Supreme Court Protects Carrowmore Site
A number of Co. Sligo residents yesterday won their appeal in the Supreme Court in Dublin against a High Court ruling that a proposed refuse dump at the Carrowmore megalithic site did not constitute a material contravention of the Sligo Development Plan. Mr Justice McCarthy in his judgment, with Mr Justice Hederman agreed, also upheld their appeal against the finding that the proposed refuse dump was not in contravention of the provision of the National Monuments Act, 1930, as amended. The judge said the council had thought it could go ahead without notice to scientific bodies, the community, those whose planning had been refused, and without encountering any real resistance. The council was wrong, he said. It reckoned without that combination of private advantage and public spiritedness that sometimes goes to law to bring bureaucracy to heel. It reckoned without the plaintiffs Mr Frank McGarry, Mr Paddy O'Hara, Ms Patricia Mulligan, Mr Neil Cremin and Mr John Hamilton who lived and owned property nearby. The judge paid tribute to their courage for having, at considerable monetary risk, challenged the conduct of the local authority.
Mr. Justice Mc Carthy quoted a Bord Failte guide describing the site and its surrounds. It said that in Co. Sligo one of the largest groups of megalithic remains in Western Europe could be found at Carrowmore, three miles from Sligo, there were dolmens, stone circles and cairns, with sepulchral monuments bearing carvings thought to date from the Bronze Age. In 1979 Sligo Council Council reviewed its developments plan. This incorporated verbatim parts of the Local Government ( Planning and Development) Act,1963, which referred to the preservation of caves, sites, features and other objects of archaeological, geological and historical interest. There was also reference to the prohibition, regulation and control of the disposal of waste and refuse and pollution. The context of the relevant part, said Mr Justice McCarthy, seemed to recognise the amenities were of the kind with views, prospects and features of natural beauty or interest, and that refuse disposal could be prohibited or controlled. Mr Justice McCarthy said the plan listed 32 items of preservation or protection including the Carrowmore Passage Grave Cemetery. It incorporated a Foras Forbartha report which stated there were at least 65 tombs in the area. The report said it seemed probable there were originally many more and that the number of tombs had been decreasing steadily. Unless a firm stand was taken the destruction would continue, but if action was taken there was time to save what was still one of the most important and impressive complexes of prehistoric monuments in Ireland.
Mr. Justice McCarthy said the plan had identified Knocknarea and the Carrowmore cemetery as part of the cultural heritage of Co. Sligo and a number of application for planning permission had been refused on grounds related to that plan. The plan, said the judge, was a statement of objectives. When adopted it forms an environmental contract between the planning authority, the council and the community, embodying a promise by the council that it will regulate private development in a manner consistent with the objectives stated in the plan and, further, that the council itself shall not effect any development which contravenes the plan materially. The judge quoted Yeats: The wind had bundled up the clouds high over Knocknarea and thrown the thunder on the stones for all that Maeve can say. Mr. Justice McCarthy said Sligo County Council had dumping facilities at Ballymote and Finisklin, which at the time of the action was in poor condition. The council had examined more than 12 sites to expand its refuse disposal facilities.
At Carrowmore over many years one Bernard Devaney had been quarrying sand and gravel from land clearly part of the passage grave cemetery, at least at one time. This left an enormous hole in the ground. The county council saw this as a convenient refuse dump. It consulted nobody, not even those with whom it had the environmental contract its own community. Mr. Justice McCarthy said that in July, 1983, the plaintiffs had begun an action against the council seeking an injunction against the use of the pit as a refuse dump or pit head and a variety of other relief's. He outlined the various proceedings over the years and how the final structure of the action included the Attorney General with the plaintiffs.
The Supreme Court had to decide if the High Court erred in finding that the proposed refuse dump did not constitute a material contravention of the plan, and was not in contravention of the National Monuments Act. It would seem that if a refuse dump constituted an actionable nuisance it had to be a contravention of the development plan. This nuisance, it was said, was allayed by a management plan, although it involved some 80 vehicle movements a day, the building of a keeper's house, of offices, canteen and toilets. It was somewhat ironic, he said, that the plaintiffs should contend with some force, that the management plan itself involved a material contravention of the plan. But he would not rest his judgment on this ground. In his view the development plan expressed with admirable clarity the objectives of the council, and identified the unique importance of the passage grave cemetery.
But such professions of intent and concern are mere window dressing if, without reference to the many skilled and interested bodies and groups, with the understandable wish to provide adequate refuse disposal for the demands of the county, the council proposes to use the site or part of the site, or a part adjoining the site, as a refuse dump.
Mr. Justice McCarthy said there had been much debate on the exact location of the Carrowmore cemetery. He would not bound his judgment on a restricted approach. If a particular area be identified as an area for conservation for any amenity reason, one does not then legitimately permit development to the very boundary of the area; either the area must itself be prescribed as extending to a sufficient circumference as will allow for a fallow area in between, or must envisage that such fallow area shall adequately extend outside the immediate area of the amenity.
In his view the use of the quarry as a refuse dump or pit head was a clear and material contravention of the development plan. It seemed to him to be of little moment that a road divided the quarry from the main cemetery area. It was not the manner of use, nor whether the dump would be an actionable nuisance that was relevant. It was the very existence of the dump in the area. Every part of the plan clearly identified the importance of the area. It could not, save by doing violence to the plan's language, permit the maintenance of a refuse dump there. In regard to the National Monuments Act, Mr. Justice McCarthy said the Commissioners of Public Works were the guardians of the passage grave cemetery and their consent had not been asked. It was said the use of the quarry as a refuse pit would disturb the ground, within , around and near the monument. The ground had already been much disturbed. He thought that to the ordinary citizen the operation of a refuse dump, with the use of an access road (which was the only division between the present viewable passage grave and the dump itself), was disturbing the ground in proximity to the passage grave area. Quite apart from this consideration, it does not seem to me to lie in the mouth of those who would seek further to disturb the ground, to say that whatever passage grave existed in the area it is open season on what is left. The plaintiffs had made out their appeal under both headings, he said. The plaintiffs were awarded costs.
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