THE SUPREME COURT

JUDICIAL REVIEW

248/99

Denham, J.
Murphy, J.
Hardiman, J.

BETWEEN
	MICHAEL COSTIGAN
		APPELLANT

	AND

	LAOIS COUNTY COUNCIL
		RESPONDENT

JUDGMENT of Hardiman J. delivered the 7th day of April 2000 (nem. diss.)

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:

"(i)	An Order of Certiorari quashing the decision of the Respondent dated the 29th June 1998 not to proceed to amend the Co. Laois Draft Development Plan in accordance with an earlier decision dated the 3rd June 1998 to zone 15 acres of land owned by the Applicant at Clonadadoran, Portlaoise, Co. Laois, for commercial purposes.[*2]

(ii)	A declaration that the said decision was ultra vires the Respondent and
therefore null and void.

(iii)	An Order of Prohibition and/or an Injunction preventing the Respondent from adopting a new statutory development plan until such time as the validity of the said decision dated the 29th June 1998 has been determined by this Honourable Court.

(iv)	An Order of Mandamus directing the Respondent to reconsider a Motion to 
amend the Draft Development Plan by zoning the said lands owned by the
Applicant for commercial purposes."

THE FACTS

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.

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.

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.

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.

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

"That the Council agreed to zone 15 acres of land in the ownership of Michaal Costigan at Clonadadoran, Portlaoise, for commercial purposes thereby enabling the owner to proceed with a planning application for the development of the lands."

However, the minutes also record that:

"Prior to the taking of the vote the members agreed that the resolution would be passed subject to the availability of a legal opinion on the matter."

[*4] This led to Mr Peart's final opinion of the 19th June 1998. Mr Peart advised strongly against the proposed zoning stating that it would be illegal; that it would have the most serious effect on the new County Development Plan by tainting it with illegality whereby "it could make the whole plan illegal"; and advising that the Council might be liable "to serious claims in damages in respect of future planning decisions" if it were proceeded with.

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.

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:

"Having regard to the contents of the legal opinion received from Mr John Peart, dated the 19th June 1998 and having considered same, consequent to our decision taken at the meeting of the Council held on the 3rd June 1998, the Council agrees not to proceed with the above mentioned decision and further agrees to continue the process of the review of the County Development Plan in accordance with Section 21 of the Local Government (Planning and Development) Act 1963 as amended.

The Motion of the 3rd June had been passed unanimously by the 14 members then in attendance. The Motion on the 29th June was passed on a roll call vote by 14 votes to 7.

GROUNDS OF APPEAL

There was major variation between the grounds set out in the Notice of Appeal dated the 16th November 1999 and filed on the Appellant's behalf (by his former Solicitors), and [*5] the grounds actually urged by the Appellant at the hearing, at which he appeared in person. The Notice of Appeal indicated the following grounds: 

"The learned trial Judge erred in law and in fact in failing to hold that the Respondent Planning Authority was incorrect in refusing to receive representations from the Appellant by way of considering the contents of an opinion of Junior Counsel obtained by the Appellant, which was furnished to the Respondent on the 29th day of June 1998 prior to the said decision being made by the Respondent on the same day and

The learned trial judge erred in law and in fact in failing to hold that the Respondent Planning Authority had effectively delegated their reserved in the making of a development plan by deciding to follow the legal advice of their nominated Senior Counsel rather than considering the merits of that advice as against any legal submissions or representations put forward by the Plaintiffs legal representatives."

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:

1.	The decision to zone the lands for commercial purposes, taken on the 3rd June
1998, was a final and unconditional one unqualified by the manager's 
decision to seek legal advice.

2.	The decision not to proceed with the commercial zoning was vitiated by certain alleged misdeeds of the County Manager in particular his failure to advise the Council on the 3rd June 1998 that he already had an opinion from [*6] Mr Peart to the effect that the Council could lawfully proceed with the zoning in question.

3.	The learned Trial Judge was misled by evidence on affidavit on behalf of the 
Respondent relating to the planning history of the lands. Specifically, it was
wrongly stated that Mr Costigan had made a previous application for
planning permission to develop the lands as a golf course. This error or
falsehood, Mr Costigan said, entitled him to a retrial.

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.

DECISION ON THE ABOVE ISSUES

1 .	I do not consider that the decision of the 3rd June 1998 was final and conclusive in
itself. Certainly the records of the meeting of that day show that the Appellant had
unanimous support amongst the Councillors for the zoning which he sought. It is
equally clear that the Councillors, having heard the views of the County Manager,
were concerned to have specific legal advice in relation to their power to adopt the
zoning in question and the legal consequences of so doing. Accordingly, the Minute
recorded that:

".........the resolution passed subject to the availability of a legal opinion on 
the matter."

[*7] It might have been a neater and more logical way of dealing with the situation which arose on the 3rd June if the Council had simply adjourned its deliberation until Mr Peart's opinion was to hand. But I do not think that the record of the meeting admits of any other interpretation than that the coming into effect of the Motion was conditional on legal opinion being taken about it. By implication, but I believe it is a necessary implication, this condition requires that some legal opinion acceptable to the Councillors be favourable to the course proposed, at least in the sense of not regarding it as unlawful or grossly imprudent.

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]

2.	In the course of the proceedings the Appellant obtained extensive discovery of the Council's documents and this included no less than three opinions and a letter of advices from Mr Peart. It appears that he advised in relation to the proposed zoning of the lands, first in an opinion received in September 1997, prior to the first meeting at which the matter was discussed, then in a letter and accompanying opinion of the 13th February 1998 and finally in the opinion already referred to of the 19th June 1998. Mr Costigan complains that the Councillors at the meeting on the 3rd June 1998 were not informed of the contents of Mr Peart's letter of the 13th February wherein he advised:

"In the circumstances, I advise that Laois County Council does have legal authority to zone land outside the development boundary of a town."

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.

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.

[*9] Mr Peart was asked to advise on three occasions. On each occasion the questions on which his advice was sought were different and more specific than those on which his advice had previously been sought. This seems to me to be natural enough in that the full complexities and possible consequences of the decision became clearer in the Councillors mind and that of the Manger as their researches deepened.

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: 

"in theory then the County Council acting as Planning authority are entitled to make a material alteration of the draft plan should they wish to do so on following the procedure set down in Section 21 (a) ...",

while also stating that in the circumstances of this case the proposed zoning would in his view be unlawful (presumably on the ground of unreasonableness).

[*10] In my view, the Council were entitled to take Mr Peart's advices on the proposal generally, and he was entitled to give the advices which he did. I have carefully considered the possibility that the decision of the 3rd June 1998 in relation to legal advice was a very narrow one, limited to taking advice on the sole question of whether the proposed zoning was within the Council's legal powers, as opposed to whether it would be a wise or prudent decision from a legal point of view. I do not think it can be so narrowly interpreted. Planning and perhaps especially zoning matters are notoriously complicated and a legal opinion which limited itself to the bald statement that there was scope in the statutory scheme for the proposed zoning would not have met the Council's need for legal advice.

In P & F Sharpe Limited v Dublin City and County Manager (1989) IR 701, it was established, following The State (Keegan) v The Stardust Compensation Tribunal (1986) IR 642, that an unreasonable decision by a Local Authority would be invalid and illegal. It was further held that such a decision required not only to be reasonable but to be demonstrably so, involving an obligation on the members making the decision to produce "an adequate note …… not necessarily verbatim but of sufficient detail to permit a Court upon review to be able to ascertain the material on which the decision had been reached. " (pp 720‑721). In light of this and other authorities it is clear that the position of the Local Authority proposing to exercise a reserved function in a manner contrary to the unanimous advice of its professional advisers, and apparently in reliance of what was submitted by Mr Costigan and his architect, would be a delicate one requiring detailed legal advice. I am therefore quite satisfied that the [*11] County Manager was entitled to ask for advice in some detail, as he did by his letter of the 8th June 1998. In particular he raised the question of whether the decision could be justified "having regard to the statutory duty of members of the council in relation to the review of the County Development Plan relative to proper planning and development considerations….."

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:

	"... where a planning authority is advised by its legal advisers that the
	granting of a particular permission would involve them in illegality, this
	advice does not decide the issue beyond yea or nay. The planning authority
may not be convinced that such would be the case and if they proceed to grant permission on the teeth of such advise, they do at their own risk as to the
consequences which may follow. They may be vindicated by a later decision
of the Courts confirming the validity of what was done, or they may face a
finding that their action was unlawful and have to pay the penalty for such
unlawfulness."

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.

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.

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.

3.	It is conceded on behalf of the Local Authority that the reference in their affidavits to a planning application for a golf course development having been made in respect of Mr Costigan's lands is incorrect. I have no doubt that this was the result of simple error, having regard to the fact that an application for a golf course development was received from another person in respect of nearby lands. It is true that the learned High Court Judge would have been under the impression that Mr Costigan had made this planning application, and that it had been refused. He was also aware of other applications which had indeed been made about the lands in question. However, these facts were quite irrelevant to the legal issues which the learned High Court Judge had to decide and I do not believe that his judgment and Order are in any way [*13] vitiated by the Council's error. Moreover, the Applicant had ample opportunity to correct this error in the replying affidavit which he filed. It transpired at the hearing of the Appeal not only that he had not done this, but that his omission to do so was the result of a deliberate decision. In the circumstances he cannot be heard to complain of this error on appeal. Even if it were open to him to do so, the point would not affect the result, for the reason I have given.

CONCLUSION

I would dismiss the Appeal.