Wicklow County Council has been given the go-ahead by the Supreme Court to begin construction of a controversial dual carriageway through the Glen of the Downs. The road is expected to take two-and-a-half years to complete and cost £18.5 million. The Supreme Court yesterday unanimously rejected an appeal by Mr Dermot Murphy, a computer technician, against a High Court decision that the road might proceed despite the council's failure to adhere to all appropriate statutory procedures when advancing the project.
Delivering the High Court judgment on Mr Murphy's challenge last March, Mr Justice Kearns found the council did not secure the appropriate consent for transfer of the State-owned lands required for the road scheme. He also found the council was not entitled to acquire State lands in the glen by means of compulsory purchase orders. However, he ruled the council's mistakes could be easily rectified.
His decision was appealed to the Supreme Court in October and judgment was reserved.
In the appeal, the Supreme Court was told the land was transferred last August from the Minister for Agriculture to the council.
Giving judgment yesterday, Ms Justice Denham said the glen was an area of outstanding natural beauty designated as a nature reserve through which a public road ran. The road-widening scheme involved construction of a carriageway for about five kilometres. Some 0.68 hectares of land on either side of the roadway was involved.
Mr Murphy had argued that the work would irrevocably destroy the woodland. The council took the view that present traffic volume was too high for the road and had raised safety issues.
However, the judge said, the appeal did not involve issues regarding the woodland, environment, traffic volumes and safety.
Mr Murphy had sought a declaration that part of the lands comprised in a compulsory purchase order was a nature reserve within the meaning of Section 15 of the Wildlife Act 1976, which designation arose by virtue of Statutory Instrument 178 of 1980. He also sought an order prohibiting the council carrying out any work likely to have a serious or adverse effect on any part of the land designated a nature reserve, pursuant to SI 178 and Section 15, unless and until an order modifying the SI had been made.
It was submitted that the lands primarily consisted of primeval oakwoods with other deciduous trees and that the woodlands were of national and international importance.
Ms Justice Denham said the council had also brought a notice to vary the High Court judgment.
The three issues which the court had to resolve were: (1) Did SI 178 have to be modified because of the proposed road widening; (2) If the SI had to be modified, at what time should this be done - before or after the road works and: (3) Could any party other than the Minister enforce the provisions of the 1976 Act.
These were net legal points, the judge said. On the first question, Ms Justice Denham found SI 178 did not need to be amended to include a widened road. However, she added, this did not mean any person could act with impunity.
The Minister and council had duties under the 1976 Act in relation to the nature reserve. In light of her answer to the first issue, the second issue did not arise.
Ms Justice Denham said the third issue was whether the courts, on the application of a person other than the Minister under the 1976 Act, could entertain an application such as that of Mr Murphy's to restrict the council's intended roadworks on the basis that they interfered with a reserve established by statued.
That issue highlighted the unsatisfactory situation that a relevant Minister - the Minister for Arts, Heritage, Gaeltacht and the Islands - was not a party to the present action. However, in light of her decision on the interpretation of the SI and in view of the circumstances of the case, it was not necessary to determine the third issue.
In a separate judgment, Mr Justice Murphy said he was satisfied as a matter of law that once those parts of the State lands comprised in the nature reserve were validly and effectively conveyed to the council, the relevant Minister could no longer exercise any statutory power of management or control over the lands. He was satisfied that the 1980 order did not require to be amended to enable the proposed carriageway to be constructed but it might be desirable to redefine the area excluded from the operation so as to avoid ambiguity which did arise and may again arise by the use of the words "a public roadway" in that order.