In a recent Environment Resources and Development Court decision involving an appeal against an enforcement notice issued under section 84 of the Development Act, 1993, a council was criticised for not obtaining legal advice or representation.

Background

The Council had issued a section 84 notice requiring removal of a transportable building from a rural property. The building was formerly a dwelling, but the owners intended to use it in conjunction with a proposed intensive animal keeping development as an office and workers’ amenities building.

The appellant, who was legally represented at the hearing, sought suspension of the operation of the direction to remove the building.

Essentially, her reasons were that she was well advanced in formulating a proposal to establish a poultry farm on the land, which the transportable building would form a part of. As such, the building was only being temporarily stored on the land. Moreover, it was being stored in a position where it was not causing any appreciable impacts.

The Council resisted the application for suspension. It was represented at the hearing by a planning officer, who also gave evidence in support of the Council’s case.

Ultimately, the Court found in favour of the appellant. The Court decided to suspend the operation of the direction pending lodgement and assessment of an application for the poultry farm.

Council’s approach to the hearing

But it was perhaps the Council’s approach to the hearing which is of most interest.

The Court said:

“It is fair to remark that the Court was surprised that the Council, it is understood due to funding difficulties, chose to not involve legal advice and representation in this matter and relied upon the well intentioned efforts of [name of council officer], including as advocate in the hearing. I found her evidence and submissions such as they were, at times to be confused and confusing and not precise or of much assistance to the Court.”

While funding difficulties are an unfortunate reality facing councils, failure to obtain legal advice at an early stage of litigation, or expected litigation, may expose council litigants to a risk of greater cost in the longer term.

Section 84 appeals are in a costs jurisdiction of the ERD Court. An unsuccessful party can usually expect to be ordered to pay the legal costs of the successful party.

This means that unless a council litigant has good grounds for opposing an application of this kind, it runs the risk of being ordered to pay the appellant’s legal costs, even though the council may elect not to have legal representation itself. Those costs may be substantial.

As such, it may be imprudent for council litigants to embark on any substantive step in litigation without first obtaining legal advice about the strength or weakness of their legal position. As the saying goes, a stitch in time saves nine.