters are to be assessed on the evidence presented by the parties and not in an intuitive fashion. There are, in my opinion, grave deficiencies in the defendants evidence on the balance of convenience. There is no doubt that the scheme is a huge one, and an important part of our infrastructural development. The plaintiffs are not concerned to deny this. But there has been a failure to establish that the relief sought would interfere with the scheme, would give rise to a liability to the contractors or to anyone else or would prevent any work on the motorway continuing. The question of balance of convenience is a most important one in considering a large civil engineering project. But the purported damage and expense must, in my view, be established and not simply invoked. I have already referred to the freestanding mention of the huge sum of €144,000,000, in the affidavit of Mr. O’Hare. This sum is in no way related to the injunction claimed and Mr. O’Hare does not suggest that it is. The mere mention of an enormous sum of money as the total cost of the scheme does not in any way constitute evidence as to the balance of convenience of this particular case. No doubt there will be inconvenience rising from the grant of an injunction but the defendant has not adduced evidence from which one could rationally assess whether this will be of a trivial, or of a near catastrophic nature. If there is any question of the latter, one would expect that detailed evidence of that proposition would be available.
44. This point is also relevant, it seems to me, to the objection taken to the adequacy of the undertaking as to damages. The plaintiffs have offered such an undertaking and have not concealed that they are people of relatively modest means, being a heavy goods vehicle driver and a student respectively. But the attack on the undertaking as to damages, like the attempt to influence the balance of convenience, has not been supported by any sufficiently convincing statement of the actual costs of the present injunction.
45. It is important to emphasise that, in dealing with an interlocutory motion, the Court is not finally deciding any factual or legal aspect of this controversy. On a full hearing the evidence may be different and more ample. The law will be debated at greater length and, we are told, the question of the site’s national monument status will be put properly in issue, as it has not been here.
46. The difficulty for a court in dealing with any case on an interlocutory basis is that there is an ever present risk, either in granting or in withholding relief, of doing an injustice to the party who succeeds in the end. One has to balance the risks of injustice to the respective parties. In this context it is significant that, if no relief is granted, the Court will be effectively deciding the issue by inaction, since the apprehended interference with the alleged national monument will be complete long before the action can be tried.
47. The sole basis on which the plaintiffs can make a case approaching the strength required for interlocutory relief is in relation to the absence of a s.14 consent. The Court is not finally deciding that a s.14 consent is necessary, but on the present state of the evidence that appears to be so. This state of affairs is an essential element of the plaintiffs claim to relief. Accordingly it seems appropriate to grant relief restraining until further order the actions referred to in para. 1 of the Notice of Motion but with the addition of the words “without a valid consent under s.14 of the National Monuments Act, 1930 as amended”. There will be liberty to apply to the High Court. If it transpires that a consent under s.14 is sought and granted one would expect such an application to be made.