Appeal Court overturns requirement for councils to get members' consent before defending legal actions
The three-judge court's decision overturns a High Court ruling from June last year that found councils must take the 'positive step' of securing express authorisation from elected members before defending a case.
The question of whether authorisation from councillors is required has been raised in several High Court challenges related to decisions of elected members, such as votes on local development plans.
Every local authority must have a development plan, a document with maps that guides how certain areas should be zoned and developed.
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It is used to guide planning decisions in those areas, but is sometimes the subject of litigation by interested parties who could be affected by any changes.
In this case, developer Oceanscape Unlimited Company brought a legal challenge over the Dún Laoghaire-Rathdown County Council development plan and the decision to rezone its lands at Stillorgan Business Park for educational facilities.
Oceanscape contended the rezoning amounted to a 'sterilisation' of its site and would cause the company 'serious and irreparable' harm as well as costing it millions of euro.
The council filed legal documents opposing the developer's claim, but Oceanscape argued the local authority had no power to do this as it had not sought prior authorisation from elected members, which it argued was required under the Local Government Act, 2001.
It asked the court to strike out the council's opposition statement on these grounds.
Section 153(2) of the Act 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 were aware of the proceedings and were formally briefed on them in March 2023.
The High Court had ruled in Oceanscape's favour, finding the required authorisation was not secured in this case.
Soon afterwards, the High Court introduced new practice rules requiring local authorities to inform the court early on whether councillors had given express authorisation to defend a challenge to their decision.
However, the Court of Appeal has now overturned the High Court decision and has ruled in favour of the council in a recently published judgment.
Explaining the appeal judges' rationale, Ms Justice Nuala Butler said entering into litigation was an 'executive function' and could be taken by the chief executive without requiring a vote of elected councillors.
'In these circumstances, the appeal taken by the local authority will be allowed and the order striking out its statement of opposition will be set aside,' she said.
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