Wednesday, 14 January 2009

Quashing of council's ruling sought

A GREEN Party councillor has asked the High Court to overturn a decision that a Wicklow Fianna Fáil councillor and solicitor had not breached ethics legislation in proposing and voting for a quarry rezoning motion without disclosing that his law firm was acting for the quarry owner in legal proceedings.

The action by Deirdre de Búrca centres on the construction of certain provisions of the Local Government Act 2001, enacted to provide an ethical framework for local government.

The conclusion by Wicklow County Council’s ethics committee in its June 15th, 2005, report that Fachtna Whittle had acted unwisely but not in breach of the ethics legislation, was fundamentally flawed, Gerard Hogan SC, for Ms de Búrca, argued yesterday. The decision set an ethical standard for county councils which the Oireachtas could not have intended, he added.

Mr Hogan argued that the report failed to address the central question, whether Mr Whittle had a beneficial or declarable interest in the lands within the meaning of the relevant ethics legislation.

The report had fundamentally misconstrued the law in that it applied the normal meaning of “beneficial interest”, not its meaning within the terms of the relevant provisions of the 2001 Act, he submitted.

Mr Whittle was a solicitor acting for the landowner and it was impossible to see how this could not be material to the rezoning motion, Mr Hogan argued.

In proceedings before Mr Justice John Hedigan, Ms de Búrca wants an order quashing the June 2005 report. The action is against the Wicklow county manager and the chair of Wicklow County Council, with Mr Whittle as notice party.

The report was compiled after Ms de Búrca formally complained to the ethics registrar of the council about Mr Whittle’s conduct during a council meeting on the county development plan on July 12th, 2004.

Mr Whittle had proposed the rezoning of lands at Ballylusk, Ashford, to extend an existing quarry there. Ms de Búrca claimed he breached the ethics provisions because he failed to disclose that the solicitors’ firm of which he is principal was acting for the quarry owner in legal proceedings concerning the site’s planning status.

Ms de Búrca claims Mr Whittle should not have proposed the motion or voted for it. However, the report of the ethics registrar concluded, while it was “unwise” and an “error of judgment” for Mr Whittle to have proposed the rezoning motion because of his firm’s involvement in legal proceedings regarding the lands, he had no beneficial or pecuniary interest in the lands and no declarable interest in the lands for the purpose of the legislation.

Ms de Búrca said the report was also critical of her in that it noted she had not attended the inquiry. She said she did not do so because she had made a formal complaint and it was for the respondents to construe the legislation on the basis of uncontradicted facts.

In submissions yesterday, Mr Hogan argued that section 176 of the Local Government Act 2001 converted the professional involvement of Mr Whittle with regard to the quarry lands into a “beneficial interest” within the meaning of the Act, as Mr Whittle had actual knowledge that he had a declarable interest in relation to the rezoning resolution proposed.

The Act imposed an obligation on professional persons to disclose that beneficial interest in respect of discrete motions or resolutions before the council, Mr Hogan added.

The case continues today.

Irish Times

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