The High Court has ruled that a local authority chief executive must have the elected council’s express authorisation to take steps defending proceedings concerning a reserved function. A presumption of authorisation can spare the authority from producing that authorisation in court, but it can be rebutted.
Ms Justice Emily Farrell delivered the ruling on 27 June 2024 in a judicial review brought by Oceanscape Unlimited Company against Dún Laoghaire-Rathdown County Council, with the Minister for Education as notice party. The challenge concerns the council’s 2022–2028 development plan and a specific local objective for primary and post-primary education facilities at Stillorgan Industrial Estate/Benildus Avenue.
Two motions were before the court under section 153(2) of the Local Government Act 2001. Oceanscape sought, among other relief, to strike out the council’s Statement of Opposition. The council asked the court to decide the meaning of section 153(2) as a preliminary issue. The parties agreed the interpretation question had to be answered before the motions could be determined.
The council argued that authorisation was deemed to exist unless elected members actively directed the chief executive not to defend the proceedings. Oceanscape argued that the statute required express authorisation, with an evidential presumption that it had been given unless the contrary was shown.
The judge accepted Oceanscape’s interpretation. She found that “express authorisation” requires the elected members to clearly and directly communicate consent for the chief executive to defend proceedings concerning a reserved function. The presumption in section 153(2) assists in court proceedings, including by allowing papers to be filed without first producing evidence of authorisation. It does not remove the need for authorisation.
The court heard that no council resolution had been passed authorising the defence, and the council conceded that no express authorisation existed. Justice Farrell found this sufficient to show that authorisation could not be deemed to have been given in this case. She said the elected members need not pass a resolution for every document or step, but must expressly authorise the defence of the proceedings.
The ruling decided the statutory interpretation issue and whether authorisation had been shown in this case. The judge did not decide the underlying judicial review or grant either motion. She said she would hear the parties further on the effect of her findings and what orders should be made on the motions.