Supreme Court of Ireland Decisions

1. This is the Appellant's appeal against the Order of the High Court (Kinlen J.) of the 12th October 1999 dismissing his applications for certain reliefs by way of Judicial Review. In particular he had claimed:

2. The relevant facts can be shortly summarised. The Plaintiff and his wife own two farms one of which consists of 15 acres located some three and a half miles from Portlaoise on the Abbeyleix Road. Mr Costigan wished to develop these lands as a service area for heavy goods vehicles. Accordingly, he sought to have the land zoned for commercial purposes. Zoning is a reserved function of the Respondent Council. Mr Costigan was successful in mustering the support of a significant number of Councillors for his proposal. On the 22nd September 1977 a motion that the lands "be rezoned from agricultural to commercial, thereby enabling the owner to proceed with a planning application for the development of the said lands" came before the Council, having been proposed by all five members of the Council for the Portlaoise electoral area.

3. The County Manager, however, advised the members that the resolution should not be passed for legal reasons. He further advised that the matter could only be dealt with in [*3] accordance with the legislation for reviewing and/or amending a County Development Plan. He advised that the matter be deferred until the County Development Plan was reviewed, after a public consultation process had been undertaken.

4. The background to the County Manager's advice was the fact that a new County Development Plan was in the process of formulation and the Draft Development Plan had gone on public display in the week preceding the meeting of the 22nd September 1997. The County Manager further advised that he had sought a legal opinion on the matter and that the members could not agree to rezone the land at that meeting.

5. The Manager did indeed take legal advice in the form of a number of opinions and a lengthy letter from Mr John Peart S.C. It appears that the Council had frequently sought the advice of Mr Peart and relied on it. Furthermore, the Applicant had an oral hearing of his proposal before two Inspectors in the employment of an Bord Pleanala who had been requested to advise the Council. Their advice, and the advice of the Council's own professional staff, was uniformly against the proposal.

6. Notwithstanding this, on the 3rd June 1998 when the matter again came before the Council a motion was passed in the following form:

7. However, the minutes also record that:

8. The Applicant obtained another Barrister's opinion, that of Mr Eamonn Galligan B.L. to the contrary effect. He appears to have made the members of the Council aware of this opinion as well.

9. The Council met again on the 29th June 1998. On that day the matter was discussed both in private session and publicly over a period of several hours. The minutes record that:

10. It appears that the Appellant parted company with his Solicitors because of a disagreement about the presentation of the Appeal. Be that as it may, Mr Costigan in presenting his Appeal relied in substance on the following points:

11. Quite properly in the circumstances of Mr Costigan appearing for himself, no point was taken on behalf of the Respondent about the variation between the grounds in the Notice of Appeal and the grounds actually urged on the hearing.

12. There was an incidental suggestion in argument that it was objectionable that the Barrister who was to give the legal opinion was selected by the County Manager and not by the Councillors. There was also some suggestion that the Appellant should have been consulted on the selection of a Barrister. I do not see any substance in these points. The Councillors were quite entitled to leave the selection of a Barrister or other professional adviser, to the County Manager who I presume has experience of dealing with such matters. The selection of Mr Peart S.C. cannot be faulted since the Council had been happy to rely on his advices over a period of years. Moreover, the Council were taking legal advice for their own benefit, and the Council and possibly the Councillors would have to bear the consequences of any unlawful decision. In those circumstances it was clearly for them or their agent to select the Barrister whose advice they wished to take. Mr Peart was asked to advise the Council, and not to act as some form of arbitrator between the Council and the Appellant. In those circumstances the Appellant had no right to be consulted in the selection of the Barrister. [*8]

13. It is said that, had they been aware of Mr Peart's opinion to this effect, they would have passed the motion of the 3rd June without the necessity to wait for further legal opinion. The sentence relied on by Mr Costigan is a single sentence in a long letter accompanying a detailed opinion.

14. Mr Costigan appears to me to be correct in his submission that Mr Peart's opinion was the entire basis for the change in the Council's attitude between the 3rd June and the 29th June. The minutes for the meeting on the latter date are open to no other construction. But I do not think he is correct regarding a single sentence quoted from Mr Peart's letter as conclusive of the matter on which Counsel was asked to advise or as inconsistent with his subsequent advices of the 19th June 1998.

15. In my view, Mr Peart's statement that there was legal authority for the County Council to zone land outside the boundary of a town was correct. But it was by no means conclusive of the question whether the particular zoning proposed was a lawful one. Moreover, a good deal changed between November 1997 and June 1998 and in particular the hearing before the Bord Pleanala Inspectors had taken place and it had emerged very clearly that there was no support whatever for the proposed rezoning from the planning or other professionals. While the Local Authority were certainly entitled to disregard professional advice they would have to be extremely careful in doing so and would have to be able to demonstrate the rationality and reasonableness, in the Wednesbury and Keegan v Stardust sense, of the decision. These factors are reflected in Mr Peart's last opinion insofar as he advisers that:

16. Of course, Mr Peart's opinion was in no sense binding on the Council. As O'Hanlon J. held in Sharpe's case at page 709:

17. In my view, the planning authority are entitled to reject legal advice which seems to them unconvincing. It follows that they are entitled to accept legal advice which commends itself to them as Mr Peart's obviously did.

18. It should in fairness be remarked that the conflict between Mr Peart's opinion that of Mr Galligan is perhaps more apparent than real. Mr Galligan, approaching the matter [*12] from the point of view of Mr Costigan, the beneficiary of the decision of the 3rd June 1998, merely observed that on the papers furnished to him "there is nothing to indicate that the resolution passed by the elected members was invalid. " Mr Peart, with the benefit of the County Council's much more extensive documentation was naturally alert to the risk that the decision might not be easy to stand over on judicial review and was both entitled and obliged to draw his clients attention to this.

19. Although the point was not expressly argued at the hearing of this Appeal, the Notice of Appeal contends that the Council had unlawfully delegated their own decision making power in the matter to Mr Peart. For the reasons set out in the passage quoted from O'Hanlon J. above, I would reject this contention. That the County Council were entitled to seek legal advice. They were entitled to act on it if they wished and there is nothing to show that they did so in a blind or unconsidered fashion.

20. I would dismiss the Appeal.