Pat Gallagher (Donegal South West, Fianna Fail)

The protection of our archaeological heritage has been a primary concern of Government since the foundation of the State. This is clear from the considerable body of protective legislation which has been enacted over the years, in particular the National Monuments Acts 1930 to 1994. Ireland has also ratified the European convention on the protection of archaeological heritage, known as the Valetta Convention. In implementing this legislation, the national monuments section of my Department has developed a broad administrative and professional structure to oversee the protection of our archaeological heritage.

The scale of development in recent years as a result of our economic success has presented a greater challenge to the protection and preservation of our archaeological heritage. Over that time, we have striven to maintain a good balance between development needs and archaeological protection in order to achieve sustainable development. The high level of excavation for development purposes has added considerably to our store of knowledge of the past. There are many examples of a good balance being achieved between conservation and development.

The background to this specific piece of amending legislation, while complex, is familiar to Members of the House. I will summarise the main issues. On foot of an injunction granted by the Supreme Court in February 2003 restraining Dún Laoghaire-Rathdown County Council from undertaking any works in the vicinity of Carrickmines Castle, work on the section of the south eastern motorway in the vicinity of the site was suspended last year pending the granting of a consent under section 14 of the National Monuments Act 1930. The work involved had been carried out under section 26 excavation licences, but the effect of the Supreme Court judgment was that a consent under the much less frequently used section 14 was appropriate in this case.

At the request of Dún Laoghaire-Rathdown County Council, the Minister for the Environment, Heritage and Local Government joined in a consent for works at Carrickmines Castle. In accordance with the legislation then existing, the Minister also made the National Monuments (Approval of Joint Consent) Order 2003 on 3 July 2003. This was then laid before each House of the Oireachtas as required. I assure the House that the decisions were not made lightly. A total of 23 submissions on the case were received and considered. Of these, 17 submissions supported the early completion of the project and there were six objections. The Minister also had regard to the advice of his Department's national monuments section that further conditions be inserted in the joint consent to ensure that the works to be undertaken at Carrickmines would be carried out in accordance with best archaeological practice.

The national monuments legislation has always envisaged that it may be necessary, in certain cases, to interfere with a national monument. These can be for reasons of public health and safety, in the interests of archaeology or for other reasons. In this case the application from the road authority, Dún Laoghaire-Rathdown County Council, was expressly made on public interest grounds and it was in this context that the order was made. The decision at the time was based on the overall assessment that the public interest in allowing construction of the south eastern motorway along its approved route justified consenting to the works impacting on archaeology at the site. In the Minister's view it had been satisfactorily demonstrated that a systematic approach was adopted by the county council to the archaeological resolution of the Carrickmines site and that the archaeological work undertaken would preserve the main archaeological elements of the site either by record or in situ.

On 23 December 2003 an application for a judicial review of these decisions was made. Following hearings in the High Court and Supreme Court, the High Court held that the Heritage (Transfer of Functions of Commissioners of Public Works) Order 1996, in so far as it purported to transfer the functions of the Commissioners of Public Works under section 14(1)(a) of the National Monuments Acts to the Minister for Arts, Culture and Gaeltacht, was outside the powers conferred on the Government under the Ministers and Secretaries Acts. A 2002 transfer order was similarly found to be invalid. Consequently, the High Court quashed the approval order issued by the Minister. The court stated that a technical glitch had led to its decision. One of the purposes of this Bill is to resolve this matter.

It is not surprising that legislation which is more than 70 years old needs amendment to meet modern regulatory requirements. For example, environmental impact assessments, which include assessment of archaeological impacts and appropriate mitigation measures, are requirements for development consent for some considerable time, but were not a feature in the 1930s.

The Bill clarifies the roles of the Minister for the Environment, Heritage and Local Government, Minister for Finance and Minister for Arts, Sport and Tourism as well as the Commissioners of Public Works under the National Monuments Acts so that there is no doubt raised arising from previous transfer of functions orders. A new section 14 consent process is set out which resolves the technical difficulty to which I referred earlier, while also being in line with current best regulatory practice. The Bill also provides that road schemes, where an approval process includes an environmental impact assessment setting out archaeological mitigation, do not need further licences under the Act. However, the Minister can issue directions regarding the mitigation. A procedure for dealing with newly discovered national monuments on such approved road schemes, which have not been identified in the EIS is also provided. The Bill also contains a specific provision regarding the completion of the south-eastern motorway at Carrickmines.

I will now elaborate on the individual sections of the Bill. Section 1 is a standard provision which defines the term "principal Act" as meaning the National Monuments Act 1930. Section 2 deletes the definition of Minister from the 1930 Act because it is now dealt with in section 3 and defines the word "works" as including development works of national, regional or local importance. Section 3 is to clarify the roles of various Ministers following a number of transfer of functions orders. It defines the Minister, for the purposes of the National Monuments Acts, as being the Minister for the Environment, Heritage and Local Government, unless the context requires otherwise.

Where a reference in the Acts relates to the function of the day-to-day administration of any property in the guardianship, ownership or management of the Minister for the Environment, Heritage and Local Government, the Minister for Finance is defined as the Minister. That reflects the agreement last year that the OPW is responsible for the operational aspects of heritage properties. The functions vested in the Minister for Arts, Sport and Tourism under the various transfer of departmental administration and ministerial functions orders, and other functions of the Minister for Finance under the Acts, are not affected by this section of the Bill.

Section 4, for the avoidance of doubt, confirms the transfers of functions previously vested in the Commissioners of Public Works under the National Monuments Acts 1930 to 1994, and which were not previously transferred to the Minister for Arts, Culture and the Gaeltacht, to the Minister for the Environment, Heritage and Local Government or to the Minister for Finance, as appropriate. Section 5 replaces section 14 of the principal Act. Section 14 of the 1930 Act allowed the Minister to grant a consent for the carrying out of works to a national monument notwithstanding the fact that such works may involve injury to, interference with, or the destruction in whole or in part of the monument. The Minister proposes replacing section 14 with a new section 14 and section 14A, B and C. I will explain those in turn.

Section 14 now sets out a single-tier process for consenting to works which interfere with national monuments in the ownership of the Minister, a local authority or where a preservation order is in force. This section sets out the factors which the Minister may take into account in reaching a decision on the matter. Those include archaeological, environmental, cultural, social, recreational and economic reasons. Where a consent under this section is granted, a separate excavation licence will not be required. The Minister is, under a new provision in the Bill, obliged to consult with the director of the National Museum of Ireland before granting any such consent. There is also provision for increased penalties in respect of interference with a national monument without the necessary consent. For example, the penalty arising from a conviction on indictment will rise from €62,000 to €10 million.

The new section 14A provides that the consent of the Minister is not required for works affecting a national monument where the works are connected with an approved road development. That is because the approval process for such roads includes consideration of an environmental impact statement, which will have identified the archaeological impacts involved and the extent of the mitigation required. Neither will a separate excavation licence be required. That approach is in line with Government policy on better regulation, which seeks to avoid duplication of approval processes. However, the Minister for the Environment, Heritage and Local Government will be able to issue directions regarding any works of an archaeological nature to be undertaken on such a road development to ensure that best practice is followed. The Minister will consult the director of the National Museum of Ireland regarding directions.

Much time and effort goes into locating sites of archaeological interest during the route-planning process for road schemes with a view to avoiding such sites to the maximum extent possible or, where that is not possible, to mitigating impacts. Scrutiny of old records, site walk-overs and aerial photographs have, in recent years, been supplemented by techniques such as geophysical surveying to gain an impression of what may lie below the ground. However, that approach is not entirely conclusive, and the full picture can only be determined accurately when the topsoil is removed or other intrusive investigation techniques employed.

Given the nature of archaeology, often unknown and beneath the ground, it is necessary to provide for the mitigation of new monuments of national significance notwithstanding the rigorous environmental assessment and approval process regarding road development. Section 14A, therefore, sets out the detailed procedure for dealing with national monuments newly discovered as part of the road development but not anticipated in the environmental impact statement. The Minister is empowered to issue directions relating to the preservation, mitigation or removal works required, having regard not only to archaeological considerations but also to the public interest considerations set out in the section.

Where such directions require a change to the original approved road development, the road authority is obliged to inform An Bord Pleanála. The detailed procedure to be followed by An Bord Pleanála is set out in section 14B. The board can determine if the changes arising from a ministerial direction are a material alteration to the approved scheme and, if so, whether the change has significant adverse impacts on the environment and should be subject to an EIS. Section 14C covers previous provisions enabling the Minister to consent to interference with a monument in the interests of public health and safety.

Section 6 amends section 23 of the 1930 Act, which relates to the reporting of the discovery of archaeological objects. In essence, archaeological objects found will be dealt with under the Minister's directions, which can deal with how those objects will be delivered to the National Museum. That reporting arrangement did not apply to discoveries made during licensed excavations. In line with that exemption, section 6 provides that the reporting requirements do not apply to finds made under sections 14, 14A, 14B and 14C.

Section 7 updates the provisions for the making of regulations prescribing licence fees. Section 8 provides that Dún Laoghaire-Rathdown County Council will not need to seek any further consent or licence under the National Monuments Acts regarding the completion of the south-eastern section of the M50. However, the Bill empowers the Minister to issue directions regarding archaeological mitigation and sets out the factors which he may consider when deciding on the nature of such directions. While we are all familiar with the issues relating to the south-eastern motorway; lengthy and very detailed considerations have been given to heritage protection as part of that motorway scheme.

The European Union directive on environmental impact assessment, or EIA, Directive 85/337/EC, as amended, requires the assessment of environmental effects of certain projects likely to have significant effects on the environment. The directive sets out requirements regarding the type of projects to be subject to EIA, the information to be contained in such an assessment and the procedures to be followed. Regarding road development, those requirements are transposed into Irish legislation through the Roads Act 1993 and the Planning and Development Act 2000.

The south-eastern motorway, or SEM, is the final part of the M50 C-ring motorway around Dublin. It extends from the end of the M50 southern cross route motorway at Ballinteer to the M11 Shankill-Bray bypass at Shankill and includes the construction of 10 km. of dual, two-lane motorway, four motorway interchanges, 16 bridges and two underpasses. The south-eastern motorway will form a strategic element of the national road network, providing a safe, high-speed link between the M11 and the other national primary radial routes around Dublin.

While the legal situation regarding Carrickmines has restricted the contractors' access to the site, work on the motorway either side of the site is progressing well with both sections expected to be open to traffic by the end of the year.

The environmental impact statement for the south-eastern motorway was prepared by Dún Laoghaire-Rathdown County Council in accordance with the requirements of sections 50 and 51 of the Roads Act 1993. The EIS was published in 1997 and approved by the then Minister for the Environment and Local Government in 1998 following a public inquiry into the scheme. The EIS contains a non-technical summary, sets the background to the scheme and gives an overall description of the project and an outline of the alternative route options considered. The EIS goes on to deal with specialist environmental topics in detail, including impacts on human beings such as community severance, visual intrusion and noise and vibration. It also discusses impacts on flora and fauna and on the aquatic environment, soils, air quality, climate, landscape, material assets and cultural heritage including archaeology. The EIS also presents information on the interactions between the various environmental sectors as well as the proposed measures to mitigate the significant environmental effects.

In the planning process leading up to the preparation of the EIS, a number of alternative routes were examined. The options for alternative routes for the south-eastern motorway were restricted to the gap between the extensive housing developments on the southern fringe of Dublin and the Dublin mountains. The available gap was particularly restricted at Carrickmines because of the housing at Brighton, Brennanstown and Glenamuck Roads to the north and the housing and steeply rising ground to the south. The process of consideration of alternatives is set out in detail in chapter 5 of the EIS and a copy of the EIS has been placed in the Oireachtas Library.

The section of the EIS dealing with archaeology sets out the results of a series of archaeological investigations and surveys during the period 1992 to 1997 aimed at informing the road planning and route selection process. In all, eight archaeological assessment reports were prepared by the archaeological consultants. The assessment process involved desk studies, including examination of all available National Museum of Ireland and departmental files as well as An Foras Forbartha reports. The process also included the field inspection of the route options, terrain potential assessments and aerial, topographical and geophysical surveys. The extensive nature of these procedures was not standard practice at the time. They were adopted in this case so as to allow a more comprehensive assessment to be conducted using state of the art methods. It was, in fact, the first time topographical and geophysical surveys were utilised in the preparation of the archaeological section of an environmental impact statement in Ireland in respect of a road scheme proposal.

A report issued by the archaeological consultants in April 1996 provided for ameliorative measures regarding archaeology on the scheme. The main archaeological recommendation was to avoid all archaeological sites. Full archaeological excavation was recommended for those areas where avoidance would not be possible. In addition, special recommendations were issued regarding geophysical, topographical and architectural surveys on selected sites. The archaeological studies confirmed that the only known upstanding remains of Carrickmines Castle was the fragment of the gatehouse incorporated into farm sheds on the site in a later period. The castle at Carrickmines was destroyed in 1642 and as such it is to be expected that only subsurface remains exist. On the Carrickmines site, the EIS concluded that "this significant and extensive complex will warrant excavation". It also stated: "The possibility of taking measures to alter the design of the scheme in this area should be addressed."

The preservation of the remaining upstanding element of Carrickmines Castle, namely, the gable wall of the gatehouse, was achieved by the road designers with the introduction of two back to back curves in the motorway in order to create an undisturbed area of 1.5 acres around the only upstanding remains of the castle, between the motorway and the link road north of the motorway. This area is also thought to be the most likely to contain any remains of the castle foundations. This consideration was a major factor in leaving this 1.5 acre site undisturbed.

In accordance with the practice at the time, non-invasive testing took place on the site of Carrickmines during the course of the EIS. Dún Laoghaire-Rathdown County Council arranged for full archaeological excavations to commence in August 2000. These have been carried out in accordance with methodologies approved and licensed by my Department following consultation with the National Museum of Ireland. As the excavations progressed, the full extent of the work necessary for the complete archaeological excavation and resolution of the area and recording to my Department's requirements gradually became clear. While this had implications for the time and cost of the road project, the National Roads Authority immediately agreed to the excavation of the areas concerned having regard to their potential archaeological significance. The original estimate by the consulting archaeologist and the licensed site director for the completion of the excavations was ten months, to the end of May 2001. However, in May 2001 the period was extended by a further 12 months. The revised completion date of the end of August 2002, involving a further extension of three months for excavation, was agreed in May 2002 by the Department following consultation with the National Museum of Ireland and extensive discussions with the archaeological consultancy and licensed site director responsible for the on-site excavations and the National Roads Authority's project archaeologist.

Up to 200 archaeologists were involved in the south-eastern motorway at any one time, including as many as 130 on the Carrickmines site. Close contact was maintained at all stages during the process of the excavations between the National Roads Authority, the county council and my Department to ensure that best practice was observed regarding the archaeology uncovered. The final phase of archaeological resolution on the site of Carrickmines Castle entailed further archaeological hand excavation and a finds retrieval strategy to excavate the archaeological deposits of the defensive ditches. In early December 2002 there were up to 60 archaeologists employed on this phase of work on the site. The excavations were completed in January 2003 by which time all accessible areas to be affected by the motorway scheme had been archaeologically resolved either by preservation by record or preservation in situ. Further archaeological excavation will be carried out once limited areas become available which are not currently accessible, for example, under the existing Glenamuck Road.

The extensive excavations at Carrickmines have uncovered a wealth of information. It is believed that the remains of Carrickmines Castle, which was destroyed in 1642, lie within the area where the existing farmhouse stands. The only upstanding element of the site, the gatehouse, is also extant in this area. These were the findings of the archaeological assessment leading into the environmental impact statement. It was recommended by the archaeological assessment that this area of high archaeological potential be avoided by motorway construction. This recommendation was implemented and the motorway design was altered to avoid the nucleus of the site.

The result of the extensive excavations at Carrickmines verifies this because, for a large part, it has been the remains of the outer features that have been discovered and excavated. Among the structures discovered were a revetted fosse, mill, mill pool, kiln, avenue and well as well as extensive burials dating to around the early 17th century. A very large material assemblage of finds has also been recovered from the Carrickmines excavations. These are currently being subjected to extensive specialist examination and conservation and include medieval pottery, post-medieval pottery, glass, coins and metal finds, including buckles, brooches, buttons, arrowheads, musket balls and cannon balls. Organic material such as worked timbers, leather shoes, and textiles in the form of unprocessed wool, have also been recovered from the waterlogged areas of the site.

In July 2002 a submission from An Taisce to the NRA and Dún Laoghaire-Rathdown County Council sought changes to the motorway and associated ancillary roads, the main objectives of which were to conserve the archaeological features at the Carrickmines Castle site intact in so far as possible. The specific objectives indicated concerned the preservation of the medieval wall under the roundabout; the fosse, which is part of the castle's outer defences; and the 18th century farmhouse.

One of the main proposals put forward by An Taisce was for the alignment of the motorway to be shifted to the south west. The NRA and Dún Laoghaire-Rathdown County Council assessment established that such a change could not have been accommodated within the motorway scheme and EIS as approved by the Minister in 1998. The NRA and the county council in the course of giving careful consideration to An Taisce's submission identified additional mitigation measures and engineering responses to achieve most of the preservation objectives while respecting the terms of the October 1998 motorway scheme statutory approval and EIS. The measures concerned were approved in September 2002 by the Minister for Transport and provide for the preservation of the following features in situ: the section of fosse over a length of approximately 50 m, which is located within and extends under the Glenamuck Road roundabout; the section of medieval wall located within the above mentioned roundabout; two medieval structures adjacent to the aforementioned roundabout; the 18th century farmhouse; and the section of the remains of the defensive structure under the Glenamuck link road.

The Seanad will therefore understand that extensive archaeological excavations have been carried out at Carrickmines over a period in excess of two and a half years. This work is largely complete with the exception of limited measures relating primarily to the investigation of the area under the old Glenamuck Road and the dismantling and reconstruction of a section of fosse. In view of the provisions of section 8, it would be the intention of the Minister to issue directions to Dún Laoghaire-Rathdown County Council as to the manner in which outstanding archaeological works are to be carried out. In this regard he will give special attention to the advice of the archaeologists in the Department.

These investigations and those already completed at Carrickmines are consistent with the conclusions and recommendations of the approved EIS. I am satisfied therefore to recommend to the Seanad that no further licences under the National Monuments Acts are required for the completion of the south-eastern motorway. The Minister is anxious to ensure that completion of the outstanding archaeological work at Carrickmines will further contribute to the enhancement of the national archaeological record, the understanding of the history and changing settlement patterns of south County Dublin and the knowledge of medieval and post-medieval frontier castle life in the area. I am satisfied the Bill fully caters for this objective. The remaining excavations, such as in the area under the old Glenamuck Road, must await the enactment of this Bill. They will affect less than 10% of the remaining monument which will be preserved for the future.

Given the rigorous route selection process and EIA, the considerable effort and investment into mitigating the impact of the road development on the archaeology at Carrickmines and the significant public interest in preventing further delay in the completion of this project, I am satisfied to recommend that this section be enacted to allow the south-eastern motorway to be completed.

Finally, section 9 defines the Short Title, construction, and collective citation of the Act. A number of issues have been raised since this Bill was introduced. I must emphasise the Minister is not being given new wide-sweeping powers to authorise the demolition of national monuments. A power to grant consent to works on national monuments has rested with the Minister since the founding Act. This Bill retains that power but establishes clearly defined procedures and criteria to be applied in the whole process.

I highlight the fact that under the previous national monuments Acts the National Museum of Ireland had no consultation role regarding a section 14 consent. In this Bill, there is a new provision for the Minister to consult the National Museum of Ireland on section 14 consents and directions. Under the Bill, 14 days are allowed to facilitate this consultation. This time can be extended through agreement with the director of the National Museum. This has already been the case with the consultation for the discovered archaeological site at Woodstown on the N25 in County Waterford. Indeed, my Department already consults the museum on some 2,000 excavation licences a year and this normally takes place over a two to three day period. Therefore I do not envisage that this timescale will be an issue.

It is the Minister's intention later this year to introduce a Bill to update and consolidate the existing national monuments legislation. This will provide an opportunity to consider the whole national monuments code. In the meanwhile, the Department continues to make good progress in protecting the archaeological heritage. The archaeological survey of Ireland is proceeding well. Some 18 surveys have been published covering over half the country and surveys for part of County Sligo and County Longford will be published this year.

The activities of the Department do not simply relate to research. Over 8,000 development applications are examined annually to assess the impacts on the archaeological heritage and up to 2,000 excavation licences are issued so that this activity is carried out to professional standards. Codes of practice have been agreed with Bord na Móna, the NRA, Coillte, the Irish Concrete Federation and EirGrid, the ESB national grid, and the Minister expects to conclude one with the Irish ports authorities later this year.

Greater public awareness is also important. The survey information is published and data is available to planning authorities to make informed decisions. A summary of all excavation reports in a given year is made available on the web and the Minister will be announcing further initiatives in the near future.

I am pleased to commend the Bill to the House.