Call for Minister for the Environment, Phil Hogan, to Amend the Illegal National Monuments Act

‘Preservation’ of the Lismullin National Monument – M3 Motorway at Hill of Tara – 2007

The new Minister for the Environment, Phil Hogan, must act immediately to amend the National Monuments Act and the Planning and Development Act to comply with EU law and save our important cultural and archaeological sites.

The National Monuments Act of Ireland has been found to be in breach of EU law in two separate European Court of Justice (ECJ) rulings, and Ireland will face fines of up to €33,000 per day if it does not comply. National monuments and UNESCO World Heritage Sites are at currently risk after the ECJ found in March 2011 that the decision made by then Minister for the Environment Dick Roche, to demolish the Lismullin National Monument at the Hill of Tara in 2007 was in breach of EU law.

Save Newgrange is calling on Minister for the Environment, Phil Hogan, to present the National Monuments Bill 2010 to the Dail for passage. The Bill was approved by Cabinet not long before a General Election was called in 2010. The Bill had been drafted after extensive public consultation, which took place between 2007 and 2010, and it provides the level of legal protection required by EU law. However, Minister Gormley and the Green Party failed to present the National Monuments Bill 2010 to the Dail before they were removed from Government in the 2011 General Election.

The two European Court of Justice cases against Ireland, which require amendment to the National Monuments Act and the Planning and Development Act are:

Case C-50/09 – Commission v. Ireland (3 March 2011)

On 3 March 2011, the European Court of Justice ruled against Ireland in a case brought by the European Commission, which alleged that the National Monuments Act (2004) is in breach of the Environmental Impact Assessment (EIA) Directive, 85/337/EEC. The issues involved included: Failure of a Member State to fulfil obligations – Obligation of the competent environmental authority to carry out an assessment of the effects of certain projects on the environment – Need to ensure an assessment of the interaction between factors likely to be directly or indirectly affected – Application of the directive to demolition works.

In May 2007,works on the M3 motorway were halted after TaraWatch informed the National Museum that a major archaeological site had been discovered by the National Roads Authority (NRA) at Lismullin, close to the Hill of Tara. The 2,000 year old ‘henge’ site had not been previously detected, despite two major archaeological surveys of the route. Other remains, including spectacular rock art and ‘souterrains’ or underground dwellings were also discovered. The site was later be hailed as one of the Top 1o Most Important Discoveries in the world for 2007, by Archaeology Magazine.

On 12 June 2007 Minister for the Environment, Dick Roche, declared Lismullin a ‘national monument’, but gave directions under Section 14 the National Monuments Act for the site to be excavated and then demolished, to allow the M3 motorway to proceed. It was one of his last official acts, before handing over his office to the new Minister for the Environment, John Gormley of the Green Party, who immediately claimed that he could not undo the order.

In July 2007 EU officials called on Minister Gormley to halt to the works at Lismullin, but were ignored. Instead Minister Gormley proceeded to defend the Order, after the European Commission wrote a “reasoned opinion” to the Government in June 2007. The Commission warned the Government that the policy in relation to assessments was in breach of EU directives and demanded that an Environmental Impact Assessment be carried out on the site before any decision to demolish it was made.

The Petitions Committee of the European Parliament also visited the Lismullin site in June 2007, and in July wrote to the Irish Government, demanding an immediate stop to the M3 works at Lismullin. Minister Gormley ignored this demand, actually claimed that he didn’t even know that the Commission had ordered works to halt until he read about it in The Irish Independent on 30 August 2007. After salvage excavations were competed, the Lismullin national monument site was handed over to Ferrovial construction company in December 2007, and completely demolished shortly thereafter.

Case C-66/06 – Commission v. Ireland (Nov 2008 & March 2011)

The Commission won a case against Ireland, in the European Court of Justice, on 20 November 2008, on issues of: Failure of a Member State to fulfil obligations – Directive 85/337/EEC –Assessment of the effects of projects on the environment – Consent given without an assessment. The Commission had argued that the Planning and Development Regulations, 2001 (S.I. No 600/2001), as amended, was in breach of the EIA Directive, by failing to establish adequate thresholds, which require Environmental Impact Assessment to be performed on public and private developments. This resulted in natural and archaeological sites being damaged.

In February 2011, the European Commission petitioned the ECJ to impose fines on Ireland for failing to properly implement the Environmental Impact Assessment (EIA) Directive. The Commission won the original case against Ireland, in November 2008, but then Minister for the Environment, John Gormley, failed to rectify the law before leaving office.

The Government is required under the directive on the assessment of the environmental impact of certain public and private projects to set up a system to decide whether an environmental impact assessment study is required before authorisation. Under the directive, the decision on when such an assessment is required can be made according to set thresholds, case-by-case analysis or other criteria in line with EU criteria. In its 2008 ruling, the Luxembourg-based court found that Ireland’s thresholds were too high for setting out when an environmental impact assessment is required for water management, irrigation and land drainage projects and the restructuring of rural landholdings, which was resulting in the loss of important natural and archaeological heritage sites.

Minister for the Environment, John Gormley, failed to change Irish law to comply with EU law, and the European Commission was forced to initiate a second law suit against Ireland, in February 2011, seeking fines against Ireland for it’s failure to implement EU Law.  In the new case against Ireland the commission will ask the court to impose a fine of €4,000 for each day since the court ruled against Ireland on November 20th 2008 and for each day until the court issues a new infringement ruling. Any failure to comply with a new ruling should be punished by a fine of €33,000 per day.

Minister Hogan called on to improve environmental protection

Since the new Minister for the Environment, Phil Hogan (FG) took office in February, 2011, community-based campaign groups from around Ireland have called on the Government to ratify a United Nations convention on public access to information, participation and justice in environmental decision-making – the AARHUS Convention, which links human rights and protection of the environment. Instead, the Minister is reportedly ‘reviewing’ changes made to the Planning Acts by the Green Party, that limited decisions to rezone land (see ‘Minister risks returning to bad old days of planning‘ – Irish Times – 31 March 2011.)

Save Newgrange and and TaraWatch are now calling on the Minister Hogan to immediately move to amend the National Monuments Act and the Planning Act, as required by EU law, before An Bord Pleanala makes a decision on whether or not to grant planning permission for the N2 Slane bypass, which is proposed to run 500m from the Bru na Boinne UNESCO World Heritage Site. A decision is expected from the Bord before the end of summer.

Links:

Ancient Tomb Art Found in Path of Irish Highway – National Geographic – 14 Jan 2008

Commission seeks fines against Ireland for not adopting legislation to protect countryside heritage – European Commission Press Release – 16 February 2011

State faces €3.2m fine over breach of EU ruling – The Irish Times – 17 February 2011

Farming – Opinion – The Irish Times – 21 February 2011

Europe ruling on planning directive welcomed – The Irish Times – 5 March 2011

Ireland in breach of EU law – Irish Examiner – 5 March 2011

National Roads Authority – Lismullin Excavation reports

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One Response to Call for Minister for the Environment, Phil Hogan, to Amend the Illegal National Monuments Act

  1. Nora Walls says:

    Hi Vincent,
    Thank you for what you have done to protect our National Monuments as well as our rights to have a say in what matters to us.

    I am trying to contact you to ask you for your opinion on what we can do to protect Kilkenny City from being divided in two and from destruction, by the construction of a major new road through medieval and through residential areas. The road will effectively cut in two the Norman axis of the city from Kilkenny Castle through to St Canice’s Cathedral. This, and the planned demolition of buildings which are almost certainly medieval and which form part of the St Canice’s Cathedral Close, is imminent. I understand that demolition is to take place within about two weeks. Appeals to An Bord Pleanala in 2008 were lost in terms of the Heritage argument.

    I understand that the Department of H, E & LG have dragged their heels on responding to recent requests to clarify whether the buildings (21 to 22 Vicar Street) can be designated a “National Monument”. According to O’Drisceoil, 2013 (Unpublished), “Nos. 21-2 Vicar Street were partially examined through a desk study and limited opening-up works by VJ Keeley in the amended EIS (January 2011) for the Central Access Scheme. The report failed to mention the fact that this is the site of the medieval prebendal house and a recorded monument. No medieval fabric was identified in the investigation, a conclusion that was reached on the basis that red-brick fragments were present in the masonry.” O’Drisceoil continues , to say that red-brick was, in fact used in Kilkenny since the 16th century.

    Vincent, I am a concerned citizen and not an Archaeologist. I would be grateful for any suggestions you may have in relation to how we may be able to stop the destruction of this medieval city. Currently, we do not have funding. However, we do have a great deal of support from people of Kilkenny and elsewhere.
    Can you suggest any legal challenges that we can pursue – even without much funding.

    Thanks for reading my plea for help.

    Nora Walls
    nora.walls@gmail.com
    00 353 (0)87 2195690

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