Court allows appeal striking out local authority's defence due to deemed express authorisation under LGA 2001.

APPROVED NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Court of Appeal Record Number: 2024/184

High Court Record Number: 2022/339JR

Neutral Citation Number [2025] IECA 160

Costello P. Allen J. Butler J.

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 50

OF THE PLANNING AND DEVELOPMENT ACT 2000, AS AMENDED

BETWEEN/

OCEANSCAPE UNLIMITED COMPANY

APPLICANT/ RESPONDENT

- AND –

DÚN LAOGHAIRE-RATHDOWN COUNTY COUNCIL

RESPONDENT/ APPELLANT

-AND-

MINSTER FOR EDUCATION

NOTICE PARTY

JUDGMENT of Ms. Justice Butler delivered on the 31st day of July 2025

Introduction

1. This appeal raises a complex question of statutory interpretation in somewhat unusual circumstances. The issue arises from the defence by a local authority (the appellant) of legal proceedings taken by the applicant (the respondent to the appeal) to challenge the adoption by the local authority of a development plan under section 12 of the Planning and Development Act 2000 as amended (“PDA 2000”). It is common case that the making of a development plan is a function reserved to the elected members of the local authority. I will for convenience refer to the parties as the “applicant” and the “local authority”.

2. The applicant now argues that the statement of opposition filed on behalf of the local authority should be struck out because, in filing it, the chief executive of the local authority did not have the express authorisation of the members, i.e. the elected council, as – it contends – was required under section 153(2) of the Local Government Act 2001 (“LGA 2001”) as amended. It is also common case that although the chief executive advised the elected council of the existence of these and other related proceedings (related in the sense that they involve challenges to the same development plan, albeit focussing on different portions of it), he did not seek and was not provided with the express authorisation of the elected council to defend these proceedings nor to take any step for the purposes of doing so.

3. The local authority argues that it was not necessary for the chief executive to secure the express authorisation of the elected council because, under section 153(2) he is deemed to have such authority. In a more elaborate argument, the local authority contends that as the provision of authorisation under section 153(2) is not a reserved function under the LGA 2001 it is, by default, an executive function which is properly exercisable by the chief executive.

4. Thus, the court is faced with two conflicting interpretations of what section 153(2) requires in order for the defence of these judicial review proceedings to be lawfully conducted by the chief executive on behalf of the local authority. The interpretation advanced by the applicant is focused on the text of section 153(2) itself and the requirement for the “express authorisation of the elected council”. That advanced by the local authority requires section 153(2) to be read in the context of the LGA 2001 as a whole and in particular in the context of Chapters 1 and 2 of Part 14 in which the functions of a local authority are divided between the elected council and the executive, most notably in sections 131 and 149. The interpretation advanced by the applicant found favour with the trial judge (Farrell J. [2024] IEHC 381) who held that section 153(2) required “a positive step in that the elected members must provide express authorisation” (para. 54). Following a subsequent hearing as to the consequences of this finding, she struck out the local authority’s statement of opposition, and granted liberty to file new opposition papers should the elected council provide the necessary authorisation before a stipulated date. This appeal was filed by the local authority well in advance of that date. Whilst there was some suggestion in the applicant’s Respondent’s Notice that the local authority intended to seek express authorisation from the elected members (in which case the applicant contended that the appeal would become moot) there was no information before the court that this had been done. Instead, the court understands that the substantive proceedings have been adjourned before the High Court from time to time awaiting the outcome of this appeal.

5. In dealing with what is essentially a net legal point of statutory interpretation, I propose to look first at the somewhat unusual circumstances in which the issue has arisen and then to look at the relevant statutory provisions (of which there are many), outlining as I do so the arguments made by the parties based on them and the view taken by the trial judge. I will then outline briefly the principles applicable to statutory interpretation. The parties were largely in agreement as to these principles but their application to the particular circumstances of the case were seriously disputed. I will then address the arguments made in light of these principles in order to reach a view as to what section 153(2) of the LGA 2001 means or requires.

Background Circumstances

6. As noted above, the circumstances in which this issue has arisen are unusual. The underlying proceedings involve what has become a relatively routine type of challenge to the making of a development plan by a local authority. In this case the plan was made and adopted by the local authority on 10th March 2022 and took effect following the publication of the requisite notice in April 2022. The plan has a lifespan of six years and therefore is, and was described as, the Dún Laoghaire-Rathdown County Development Plan 2022-2028.

7. The applicant’s challenge focusses on the attachment of a specific local objective (“SLO”) to provide for primary and post-primary education facilities on lands which are owned by the applicant. This, it is contended, materially impacts on the applicant’s property rights by effectively sterilising its lands and precluding their development for so long as the SLO remains attached to them. The applicant makes various complaints, the detail of which is not relevant for present purposes save to note that in the High Court the applicant placed some reliance on the fact that elements of the challenge relate to parts of the statutory process which are under the control of the chief executive. These include liaison with the Department of Education, the carrying out of public consultations, and the provision of allegedly inadequate reasons for rejecting the submissions made by the applicant’s professional advisers in the report made by the chief executive to the elected council. The local authority in its statement of opposition disputes these grounds.

8. The applicant’s challenge was one of three brought to the adoption of this plan. One of these, Bartra Property (Dublin) Ltd. v. Dún Laoghaire-Rathdown County Council was disposed of and rejected by O’Donnell J. in a judgment delivered on 4th September 2024 ([2024] IEHC 535), in which the section 153(2) issue is not mentioned. The other, Colbeam Ltd. v. Dún Laoghaire-Rathdown County Council was the subject of an interlocutory judgment (Holland J. [2023] IEHC 450) which permitted the joinder of additional parties to the case. Notwithstanding the delay that such joinder inevitably causes, it appears the substantive judicial review has since been heard and judgment is currently awaited. Correspondence provided to the court indicates that on 8th July 2024, after the delivery of the High Court judgment in this case, the elected members of the local authority passed a resolution providing express authorisation for the defence of the proceedings in Colbeam.

9. Meanwhile, this challenge remains at a very preliminary stage. If the High Court judgment is upheld, then opposition papers have not yet been lawfully filed. If the High Court judgment is overturned, the substantive proceedings still remain to be heard. It is now over three years since the adoption of the plan which has a six-year life span. The benefit to the applicant of succeeding in the proceedings is commensurately reduced the longer the proceedings remain extant. This is because the SLO to which the applicant objects remains prima facie attached to its land until the proceedings are determined precluding any noneducational development which it might otherwise wish to undertake.

10. The reasons for the delay are not entirely clear. These proceedings were issued promptly by the applicant, well within the eight-week period allowed for the institution of such proceedings under section 50(6) of the PDA 2000. However, the statement of grounds filed on 28th April 2022 was subsequently amended on four occasions between that date and 21st December 2023. Obviously, amending the statement of grounds necessitated the filing of amended statements of opposition by the local authority. Undoubtedly circumstances can arise where something of significance has been inadvertently omitted from a statement of grounds. Most usually this occurs where an applicant only becomes aware of a point or comes into possession of evidence necessary to make a point after the statement of grounds has been filed. However, this level of tweaking of pleadings seems extraordinary, especially in light of the very compressed timeframe within which the proceedings must be issued in the first place. It is also extremely difficult to understand why there should have been so many repeated amendments in a challenge relating to a public process such as this as the material underlying the process is generally publicly available from the outset.

11. Be that as it may, this matter was listed for hearing, apparently for the 3rd of June 2024. However, prior to that date the registrar contacted the parties by email to say that the assigned judge had listed the matter for mention on 29th May 2024 as she was considering whether it was appropriate to adjourn the proceedings to await judgment in other proceedings, namely Jones v. South Dublin County Council (see further below). The email concluded “the judge would also like the Council to confirm if a resolution has been passed by the Members for the defence of these proceedings”. The local authority responded the following day confirming that “no formal resolution was passed by the Elected Members” but that they were aware of the proceedings and had been formally briefed in 2023 by the chief executive. The wrong date was initially given for this briefing, but nothing turns on this. In light of this reply, at the scheduled directions hearing the parties were given leave to issue motions and it appears that the hearing date for the substantive proceedings was adjourned.

12. Following correspondence between the parties in which the applicant’s solicitors indicated that in the absence of a formal resolution they did not accept that the chief executive had been expressly authorised to defend the proceedings, both sides issued motions on 12th June 2024. The applicant sought the striking out of the local authority’s statement of opposition and the granting of substantive relief in the terms sought in the judicial review. The local authority sought the determination of the section 153(2) issue as a preliminary issue under Order 34 Rule 2 or Order 25 Rule 1 of the Rules of the Superior Courts. Thus, the legal issue came on for hearing before the High Court on 24th June 2024 and judgment was delivered three days later on 27th June 2024.

13. What is surprising about all of this is that no issue had been raised concerning compliance with section 153(2) by the applicant until after it was raised by the judge. I certainly accept that such an issue could never be raised in a statement of grounds as the legality of the procedure through which opposition papers are filed and a case defended could never be a live issue until the local authority, as respondent, has been served with the papers and taken some stance in response to the proceedings. However, over two years had passed and three versions of the statement of opposition filed before this issue was raised by the applicant and then it seems a motion was only issued by the applicant because the point had been raised by the judge.

14. It is not clear why the judge should have raised this issue on the eve of the trial when it had been of no concern to the applicant prior to that. What is clear is that by raising it and by the applicant’s pursuit of the issue, the substantive hearing of the applicant’s judicial review was effectively derailed. The only reason suggested is that the same point had recently been raised by her colleague in the strategic infrastructure list.

15. It is not entirely clear when the issue was raised for the first time. In his judgment in Protect East Meath Ltd. v. Meath County Council [2023] IEHC 218 Humphreys J. notes (at para. 13) that the elected members had expressly authorised the defence of the proceedings challenging the adoption of a development plan. The judgment does not indicate whether this was done at the outset or subsequent to the issue being raised, or whether the issue was raised by the court or the other party to the proceedings. In Killegland Estates Ltd. v. Meath County Council [2022] IEHC 393 (judgment delivered 1st July 2022) authorisation appears to have been granted the day before the matter was heard in the High Court. This would suggest, at least in that case, that the point was raised by the court.

16. The point also appears to have been raised in Jones v. South Dublin County Council [2024] IEHC 301, which is the case mentioned by the registrar in his email to the parties. That case was heard by the High Court (Humphreys J.) before this one but the judgment was delivered after the High Court delivered judgment in this case. Humphreys J. observed, under the heading “The need for express authorisation of the members”, and relying in part on the judgment under appeal in this case, as follows: - “116. While I agree with Farrell J. that the requirement to obtain the members’ express authorisation is the governing and prior concept, the presumption does in practice allow council management to get the defence of proceedings underway, at least unless and until someone (including the court) asks whether there is an express authorisation. At that point the fuzziness of a presumption must yield to the hardness of a yes or no answer – a forensic version of Schrödinger’s cat. As long as the box is closed we can hope that all is well, but once we look inside, the situation resolves into a binary position. The presumption is no longer useful once we actually know that it has been rebutted.

117. The chief executive did inform the corporate policy committee of the proceedings, as one would expect, although consultation or even the agreement of a committee or even consultation or information to all members at a meeting or otherwise isn’t the same thing as ‘express authorisation’ by the elected members expressed formally at a meeting of the full council….

119. On an empirical note it might be said that the Dún Laoghaire-Rathdown-based campaign for chief executive’s rights that erupted in Oceanscape is a somewhat lonely one because all other chief executives in cases where this issue has arisen have been agreeable to submit the matter to the approval of the elected representatives. Irrespective of the legal merits, one would have thought that more democracy rather than less would be in keeping with the spirit of the age: see for just one example Heneghan v. Minister for Housing, Planning & Local Government & ors [2023] IESC 7, [2023] 2 I.L.R.M. 1. But that’s by the way. What is perhaps less irrelevant is the fact that s. 153(2) does serve one important forensic purpose which is it puts on the record the question of whether the members have considered the proceedings and made a decision whether to defend them or not. That is a protection for challenging applicants more than anybody. I will return to that.”

17. It appears from para. 118 of the judgment that the respondent in Jones had indicated prior to the hearing that it would put the matter before the members for express authorisation and the hearing proceeded on the basis the judgment would be reserved subject to confirmation that such authorisation had been provided.

18. If, as the applicant contends, section 153(2) raises an evidential presumption which can be rebutted, it is unclear why the court should step into the fray and effectively demand confirmation of the express authorisation the absence of which, on that construction, will automatically rebut the presumption. In our adversarial system it is not usual practice in the case of a presumption created by statute for a trial court to proactively engage itself in the rebuttal of such presumption. Further, this does not appear to me to be an issue going to the jurisdiction of the court to entertain the defence of the local authority to legal proceedings challenging the exercise of reserved functions. Again, assuming for the purpose of this analysis that section 153(2) creates an evidential presumption, the express authorisation is deemed to have been given unless the contrary is shown. In the absence of the contrary being shown, the court is entitled to rely on the fact that express authorisation has been deemed to have been given. That, after all, is the purpose of the presumption.

19. In fact, a provision equivalent to section 153(2) has existed for in excess of 90 years as it first appears in section 20 of the Cork City Management Act 1929. During the entirety of this period, until the last few years, courts do not seem to have regarded it as appropriate to treat the establishment of the existence of express authorisation of the elected council as a necessary proof in any litigation involving the reserved functions of a local authority. Nonetheless, as the trial judge correctly observed, the fact that local authorities may have had a long-standing practice based on a particular understanding of the provision does not have a bearing on the correct legal interpretation of that provision.

Statutory Provisions: LGA 2001 Part 14 Chapter 1

20. It is now necessary to turn to the statutory provisions in issue between the parties. It is probably fair to observe that the applicant’s argument focuses on the text of section 153(2) itself and the local authority focuses on a wider range of provisions which it contends provide the framework for any analysis of local government powers and within which section 153(2) must fit. I propose to consider these broader provisions initially and then the more specific provision of section 153(2). This also means that I will be addressing the provisions in the sequential order in which they appear in LGA 2001.

21. At the outset it is necessary to appreciate the management system under which local government in Ireland operates. Article 28A.1 of the Constitution recognises “the role of local government in providing a forum for the democratic representation of local communities, in exercising and preforming at a local level powers and functions conferred by law …”. In accordance with Article 28A.2, the thirty-one local authorities in Ireland are directly elected by eligible voters living within their functional areas. However, the range and variety of functions conferred on local authorities (amongst the more significant of which are planning, housing and roads) are such that it would be impractical if not impossible for all these matters to be dealt with by the elected members of a local authority.

22. Consequently, it is unsurprising that as early as 1929 “the idea evolved … of having a permanent official who … would not replace the elected members but would share power with them” (per Ronan Keane “The Law of Local Government in the Republic of Ireland”, 1st Edition, 1982 at p.18). Thus, the office of county manager was created by statute in 1929 for Cork, adopted by statute in relation to other cities in subsequent years, and the system was extended to the whole country by the County Management Act 1940. Since 2014 city and/or county managers are referred to as chief executives.

23. The legislative provisions governing the management system are now contained in the LGA 2001, as amended. At its most basic level, a distinction is drawn between the powers and functions which are exercisable by the elected council, termed reserved functions, and those exercisable by the chief executive, termed executive functions. The distinction is drawn by the legislation defining what constitutes reserved functions and treating all other functions as falling within the executive realm. One of the issues in this appeal is whether all of the functions potentially exercisable by a local authority must fall on one or other side of this binary divide. The applicant contends that if section 153(2) is not a reserved function, then it falls into an intermediate category and must still be expressly exercised by the elected members. The local authority argues that if it is not a reserved function then, by default, it is an executive function regardless of how it is framed.

24. All of the statutory provisions which I am going to set out in the following passages of this judgment are found in Part 14 of the LGA 2001 which is headed “Local Government Service”. Chapter 1 of Part 14 deals with “The Elected Council”; Chapter 2 deals with the “Position of Chief Executive” and Chapter 3, in which section 153(2) is found, deals with “Procedural Matters”.

25. Section 130 sets out the overarching policy role of the elected council which must “determine by resolution the policy of the local authority subject to and in accordance with this Act”. Section 131 then deals with “Reserved functions”. Given the central importance to this appeal of the distinction between reserved and executive functions I propose to set out the text of section 131(1) and (2) in full: - “131. (1) (a) Subject to section 131A, the elected council of a local authority … shall directly exercise and perform by resolution at a meeting of the local authority … every function to which this section applies.

(b) The functions referred to in paragraph (a) shall be known as reserved functions of a local authority … and in this Act are referred to as ‘reserved functions’.

(2) This section applies to every function -

(a) designated as a reserved function by any provision of the Local Government Acts 1925 -2014 (including a designation by order under subsection (3)), a provision of any other Act that is to be construed together with those Acts, or as specified in Schedule 14 or, subject to section 131B(1), Schedule 14A,

(b) designated as a reserved function by any provision of any other enactment relating to a local authority … ;

(c) expressly made exercisable by resolution under this Act or under any other enactment relating to a local authority … which was enacted after the 13th day of June, 1940.” Section 131(3) allows the Minister by order to designate a specific function to be a reserved function; subsection (4) is in the nature of a transitional provision and provides that functions which were reserved functions prior to the passing of the LGA 2001 continue to be reserved functions; and subsection (5) provides for an exception which is not relevant to this case. Section 131A makes provision for the performance of reserved functions in respect of municipal district members and again is not relevant here.

26. These key provisions of section 131 establish two things. Firstly, they establish how a reserved function is to be exercised, namely directly by the elected members by resolution at a meeting of the local authority. Secondly, they establish what constitutes a reserved function. It is clear from section 131(2) and (3) that a reserved function must be either designated as such by statute or by ministerial order or “expressly made exercisable by resolution” under the LGA 2001 or by another relevant enactment relating to a local authority. We are not concerned here with the designation of a function as a reserved function by ministerial order under section 131(3) as it is not contended that any such order was made.

27. In so far as section 131(2) and (3) set out, on an apparently exhaustive basis, the mechanisms through which a reserved function can be created, it is consistent with the judgment of the Supreme Court in Ferris v. Dublin City Council (Unreported, Supreme Court, 7 November 1990). Finlay C.J. noted the fact that under the County Management Act 1940 “all functions which are not expressed to be reserved functions of a local authority are to be carried out by the Executive Authority” and that in “every instance where … particular function[s] of a local authority are intended to be carried out by the elected members as distinct from the executive … that is expressly provided”. He rejected an argument that it could be implied into the Housing Act 1988 that functions created by a housing programme (the adoption of which was a reserved function) were also reserved functions. He stated as follows: - “I have no doubt that such a proposition of law is wholly unsound. As I have indicated, the existence of a reserved function within the code of local authority law with which I am concerned, must be expressly provided, and cannot be implied in the manner in which it was submitted in this case.”

28. Thus, as the reserved nature of a function cannot be implied and must be expressly provided for, in order to be a reserved function under the LGA 2001, the function must be either designated as such or expressly made exercisable by resolution of the elected members. The exhaustive nature of these categories is central to the argument made by the local authority.

29. Section 131B, which was inserted into the LGA 2001 by section 21(3) of the Local Government Reform Act, 2014, provides that “for convenience of reference only” the provisions of enactments under which reserved functions are created are set out in the newly inserted Schedule 14A of the LGA 2001. The designation of something as a reserved function by it being specified in Schedule 14 arises under section 131(2)(a) and was a feature of the 2001 Act as originally enacted. Schedule 14 is headed “Certain Reserved Functions” and contains a list of eight items. It was clearly never intended to be a comprehensive listing of all reserved functions but rather ensured that certain core functions, which may or may not have otherwise had a clear statutory basis, were treated as reserved functions for the purposes of the Act.

30. Schedule 14A is materially different. It is, and is intended to be, a comprehensive listing of reserved functions. In the case of a local authority, Part 3 lists 113 separate functions under more than 30 different pieces of legislation. The text of section 131B(1) makes clear that it cannot be definitively concluded that something is not a reserved function merely because of its omission from the list of functions in Schedule 14A. However, inclusion in that list is determinative of something being a reserved function (per section 131(2)(a)) and therefore exclusion must be strongly indicative that something is not. In my view this is particularly so where the function in question is one arising under the LGA 2001 itself. The “express authorisation” required under section 153(2) is not listed as a reserved function in Schedule 14A.

31. Returning to the main body of the LGA 2001, under section 132(1) it is the duty of every chief executive to carry into effect all lawful directions of the elected council in the exercise and performance of the reserved functions of the local authority. Under section 132(3)(a)(i) the chief executive is under a duty to advise and assist the elected council inter alia in respect of the exercise or performance by them of their reserved functions.

32. Much of the litigation in this area has arisen in circumstances of conflict between the chief executive and the elected council, especially where the chief executive does not regard a direction given to him by the elected members as lawful (see for example P&F Sharpe v. Dublin City Council [1989] I.R. 701) or where the elected council has disregarded the advice of the chief executive in the exercise of their reserved functions. This is not an issue in this case as the elected council have not given the chief executive any direction regarding the defence of these proceedings. Rather the question is whether they are obliged to do so before the chief executive can act. There is also no general conflict between the chief executive and the elected council regarding the subject matter of the litigation. The opposition papers filed by the chief executive purport to stand over the legality of the decision made by the elected members in the exercise of their reserved function to adopt the development plan. That

decision in turn was consistent with the advice furnished by the executive branch of the local authority to the elected members regarding the planning issues involved in the adoption of the plan.

33. The text of section 132(2)(a) might be noted as it makes express reference to section 153: - “132(2)(a) Where in relation to the exercise or performance of a reserved function a legal opinion was obtained by a local authority …, the elected council … may, without prejudice to section 153, by resolution direct that a second such opinion be obtained by the authority in the terms specified in such resolution.” Section 132(2)(a) did not feature significantly in the arguments of the parties. It refers generally to section 153 and not specifically to section 153(2) although, as we shall see, within section 153, subsection (1) relates to the general situation where litigation concerns the exercise of executive functions and subsection (2) relates to litigation concerning the exercise of reserved functions. However, it is notable that where the elected council wishes to direct the chief executive to get a second legal opinion, they are expressly required to do so by resolution.

34. The local authority laid some emphasis on the duty imposed on a chief executive under section 136 to furnish information to the elected council both on foot of a request to do so (section 136(1)) and on a routine monthly basis (section 136(2)). Issue was taken by the applicant with the extent of the information that the chief executive had furnished to the elected council in relation to these proceedings. The briefing which was provided (and at some temporal remove from the date on which the proceedings were instituted) did not identify the grounds on which the applicant’s challenge was based, nor did it provide any indication as to the strength of those grounds or how they might be defended.

35. The next section of significance, and on which the local authority places reliance, is section 140 under which elected members may require the chief executive to do a particular act or thing in the performance of the executive functions of the local authority. The chief executive must comply with such request provided it is lawful and the necessary funds have been made available. This section replaced section 4 of the City and County Management (Amendment) Act 1955, a section which had given rise to considerable controversy and much litigation, particularly in the planning sphere. For present purposes, section 140(2) of the LGA 2001 is relevant: - “140(2) Subject to this section, an elected council … may by resolution require any particular act, matter or thing specifically mentioned in the resolution and which the local authority or the chief executive concerned can lawfully do or effect, to be done or effected in the performance of the executive functions of the local authority.”

36. Subsections (3) – (8) set out in some detail the procedure to be followed when a member or members of a local authority propose a resolution under the section. Under section 140(9) the chief executive must cause the act, matter or thing mentioned in the resolution to be implemented provided the resolution is lawfully passed and money for the purpose has been provided. The limits to a resolution under section 140 are set out in subsection (10).

37. The High Court appears to have treated section 140 as being similar to section 153(2) in that the power thereby conferred on the elected council is not expressly designated a reserved function. Farrell J. stated at para. 50 of her judgment: - “It was further submitted that, had the Oireachtas intended the giving of authorisation under section 153(2) to be a reserved function, it would have been expressly stated, having regard to section 149(4) of the Act. … I do not consider it was necessary for the Oireachtas to designate the giving of authorisation to do an act, matter or thing in proceedings relating to the exercise or performance of a reserved function to be a reserved function. Under section 140, the passing of a resolution is not described as a reserved function, but it can only be carried out by the elected members.” This analysis omits any reference to section 131(2) and/or (3) under which the various mechanisms through which a reserved function can be created are set out. Crucially, it does not refer to section 131(2)(c) under which the section is made applicable to functions which are “expressly made exercisable by resolution under this Act”. Nor does it refer to section 131(1)(b) which provides that the functions to which the section applies are referred to as “reserved functions”. As the acts, matters or things to which section 140 applies are those which the elected council “may by resolution” require the chief executive to give effect to, it is clear that the making of a section 140 requirement is a reserved function. If there were any doubt about this, section 140 is listed as a reserved function at item 26 of Part 3 of Schedule 14A. Thus, it falls within both section 131(2)(a) and (c) and consequently is a function to which section 131 applies and is properly referred to as a “reserved function”.

38. The trial judge is partially correct in saying that something does not have to be designated by the Oireachtas to be a reserved function in order to be a reserved function. As we have seen a reserved function can also be created by a provision which expressly makes a function exercisable by resolution of the elected members or by designation under Ministerial order. Insofar as para. 50 of her judgment suggests that it can be implied that a statutory function which relates to the exercise or performance of a reserved function is itself a reserved function, this is clearly mistaken. The mechanisms through which a reserved function can be created are exhaustively set out in section 131 and per Ferris v. Dublin City County (above) additional reserved functions cannot be implied and are not to be implied just because they relate to or derive from other functions which are themselves reserved functions.

39. The local authority also points to section 142(5)(a) and (e) and section 142(5A)(b) and

(e) as examples of where a power given to the elected council to “authorise” something (in subparagraphs (a) and (b) respectively) is then expressly designated as a reserved function (in subparagraph (e) in both cases). The subject matter of those provisions (which concerns attendance by members of an elected council at conferences and seminars outside the State or at training events) is entirely unrelated to the matters in dispute here. In these cases, the power expressly conferred on the elected council to authorise something is not of itself sufficient to create a reserved function in the absence of the subsequent designation which brings the authorisation within the scope of section 131(2)(a). I do not necessarily regard this as determinative of the meaning of section 153(2) but, like section 131B and Schedule 14A, it does offer strong support for the local authority’s understanding of the scheme of the Act.

Statutory Provisions: LGA 2001 Part 14 Chapter 2

40. The position of the chief executive of a local authority was established under section

144 of the LGA 2001 and, interestingly, the appointment of a chief executive by the local authority is expressly designated a reserved function under section 145(1) (as are the powers in later sections to suspend and remove a chief executive).

41. Section 149 deals with “Executive functions”. Section 149(2) in part mirrors section

132 in making the chief executive responsible for implementing decisions of the elected council under that section without undue delay. Under section 149(6) the functions of the chief executive must be performed in accordance with the policy of the local authority as determined by the elected council under Chapter 1 of Part 14. Crucially, section 149(4)

provides: -

“149(4) Every function of a local authority which is not a reserved function is, for the purposes of this Act, an executive function of such local authority.”

42. In circumstances where the provisions circumscribing the powers of the elected council in Chapter 1 of Part 14 are far more detailed than those relating to the executive in Chapter 2 of the same part, it is important to appreciate that the functions of a local authority more generally are set out in Part 9 of the LGA 2001. Specific powers and functions are also ascribed to local authorities under other legislation. Thus, save where those functions come within section 131 because they are designated reserved functions or are expressly made exercisable by resolution of the elected council, they are all executive functions by virtue of section 149(4).

Statutory Provisions: LGA 2001 Part 14 Chapter 3

43. Obviously, section 153 is not a provision falling within Part 9 of the LGA 2001. Instead, it is located within Chapter 3 of Part 14 dealing with procedural matters relating to the local government service. As a central issue in the case is the interpretation of section 153(2) it is appropriate to set out the provision in full: - “153(1) The chief executive for a local authority -

(a) shall act for and on behalf of the local authority in every action or other legal proceeding whether civil or criminal, instituted by or against the local authority, and

(b) may do all such acts, matters, and things as he or she may consider necessary for the preparation and prosecution or defence of such action or other proceeding in the same manner in all respects as if (as the case may require) he or she were the plaintiff, prosecutor, defendant or other party to that action or other proceeding.

(2) Where an action or other proceeding relates to the exercise or performance by the local authority of a reserved function, the chief executive for that authority shall, in the doing of any such act, matter, or thing referred to in subsection (1), act with the express authorisation of the elected council of such local authority, and in any proceedings such authorisation shall be deemed to have been given unless or until the contrary is shown.”

44. Section 153(1) sets out the general position which is that the conduct of litigation on behalf of a local authority is entrusted to the chief executive who is expressly empowered to do on behalf of the local authority everything a personal litigant would be entitled to do in their own litigation. Section 153(2) is specifically addressed to circumstances where the litigation in which a local authority is involved concerns the exercise of a reserved function by the elected council. There is no dispute between the parties that the making and adoption of a county development plan under section 12 of the PDA 2000 is a reserved function. Apart from the fact that the prescribed method of making the plan under section 12(6) and/or section 12(10) of the PDA 2000 requires a resolution of the elected members of the local authority qua planning authority, the making of a development plan under section 12 is listed as a reserved function at item 69 of Part 3, Schedule 14A of the LGA 2001. The question then is how section 153(2) applies to this litigation which challenges the making of the plan.

45. The applicant’s primary contention, which succeeded in the High Court, is that in circumstances where the section requires the chief executive to have the express authorisation of the elected council, that authorisation cannot be deemed to arise in the absence of a positive step taken by the elected members to provide it. Putting it bluntly, counsel described the notion of a “deemed express authorisation” as an oxymoron. The trial judge rejected the local authority’s contrary argument that the subsection created a legal fiction by deeming an express authorisation to exist which in turn would require a positive act by way of a direction of the elected council prohibiting the chief executive from defending the proceedings in order for the contrary to be shown. Farrell J. went onto state at para. 58 of the judgment: - “I do not consider that section 153(2) requires the elected members to pass a resolution each time any document is to be filed or any step is to be taken in proceedings, however, I find that it is necessary for the elected members to give their express authorisation for the defence of the proceedings, in accordance with the plain meaning of the section.” I will return in due course to the position of the parties as to whether a one-off authorisation to defend the proceedings by the elected members (as appears to have been provided in Protect East Meath and Killegland) suffices under the terms of section 153(2) or, alternatively, whether each step taken by the chief executive requires express authorisation. It was one of a number of difficult issues which arose in argument as to exactly how section 153(2) should be applied.

Principles of Statutory Interpretation

46. The question of how to approach the correct interpretation of statutory provisions is one which has vexed courts for as long as there have been statutes to interpret and courts attempting to construe them. Invariably the cases in which the issue arises are marginal and involve provisions which, depending on the perspective from which they are viewed, are capable of at least two reasonable – and often completely contrary – constructions. Half a century ago, law students were taught to approach the task by following a series of principles starting with the literal rule which placed primacy on the “plain meaning” of the text of the provision to the exclusion of all else and moving through a series of other principles, the sequencing of which could vary depending on the nature of the provision in question and, quite often, depending on who was doing the interpreting.

47. Section 5 of the Interpretation Act 2005 (replacing the earlier Interpretation Act 1937) allowed for the construction of obscure or ambiguous provisions or those of which a literal interpretation would produce an absurd result or a result which would fail to reflect the plain intention of the Oireachtas, by reference to the plain intention of the Oireachtas where “that intention can be ascertained from the Act as a whole”. This in turn led to cases querying whether a provision was obscure or ambiguous or whether a literal interpretation of it would lead to an absurd result. Indeed, the cases frequently queried the extent to which other provisions in the Act could be looked at in order to establish the existence of an ambiguity rather than to resolve it.

48. Perhaps unsurprisingly, in a series of cases - commencing in 2018 with The People (Director of Public Prosecutions) v. Brown [2019] 2 I.R. 1 - the Supreme Court reconsidered the approach a court should take to issues of statutory interpretation. The principles emerging from those cases (including Minister for Justice v. Vilkas [2018] IESC 69; [2020] 1 I.R. 676; Dunnes Stores v. Revenue Commissioners [2019] IESC 50; [2020] 3 I.R. 480; Bookfinders Ltd. v. Revenue Commissioners [2020] IESC 60 and Director of Public Prosecutions v. AC [2021] IESC 74; [2022] 2 I.R. 49; [2021] 2 I.L.R.M. 305) were summarised by Murray J. in Heather Hill Management v. An Bord Pleanála [2022] IESC 43; [2022] 2 I.L.R.M. 313, drawing extensively from DPP v. Brown as follows: - “(i) The first and most important port of call is the words of the statute itself, those words being given their ordinary and natural meaning…

(ii) However, those words must be viewed in context; what this means will depend on the statute and the circumstances, but may include ‘the immediate context of the sentence within which the words are used; the other subsections of the provision in question; other sections within the relevant Part of the Act; the Act as a whole; a legislative antecedence to the statute/the legislative history of the Act, including … LRC or other reports; and perhaps … the mischief which the Act sought to remedy’ …

(iii) In construing those words in that context, the court will be guided by the various canons, maxims, principles and rules of interpretation all of which will assist in elucidating the meaning to be attributed to the language.

(iv) If that exercise in interpreting the words (and this includes interpreting them in light of that context) yields ambiguity, then the court will seek to decern the intended object of the Act and the reasons the statute was enacted.”

49. Two things emerge from this recalibration. Firstly, the text of the provision remains of primary importance, but a court is not looking for the literal meaning of that text in isolation. It must in all cases be viewed in its particular context, which at a minimum will usually mean in the context of its place in the scheme of the statute in which it appears and by reference to other closely associated provisions in the same statute. Murray J. observes that the first two stages of the inquiry as set out in DPP v. Brown are “part of a single continuum rather than as separate fields to be filled in, the second only arising for consideration if the first is inconclusive”. Thus, the text must always be viewed in context. For this reason, I think the local authority is correct in its starting point in this case i.e. seeking to understand the place of section 153(2) in the division of the functions of a local authority between the elected council and the chief executive as set out in Part 14 of the LGA 2001, being the part in which section 153 appears.

50. The second point of note is that the quest to ascertain the object of legislation in order to understand its provisions has been moved down the scheme of inquiry. As Murray J. points out in Heather Hill, the subjective intent of those members of the Oireachtas who enacted the legislation is not relevant, even if it could be readily ascertained and a single intention attributed to a diverse group. This may be of some significance here where the provision in question was not one enacted for the first time by the Oireachtas in 2001 but rather was re-enacted in successive pieces of legislation since its original introduction in 1929. Instead, for the purposes of statutory interpretation, the legislative intent of a statute means the legal effect attributed to it when objective rules of interpretation are applied to it. The text of the legislation remains crucial but must be seen in that context.

51. In some instances, ascertaining the place or context of a specific provision may involve going outside the text of the statute. In Heather Hill itself Murray J. took the view that in order to properly understand section 50B of the PDA 2000 it was necessary to take account of the relevant provisions of the EU Directive to which it purported to give effect and a

decision of the CJEU in enforcement proceedings against the State involving those provisions. However, as the management system has been a feature of local government in Ireland for nearly 100 years and most of the provisions which I have set out above have their origin in legislation enacted in 1940, it is unnecessary in this case to go outside the scope of the LGA 2001and its precursors. Indeed, it is probably unnecessary to go outside the scope of Part 14 of the LGA 2001.

52. Notwithstanding that both parties cite Heather Hill as the leading judgment which now summarises the correct approach to be taken to statutory interpretation, and the fact that according to that judgment the appropriate starting point for the construction of section 153(2) is to look at the text of that provision in context, the applicant still relies heavily on a literal approach. In its written submissions the applicant goes so far as to contend that “there is no necessity to consider context” in this case. This submission is clearly contrary to the views of the Supreme Court as evident in Heather Hill and in the other cases referred to in that judgment.

53. In my view, the proper approach to take to the interpretation of section 153(2) is to look at the text of the provision in the statutory context in which it appears. It forms part of a suite of measures appearing in Chapter 3 of Part 14 dealing with procedural matters consequent on the division of local authority functions between the elected council and the chief executive in Chapters 1 and 2 of the same part. Section 153(2) cannot be viewed in isolation nor detached from the scheme created by the earlier two Chapters implementing the “management system” in local authorities in Ireland.

Analysis of the Issues - the Position of the Parties

54. The applicant’s case is twofold depending on whether or not the court accepts that section 153(2) creates a reserved function which could only be exercised by the elected members. If it does and the process of providing authorisation under section 153(2) is a reserved function, then there is simply no room for the legal fiction of a deemed express authorisation. The elected council is required to actively authorise the defence of proceedings falling within the section before the chief executive can defend the proceedings on their behalf. In support of the argument that section 153(2) creates a reserved function, the applicant relied on para. 12 of Schedule 10 which, under section 44 of the LGA 2001, relates to meetings and proceedings of a local authority and to connected matters. Para. 12(2)

of that Schedule provides: -

“All acts of a local authority which are reserved functions or questions duly coming or arising before a meeting of a local authority shall be determined —

(a) by a majority of the votes of the members present and voting, or

(b) where there is an equality of votes, by a second or casting vote of the person chairing the meeting (which person shall have and may choose to exercise such a vote).” It was contended by the applicant that the “express authorisation” referred to in section 153(2) is a matter which must come before the elected members at a meeting of a local authority and, therefore, must be decided by resolution under para. 12. Consequently, since it must be decided by resolution, it satisfied the requirements to be a reserved function under section 131(2)(c).

55. I have no hesitation in rejecting this argument. Apart from the fact that para. 12 makes no reference at all to resolutions, it expressly envisages the matters which may be voted on under its terms as comprising both “reserved functions” and “questions duly coming or arising before a meeting”. Not every question duly coming before a meeting of a local authority will involve a reserved function. In argument, there was some discussion of other matters in respect of which an elected council might wish to pass a resolution such as to express political support for or against a particular position or for congratulatory or ceremonial purposes. In my view there is a distinction to be drawn between resolutions of that nature which may be politically important but which do not have a legal effect, and the statutory functions of a local authority which, when exercised by resolution of the elected council, do have legal effect. Other questions duly coming before a meeting of a local authority under Schedule 10 may well include resolutions of a political, congratulatory or ceremonial nature (and these categories are not clearly exhaustive).

56. “Duly” in this context does not indicate a mandatory requirement that something be decided by a resolution of the elected council. Rather it is a reference back to paras. 7 and 9 of the same Schedule under which notification is required to be given to members of the matters on the agenda for a meeting of the local authority and no business is to be transacted at a meeting other than that specified in the agenda relating to the meeting or otherwise required by the LGA 2001 or by law to be transacted at the meeting. In that sense “duly” relates to the proper organisation and governance of the meeting rather than expressly making section 153(2) exercisable by resolution within the meaning of section 131(2)(c). If it were otherwise, anything of which proper notice is given in accordance with para. 7 of Schedule 10 and which is voted on by elected members under para. 12 would, purely by dint of that vote, become a reserved function. This is clearly not consistent with section 131.

57. The applicant’s alternative argument is that even if section 153(2) is not a reserved function, it is still clearly a function that the Oireachtas contemplated would be exercised by the elected council. In that sense it is contended that section 153(2) is a standalone, lex specialis which must be complied with, and which requires a positive act of the elected council to authorise the defence of proceedings. On this analysis the specific provisions of section 153(2) govern the provision of authorisation for the defence of legal proceedings coming within its scope and the general law set out in Chapters 1 and 2 of Part 14 simply does not apply.

58. In this regard the applicant argues that section 131 does not say that the elected council may only perform the reserved functions identifiable through its provisions, i.e. those the creation of which comply with section 131(2) or (3) and/or which are listed in Schedule 14 and/or 14A. This is of course correct insofar as it goes, and I have already referred in paragraph 55 to the types of non-legally binding resolution that a local authority might pass for political, congratulatory or ceremonial purposes. However, the functions of a local authority created by the LGA 2001 and related legislation that are capable of having legal effect and their division into reserved and executive functions is a distribution of legal powers between the two constituent parts of a local authority. The fact that other actions which do not have legal effect may be taken by either the elected council or the executive is, in my view, beside the point.

59. In support of this construction the applicant relies on the constitutional importance attached to the democratic nature of local government. It points to the potential for conflict if a chief executive has charge of the defence of proceedings regarding the exercise by the elected council of a reserved function, for example in circumstances where the elected council may have disagreed with the advice of the executive in exercising that function. In this context section 153(2) is posited as a necessary safeguard. In its written submissions the applicant goes so far as to state that a chief executive might institute or defend counterproductive, expensive or ruinous litigation or defend litigation that might go against the wishes of the elected council or maintain litigation contrary to the policy of the Council and to section 149 of the Act. Needless to say, there was no evidence of this type of approach to litigation by either the chief executive of this local authority or of any other local authority. Whilst it might be theoretically possible it does not accord with general experience and, in any event, it would be open to the elected council to direct the termination of any such litigation by a section 140 resolution.

60. I am not convinced that either party’s interpretation is better than the other for the purposes of ensuring the democratic nature of the actions of the elected council in exercising reserved functions is respected and protected. In either case it is open to the elected council to direct the chief executive in the conduct of litigation concerning a reserved function. Strictly speaking, the applicant’s construction requires approval in advance from the elected council – and possibly approval for every step – before the chief executive can take any step in relation to the proceedings. I note that the High Court has accepted retrospective express approvals provided the day before an action was due to be heard and even after the action has been heard but before judgment was delivered. On the assumption that an express authorisation must exist, this may well be a pragmatic approach. However, it is not consistent with the language of section 153(2) which requires the chief executive to act with the express authorisation of the elected council in doing any of the acts, matters or things mentioned in section 153(1) rather than in effect with an ex post facto authorisation.

61. Conflicts can occur between an elected council and its chief executive, although in most instances it is reasonable to expect that the executive will behave in a professional manner regarding the defence of proceedings even where the advice of the executive has not been accepted in the exercise of a reserved function. There is also no such conflict arising in this case as the defence reflected in the statement of opposition which the applicant seeks to strike out, is a defence of the decision of the elected council in the exercise of their reserved function to adopt the development plan. This is simply not a case where there is any material difference between the views of the executive and the views of the elected council.

62. Further, where such conflicts do occur, they are not necessarily always because of the stance taken by the chief executive. In Cullen v. Wicklow County Manager [2011] 1 I.R. 152 the elected members of a local authority sought to issue proceedings qua Wicklow County Council against the county manager for failure to implement a resolution under section 4 of the City and County Management (Amendment) Act 1955 (now section 140 of the LGA 2001). This resolution purported to direct the refusal of a particular application for planning permission. The county manager took the view that the section 4 resolution was invalid and granted permission. The elected council then passed a motion directing the county manger to instruct external solicitors to institute proceedings to challenge the decision of the county manager to grant planning permission and to make the necessary funds available to pursue the action. The elected members were permitted to pursue the proceedings, not qua Wicklow County Council as the necessary formalities for the institution of proceedings had not been followed, but in their own names. The proceedings were ultimately unsuccessful, and the case ended up before the Supreme Court on the question of costs.

63. The decision of the Supreme Court on the costs issues is not relevant to this case. However, the case does highlight the potential for conflict between the elected council and the chief executive – albeit a conflict which, on the facts, could no longer occur since section 140(10)(e) now excludes the application of a resolution under section 140 to the performance of executive functions of a local authority qua planning authority under the PDA 2000. It is also interesting to note that O’Donnell J. (as he then was) regarded the division of functions between the elected council and the county manager under the County Management Act 1940 as being a “division which was not … exclusive”. This was because section 4 of the 1955 Act permitted the elected council to give a county manager a binding direction as regards the exercise by him of any executive function.

64. In the course of argument in this case it was observed that section 140 did not neatly fit the concept of a “reserved” function as the power of the elected council to direct the exercise of an executive function by the chief executive was not one which had been reserved to them from the general or default allocation of local authority functions to the chief executive. Logically, the chief executive could never be characterised as exercising a power to direct himself to do something in the exercise of his own executive powers. In that sense section 140 may be more properly characterised as creating a power which is vested exclusively in the elected council. Be that as it may, I have already pointed out that section

140 comes within section 131 both because it is expressly made exercisable by resolution of the elected council and because it is listed in Schedule 14A. Therefore, even if the application to it of the term “reserved” does not make linguistic sense, it is nonetheless properly described within the statutory scheme as a reserved function under section 131(1) for the purposes of the LGA 2001.

65. The applicant characterises section 153(2) as having three components. The first, which is described as mandatory, requires the chief executive to have the express authority of the elected council to do any act in legal proceedings in relation to a reserved function. The second creates an evidential presumption and allows it to be presumed that the necessary express authority has been provided. The applicant argues that this is of practical benefit in allowing a local authority to take procedural steps such as the filing of documents without having to prove existence of an express authorisation, although such express authorisation must still be in existence. However, if, as the High Court found, express authorisation is actually required to exist, then the benefit the presumption thereby confers on the local authority is fairly minimal. As noted, the practise of the High Court in allowing authorisation to be provided retrospectively is not consistent with the High Court judgments in this case and in Jones which require the express authorisation to actually exist when steps such as the filing of court documentation is being undertaken by the chief executive. The third component allows for the rebuttal of the presumption, which is a general feature of an evidential presumption. In circumstances where no formal authorisation exists the presumption can be rebutted, as occurred here, by simply asking the question as to whether it exists.

66. The strength of the applicant’s argument clearly lies in the use of the word “express” in relation to the authorisation the elected members must provide to the chief executive. If a literal meaning is to be ascribed to the text, then the elected council must actually provide authorisation in order for the section to be complied with.

67. The local authority does not agree that the chief executive must have the express authorisation of the elected council and contends that express authorisation is deemed to exist by virtue of the second clause of section 153(2). It acknowledges that this deemed express authorisation is a legislative fiction but says nonetheless that this is what the section does. Consequently, for the contrary to be shown evidence must be led of a positive or active step taken by the elected council, presumably through the passing of a section 140 resolution, directing the chief executive as regards the institution or defence of the proceedings.

68. I think it is fair to observe that the emphasis in the local authority’s argument shifted between the High Court and this court. In the High Court the local authority led with the somewhat unattractive notion of a deemed express authorisation and then moved to the division between reserved and executive functions. Before this court, the argument concentrated on the division between reserved and executive functions and queried the construction to be given to section 153(2) in that legislative context. The deemed authorisation was still relied on but was to be seen in light of the meaning to be given to the subsection in the context of Part 14 of the LGA 2001 as a whole.

69. The High Court judgment purports to acknowledge local authority’s argument (at para. 16) by saying that the local authority submitted that if two interpretations were open, the one which is more coherent and consistent with the context of the LGA 2001 is the appropriate one. I do not think this accurately reflects the argument made by the local authority, at least before this court. In accordance with Heather Hill, it is not simply a question of adopting the interpretation more consistent with the “context” of the Act but seeking to understand what a provision means in the context inter alia of the relevant part of the Act in which it is to be found and by reference to related provisions in the same Act. These two things are, in my view, materially different. While the High Court judgment outlines the distinction between reserved and executive functions (between paras. 22 and 24) it does not really address how section 153(2) should be interpreted in the context of that legislative scheme save in so far as para. 50 can be construed as suggesting that section 153(2) is, impliedly, a reserved function. I have already rejected that argument.

70. There are obvious weaknesses in the arguments made by both sides. On the applicant’s argument the section creates an evidential presumption which can be rebutted by simply asking a question and which confers little or no real benefit on the party likely to be relying on it. It does not satisfactorily explain how the power under section 153(2) can be reconciled with the division of functions between the elected council and the chief executive so carefully delineated in Chapters 1 and 2 of Part 14. It would follow that the reference to “every function of a local authority which is not a reserved function” in section 149(4) does not actually mean every function and that, in addition to reserved functions, there is another class of function which only the elected council can exercise.

71. On the local authority’s argument, if the elected council disagrees with the course of action proposed by the chief executive in relation to litigation, the section requires the members to pass a resolution under section 140, something they have power to do in any event and without the need for section 153(2). It requires the word “express” to be largely ignored. As the applicant put it, if the defence of proceedings concerning a reserved function is an executive function, why is section 153(2) needed at all: would the situation not be adequately covered by section 153(1)?

72. The answer to these questions may be lost in mists of time. The Cork City Management Act 1929, under which the dedicated, professional role of the county manager was first created, divided the powers of the corporation between executive powers to be performed by the manager on behalf of the corporation (section 2(5)) and those reserved to the elected members (section 8). There was no equivalent provision to section 140 of LGA 2001 allowing elected members to direct the exercise of executive powers by the city manager. Section 20 contained a provision equivalent to section 153 under which the manager was to act on behalf of the corporation in legal proceedings and with the express authority of the elected council in the defence of legal proceedings concerning the exercise of reserved functions and such authority was deemed to have been given unless the contrary was shown. In the absence of a power equivalent to section 140, section 20 of the 1929 Act provided the mechanism through which the elected council could direct the actions of the city manager in the defence of legal proceedings concerning the exercise of reserved functions.

73. A general power to direct a county manager in the performance of the executive functions of a local authority was created by section 29(1) of the County Management Act 1940 (subsequently section 4 of the 1955 Act). However, the text of section 32(1) dealing with legal proceedings retained the requirement that had appeared in section 20 of the 1929 Act that the county manager act with the express authority of the elected council in taking any action regarding proceedings concerning the exercise of reserved functions. H.A. Street in “The Law Relating to Local Government”, (1955) at p.494 suggests that the distinction drawn in section 32(1) of the 1940 Act may have arisen because “in the conduct of proceedings relating to executive functions the manager … personifies the council” whereas “in any matter relating to the reserved functions of the Council he is acting only “under authority” and therefore as an agent”. The distinction between the county manager/chief executive personifying the local authority in relation to executive functions and acting as the agent of the elected council in relation to reserved functions might provide a reason why the chief executive should be deemed to have the express authorisation of the elected council under section 153(2). However, as these texts were not raised in argument by either side nor indeed raised by the court, I do not propose to decide the case on this basis.

Interpretation of Section 153(2)

74. In order to correctly construe section 153(2) it is necessary to look at the provision in context. The crucial context here is that it appears in Part 14 of the LGA 2001 under which the powers of a local authority are divided into reserved and executive functions. This classification is both binary and exhaustive. Because section 149(4) is a default provision under which every function of a local authority which is not a reserved function becomes an executive function, the Act and, in particular Part 14, leaves no room for an intermediate category on a lex specialis or on any other basis. Therefore, section 153(2) must be either a reserved function or an executive function and, if it is not a reserved function, then it is automatically an executive function.

75. Section 153(2) is not a reserved function. The mechanisms through which a reserved function can be created are set out exhaustively in section 131. A function must be designated as a reserved function – which section 153(2) is not – or it must be expressly made exercisable by resolution under statute, which section 153(2) does not do. Section 153(2) is not listed in either Schedule 14 or Schedule 14A of the LGA 2001 – although I accept that this is not determinative it is nonetheless important. I do not regard the rules governing the conduct of meetings of local authorities set out in Schedule 10 and under which “acts of a local authority which are reserved functions or questions duly coming or arising before a meeting of a local authority” are to be determined by a majority vote of members present, converts any matter voted on by the elected council at a meeting of the local authority into a reserved function. There are clearly many matters which may come before a meeting of the elected council, and which may be voted on by the members, which are not reserved functions. The legal significance attaching to a reserved function is not derived from Schedule 10 but from section 131.

76. If section 153(2) is not a reserved function, then it is by default an executive function. There may well be – and probably is – an illogicality in requiring the chief executive to act in proceedings covered by this section with the express authorisation of the elected council and, at the same time, treating the actions of the chief executive in the conduct of such proceedings as an exercise of his or her executive functions. Certainly, the section is linguistically challenging whatever construction of it is adopted. Nonetheless, deeming the chief executive to have been given express authorisation allows the chief executive to act on behalf of the local authority in proceedings without there having been a vote of the elected council and not merely, as the applicant suggests, without having to produce an express authorisation which must still actually exist.

77. In this regard, it is the default nature of the function created by section 153(2) as an executive function which is important rather than the fact that authorisation is deemed to have been given to the chief executive. If the section were not to be construed in the context of Part 14 and the binary division of all local authority functions as either executive or reserved (albeit with the elected council having, as a reserved function, the power to direct the chief executive in the exercise of his executive functions), the language of the last clause of section 153(2) would not necessarily be sufficient to give rise to a “deemed express authorisation” in the manner contended for by the local authority. However, it is clear from the recent jurisprudence of the Supreme Court that the section is to be construed in context, including in its legislative context. Thus section 153(2) cannot be properly understood without reference to Part 14 as a whole and to sections 131 and 149(4) in particular.

78. The democratic nature of the actions of the elected council exercising its reserved functions is protected by the fact that the subsection envisages that the existence of the deemed express authorisation may be rebutted. As the local authority argues, this can be done by the elected council taking steps under section 140 to actively direct the chief executive regarding the conduct of the proceedings.

79. Whilst I acknowledge some difficulty in the construction which I have adopted particularly as regards the use of the word “express”, I think there is potentially an even greater difficulty in accepting that section 153(2) is an outlier in the scheme of the LGA 2001 as a whole. This would require treating a carefully constructed statutory scheme which, on the face of it, expressly applies to “every function” of a local authority (section 149(4)) as not being applicable to this single subsection.

80. As to the practicalities of how section 153(2) should be applied, I certainly accept that if section 153(2) clearly came within scope of section 131, then any administrative inconvenience that might thereby result from requiring the express authorisation of the elected council for the conduct of certain legal proceedings would be entirely irrelevant. The issue is the extent to which the statutory scheme, which on the face of it is expressed in terms which are exhaustive, is nonetheless to be treated as not applying to this subsection. I am not persuaded by the arguments of the applicant that this is the correct interpretation of the section taken in its broader statutory context.

81. When section 153(2) is viewed in the context of the statutory scheme created by Part

14 of the LGA 2001, it creates an executive function and therefore is to be construed in a manner which does not require the elected council to have passed a resolution authorising the defence of these proceedings by the chief executive. On the facts of the case, this will make no difference as the opposition papers filed by the chief executive defend the actions of the elected members in adopting the impugned county development plan. If the elected council wish the chief executive to take a different stance, they can direct his conduct of the litigation by passing a resolution under section 140, to which the chief executive must then give effect.

82. In light of these conclusions it is not necessary for the court to consider further the extent to which, if section 153(2) required express authorisation for the defence of these proceedings, that authorisation would have to be provided before any step was taken by the chief executive; whether steps taken without express authorisation could be retrospectively ratified by an authorisation provided contemporaneously with or even after the hearing of the action; or whether repeated authorisations would be required during the course of the litigation to deal with unanticipated events or actions which might affect the basis upon which proceedings had been originally instituted or defended. It is also unnecessary to consider in any greater detail than has already been done the notion of a “deemed express authorisation”.

83. In these circumstances, the appeal taken by the local authority will be allowed and the order striking out its statement of opposition will be set aside.

84. As the local authority has been successful in these proceedings, I propose that an order be made in its favour that it recovers its costs from the applicant both in respect of the appeal and in respect of the application in the court below. I also propose that such order be stayed until the outcome of the substantive proceedings which, hopefully, can now proceed in a timely manner. If either party wishes to contend for orders different to those outlined above, they have 21 days from 22nd September 2025 to file brief written submissions (not exceeding 1500 words) and the opposing party will have a further 14 days to file a reply. This extended timeline takes account of the delivery of this judgment on the last day of term.

85. My colleagues Costello P. and Allen J. have read this judgment in advance of its delivery and indicated their agreement to it.