Wicklow County Council & ors -v- Wicklow County Manager, [2010] IESC 49 (2010)

Docket Number:268, 270, 271/03, 509/04, 24/05 & 313/09
Party Name:Wicklow County Council & ors, Wicklow County Manager
Judge:O''Donnell J.
 
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THE SUPREME COURT268, 270, 271/03

509/04, 24/05 & 313/09

Hardiman, J.

Fennelly, J.

O’Donnell, J.

Between:

THOMAS CULLEN, PATRICK DORAN

AND NICHOLAS KELLY Applicants/Appellants -and-

THE WICKLOW COUNTY MANAGER Respondent-and-

AN BORD PLEANALA AND

ANDREW BYRNE Notice Parties

Judgment delivered by O’Donnell, J. on the 30th day of July 2010.

It is difficult to credit, even now, that virtual civil war raged in Wicklow County Council in the summer in the year 2000 over a proposal to convert a milking parlour into a pet crematorium at Redcross, County Wicklow. That dispute has followed a long, tortuous and costly path to this Court, almost ten years later. The issue which was argued in this court over two days was the question of the liability for the costs of this protracted litigation.

Section 4 of the City and County Management (Amendment) Act 1955

Nominally the issue in dispute was the question of the grant or refusal by the planning authority, Wicklow County Council, of the planning permission sought. But the dispute which was ignited by the planning application also had its roots in a legal issue which could be traced to what has been described as the unique form of local governance first introduced into Ireland in 1929 in Cork and made of general application by the City and County Management Act 1940. It is reasonably well known that the 1940 Act grafted onto the local government system created by the Local Government Act 1898, a system of management by a professional executive headed by a county manager who could only be removed with the concurrence of the Minister for Local Government. The Act divided the functions of a local authority into those reserved functions to be carried out by the elected members, and executive functions, defined somewhat unhelpfully by s.17 of the 1940 Act, as “any other function to be performed by a local authority”. The division was not however exclusive. Section 4 of the City and County Management (Amendment) Act 1955 permitted the elected representatives to give a binding direction to the Manager as to the exercise by him of any executive function of the Council.

That somewhat controversial section is complex both as a matter of procedure and substance. It required that a valid resolution had to be signed by three members and had to be considered at a special meeting which was on a specified day not less than seven days after the notice. The motion had to be passed by a majority constituting at least one third of the total members of the council. If the motion was returnable for the day of an ordinary meeting it was to be dealt with before any other business. The Manager was obliged to comply only “if and when and so far as money for the purpose is or has been provided”. Subsection 9 of section 4 provided that any section 4 resolution could not be general in nature. Any such purported resolution would be void. Subsection 10 provided for the resolution by the Minister for Local Government of any dispute between the elected members and the Manager as to whether a resolution contravened subsection 9. Similarly, subsection 11 prohibited section 4 resolutions from purporting to apply to the health functions of a local authority and subsection 12 again provided that any dispute in this regard would be determined by resort to a Minister of Central Government, in this case the Minister for Health.

It is apparent from the structure of s.4 that it was intended to be exercised only exceptionally. In the event the power was exercised extensively and as Mr Justice O’Hanlon observed in P & F Sharpe and Grove Developments v Dublin City and County Manager and Dublin County Council [1988] IR 701, excessively. While the initial division of local authority powers and functions into reserved and executive functions was bound to give rise to some friction and dispute, the existence of s.4, and its statutory predecessor gave rise to the potential for even more conflict between elected members and the executive of any local authority since it gave the elected members the power to override the executive, but only if the very technical procedural provisions of the section were complied with. It is to be noted that subsections 10 and 12 provided for a limited dispute resolution procedure, but in the event disputes have arisen (such as that which occurred in this case) which did not fall within subsections 10 or 12.

In 1981 the Department of the Environment issued a guide to local government for councillors. In relation to s.4 it stated “while the law must make a precise division of functions so that responsibility for their exercise may be clearly defined, it was not the purpose of the management system that the elected members and the manager should act without reference to each other. Both classes of functions are functions of the local authority and the fact that the executive ones are undertaken by the manager is intended to provide the elected body with an experienced, whole time administrator for the prompt and efficient discharge of day to day business without making an undue demand on the time of the elected members”. The sensible message of this advice is that the system of local government required an element of cooperation between the appointed manager, and the elected councillors. This message was it appears lost on Wicklow County Councillors, and especially the Appellants, during the summer of 2000.

A number of developments which might not have been anticipated either in 1940 or 1955 made the operation of s.4 even more difficult. First, the functions of local authorities expanded both in range and complexity, and in particular the local authority obtained extensive powers in the field of planning, a new and comprehensive system for which was established under the Local Government (Planning and Development) Act 1963. The area of planning law has become very important, extensive, and highly technical. It is also one of the most important aspects of their functions in which local authorities continue to have impact upon their areas. Use of the blunt instrument of s.4 in the field of planning is both difficult, and controversial.

At the same time, one of the most distinctive developments of the law in the latter part of the 20th century in this jurisdiction has been the significant expansion and development of the law of judicial review of administrative action. In the event, the fact that s.4 was directed to any “particular act matter or things specifically mentioned in the resolution … which the manager can lawfully do or effect to be done …” (emphasis added) was pregnant with possibilities not all of them helpful or attractive, or necessarily anticipated in 1955.

The leading case on the application of s.4 of the 1955 Act and indeed its application to the law on planning, was P & F Sharpe and Grove Developments v Dublin City and County Manager and Dublin County Council. That case in itself was quite complex. There, the applicant developer had applied for planning permission to develop sites for housing in Lucan, very close to the then dual carriageway carrying traffic westwards out of Dublin. One of the provisions of the permissions precluded access direct to that road. The developer having concluded that it would be difficult if not impossible to interest the public in houses without such access, applied for permission for a slip road accessing the dual carriageway. The County Engineer and the roads department recommended refusal of permission on safety grounds. However the Council passed a s.4 resolution directing the grant of permission. The County Manager refused to comply with the resolution. He was advised by the law agent that it would not be lawful to grant permission in the face of the reports from the County Engineer and the roads department. That advice had not been available to the elected representatives at the time of the passage of the s.4 resolution. The County Manager accordingly refused permission, considering that he was not bound by the s.4 resolution.

The developer sought certiorari to quash the Manager’s decision and mandamus to direct him to grant the permission sought in accordance with the s.4 resolution. In the High Court, the developer succeeded. Mr Justice O’Hanlon held that the s.4 resolution could validly be made in respect of planning decisions (something which up to then had been doubted), that although in the case of an “obvious and patent illegality”, the manager would be not only entitled but “duty bound” to refuse to comply with any such direction, and that neither the existence of the advice of the roads department and county engineer, nor the subsequent advice of the law agent, rendered any such decision one of “patent illegality”. It was, as a matter of law, open to any deciding body to disregard the expert advice given to it since otherwise the executive advisors would become the decision makers, rather than the body upon which that duty was imposed by statute. In the event, he did not feel able to resolve the question whether the Council was justified in departing from its expert advisers, considering that that was a matter of planning, properly to be determined on appeal by An Bord Pleanála. Nor could he conclude that the permission would be unlawful, since that he considered would require a demonstration that a traffic hazard in the nature of a public nuisance would be created if the permission was granted. The evidence did not in his view allow him to make such a determination and accordingly he concluded that the County Manager was not entitled to refuse to obey the s.4 resolution. However he considered that the County Council proper (rather than the County Manager) was the appropriate Respondent, and accordingly joined the Council as Respondent. Furthermore he agreed that the Applicants had been entitled to seek judicial review without pursuing the alternative remedy of an appeal to An Bord Pleanála since he considered that the...

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