ANALYSIS: The Supreme Court's ruling in the Carrickmines case has major implications for the NRA's motorway programme, writes Frank McDonald, Environment Editor
Nearly three years ago, a quiet deal was done between the National Roads Authority (NRA) and Dúchas, the Heritage Service, over what should happen to archaeological sites standing in the path of planned motorways or other major road schemes.
The mid-2000 code of practice recommended that, in selecting routes for new roads, such sites should be avoided or, where this was not possible, they should be "archaeologically resolved" - in other words, excavated and recorded before being rolled over by tarmac.
According to Ms Daire O'Rourke, an archaeologist with the NRA, the roads programme has led to the largest scale of archaeological investigation ever undertaken in Ireland by a single developer and it would "add greatly to our understanding of the country's cultural heritage".
However, some archaeological sites might qualify as national monuments - even if they are not recorded as such. The key legislation here is the 1930 National Monuments Act, as amended in 1994 when Mr Michael D. Higgins TD was minister for arts and culture.
Section 14 of the 1930 Act specifies that, where works are to be carried out that would interfere with a national monument, a joint consent in writing is required from the local authority and the State archaeological authority - as was done in the case of Wood Quay.
In 1978, at the behest of the late F.X. Martin, the High Court declared the Wood Quay site a national monument. Subsequently, Dublin Corporation and the Commissioners of Public Works signed a joint consent for its destruction to make way for the Civic Offices.
The Carrickmines plaintiffs lost in the High Court when it found that Dún Laoghaire-Rathdown County Council had paid sufficient attention to archaeology in their environmental impact statement on the South Eastern Motorway and in the later excavations on the site.
However, the Supreme Court has now held that neither of these considerations were adequate to comply with Section 14 of the 1930 Act - in particular, the need for joint consent in writing to authorise works involving the removal of a medieval fosse, or stone ditch.
The problem facing the county council is that the 1994 amendment to the original National Monuments Act specifies that consent can only be granted if it is in the interests of archaeology - a measure intended by Mr Higgins to avoid a repetition of the Wood Quay debacle.
Previously, mere expediency - in this case, completion of the M50 - could be cited as a justification for interfering with a national monument. But few could argue that the removal of the remains at Carrickmines would qualify in the narrower, post-1994 context.
So the county council must either succeed in establishing that the site is not a national monument - something it did not deny in the earlier proceedings - or agree to raise the road by a metre, or replace a proposed roundabout with a signalled junction, to preserve the site. Archaeological excavations over a two-year period, carried out by Valerie J. Keeley Ltd at a cost of €6 million, revealed some of the defensive elements of Carrickmines Castle, though the physical remains of the one-time Pale castle itself were not found.
But even that expenditure was not sufficient to establish the county council's bona fides. Nor was the Supreme Court prepared to take at face value the council's claim that further delays in progressing the motorway contract would cost €100,000 per week in penalties. Mr Justice Hardiman even suggested that work could continue south of Carrickmines until the matter is resolved. No wonder the court's ruling was hailed by Prof Terry Barry, of Trinity College, Dublin who specialises in medieval castles, as "a great day for Irish archaeology".
Obviously, the Department of Transport will be concerned about the implications for the motorway programme. The Minister for the Environment, Mr Cullen, who currently holds political responsibility for Dúchas, will also be studying the court's ruling very closely. If joint consent is required in the Carrickmines case, it is Mr Cullen who would have to give it - but only under the restrictive terms laid down in 1994. The only other alternative would be legislative intervention to scrap these terms and enshrine expediency once again.
The Supreme Court's ruling could upset a lot more than the NRA's motorway programme. Every developer is potentially threatened because it raises a question mark over the validity of such consents as planning permissions if archaeology comes to be uncovered.