The Supreme Court has allowed Michael Mulcreevy to seek judicial review of a ministerial order approving works affecting the Carrickmines Castle remains, but only on a challenge to the statutory transfer of powers behind the approval process.
The judgment, delivered by Chief Justice Keane on 27 January 2004, was about leave to bring judicial review, not the final validity of the order. The court allowed Mulcreevy’s appeal from the High Court’s refusal of leave and directed that the application proceed on specified grounds. It did not quash the order or decide whether interim or interlocutory relief should be granted. It said counsel would be heard on that question.
The case concerns the South Eastern Motorway Scheme, whose route crosses part of the Carrickmines Castle site in County Dublin. The judgment records that the remains are a national monument and that construction requires removal of some remains, including part of a granite revetment. The local authority intended to reconstruct that section elsewhere on land it owned. The judgment noted that the archaeological work had cost more than €6 million and involved up to 200 archaeologists.
An earlier Supreme Court decision led to an injunction restraining works until the required consent was obtained. On 3 July 2003, the Environment Minister and Dun Laoghaire–Rathdown County Council gave joint consent, and the Minister made an order approving it. The order became effective on 2 December after the period for either House of the Oireachtas to annul it passed. Mulcreevy applied for leave to challenge the order on 23 December.
The Supreme Court agreed that Mulcreevy had standing and had acted promptly. It rejected as unarguable his challenge to the Minister’s stated reason that the motorway was in the public interest. It also rejected his arguments based on fair procedures and the archaeological excavation licence.
The court found an arguable case that the 1996 order transferring Commissioners’ functions to the Arts Minister may have altered the statutory approval structure in a way that delegated legislation could not. The later transfer of functions to the Environment Minister was also part of the challenged framework. The court granted leave to seek certiorari of the 3 July approval order on the specified grounds, and no others. It made no final finding that either transfer order was invalid.