One of the chronic problems in local government iin Ireland is that when the officials don’t want to do something they simply declare it to be illegal.

The group opposing the proposed dump at the Nevitt asked the Council to fund the technical expertise that they had to employ to engage with this €50million+ proposal.  We feel that this is essential to give meaning to the right to public participation in environmental decisions recognised in the Aarhus Convention.  The Manager is claiming it would be illegal, but isn’t giving any reason why. The Greens proposed that they be funded at the last monthly Council
meeting.  The Manager asserted it was illegal.  So for next Monday’s
meeting, we have identified the elements in the legislation which
specifically empower the Councillors to recognise and fund the group. 
The response, as before, is a simple assertion, describing itself as
legal advice, that "the Nevitt-Lusk Anti-Dump Group do not fall within
the category of body
which under Section 128 of the Local Government Act 2001, the local
authority can declare to be a recognised association"  There is no
explanation as to why this is claimed to be so.  Nor, on past record,
will the law agent attend the Council meeting to explain her advice.

Copy of letter circulated to Councillors, followed by extract from Local Government Act 2001
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When phoning or calling please ask for Ms Mary Crealey ext: 5500
Our Ref:         “MC” LAW
Your Ref:      

Pat Keane
County Manager
County Hall
Swords
                                                                                    URGENT

7th November 2006

Re:      Proposed Motion for Council Meeting 13th November 2006

Dear Pat,

I refer to the following proposed motion for the above meeting:

“ That Fingal County Council declares the Nevitt-Lusk Anti-Dump Group to be a recognised association for the purpose of S.128 of the Local Government Act 2001 and resolves under S.128 (2)(b) to provide assistance in money in the amount of €30,000 to the Nevitt-Lusk Anti-Dump Group to meet their legitimate costs incurred in obtaining specialist advice and representation in order to engage with the various consent processes for the proposed dump at the Nevitt as assessed by an independent assessor”.

The Council are currently seeking to provide a new landfill at Tooman/Nevitt  North County Dublin in accordance with the Waste Management Plan for the Dublin Region 2005-2010 and have recently been involved in an oral hearing in relation to the landfill.  Individual members of the Nevitt-Lusk Anti-Dump Group lodged objections to the landfill project with An Bord Pleanala and were represented at the oral hearing.  There has been no decision by An Bord Pleanala in relation to the new landfill as yet.  When there is a decision, the Board has a discretion in relation to the payment of costs.  This is a statutory process and the local authority has not got discretion to pay any costs and expenses of persons involved in the process without an order of the Board.

In these circumstances the Nevitt-Lusk Anti-Dump Group do not fall within the category of body which under Section 128 of the Local Government Act 2001, the local authority can declare to be a recognised association for the purposes of that section.

If a resolution were passed declaring the Nevitt-Lusk Anti-Dump Group to be a recognised association for the purposes of Section 128 of the Local Government Act 2001, such a resolution would be illegal and any payment made under Section 128 of the 2001 Act would also be illegal and the Manager would be liable to surcharge on foot of such payment.  Furthermore, if a Section 140 motion were to be passed by the Council authorising payment to the Nevitt-Lusk Anti-Dump Group in relation to their involvement in the above matter, this would also be illegal and all those who voted in favour of the motion would also be liable to be surcharged.

Yours faithfully,

…………………………..

Mary Crealey

Law Agent

cc. Dick Brady, Head of Corporate Affairs
fk
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Extract from Local Government Act, 2001

Recognised associations.

128.—(1) A local authority may declare that any body, whether
corporate or unincorporate, be a recognised association for the
purposes of this section where the local authority is of the opinion
that the body is concerned with promoting the interests of the local
community, or any part of or group within the local community, or of
all or a part of the administrative area of that local authority.

(2) A local authority may—

(a) consult a recognised association on any relevant matter,

(b) provide assistance in money or in kind to such association,

(c) make arrangements with a recognised association under section 13(6) of the Roads Act, 1993, or Chapter 4 of Part 9

(d) enter into an agreement in
writing with a recognised association for the carrying out by the
association on behalf of the local authority of certain functions of
the authority which in its opinion may be satisfactorily carried out by
the recognised association, subject to such terms, conditions,
restrictions and other requirements as the authority considers
necessary and specifies in the agreement.

(3) Subsection (2)(d) does not apply in respect of a reserved function, the function to make arrangements under section 13(6) of the Roads Act, 1993, or Chapter 4 of Part 9 or any other function as the Minister may prescribe by regulations.

(4) Any works or other thing carried out or done by a recognised
association in good faith as a result of an agreement made under subsection (2)(d)
and in accordance with every requirement of such agreement shall be
regarded as if the works or other thing was duly authorised, carried
out or done by the local authority.

(5) For the purposes of subsections (1) and (2), a local authority may have regard as to whether in its opinion—

(a) a body is properly constituted and representative,

(b) adequate financial and accounting arrangements are in place, and

(c) the body is in a position
to comply with such requirements as the local authority may in all the
circumstances of the case consider necessary and reasonable for such
purposes.

(6) A declaration under subsection (1) is a reserved function.

(7) The Minister may by regulations prescribe such matters relating to
recognised associations as he or she considers appropriate for the
purpose of giving effect to this section including the procedures to be
followed for the termination of an agreement under subsection (2)(d).