Consent of councillors necessary before local authorities can defend decisions in court, rules judge

Local authorities must seek the approval of councillors before doing any act to prepare for or conduct litigation related to their decisions, the High Court has ruled.

Ms Justice Emily Farrell rejected the contention by Dún Laoghaire-Rathdown County Council that a section of the 2001 Local Government Act means authorisation is implied unless the elected members give a direction prohibiting the council’s chief executive from taking litigation steps.

The question of whether authorisation from councillors is required has recently been raised in at least three High Court challenges related to decisions of elected members, such as votes on local development plans.

Ms Justice Farrell’s judgment clarifying the issue comes in a challenge brought by developer Oceanscape Unlimited Company over the Dún Laoghaire-Rathdown County Council development plan and decision to rezone its lands at Stillorgan Business Park for educational facilities. These were adopted via a vote by elected members.

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Oceanscape, represented by barristers Feichín McDonagh SC and John Kenny, contends the rezoning amounts to a “sterilisation” of its site and will cause the company “serious and irreparable” harm as well as costing it millions of euro.

The council filed legal documents opposing its claim, but Oceanscape argued it had no power to do this because it had not sought prior authorisation from elected members, which it argued was required by section 153(2) of the 2001 Act.

It asked the court to strike out the council’s opposition statement on these grounds.

Section 153(2) states that where a legal action relates to the performance of functions reserved to the elected members, the chief executive “shall” act with the “express authorisation of the elected council”. It provides that such authorisation “shall be deemed to have been given unless or until the contrary is shown”.

The council asked the court to interpret the section which, it said, relies on an assumption that the chief executive has a “deemed authorisation” that is lost only where elected members actively direct him not to do something in a case.

It said no formal resolution was passed by elected members, but they are aware of the proceedings and were formally briefed on them last March.

Ruling on the council’s motion, the judge held that section 153(2) requires the “positive step” of securing express authorisation by elected members who “clearly and directly” communicate their consent. Subsequent consent is not required for each and every document filed, she added.

The council’s interpretation is “not consistent with the plain and ordinary meaning” of the section, she found.

The judge said the required authorisation was not secured in this case. She will hear from the parties regarding any orders that should flow from her findings.

Separately, the head of the High Court’s Planning and Environment List, Mr Justice Richard Humphreys, this week introduced a practice rule related to section 153(2). It requires local authorities to inform the court early on whether councillors have given express authorisation to defend a challenge to their decision.

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