The Supreme Court has restrained Dún Laoghaire-Rathdown County Council from carrying out specified work affecting remains at Carrickmines Castle without a valid consent under the National Monuments Act, 1930, as amended. The order is interlocutory and remains in place until further order; it does not finally decide the dispute.
Dominic Dunne and Gordon Lucas sought injunctions to prevent the council from removing or altering parts of the remains and from disturbing nearby ground as part of the South Eastern Motorway scheme. The council disputed that the relevant remains were a national monument, but accepted that the plaintiffs had made an arguable case on that point for the application. It also argued that a section 26 excavation licence evidenced ministerial consent, that the plaintiffs had delayed, and that stopping work would cause substantial expense.
In a judgment delivered on 24 February 2003, Hardiman J said the section 26 licence for archaeological excavation was a neutral factor: it did not replace the separate joint consent required under section 14 for removing or altering a national monument. On the evidence before the Court, the plaintiffs’ expert opinion that the site was a national monument had not been contradicted by expert evidence. The Court therefore proceeded on that basis for the interlocutory application, while expressly leaving the council free to contest the issue at trial.
The Court also found no basis on the correspondence and timeline to conclude that the plaintiffs had delayed in a way that defeated their application. They had raised the section 14 issue in September 2002, while archaeological work on the relevant part of the site was continuing. The council’s solicitors said they would respond after receiving instructions, but no further response was identified in the judgment.
The council’s evidence cited estimated disruption costs of €50,000 to €100,000 a week and a motorway tender price of €144 million. Hardiman J held that these figures were not sufficiently tied to the particular injunction sought to assess its likely effect on the project or the plaintiffs’ undertaking as to damages.
The Court concluded that the plaintiffs had raised a fair question for trial and that damages would not be an adequate remedy for the public right they asserted. It ordered restraint of the actions specified in their motion, adding the qualification “without a valid consent under s.14”. The order grants liberty to apply to the High Court. The judgment did not finally determine whether the remains are a national monument, whether section 14 consent is ultimately required, or the merits of the underlying action.