KAMPSAX REPORT [CARRICKMINES CASTLE COMPLEX AND THE M50: THE ADEQUACY OF THE ENVIRONMENTAL IMPACT ASSESSMENT] Kampsax Report: European Commission, Directorate- South Eastern Motorway, Dublin, Review of EIA…………………………………………………………….…….2 Response by NRA/Dun Laoghaire Rathdown County Council to Kampsax Report on Review of Archaeological Aspects of SEM EIA……………….30 Comments by Department of Environment, Heritage and Local Government on Review of EIA South Eastern Motorway Final Report July 2003……………………………………..…….72 1 European Commission, Directorate-General Regional Policy South Eastern Motorway, Dublin Review of EIA July 2003 Final Report European Commission, Directorate-General Regional Policy South Eastern Motorway, Dublin Review of EIA July 2003 Report no. 1 Issue no. 1 Date of issue July, 2003 Prepared Julian Munby (Oxford Archaeology), Søren Hinge- Christensen Checked Anne Eiby Approved Raphael Zayat Table of Contents 2 Background Carrickmines Castle has become the cause célèbre of Irish archaeology, with the proposed destruction of a major archaeological site in circumstances that leave open the question of whether the archaeological loss has been fully mitigated. In a country well-provided with fortified sites of all sizes and ages, this medieval frontier castle on the Pale surrounding the Dublin region has proved to have an archaeology and history rather more impressive than its meagre upstanding remains would have suggested. Despite several years of archaeological prospection to understand and protect the site, the true significance and extent of the site emerged too late to allow for a measured approach to preservation by avoidance or record. And yet this has happened in a country with a mature archaeological profession, a government and road authority fully aware of the needs of archaeology, and committed to proper treatment of sites in road schemes. The project had followed an apparently model trajectory with a decade of investigation and assessment prior to the final abandonment of the site. What went wrong? Carrickmines Castle is now seen to have had a well-recorded history as a frontier defence of Dublin from the 12th to the 17th century, and with buried remains as extensive and rich in finds as the standing remains are minimal. This undoubtedly gives the site a major significance on the national scale. The wider context of the archaeology of the South Eastern Motorway is a continual process of minimising the archaeological risk, so that sites are progressively identified and assessed in order that they can be avoided or the impact minimised, or that other mitigation measures can be carried out. This process starts with the archaeological assessment of route alternatives, and finishes when the last watching brief on construction is completed (and the post-excavation process commences). It began in 1992 and has not yet been completed, and clearly the process has failed in this one instance to achieve what was intended. How did this come about? The narrower issue, with which this report is concerned, is the nature and quality of the archaeological information that fed into the public process of consultation, inquiry and decision-making around the motorway project. Essentially this centres on the production of the Environmental Impact Statement [EIS], and therefore has a narrower timespan of 1992-1997. The Environmental Impact Assessment [EIA] process has clearly contributed to the eventual outcome as have subsequent events, and this report seeks to examine that contribution. Other issues concerning land ownership, rezoning of land, and the raison d'être of the unusually impressive infrastructure requirements at Carrickmines have been raised by various parties, and are being pursued elsewhere. The allegations do not seem to have a direct bearing on the archaeological response to the developing road scheme, and do not require to be addressed in detail. They are also matters that do not raise direct issues of Community law, and this study is restricted to EIA aspects that fall within the Commission's powers of inquiry. The rôle of the European Commission as promoter of environmental standards and provider of financial assistance from the Cohesion fund has given it a dual interest in the Carrickmines affair and led to the July 2002 petition to the European Parliament [Item 28]. 1 This report is a stage in the process of addressing that petition, and other associated complaints. Requested assignment The purpose of this study is to clarify the following two questions raised by the European Commission in order to be able to fully assess the complaints and to reply the petition at the European Parliament: Can it be reasonably concluded that, in accordance with Article 5(2) of Directive 85/337/EEC, the developer supplied, in the appropriate form laid down in the Irish legislation, the data required to identify and assess the main effects which the project is likely to have on the archaeological heritage at Carrickmines, a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects on the archaeological heritage, and a non-technical summary of this data and this description. To the extent that this is not already covered by the previous question, can it be reasonably concluded that the developer supplied in the appropriate form laid down in the Irish legislation the information specified in Annex III of Directive 85/337/EEC that was relevant and reasonable with regard to, firstly, the description of the archaeological heritage at Carrickmines likely to be significantly affected by the project, secondly, the description of the likely significant effects of the project on this archaeological heritage thirdly, the description of the forecasting methods used to assess the effects on this heritage 1 The papers provided in answer to the petition, by the Irish Government and third-parties, are numbered [1] to [39], and are listed in date order in the Appendix. 3 and, fourthly, a description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on this heritage. The conclusions could be supported by comments and observations on any ancillary matters that appear especially pertinent to the questions to be addressed including relevant experience and precedents set by EIAs elsewhere. Points of Clarification: The above questions need to be answered by reference to Directive 85/337/EEC before its amendment by Directive 97/11/EC. The two questions reflect the obligation on the developer to provide, firstly, as an absolute minimum, the data and non-technical summary referred to in the first and third indents of Article 5(2), and, secondly, any additional information specified in Annex III in accordance with Article 5(1). The appropriate form laid down in the Irish legislation is an environmental impact statement (EIS) (Roads Act, 1993). The main relevant document is therefore the EIS published in September 1997. This document makes reference to several archaeological surveys that preceded the EIS. The above questions should be answered on two separate bases: first, on the basis that the EIS is the only document that corresponds to the appropriate form, and thus the only document that can legally inform the decision-making process in so far as developer-derived information is concerned; and, second, on the basis that, provided it does not misinterpret or misrepresent their findings, the EIS can be considered as incorporating by reference any studies or surveys that it explicitly mentions. The standard to be applied should relate to what was ascertainable by the developer at the time of compilation of the EIS, having regard to the then current state of knowledge, sources of knowledge and forecasting methods. A “hindsight” test should not be applied, i.e. the adequacy of the information provided by the developer should not be judged in terms of present day knowledge and forecasting methods. Reasons should be stated for the conclusions drawn. Where a shortcoming is identified, an indication should be given of its relative seriousness. Where a shortcoming is disclosed in relation to the description of and the identification and assessment of effects on the archaeological heritage, and it is considered by the contractor that this had the potential to influence the measures envisaged in order to avoid, reduce or remedy significant adverse effects, the contractor is requested to provide, by reference to practice in comparable cases, observations on the sort of avoidance or mitigation measures that might reasonably have been expected had a more complete description of the archaeological heritage and a more complete identification and assessment of likely impacts on it been supplied by the developer. On the basis of the documentation supplied, observations should also be provided with regard to any additional mitigation measures that have been adopted or proposed by the Irish Authorities subsequent to the original decision approving the motorway construction. The EIS represents the main document to be examined. However, a number of other documents should also be taken into account. These are listed in the attached annex. Background Considerations EIA legislation Directive 85/337/EEC came into force in Ireland on 3 July 1988. The European Communities (Environmental Impact Assessment) (Motorways) Regulations, 1988 gave effect to the Directive for motorway projects. The European Communities (Environmental Impact Assessment) Regulations, 1989