The High Court yesterday granted leave to seek judicial review of Wicklow County Council's decision to go ahead with construction of an £18 million dual carriageway at the Glen of the Downs.
Mr Justice Geoghegan also continued an injunction restraining trespass on an area of the glen by a number of eco-warriors after hearing that Wicklow County Council would continue its undertaking not to fell trees in the area.
The injunction and the undertaking are to continue, pending the outcome of legal proceedings to be heard on January 30th.
The injunction applies against Mr Dermot Murphy, other named defendants and other environmental activists who know the order has been made. Mr Murphy was the only defendant who was legally represented yesterday but some defendants were in court.
Mr Michael O'Donnell, counsel for Mr Murphy, a computer technician of Exchequer Street, Dublin, applied for leave to seek judicial review of the decision to construct the Kilmacanogue-Glen of the Downs dual carriageway.
In an affidavit, Mr Murphy said he had been occupying woodlands in the Glen of the Downs for months. He was familiar with the area and knew it was of extreme importance from an ecological and arboreal point of view.
He said that putting a dual carriageway through the nature reserve was totally contrary to the objective of managing the site as a nature reserve and would have a very serious adverse effect on it.
Outlining his client's grounds for seeking judicial review, Mr O'Donnell submitted that part of the area in the proposed road development was designated a nature reserve under the 1976 Wildlife Act. That order was a recognition of the importance of the area which was unique in western Europe, containing old oak wood and natural hardwood trees and an intricate and vulnerable ecosystem.
Mr O'Donnell said the order had not been revoked and he submitted that it was necessary to modify or revoke it before the proposed development could go ahead.
Mr O'Donnell also submitted the area in question was State lands. He said Wicklow County Council had purported to have acquired those lands under a compulsory purchase order.
He claimed that the provisions of the Acts relating to compulsory purchase do not apply to lands within the ownership or control of the State. If such lands could be compulsorily acquired, then such a transfer of State lands could not take place without the consent of the Minister for Finance, he argued, and that consent was not given.
He also said there were public rights of way and a public "right to wander" across the said lands. He submitted that those rights cannot be interfered with unless all the necessary statutory procedures to extinguish them were completed.
Mr O'Donnell said the Minister for the Environment had made significant modifications to the planned road development scheme and, in those circumstances, the public was entitled to make submissions and observations on that scheme.
In the absence of an Environmental Impact Assessment being carried out on the modified scheme, he said the decision to proceed with the development was unreasonable and in excess of the council's powers.
Granting the application to seek judicial review, Mr Justice Geoghegan said Mr Murphy was seeking a number of orders and declarations, including an order quashing the decision of Wicklow County Council to proceed with works for the construction of the dual carriageway, particularly on lands at the Glen of the Downs.
He said the declarations being sought by Mr Murphy included declarations that part of the lands included in the proposed road development were a nature reserve and were lands owned by the State which had not been validly transferred by the State to Wicklow County Council.
The judge said he was satisfied, on the evidence before him at this stage, that there were sufficient grounds to grant the application for leave for judicial review. He said not all of the grounds put before him were of equal standing but he would grant leave on all grounds.