The High Court has ordered Kerry County Council to disclose a legal advice document in proceedings brought by Tír na nÓg Projects Ireland Limited over a claimed default planning permission for 33 holiday homes and a leisure centre at Cappanacush, Blackwater, Killarney.
The order followed the court’s finding that the council had waived any privilege attaching to the document by placing it on a public planning file. The judgment, delivered by Mr Justice Clarke on 28 February 2008, dealt only with an application for discovery of that document. It did not decide whether the planning application had resulted in permission by default.
Tír na nÓg sought a declaration that permission had been deemed granted after the council failed to decide its application, reference 288/02, within the statutory timeframe. The council’s defence raised both whether the development materially contravened the development plan and whether the proceedings were procedurally flawed. The council argued that the later refusal of permission, dated 30 October 2002, could only be challenged through judicial review within the applicable two-month limit.
The document sought was legal advice to the council’s solicitor, including advice from senior counsel, about how to respond to the apparent failure to decide the application on time. The advice favoured refusing permission and addressed the development-plan issue and possible defences to a claim for default permission. The judge considered it potentially relevant because the circumstances of the late refusal might matter to the procedural arguments.
The council said the document had been placed on the public file by mistake, later withdrawn, and remained protected by legal professional privilege. The judge accepted that it was legal advice and therefore prima facie privileged. He applied an objective test: whether Tír na nÓg and its advisers should have realised that the disclosure was mistaken.
He was not satisfied that they should have. The document had been available on the public file for a considerable period, and the council’s affidavit gave no real explanation for how the alleged mistake occurred. The judge observed that a public body might choose to disclose legal advice to explain or support its actions. He therefore ruled that the council had waived privilege and directed it to discover the document. He did not need to decide an alternative argument based on the document having become public knowledge.