The Court of Appeal has ruled that South Kerry Development Partnership Ltd (SKDP) acted outside its authority when its board used new criteria to defer a farmer’s LEADER funding application in June 2013. The court allowed Muirís O’Donoghue’s appeal in part and granted a declaration concerning the board’s decision on 4 June. It did not quash the later funding allocation or award damages.
O’Donoghue, a farmer from Feighmaan West, Valentia Island, developed a farm tourism attraction at Geokaun Mountain and the Fogher Cliffs with his wife. He sought about €149,000 for drainage and surfacing works intended to improve access. SKDP’s Advisory Council recommended that amount, but a funding shortfall led the board to adopt new ranking criteria at its 4 June meeting. It deferred 18 applications, including his, while approving other projects.
On 25 June, after €500,000 became available when a provisionally approved project did not proceed, the board considered O’Donoghue’s application on its merits without applying the 4 June criteria. It approved €20,000 for drainage works. He did not use the internal appeal process available for that grant decision.
The High Court had refused his judicial review application. On appeal, the Court of Appeal held that the board could not introduce criteria different from those used by the Advisory Council after applications had been evaluated. The rules governing LEADER funding required consistency in the criteria used during the funding process. The court said the board’s decision to defer the application on 4 June by reference to the new criteria was ultra vires.
The court rejected O’Donoghue’s legitimate expectation argument. It found that the acute funding shortfall justified departure from any expectation based on the prior practice of allocating funding in chronological order. It also held that the past practice did not amount to a promise that the same order would always be followed.
The court distinguished the two board decisions when considering appeals. O’Donoghue had no right of appeal against the 4 June deferral, so failing to appeal that decision did not bar judicial review. The 25 June allocation was a grant decision, however, and an adequate internal appeal was available. His failure to use it meant the court would refuse judicial review relief concerning that allocation.
The court granted a declaration that the 4 June decision to defer his application using the newly adopted criteria was ultra vires. It declined to quash the 2013 funding allocations, citing potential prejudice to third-party recipients who had relied on and spent their grants. It also concluded that damages were unavailable, noting the rejection of the legitimate expectation claim and the absence of any suggestion that the board acted in bad faith.