Council taking decision on rezoning application entitled to act upon legal advice

Michael Costigan (appellant) v Laois County Council (respondent).

Planning - Development - Local government - Judicial review - Development plan - Rezoning resolution - Reserved function - Legal opinion - Whether original rezoning resolution valid and unconditional - Local Government (Planning and Development) Act 1963 (No 28), section 21 - Local Government (Planning and Development) Act 1992 (No 14), section 19(3) - Rules of the Superior Courts 1986, Order 84.

The Supreme Court (before Mrs Justice Denham, Mr Justice Murphy, and Mr Justice Hardiman); judgment delivered 9 May 2000.

The appellant appealed against the order of Mr Justice Kinlen issued on 7 April 2000 refusing certain reliefs by way of judicial review. The ultimate decision of the respondent, in the light of legal advice, not to proceed with its earlier provisional decision to zone lands of the appellant for commercial use, but subject to obtaining legal advice, could not be said to be ultra vires and null and void. The Supreme Court so held in dismissing the appeal of the appellant.

The appellant appeared in person; Liam McKechnie SC, John Peart SC and William Fennelly BL for the respondent.

Mr Justice Hardiman said that the appellant was the owner of certain lands in the County of Laois. The appellant wished to develop these lands for commercial use and accordingly sought to have the lands zoned for such purposes. As zoning is a reserved function it fell to be voted upon by the respondent council. On 22 September 1997 a motion for the proposed zoning came before a meeting of the respondent. The county manager advised that the motion should not be passed. The manager was of the view that the matter could only be dealt with by way of legislation dealing with the amendment or review of the county development plan. He advised the respondent council to defer matters until the development plan had been reviewed and a process of public consultation had been carried out. The manager in addition pointed out that he had received legal advice that the lands could not be rezoned at that meeting of 22 September 1997. The advice of the respondent's professional staff was also against the proposal.

Notwithstanding such misgivings, on 3 June 1998 at a subsequent meeting of the respondent, the councillors purported to approve the rezoning but stipulated that the resolution would be passed subject to the availability of a legal opinion on the matter. In this regard a senior counsel advised in an opinion on 19 June 1998 that such a proposed rezoning was illegal and would have serious effect on the new county development plan. Senior counsel was of the opinion that the proposal could taint the county development plan with illegality and leave the council open to claims for damages.

The appellant had himself obtained an opinion to the contrary effect from a junior counsel.

The council met subsequently on 29 June 1998 and they agreed, pursuant to the legal opinion received from senior counsel, not to proceed with the proposed rezoning and passed a motion to this effect.

In the notice of appeal dated 16 November 1999 the appellant contended that the respondent was incorrect in failing to consider the contents of the opinion that the appellant had received from junior counsel in reaching its decision. Mr Justice Hardiman at this juncture pointed out that the appellant had at this time parted company with his solicitors and therefore there was some variation in the points which the appellant himself pursued at the appeal hearing.

The appellant at the hearing contended that the original decision taken on 3 June 1998 was a final decision unqualified by the manager's decision to seek legal advice. In addition the appellant claimed that the decision not to proceed with the commercial rezoning was vitiated by the failure by the county manager to advise the respondent that he had already obtained an opinion that the respondent could proceed with the resolution. The appellant also claimed that the mistaken evidence that the appellant had previously sought planning permission for a golf course would entitle him to a retrial.

Mr Justice Hardiman commented that the variance between the points contained in the notice of appeal and those presented at the appeal was not one pursued by the respondent at the appeal. In Mr Justice Hardiman's view this was the correct approach as the appellant appeared as a lay litigant.

Mr Justice Hardiman was of the view that the decision taken by the respondent on 3 June 1998 was not final and conclusive in itself. It would have perhaps been a better method if the respondent had simply adjourned the matter pending the furnishing of a legal opinion. The motion in question was therefore conditional upon the production of a legal opinion which by implication contained favourable conclusions in respect of the proposed course of action. In this regard Mr Justice Hardiman held that the county manager was entitled to select the barrister in question and rejected the argument that the appellant should have had an input into the selection or that the councillors themselves should have selected the barrister.

Mr Justice Hardiman rejected the argument by the appellant that a letter from the senior counsel, who advised the respondent, to the respondent on 13 February 1998 supported the view that the proposed rezoning should go ahead. In total, the senior counsel involved had furnished three opinions and one letter to the respondent in relation to the matter. One sentence in the said letter had advised that the respondent did have legal authority to zone land outside the development boundary of a town. Mr Justice Hardiman held that this one single sentence could not be regarded as conclusive of the matter. The senior counsel was asked to furnish legal advice on three separate occasions and on each occasion the questions posed were different and more specific as the full complexities and consequences of the decision became clearer. Therefore the foregoing statement could not be seen as conclusive as to whether the particular rezoning was a lawful one. In addition it had become clear over time that the professional staff of the respondent did not support the proposed rezoning.

Mr Justice Hardiman pointed out that a local authority while entitled to disregard professional advice must ensure that a decision is a rational and reasonable one. In this regard Mr Justice Hardiman referred to the Wednesbury principle and the decisions in The State (Keegan) v Stardust Victims Compensation Tribunal [1986] IR 643 and P. & F. Sharpe Limited v Dublin City and County Manager [1989] IR 701. The council was entitled to have regard to the advices of senior counsel and the senior counsel was entitled to give the said advices. In such a situation it was clear that where a local authority was proposing to exercise a reserved function contrary to the unanimous advice of its professional advisers detailed legal advice was required and the county manager was entitled to seek this. Mr Justice Hardiman was also of the view that in no sense was the legal opinion by senior counsel binding upon the respondent. As Mr Justice O'Hanlon had held in P. & F. Sharpe Limited v Dublin City and County Manager, a planning authority may proceed to grant permission for a development which they have been advised is illegal. Such a decision may later be vindicated in the courts or may be found to be illegal.

In relation to the opinion obtained by the appellant from junior counsel, Mr Justice Hardiman was of the view that the differences between that opinion and that of respondent's barrister were more apparent than real. The junior counsel had indicated that in his view there was nothing to indicate that the resolution passed by the respondent on 3 June 1998 was invalid. The senior counsel on his part had drawn the respondent's attention to the fact that the proposed resolution was one that might not be easy to stand over in a judicial review action. In addition Mr Justice Hardiman stated that the respondent was entitled to act on the advice it had received and there was nothing to suggest that it had done so in a blind or unconsidered fashion. Thus any argument to the effect that the respondent had unlawfully delegated its decision-making power to the senior counsel in question must be rejected.

Finally, the respondent had conceded that it had wrongfully referred in its affidavits to an assertion that the appellant had sought planning permission in respect of a golf course development. Although this incorrect assertion would have been put before Mr Justice Kinlen in the High Court hearing it was irrelevant to the legal issues which Mr Justice Kinlen had to resolve and did not have a bearing on the subsequent judgment. In addition the appellant had ample opportunity to correct this assertion in his replying affidavit and had deliberately chosen not to do so. The appellant therefore was not entitled to complain of this point on appeal and even it were open to him to do so it would have no effect on the present decision.

Mrs Justice Denham and Mr Justice Murphy concurred.

Solicitors: Murphy & Co (Laois) for the respondent.