The State has argued it was a “bridge far too far” for the High Court to declare that various buildings and sites on and around Dublin’s Moore Street are a 1916 Rising battlefield site comprising a national monument.
The High Court was not entitled, in judicial review proceedings, to declare an “entire precinct” of the city a national monument, with “serious consequences” for the property rights of a company which has permission to develop the site and for the Minister for Arts and Heritage, Michael McDowell SC argued.
The declaration involved a “very serious stretching” of the separation of powers between the courts and executive, he said.
A three judge Court of Appeal is hearing five 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 - over the High Court decision.
Members of the 1916 Relatives Association and supporters of the group were in the packed court on Tuesday for the opening of the appeals.
In March 2016, Mr Justice Barrett found in favour of Colm Moore, a nominee of the Association, who brought the proceedings against the Minister aimed at protecting the Moore Street site. Chartered Land was a notice party in the case.
The judge granted orders preventing works to the buildings and locations at issue after declaring them to constitute a 1916 Rising battlefield site comprising a national monument.
The 1916 Rising is “unique” and the GPO occupies an “iconic” position in Irish history, making what happened to the men and women who fled the GPO after it was ablaze following shelling by British troops “a matter worthy of unique commemoration”, he said.
He said the Minister could carry out essential conservation works to a terrace on Moore Street, the final headquarters of the Rising leaders before their executions.
The Minister had disputed any wider battlefield site exists and argued it was adequate to protect the terrace at Nos 14-17 Moore Street where it is intended to establish a 1916 Rising Commemorative Centre.
Opening the appeal for the Minister, Mr McDowell said this was not a situation where the Minister acted “irrationally” or unreasonably in not extending a protection order beyond Nos 14-17.
While Mr Justice Barrett’s imagination was “clearly taken” by his visit during the case to the site, that did not entitle him to declare the area a national monument, counsel said.
It was not appropriate, in deciding a complex issue of this kind, for the judge to tour an area of the city, to be “emotionally hugely impressed” by the memory of what he had read about that area, and then to say “nobody could reasonably doubt this was a national monument”. That “very clear” determination left the lands “semi-permanently frozen” and the Minister effectively a caretaker and custodian of city centre lands.
The legislature could not have intended a decision on a national monument could be made based on the “historicity” of an area, Mr McDowell argued.
There must be a “respectful reluctance” on the part of the High Court to embark, particularly via judicial review rather than a full plenary hearing based on oral evidence and where everybody’s interests, including the landowners, are taken into account, on determining the status of lands for public purposes at the instance of people who are not owners of those lands
Shane Murphy SC, for DCLP, said there is no legal authority for the High Court finding, of its own motion, that certain areas comprise a national monument.
Opposing the appeal, Michael Collins SC, for Mr Moore, said the National Monuments Acts gives an “extremely wide” definition to a national monument, including the remains or traces of a building or place.
While the purpose of the State showing the court photos of Moore Street as it is today seemed to be to convey these buildings were “miserable” and lack an “obvious wow factor”, the issue is the national importance of the buildings and the place, he said.
The appeal continues tomorrow.