European Court of Justice may have final say over heritage dispute

The Blundelstown Interchange (52 acres), 1,000 metres from top of the Hill of Tara

The battle for Tara is not over yet, writes Frank McDonald, Environment Editor

The Irish Times

Thursday, 02 March 2006

The odds were stacked against anyone succeeding in a legal action against the M3. So it is not surprising that the High Court has found in favour of Minister for the Environment Dick Roche and his "directions" allowing this controversial motorway to snake past the Hill of Tara.

The 2004 National Monuments (Amendment) Act rewrote heritage protection legislation in such a drastic manner that the Minister was given sole discretion in deciding whether any archaeological site is a national monument and what to do with it - including authorising its demolition.

That was Martin Cullen's contribution to the statute books following the row over Carrickmines Castle in south Co Dublin, when archaeologists and conservationists were blamed for holding up completion of the M50. The Government was determined this wouldn't happen again. However, the Supreme Court has yet to rule on the final appeal in the Carrickmines case by Dominic Dunne and, in particular, on his challenge to the constitutionality of the 1994 legislation.

The court's tardiness - it recently deferred its decision for the fourth time - may have proved fatal for the Tara case.

Mr Justice Thomas Smyth referred to the appeal before the Supreme Court in his lengthy judgment yesterday. But its tone and content suggests that he would have ruled against plaintiff Vincent Salafia anyway, on other grounds - including his delay in taking the action in the first place.

Mr Justice Smyth had ruled that it was not necessary to call expert witnesses and have them cross-examined. This hampered the plaintiff because it meant that the court did not hear from, for example, Dr Pat Wallace, director of the National Museum of Ireland.

Dr Wallace made it clear to Mr Roche last April that he opposed routing the M3 through the Tara valley, arguing that it is an archaeological landscape that deserves to be protected. He was particularly critical of the Blundelstown interchange, just 1.2 kilometres north of the ancient capital of Ireland's kings.

It might also have been instructive to hear oral evidence from the Government's Chief Archaeologist, Brian Duffy, who backed the National Roads Authority and Meath County Council, even to the extent of suggesting that the M3 motorway itself would become part of Tara's legacy in the years to come.

His perverse view was strongly opposed in affidavits by three leading experts on Tara - Dr Edel Bhreathnach, Dr Conor Newman and Joe Fenwick - who argued that Tara must be seen as part of a much wider archaeological landscape which would be irreparably damaged by a motorway running right through it. Mr Roche could have decided that the NRA and Meath County Council would have to go back to the drawing boards and devise an alternative route. Instead, he chose to issue "directions" on how the 38 archaeological sites along the existing route should be treated.

The "directions" he issued on May 11th last were carefully crafted to suggest that the interests of Ireland's heritage were being looked after, thereby (hopefully) fire-proofing his decision against legal challenge. However, in the absence of a Supreme Court ruling on the Carrickmines appeal and the thorny issue of whether the 2004 National Monuments (Amendment) Act fulfils the onus on the State to protect our heritage, this confidence may be misplaced. The battle, in other words, is not yet over.

Even if the Supreme Court was to rule that the 2004 legislation is constitutional and subsequently rejected an appeal by Mr Salafia against yesterday's High Court judgment, the European Court of Justice may take a different view, on the basis that Tara is part of Europe's heritage too.

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