Dunne v Minister for the Environment Heritage and Local Government & ors

Factual and Procedural Background

The case concerns the South-Eastern Route of the M50 motorway around The City, part of which traverses the archaeological site known as Carrickmines Castle. An Environmental Impact Statement (EIS) was prepared in 1997 and approval for the road scheme was granted in 1998 under the Roads Act 1993. Subsequent legal challenges (Dunne No. 1 and Mulcreevy) delayed construction and resulted in the quashing of certain ministerial consents.

To expedite completion, the Oireachtas enacted Section 8 of the National Monuments (Amendment) Act 2004, removing many statutory protections for the site and instead requiring that any works be carried out “on the directions of the Minister.” On 5 August 2004 the Minister issued directions regulating remaining archaeological works, and the local authority recommenced activity on site.

The Plaintiff—who had participated in earlier litigation—issued a third set of proceedings seeking declarations that Section 8 was unconstitutional, contrary to EU environmental-assessment directives, and that the Minister’s directions were null and void. The High Court rejected all claims, and the Plaintiff appealed to the Supreme Court.

Legal Issues Presented

1. Whether Section 8 of the National Monuments (Amendment) Act 2004 constitutes an unconstitutional delegation of legislative power contrary to Article 15.2 of the Constitution.
2. Whether Section 8 infringes Articles 5, 10 and 40 of the Constitution by failing to protect the national heritage.
3. Whether Section 8 or the Minister’s 2004 directions breach EU law, in particular Council Directives 85/337/EEC and 97/11/EC on environmental impact assessment.
4. If EU law is not violated, whether the specific directions issued by the Minister nonetheless require an environmental impact assessment or amount to an invalid “development consent.”

Arguments of the Parties

Plaintiff/Appellant's Arguments

• Section 8 delegates broad, unguided power to the Minister, exceeding constitutional limits on law-making and conflicting with the protective purpose of the National Monuments code.
• The provision, by facilitating possible destruction of a national monument, violates the State’s constitutional duty (derived from Articles 5, 10 and 40) to safeguard national heritage.
• Section 8 disapplies mechanisms (including Section 50(1)(b) of the Roads Act 1993) that would trigger an environmental impact assessment, thereby breaching EU Directives 85/337/EEC and 97/11/EC.
• The Minister’s 5 August 2004 directions themselves constitute a “development consent” under the Directives and should have been preceded by a fresh environmental impact assessment.

Respondents/Defendants' Arguments

• Section 8 confers only administrative discretion; it does not amount to delegated legislation and remains subject to ordinary judicial-review standards.
• No constitutional right of the Plaintiff is engaged; policy choices about balancing archaeology and infrastructure are reserved to the Oireachtas.
• The 1998 approval and EIS already satisfied EU requirements; the 2004 directions merely regulate archaeological mitigation and do not alter the road project or create a new “development consent.”
• Even if Section 8 were scrutinised under EU law, Article 1(5) of the Directive exempts projects authorised by specific national legislation.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Delegation of Legislative Power (Article 15.2). Section 8 authorises the Minister to issue directions, but the Court characterised this as an administrative discretion, not subordinate legislation. Applying Cityview Press, it found that the Oireachtas clearly set the policy—completion of the South-Eastern Route—and merely allowed the Minister to “fill in the details.” Therefore, no unconstitutional delegation arose.

2. Articles 5, 10 and 40. The Plaintiff argued for a constitutional duty to preserve national monuments. The Court accepted the State’s general responsibility but rejected any personal right enforceable under Article 40.3 and held that policy choices about balancing heritage and infrastructure are for the Oireachtas. Section 8 does not breach Article 10 because archaeological remains are not “natural resources” within that provision.

3. EU Environmental Directives. The relevant “project” is the motorway, already assessed under the 1998 EIS. Relying on Browne, Prokopp and Wells, the Court ruled that the Minister’s 2004 directions merely regulate archaeological mitigation and do not constitute a new “development consent.” Consequently, neither Section 8 nor the directions triggered a further environmental impact assessment.

4. Material Change and Annex II Point 13. Although excavations revealed additional archaeological features (e.g., extended revetted fosse), the Court agreed with the High Court that these discoveries did not alter the road project itself or introduce significant new environmental effects. Thus Annex II did not apply.

5. Reference to the ECJ. Applying Cilfit, the Court concluded the EU law questions were clear and required no preliminary reference under Article 234 (now Article 267 TFEU).

Holding and Implications

APPEAL DISMISSED. The Supreme Court affirmed the High Court judgment, upholding the constitutionality of Section 8, confirming compliance with EU environmental law, and validating the Minister’s directions.

Implications: The local authority may proceed with completion of the South-Eastern Route under the Minister’s directions without obtaining further consents or a new environmental impact assessment. The decision leaves existing constitutional and EU principles intact and does not establish new precedent beyond applying established tests to the facts.