Challenge to M3 route near Hill of Tara rejected
Mary Carolan

The Irish Times
Thu, Mar 02, 06

A challenge by environmentalist Vincent Salafia to the proposed route
of the M3 motorway near the Hill of Tara has been dismissed on all
grounds by the High Court.

Mr Justice Thomas Smyth ruled Mr Salafia was not entitled to succeed in
any of his claims because of an unjustified two-year delay in bringing
them. He considered all the arguments made by Mr Salafia, including
claims that certain provisions of the National Monuments (Amendment)
Act 2004 were unconstitutional, and rejected all of those.


The judge ruled the legislature is entitled to regulate land and road
developments in the interests of the common good, even where that
involves interference with property rights and national monuments.

The Act had introduced changes in relation to how national monument
protections were controlled, the legislature was entitled to choose to
give qualified protection to national monuments and the court could not
strike down section 14 of the Act, as sought by Mr Salafia, simply
because a different or better balance could have been struck, he said.

Mr Salafia had also asked the court to make a declaration that the
greater Tara landscape - the Hill of Tara/Skryne Valley - is a national
monument or a complex or series of national monuments within the
meaning of the National Monuments Act but the judge declined to do so.

Mr Justice Smyth said there were differences between Mr Salafia and
between Mr Salafia's experts as to what constituted the core Tara area.

In those circumstances and in the absence of any representation in the
proceedings for people in the Tara area who would be directly affected
by such a declaration, it was not permissible for the court to make any
such declaration.

Among other key findings of Mr Justice Smyth was that even if the
Supreme Court upheld arguments in its forthcoming judgment on the
Carrickmines Castle case that section 8 of the National Monuments
Amendment Act was unconstitutional, he was satisfied that protections
for national monuments, which he held were built in to section 14 of
the same Act, were "constitutionally sound".

He adjourned the case to March 14th when he is expected to rule on the
issue of the costs of the proceedings, which ran for seven hearing
days.

Mr Salafia, Dodder Vale, Churchtown, Dublin, had sought to overturn
directions given by the Minister for the Environment in July 2005
regarding the carrying out of archaeological works on the site of the
M3. He also challenged the constitutionality of section 14 of the 2004
Act on the grounds it gave the Minister an unreviewable and unfettered
discretion to remove protections for national monuments.

The judge found the Minister had properly and lawfully issued his
directions, which related to an "approved" road development, under the
correct section of the National Monuments Act - section 14.A.2.

There was no objection to the content of the directions.

The minister was not obliged to give directions which would modify the
M3 route in any material way and had carefully considered material from
Meath County Council regarding 38 archaeological discoveries made
during test trenching of the M3 route, he said. The Minister had also
considered detailed advice from the director of the National Museum.

He rejected Mr Salafia's argument that the directions should have been
issued under section 14.A.4 of the Act.

The Minister was required to issue directions under section 14.A.4 only
if a national monument had been discovered during the road project and
no such discovery had been made, he said. None of Mr Salafia's experts
had made claims to that effect.

He dismissed the claim that section 14.A.4 was unconstitutional because
it gave the Minister an unfettered discretion to permit interference
with national monuments and failed to set out principles and policies
to govern that discretion. He said principles and policies were set out
in the National Monuments Acts.

Earlier, Mr Justice Smyth said there was an obligation to bring
judicial review challenges promptly.

=====

Conservationist awaiting court case on National Monuments Act
Tim O'Brien

Irish Times
Thu, Mar 02, 06

Conservationist Vincent Salafia yesterday lost his High Court attempt
to halt the planned construction of the 50 kilometre M3 motorway, which
is to pass close to the Hill of Tara in Co Meath.

A new legal challenge to the €800 million motorway will depend on next
week's outcome of a Supreme Court test of the constitutionality of the
National Monuments Act.

While Mr Salafia was studying the emphatic, High Court judgment
yesterday, his legal team said it would await a decision from the
Supreme Court - due next Thursday - on the constitutionality of the
National Monument Act 2004.

The Act gives Minister for the Environment Dick Roche power to decide
how archaeology should be preserved. Should that be found to be
unconstitutional, then a Supreme Court challenge to the M3 motorway is
almost certain.

However, if the Act is found to be constitutional, a Supreme Court
appeal against yesterday's 60 page decision given by Mr Justice Thomas
Smyth would be more difficult.

Mr Salafia and his legal team are expected to apply to the High Court
for the costs of their failed action, on March 14th. Costs of both
sides in the seven day hearing are expected to be in the region of
€500,000. In his emphatic 2½ hour judgment, Mr Justice Smyth dismissed
attempts to halt the planned construction of the road on archaeological
grounds, dismissed Mr Salafia's "local standing" as a person
immediately affected by the proposed road and criticised the timing of
the action.

Mr Justice Smyth said Mr Salafia had failed to take part in the
planning process and had waited two years after that process was
completed before seeking a judicial review. He described Mr Salafia's
reason for the two year delay - that he had been preoccupied with the
Carrickmines road protest - as "wholly unconvincing".

The delay was, he said, a key issue which alone could lead to the
dismissal of the case, but he went on to say that Mr Salafia's belief
that the landscape of the Tara Skryne Valley is a national monument,
"is erroneous".

Mr Salafia said he was planning to study the judgment with his legal
team over the coming days. His legal team said no decision would be
made until after next Thursday's expected ruling on the constitutional
issue.

However, a spokesman for the National Roads Authority said the judgment
was "highly detailed, definitive and appropriate".

He noted that the contentious section of the route, through the Tara
Skryne Valley was "actually further away from the Hill of Tara than the
existing N3". He also noted Justice Smyth's assertion that a more
preferable route identified by Mr Salafia had been seen as the least
desirable option by experts at the original planning hearing.

If there was no further legal challenge archaeological work would
continue for another year and construction would start in the spring of
2007.

The Minister said he hoped the decision "would bring finality to the
matter". The decision was also welcomed by Fine Gael TD for Meath Shane
McEntee who described it as a "victory for commuters".

====

European Court of Justice may have final say over heritage dispute

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

Irish Times
Thu, Mar 02, 06

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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=====


M3 to cost €150m more due to delay

Treacy Hogan
Environment Correspondent

Irish Independent
Thu March 2nd 06

THE controversial M3 toll motorway through the Tara Valley has soared
in cost from €650m to €800m because of a legal challenge, it was
learned yesterday.

The motorway now has the green light after an objection by
environmentalist Vincent Salafia. His opposition to the proposed
routing near the Hill of Tara was dismissed on all grounds yesterday.

Mr Justice Thomas Smyth in the High Court ruled that Mr Salafia was not
entitled to succeed in any of his claims because of a two-year delay in
bringing them.

The judge considered all the arguments made by Mr Salafia, including
claims that certain provisions of the National Monuments (Amendment)
Act 2004 are unconstitutional, and rejected them.

It will now cost taxpayers at least an extra €150m to build the
motorway and motorists will still face a €2.50 toll. The National Roads
Authority (NRA) revealed that the High Court challenge has caused the
price of the delayed motorway to rocket, even though the first sod
won't be turned for at least another year.

Much of the extra cost is due to the compensation for land acquired for
the project rising in price. Construction price inflation for building
motorways has also soared.

The authority said in 2002 that the 50km M3 motorway from Dublin to
Meath would cost €650m.

Yesterday it said the cost had gone up to €800m because of the delay in
getting the project started. Drivers face two tolls on the new
motorway.

One will be located north of Navan, the second north of Dunboyne.

The charge for cars to use the full extent of the motorway will be
€2.50.

There will a charge of €1.25 at each of the two toll plazas.

Dublin man Mr Salafia had sought to overturn directions issued by
Minister Dick Roche last year in relation to the treatment of 38
archaeological sites along the proposed route near the Hill of Tara.
The decision clears the way for archaeology work to continue along the
route for the rest of this year.

But construction work is not expected to start until spring next year.

A previous completion date of 2010 is unlikely to be met. The existing
N3 road, which is closer to the Hill of Tara than the proposed M3
motorway, has one of the highest rates of road crash deaths in the
country.

It has 50pc more fatalities than the average main road. Michael Egan,
NRA corporate affairs manager, said the new M3 would be safer.

Up to 22,000 commuters drive into Dublin from Meath every day and it is
estimated that the M3 from Clonee to Kells would cut travelling times
by 20 minutes each way.

The new M3 is predicted to cut a whole week off the Meath to Dublin
commuting times each year. There have been many complaints from
motorists stuck in traffic jams on the current road.

* Meanwhile, The UCD School of Archaeology was today displaying the
excavation findings from a 3,500 BC tomb at the Mound of the Hostages
in Tara.

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