Moore Street area's designation as national monument overturned by Court of Appeal
A declaration that buildings and sites on and around Dublin's Moore Street are a 1916 Rising battlefield site comprising a national monument has been overturned by the Court of Appeal.
The High Court had no jurisdiction under Section 2 of the National Monuments Act to declare the buildings and site are a "national" monument because that is ultimately a "political and policy choice", the three judge court ruled.
Such choices must be determined by either exeutive or legislative powers which cannot appropriately be discharged by an unelected judiciary, Mr Justice Gerard Hogan said.
While the courts can review decisions made under the Act, there is a "wide difference" between such reviews and a "free-standing" court declaration of a national monument.
He also set aside High Court orders restraining the demolition of buildings at Nos 13,18 and 19 Moore Street.
Orders which had restrained the Mnister proceeding with the proposed development of a commemmorative centre at Nos 14-17 Moore Street, where the 1916 leaders met for the final time and decided to surrender, were also set aside.
Those orders were discharged because the Court of Appeal found, provided the Minister for Arts and Heritage has obtained appropriate consents under the National Monuments Act 1930 (the 1930 Act) for works on, or to a national monument, she does not need to get planning permission for such works.
The Court of Appeal in two judgments allowed appeals by the Minister and Dublin Central Limited Partnership (DCLP) - which bought some of the buildings and lands last year from another company, Chartered Land - against findings of the High Court's Mr Justice Max Barrett on a challenge by Colm Moore, a nominee of the 1916 Relatives Association.
In his 399 page judgment of March 2016, Mr Justice Barrett made orders preventing works to certain buildings and locations after declaring they constitute a 1916 Rising battlefield site comprising a national monument.
In opposing the declaration and orders, the Minister argued it was adequate to protect only the terrace intended to house a 1916 Rising Commemorative Centre.
After the Appeal Court judgments, lawyers for the Minister said she would be seeking legal costs against Mr Moore. Costs issues will be decided later.
Giving the COurt of Appeal judgments, Mr Justice Hogan, with whom Mr Justice George Birmingham and Mr Justice Michael Peart agreed, said the name of Moore Street "resonates with anyone with even a passing interest in Irish history as it was there "the seminal events of Easter Week 2016 came to a conclusion".
The core issue was whether the High Court has a jurisdiction to declare certain builings or sites amount to national monuments for the purpses of the 1930 Act.
The 1930 Act applies only to national monuments but is "quite unclear" on the "fundamental" question of who should determiNe what monuments are to be national monuments or whether some formal designation of such monuments as national monuments is actually necessary, he said.
The fact Section 2 of the Act assumes the existence of a national monument as an objetcive fact has given rise to the assumption, partly reinforced by some court decisions including by the High Court declaring the Wood Quay site a national monument, the High Court has jurisdiction to determine this quesion.
While he considered the Wood Quay decision was wrongly decided, there was in any event no legal authority binding on the appeal court to the effect the courts have a free stading jurisdiction to delcare a particular monument to be a national monument.
The 1930 Act applies only if the preservation of the Moore Street battlefield site as a national monument is a matter of national importance, he said.
The court had no free standing jursidiction to decide that because that would effectively require the court to pronouce on a "purely political" question without the aid of any defined or established legal standards.
While the 1930 Act permits the courts to decide a particular building is a "monument" within the meaning of the Act, the courts cannot be asked to determine what is a "national" monument by reference to purely policy or political judgments or criteria.
While there is no doubt the 1916 rising was a seminal national, even international event, views would differ whether this site, as opposed to other sites such as Parnell Street, where Padraig Pearse and Elizabeth O'Farrell met a British commander to surrender, should be regarded as a national monument, he added.
The decision to preserve a national monument is, "at its heart", a symbolic choice amouting to a statement by the State as to the versions of history, architecture and the arts we choose to venerate as part of our official narrative.
After the judgment, James Connolly Heron, a relative of executed 1916 leader James Connolly, said the court's decision did not alter the relatives' determination to have the Moore Street site preserved for future generations.
The 1916 Relatives Association said "positive and constructive dialogue" is the first next step and expressed hope the State and all the parties involved will engage to find “a common solution that can meet the needs and concerns of all the stakeholders and the Irish people”.
