National treasure
Various categories of structures are afforded special protection, with the most important being classified as ‘national monuments’. But how does a structure get elevated to the stature of national monument? Alan Moyles gets digging.
In most societies, the achievements of its ancestors are revered and the remnants of past civilisations are given protected status – consider the place of Newgrange in Irish culture, the Acropolis in Athens, or the Pyramids in Egypt. There are various categories of structures afforded special protection, but the most important are classified as national monuments.
National monuments are of such importance that criminal sanctions can be imposed for damaging one. The Supreme Court, in the 1984 case of O’Callaghan v Commissioner of Public Works, stated that it is a duty of citizens to protect national monuments. In addition, works to a national monument generally require ministerial approval.
Special status
Since a person who damages a national monument can be sentenced to a term of up to five years imprisonment – and the Office of Public Works (legally the Commissioners of Public Works in Ireland) among other rights has the authority to compulsorily acquire them – an important question is, how does a particular monument acquire the status of national monument?
Section 2 of the National Monuments Act 1930 defines a ‘national monument’: “A monument or the remains of a monument, the preservation of which is a matter of national importance by reason of the historical, architectural, traditional, artistic or archaeological interest attaching thereto, and also includes every monument in Saorstát Éireann to which the Ancient Monuments Protection Act 1882 applied.”
There are other potential routes to national monument status. The Office of Public Works (OPW) may issue a preservation order and may acquire a monument that is, in its opinion, a national monument; however, this requires a positive act by the OPW.
If it does not issue a preservation order or acquire a monument that is in its opinion a national monument, then in order to qualify as a national monument, a particular structure would need to satisfy the definition set out in section 2 of the 1930 act – that is, be “a monument, the preservation of which is a matter of national importance”.
Ambiguous definition
The national monuments legislation does not set out a mechanism for deciding whether a particular monument is one whose preservation is a matter of national importance.
For instance, a monument may be important, but is it of national importance? There is no set criteria for determining whether a monument is worthy of preservation due to its national importance, nor is there an official or organisation that has the authority to make such a determination.
A great many monuments have their national-monument status confirmed by being covered by the 1882 act, by being the subject of preservation orders, or being acquired by the OPW – but, for example, how would a newly discovered monument be elevated to national-monument status in the absence of action by the OPW?
What, to some, appears to be a monument of little or, at best, moderate significance could be to another a monument of major significance, worthy of the highest level of protection. This goes to the heart of the difficulty with the definition in section 2 of the 1930 act – a lack of set criteria as to how national monument status is determined.
This issue not only affects newly discovered monuments, but, potentially, monuments that are known of, but have not been recognised as national monuments or structures.
Judicial views
What role do the courts have in determining whether a particular monument deserves the moniker of national monument? The Court of Appeal considered this question in Moore v Minister for Arts, Heritage and Gaeltacht (2018).
This case concerned properties on Moore Street in Dublin that had links to the 1916 Rising, and centred on whether the courts had the authority to declare a particular monument to be a ‘national monument’.
The Court of Appeal held that the courts do not have the authority to make such declaration. The court stated that this was a political matter – for the executive or the legislature.
It further stated that the legislation was unclear – section 2 of the 1930 act does not state how a monument becomes a national monument, in that it does not state that the minister or the OPW have the discretion or authority to declare a monument to be of national import.
The Court of Appeal did not offer an opinion as to the circumstances when a monument could be deemed a national monument, other than that the courts do not have the authority to give a declaration that a particular monument is a national monument.
The Supreme Court, in Dunne & Lucas v Dun Laoghaire - Rathdown County Council (2003), had found Carrickmines Castle to be a national monument on the basis of expert evidence, stating: “Plainly there is scope for differences of opinion as to whether the preservation of any particular monument is a matter of national importance.
But it is essential to the resolution of the present case to note that the strongly expressed and closely argued conclusion of Dr Duffy, to the effect that it is a national monument, is uncontradicted by any expert evidence. It must therefore be accepted for the purposes of the present application. It is also difficult to close ones eyes to the fact that a committed expert is in a uniquely good position to form a view on this topic.”
The Court of Appeal, in the Moore Street case, held that the courts do not have the authority to give a declaration that a particular monument is a national monument; the Supreme Court in Dunne found a monument to be a national monument on the basis of expert evidence.
The Supreme Court decision in the 2003 case was not mentioned in the 2018 Moore case.
‘Classified’ information
There is no definitive way to classify a particular monument as a national monument – no person or organisation appears to have that power, and the role of the courts is unclear. The OPW/minister do have certain powers.
For example, they can become guardians of a national monument or acquire one, and an argument can be made that their exercising of such power would bestow national-monument status. However, that requires the OPW/minister to make a positive act, and this decision could be open to challenge.
The courts must have a role in determining national-monument status, if only in reviewing the actions of the OPW or the minister to determine whether they are acting within their statutory functions. The use of public funds to compulsorily acquire something they believe to be a national monument has to be subject to judicial oversight.
Equally, if a newly discovered monument (of a type or class that would, generally, be considered a national monument) was in danger of suffering harm, and the OPW or the minister had not taken steps to protect or preserve such monument, would it be open to the courts to declare such a structure to be of national-monument status to aid its protection, particularly as it is an offence to damage a national monument, with the consequential impact for the monument, its owners, and the State?
Is it the case that, when faced with the immediate risk to a structure that is considered a national monument by the weight of expert opinion and public concern, the courts would refuse to hear such a matter on the grounds that classification of a national monument is a matter solely for the executive and legislature?
Possible solution
There will always be disagreement on the importance of any particular monument, and whether its level of importance is enough to justify its status as a national monument.
It is open to the OPW to acquire or become guardians of a monument to afford it protection, but it may decide against this. Yet, it would seem to be unsatisfactory that there is such ambiguity about the designation of what qualifies as a national monument.
A system based on the antiquity of a structure has merits. For example, anything shown to be in existence prior to the year 1700 could automatically be given national monument status; however, post-1700 structures would still be subject to the vagaries of personal opinion.
The buildings associated with the 1916 Rising derived their claims to national-monument status based on events that occurred little over 100 years ago. The advantage of a date-based system would be that anything that is the appropriate age would automatically benefit from enhanced protection.
It would appear to be obvious that a person or body should have the authority to declare that something is a national monument, based on set criteria. Such decisions should be subject to judicial oversight, but if the Court of Appeal is correct in its decision in the Moore Street case, currently there is no authority with such power.
The national-monuments legislation is clear on how a national monument should be treated, even allowing for its destruction if considered necessary, provided that the correct procedures are followed. What is also required is a much clearer and more definite process for determining the national-monument status of a structure.
Although new discoveries are made, the stock of national monuments in the country is under challenge from infrastructural developments – or simply neglect.
We owe it to future generations, at the very least, to ensure that there is a proper system in place to allow for the classification of national monuments that should help to assist with their protection.
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Alan Moyles
Alan Moyles is a solicitor with McGrady & Company, Balbriggan, Co Dublin. He specialises in property law, including heritage properties, and has a degree in archaeology from UCD.