The High Court has quashed Kerry County Council’s 2020 decision to appoint Councillors Sheehy and Kennelly to the board of North, East and West Kerry Development (NEWKD), finding that the council used a statutory voting procedure that was unavailable in the circumstances.
In a judgment delivered on 16 May 2022, Ms Justice Niamh Hyland ruled that the council could not use successive voting under paragraph 18 of Schedule 10 to the Local Government Act 2001 because no group had first formed and nominated a candidate without a vote. The court found that this first step was a necessary condition for using the successive appointment process under that paragraph.
The appointments followed an ordinary council meeting on 16 November 2020. Three candidates were nominated for two places. With 27 members present, a group of 14 was required to nominate a candidate under paragraph 18. No such group formed. The council then held two rounds of voting: Councillor Sheehy received 17 votes in the first round, while Councillor Kennelly received 16 in the second. Councillor Farrelly, the applicant, received nine and then 10 votes.
The council argued that the same successive votes were permissible under paragraph 12 of Schedule 10, and that the court should not quash the appointments because the voting method would have been lawful under that provision. Justice Hyland rejected that argument. The meeting had been explicitly told that the paragraph 18 group procedure applied, and paragraph 12 was not identified as the legal basis for the vote. The court said the process could not be treated as having taken place under a different provision after the one actually relied on was found unlawful.
The judge considered paragraph 12 separately and concluded that it would permit successive votes for separate appointments, provided the majority-vote requirement was met. That conclusion did not validate these appointments, which were made under paragraph 18.
Justice Hyland also rejected the council’s arguments that Mr Farrelly had acquiesced in the process by voting, or that the failure to join the two successful candidates as notice parties prevented relief. The judgment records that he objected immediately after the vote and that a stay had kept the councillors from taking their places on the board while the case was pending.
The court quashed the council’s decision of 16 November 2020. It did not determine how the matter should be remitted or who should bear costs; those issues were listed for submissions at a further hearing proposed for 30 May 2022. The judge said a new appointment process was assumed, but made no prediction about its result.