The legality of the National Monuments (Amendment) Act, introduced only a month ago to facilitate completion of the M50 at Carrickmines Castle, is to be challenged in the High Court.
Mr Justice Peart yesterday granted Mr Dominic Dunne leave to seek injunctions this afternoon restraining motorway development works, which resumed on Monday, until the constitutionality of the new legislation is determined by the court.
He told Mr Coleman FitzGerald SC, for Mr Dunne, of Benburb Street, Dublin, that short notice of Mr Dunne's intentions could be served on the Minister for the Environment, Heritage and Local Government and Dún Laoghaire-Rathdown County Council.
Mr FitzGerald told the court the Act would be challenged as invalid on constitutional grounds and with regard to provisions of European Union law, in particular EU directives in respect of environmental impact assessment.
He said that on Monday diggers and archaeologists had started to remove walls and artefacts and unless they were restrained now by court order from demolishing, disfiguring, defacing or altering medieval archaeological remains until determination of the constitutional challenge, there would be nothing left to protect.
Mr FitzGerald said Section 8 of the Act, dealing in most express terms with the M50 at Carrickmines, purported to give the Minister a virtually unfettered power or discretion in deciding whether to issue directions dealing with any national monument affected by the completion of the South Eastern Route (M50). He said the legislature had delegated to the Minister (the Executive) its powers and functions to make law to an excessive extent and one prohibited by the Constitution of Ireland.
Mr FitzGerald said Section 8 was further invalid having regard to the provisions of the Constitution to protect the national assets and archaeological, historic and cultural heritage of the State which acted as a key for the people of Ireland in understanding their own history and development.
He said the section wholly failed to comply with the Constitution in purporting to allow the Minister to give directions to demolish or remove a national monument and further purported to give Dún Laoghaire-Rathdown County Council the legal entitlement to act on foot of the Minister's directions.
Mr FitzGerald said Dún Laoghaire-Rathdown County Council, in earlier proceedings relating to Carrickmines Castle, had given an undertaking in the High Court not to carry out further development work, but now claimed the 2004 Act had superseded issues in any earlier proceedings.
Mr Dunne, in an affidavit, said demolition works currently being carried out by Dún Laoghaire-Rathdown council were clearly not works to preserve, protect or safeguard the national monument or to safeguard the national assets, archaeological, historical and cultural heritage of the State.
He said the works were being carried out at great speed and, unless legally restrained, the vast bulk of the Carrickmines monument would have been demolished, removed or otherwise interfered with over the next several days or weeks.