Oceanscape UnLtd Company v Dun Laoghaire County Council (Approved)

Factual and Procedural Background

These proceedings involve a challenge to the Dún Laoghaire-Rathdown Development Plan 2022-2028 and to the decision of the council to attach a Specific Local Objective concerning the provision of primary and post-primary education facilities at Stillorgan Industrial Estate/Benildus Avenue. The Applicant initiated judicial review proceedings seeking to quash the council's decisions and related reliefs. The Respondent filed opposition papers contesting the grounds of challenge and the Notice Party also filed a statement in support of the Respondent’s position. Two motions relating to section 153(2) of the Local Government Act 2001 are before the Court: the Applicant seeks to strike out the Respondent’s Statement of Opposition, while the Respondent seeks a preliminary determination on the interpretation of section 153(2). The Court determined that the interpretation of section 153(2) must be resolved first to address the motions.

Legal Issues Presented

1. Whether the Chief Executive of the local authority must have express authorisation from the elected council to take any act, matter, or thing in proceedings relating to the exercise or performance of a reserved function under section 153(2) of the Local Government Act 2001.
2. Whether the authorisation of the Chief Executive to act in such proceedings is deemed to have been given unless the contrary is shown, constituting a legal fiction of "deemed authorisation".
3. What is the proper interpretation of the phrase "express authorisation" within the context of section 153(2) and the statutory scheme dividing reserved and executive functions.

Arguments of the Parties

Applicant's Arguments

• Section 153(2) mandates that the Chief Executive must have express authorisation from the elected council before taking any step in proceedings relating to reserved functions.
• The evidential presumption of authorisation exists for administrative convenience but can be rebutted by showing the absence of express authorisation.
• The elected members did not give express authorisation to the Chief Executive to defend the proceedings, rendering the Chief Executive’s defence without statutory basis.
• The interpretation is straightforward and consistent with the plain meaning of the statute.

Respondent's Arguments

• The Applicant’s interpretation is misconceived and ignores the existence of a "deemed authorisation" legal fiction under section 153(2).
• The Chief Executive is deemed to have express authorisation unless the elected members actively direct otherwise ("de-authorisation").
• This interpretation obviates the need for a positive step by elected members to authorise the Chief Executive’s actions in proceedings.
• The elected members were aware of the proceedings through a briefing and media reports, and no resolution was passed disallowing the Chief Executive’s defence.
• The term "express" should be read in the context of "deemed" and means specific to a purpose, not necessarily a positive act of authorisation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People (DPP) v. Brown [2018] IESC 67	Principles of statutory interpretation emphasizing ordinary and natural meaning of statutory words in context.	Reiterated the approach to statutory interpretation as the starting point for analyzing section 153(2).
Heather Hill v. An Bord Pleanála [2022] IESC 43	Clarification on balancing literal and purposive approaches to statutory interpretation.	Used to highlight the need to avoid overly literal or overly purposive interpretations.
Minister for Justice v. Vilkas [2018] IESC 69	Integration of literal and purposive approaches as a single continuum in interpretation.	Supported the court’s approach to interpreting "express authorisation" in section 153(2).
Cullen v. Wicklow County Manager & Others [2010] IESC 49	Consideration of the powers of local authority managers and the significance of formal resolutions.	Distinguished as not directly addressing reserved functions or section 153(2) but discussed procedural formalities.
Colbeam v. Dun Laoghaire-Rathdown County Council [2023] IEHC 450	Reference to the Chief Executive’s role in legal proceedings on behalf of the council.	Noted that the interpretation of section 153(2) did not arise in that case.
NH v. Minister of Justice [2007] IEHC 27	Limited utility of established practice in statutory interpretation.	Supported the court’s rejection of reliance on common practice in interpreting section 153(2).
Izevbekhai v. Minister for Justice [2010] IESC 44	Minister’s lack of discretion despite perceived practice; importance of statutory text.	Reinforced the primacy of statutory language over practice in interpretation.
Knight v. Goulandris [2018] EWCA Civ 237	Limited weight to be given to consistent government or professional interpretation.	Supported the court’s view that common interpretation by authorities does not override statutory text.

Court's Reasoning and Analysis

The Court began by affirming the undisputed applicability of section 153(2) of the Local Government Act 2001 to judicial review proceedings relating to reserved functions of the local authority. It emphasized the statutory division between reserved functions (exercised by elected members) and executive functions (performed by the Chief Executive).

The Court examined the language of section 153(2), focusing on the phrase "express authorisation" and the deeming clause that authorisation shall be deemed to have been given unless the contrary is shown. The Court rejected the Respondent’s interpretation that the deeming clause creates a legal fiction allowing the Chief Executive to act without actual express authorisation unless a "de-authorisation" is made by the elected council. Instead, the Court held that the provision requires a positive step of express authorisation by the elected members before the Chief Executive may take any step in proceedings relating to reserved functions.

The Court reasoned that the deeming provision serves as an evidential presumption in proceedings, facilitating procedural efficiency by not requiring proof of authorisation at every step, but does not eliminate the underlying requirement for express authorisation within the local authority’s internal decision-making.

In interpreting the statutory words, the Court applied established principles of statutory construction, giving primacy to the ordinary and natural meaning of the words, contextualized within the statutory scheme dividing reserved and executive functions. It found that to accept the Respondent’s interpretation would render the word "express" otiose and undermine the democratic role of elected members in reserved functions.

The Court also noted that no formal resolution or express authorisation had been given by the elected members to the Chief Executive in this case, and that the briefing provided to elected members did not amount to express authorisation under section 153(2). Consequently, the Court found that the Chief Executive was acting without the necessary express authorisation.

Holding and Implications

The Court held that under section 153(2) of the Local Government Act 2001, the Chief Executive must have express authorisation from the elected council to take any act, matter, or thing in legal proceedings relating to reserved functions. The deeming provision is an evidential presumption in proceedings and does not dispense with the requirement for such express authorisation.

In the present case, the Court found that no express authorisation had been given and that the presumption of authorisation was rebutted. The Chief Executive was therefore not authorised to defend the proceedings. The Court decided to hear further submissions on the effect of this finding on the pending motions.

The decision directly affects the parties by potentially invalidating the Chief Executive’s defence actions in these proceedings due to lack of authorisation. The Court did not establish a new precedent beyond clarifying the interpretation of section 153(2), reinforcing the constitutional and statutory framework preserving the role of elected members in reserved functions.