Gormley has discretion to call a halt to M3

It is still possible for John Gormley to do something about the M3 and Tara, argues Michael Smith, who says independent assessment is the first step

The Hill of Tara has been sacred for 5,000 years. It was already 2,000 years old at the time of the siege of Troy. It was once the ancient seat of power in Ireland - 142 kings are said to have reigned there. In ancient Irish religion and mythology Tara was the sacred place of dwelling for the gods, and was the entrance to the otherworld.

In the recent negotiation of a programme for government the Greens could not get a commitment to run the M3 motorway away from Tara to safeguard its integrity. But there are still ways the Minister for the Environment, John Gormley, could achieve this result.

For the Greens the fact is that although they may not have negotiated a very green programme for government, much can be achieved through the daily exercise of their offices - particularly that of Minister for the Environment. Historically in Ireland, economic and even social aspirations have been phrased mandatorily - "the Minister shall . . .", whereas environmental objectives have been framed as discretions - "may".

In the past most of the mays were treated by ministers for the environment as opportunities for a may not. While legislation looked pro-environment, it was not exercised in a pro-environment way. The most important engine for this Government's green agenda will be having Ministers in the right place to exercise those discretions in a green way.

Dick Roche, Fianna Fáil's recently-departed minister for the environment, chose not to designate national monuments along the M3 route near Tara, but many archaeologists - outside of the NRA at least - felt he could and should have. In the end he designated only one feature, the 80m-diameter henge structure at Lismullin, as a national monument. But even in that case he availed of the possibility allowed by the insidious 2004 National Monuments (Amendment) Act, which was the reaction to a previous debacle at Carrickmines, to issue directions to allow it to be recorded and then destroyed.

It appears the minister was strengthened in his willingness to do this by indications that much of Lismullin had been destroyed and was vulnerable to the elements, and also that there would not be much advantage to retaining it since most of the rest of the archaeological landscape has been destroyed following excavation.

Gormley apparently believed he could not overturn Roche's directions. But this seems to be wrong on first principles.

The Attorney General's office offered verbal advice to this effect but it may be difficult for the Attorney General himself to offer advice as, professionally as a senior counsel, he represented Meath County Council in the Vincent Salafia case, which called for designations of national monuments along the route of the M3. There may be an appearance of a conflict of interest. Gormley should therefore seek independent advice.

However, it now appears that it is legally possible to designate other sites - such as Collierstown, Baronstown, Roestown along the Tara-Skryne Valley - as national monuments. Where Roche failed to designate, Gormley can. He should follow up independent legal advice with independent archaeological advice.

It is likely that other national monuments along the route will also emerge as it appears Lismullin itself escaped detection under the initial geophysical survey and was only recognised by chance.

As regards Lismullin, designated a national monument but prey to directions allowing destruction, what Roche directed Gormley can simply undirect or redirect.

The route is a blank canvass awaiting proper independent assessment of the appropriateness of national monument designations.

With the Tara-Skryne Valley packed with newly-designated national monuments and no ministerial directions allowing for their destruction, it would clearly be impossible to drive the M3 project through.

Tara may be just the first of a series of issues where Gormley can promote environmental protection without reverting to the Cabinet. The Minister has control over environment, heritage and local government. Many of his powers do not require Cabinet approval. For instance, many of the powers relating to protection of national and built heritage give the Minister wide discretion.

As regards urban and rural planning, much of the national spatial strategy depends on the Minister intervening where local authorities flout it - as they typically do, for example, in facilitating sprawl in the hinterland of Dublin.

If we are to reconfigure the country away from Dublin and its hinterland to other cities and towns, progressive exercise of those discretions will be a major step.

For those of us who spent years battling against the system for the protection of the environment and heritage and for the promotion of good planning, Lismullin in Tara could be a bridgehead to a bright new green world.

Michael Smith is a former chairman of An Taisce. This commentary was written in a personal capacity

© 2007 The Irish Times