The Supreme Court will rule on Monday whether to grant an order restraining removal of part of a medieval fosse or ditch from lands at Carrickmines Castle, Co Dublin, along the route of the new south-eastern motorway.
It was claimed in court yesterday that Dún Laoghaire/ Rathdown County Council is committing "a criminal offence" in continuing certain works at the castle without having statutory consent under the National Monuments Acts for such works.
Solicitors for two men wrote to the council last September claiming the works were illegal and a complaint was also made to the Minister for the Environment but the works continued, it was stated.
Mr Frank Callanan SC was making submissions for Mr Dominic Dunne and Mr Gordon Lucas in their appeal against the High Court's refusal last week to grant an interlocutory order restraining interference with the fosse.
The appeal concluded yesterday and Mr Justice Hardiman, presiding, sitting with Mr Justice Geoghegan and Mr Justice McCracken, said the court would give judgment on Monday. Mr Justice Hardiman asked Mr Dermot Flanagan SC, for the council, whether the court could take it there would be no further developments at the castle over the weekend and counsel gave an undertaking to that effect.
The principal issue is whether the works required a written consent from the council and the Minister for the Environment in line with Section 14 of of the National Monuments Acts, which states it shall not be lawful for any person to demolish or remove or disfigure, deface, alter or injure any national monument without the consent of the Minister and any local authority which owns the monument.
Mr Flanagan conceded yesterday no such consent under Section 14 was obtained by the council but argued no such consent was required because, while the castle was a monument, it was not a national monument. He also argued the council was entitled to carry out the works under excavation licences.
Mr Callanan said this was the first time a claim had been made that the castle was not a national monument. He said a medieval historian, Dr Seán Duffy, had stated on affidavit it was a national monument and there was no denial of that claim by the council.
Mr Callanan said the excavation licences referred to did not authorise the works being carried out, were in breach of Section 26 of the National Monuments Acts and, in any event, those licences had expired.
Mr Justice Geoghegan commented it seemed "absurd" that the Minister for the Environment and local authorities were the parties with statutory responsibility to determine whether such works interfere with national monuments.
Regarding a finding by High Court judge Mr Justice Lavan, that the injunction should be refused on grounds including the two appellants' inability to meet any damages claim arising from failure to complete the motorway within time schedules, Mr Justice Hardiman asked would such a consideration not exclude ordinary members of the public from ever challenging large-scale development.
