The Attorney-General, Séamus Woulfe, failed to disclose a “false” and “misleading” order made by the former Manager of Wicklow County Council (WCC) when he compiled a report for the Government on the controversial compulsory purchase of lands in 2013.
Woulfe, who was a senior counsel at the time and a prominent member of Fine Gael, was asked by then environment minister, Phil Hogan, in early 2013 to carry out a review of the proposal by WCC to compulsorily purchase lands at the Three Trout Stream, at Charlesland near Greystones.
In the course of his review, Woulfe was provided with substantial documentation by WCC, including a copy of two Manager’s orders setting out the reasons for, and putting into legal effect, the CPO.
The Manager’s orders, dated November 2003 and November 2004, stated that the Council required the land for social housing as it only had an “existing land bank of 0.5 hectares in the Greystones area”. The orders were signed by then Wicklow County Manager, Eddie Sheehy.
This statement was “false” and “misleading” according to submissions made by a barrister acting for Wicklow Councillor, Tommy Cullen and former Councillor Barry Nevin in their successful High Court defamation action against Sheehy and WCC last year.
In her detailed judgment, Justice Marie Baker found that the Councillors had been defamed by Sheehy and the Council in a press release issued on the day the Woulfe report was published in April 2013. She found that the content of the release showed that Sheehy and the Council had acted with malice and improper purpose towards the Councillors.
Woulfe had concluded that “almost all of the concerns raised by the Councillors” which led to his review were “not well founded or are misconceived”. This comment was repeated in a statement issued by Hogan and the Department of the Environment and in the press release issued by the Council following publication of the Woulfe report. However, the Council went further and accused the Councillors of wasting up to €200,000 in public monies by raising their “allegations” which prompted the commissioning by Hogan of the Woulfe review.
Judge Baker found that the Woulfe report was “not evidence that the Councillors were wrong or acted in bad faith” in raising their concerns. She found that the Councillors had been wrongly accused of being responsible for “wasting money at a time when money was scarce” and awarded them damages of €20,000 each. She also said the claim that there was a €200,000 loss of public monies was an exaggeration on the part of the Council. Woulfe was paid €62,000 in fees for his work.
In her judgment, Judge Baker also referred to the extensive documentation available to Woulfe for his review, but withheld from the Councillors, including the two Manager’s orders and various reports which confirmed that the Three Trout Stream lands were prone to flooding and unsuited to social housing.
She specifically referenced the documents which proved that the Council owned a site of over 10 hectares (22 acres), zoned residential for housing and adjoining the Three Trout Stream lands. In his report, Woulfe also referred to the existing lands owned by the Council in the Greystones area.
However, he did not point out the discrepancy between this fact and the statement in the Manager’s orders that the Council only had a landbank of 0.5 hectares in the area. The November 2004 order formed the legal basis for the CPO and the seizure of lands from the landowner and another local man who used the land to graze horses.
Although Woulfe was called as a witness for Sheehy and WCC he was not asked about the incorrect assertion in the Manager’s orders. the plaintiffs only obtained copies of the orders after Woulfe had given his evidence.
In his closing submission, Mark Harty SC, acting for the two politicians, said that the Manager’s order stating that the Council had a landbank of just 0.5 hectares in the area was “false” and “misleading”.
“This unequivocal statement in an official statutory document was simply false. Certainly, it was misleading”, Harty submitted. “The situation is more serious given the core basis of the decision to confirm the CPO by an Bord Pleanála which is that it satisfied that the Council had established the need for housing and the need to buy land for housing”.
It was also the basis for the State’s decision to seize the land from two citizens against their wishes.
Judge Baker also raised questions about the conclusions made by Woulfe in his report, in particular in relation to his suggestion that “almost all of the concerns (of the two councillors) are not well founded or are misconceived”.
Judge Baker said that “it was not true to say that on the information they had that the plaintiffs raised unnecessary or irresponsible concerns without cause”. The High Court judgment by Judge Baker overturned an earlier decision by the Circuit Court in April 2014 which dismissed the defamation claims.
In January, Sinn Féin’s Mary Lou McDonald, asked the Housing and Environment minister, Eoghan Murphy, if he would now remove the Woulfe report and the statement issued by his predecessor Phil Hogan when it was published, from the Department’s website in light of the High Court judgment.
The Sinn Féin deputy suggested that Woulfe did not “establish the fact of his statement that ‘almost all of the concerns [raised by the named members of Wicklow County Council] are not well founded or are misconceived’”. McDonald also called for the establishment of a new independent investigation into the CPO of the lands at Charlesland in 2004.
Murphy replied: “The public statement of my predecessor and the associated report were not the subject of the High Court judgment…The case in question concerned a statement made in a press release issued by the Council on 23 April 2013. The plaintiffs brought proceedings against the Council claiming that the last paragraph of the press release was defamatory towards them. This paragraph stated that a delay in sanctioning a loan to purchase a site, caused by the need to carry out an independent review as a result of allegations made by the plaintiffs, had resulted in a loss to the Council of circa €200,000 in respect of interest foregone and administrative costs. No such statement was made by my predecessor nor is it made in the report. Against that background, I see no basis for taking the step referred to”.
The dismissal by the minister of McDonald’s request fails to acknowledge the issues raised during the defamation action and in Judge Baker’s judgment. It also fails to recognise the background to the controversy surrounding the CPO of the Three Trout Stream lands which has caused significant political difficulties for a number of his predecessors, including Phil Hogan, Alan Kelly and Simon Coveney. Another of his cabinet colleagues, Simon Harris, is on the record in Village as calling for an investigation into the administration of local government in Wicklow in the light of this and a range of other controversies in the county.
As noted in the Woulfe report and the Baker judgment the Three Trout Stream land is adjacent to the major Charlesland housing and apartment complex built by Zapi Ltd, a joint venture between developers Sean Mulryan and Sean Dunne, which was under construction when the controversial CPO process was commenced in 2003.
In his report, Woulfe alluded to a claim made by the land user at an An Bord Pleanála hearing that the CPO may have been linked to a possible land swap with Zapi. But he failed to address the decision by the then county manager Eddie Sheehy to issue a manager’s order in November 2003 before the landowner, William Irwin was asked whether he was willing to sell the land. It is worth noting the sequence of events.
Woulfe recounts how the lands at Three Trout Stream were first identified by the Council in November 2003 as potentially suitable for social housing. A Council official, Tony O’Neill, was instructed by WCC Director of Services, Des O’Brien, to purchase the land or to acquire it by CPO. He met with landowner William Irwin and John Nolan, who kept horses on the land. Irwin said that he was not interested in selling. After other unsuccessful attempts to persuade them to sell the land O’Neill recommended, in March 2004, that the Council should establish title and proceed to a compulsory purchase order of the lands.
Woulfe reports that: “Ultimately the making of the CPO was approved by a Manager’s Order dated the 30th November 2004. The actual Compulsory Purchase Order was then made by the Council on the 6th December 2004 when the official seal of the local authority was affixed thereto, and was entitled the “Wicklow County Council Compulsory Purchase (Lands at Charlesland, Greystones) Number 6 Order 2004”. It was signed by Eddie Sheehy, County Manager.
Significantly, there was no mention in Woulfe’s report of the earlier Manager’s order on the lands signed by Sheehy in November 2003 before the negotiations and discussions with Irwin and Nolan had been completed and before any final recommendation for a CPO had been made by the senior Council officials involved.
However, Sheehy had been involved in negotiations with Zapi over an exchange of lands and had signed controversial and unpublished contracts with the developers of the Charlesland scheme in July 2003 and subsequently in September 2003. The contracts were revealed some years ago by the auctioneer who assembled the lands for the 1800-unit housing and apartment scheme.
Wicklow estate agent, Gabriel Dooley, claimed that he was involved in private discussions involving Mulryan and Dunne with a prominent Fianna Fáil Councillor, Pat Vance, before contracts involving an “exchange of easements” with the Council were signed. The contracts were signed by Vance and Eddie Sheehy for the Council and by solicitors acting for Mulryan and Dunne. There was no statutory notice of disposal of the lands. Neither were the elected members of WCC given the opportunity to vote on the disposal or the land exchange with Zapi.
The existence of the November 2003 and 2004 Manager’s orders only came to public light during the defamation case in the summer of 2016. They were provided anonymously by an official of WCC to Councillor Tommy Cullen. Woulfe had already given his evidence in the court and the then senior counsel was not questioned as to why he omitted to mention the inaccurate statement relating to the landbank controlled by the Council contained in the orders. Neither was he asked why he did not mention the existence of the November 2003 Manager’s order in his report.
Asked by Village whether he had noted the discrepancy in the Manager’s orders and whether he alerted the Minister or other authorities over the incorrect statement about the size of its landbank in Greystones, the Attorney-General declined to comment. The Government Press Office told Village that the queries to “should appropriately be referred to the Department of Housing, Planning and Local Government who were the receiving Government Department for the review”.
Séamus Woulfe is currently advising the government on planned legislation to strengthen the powers of local authorities and County Managers to make compulsory purchase orders. He has also recently advised on the granting of more extensive powers to the IDA to acquire lands required for urgent industrial development projects.
Séamus Woulfe profile
Séamus Woulfe was something of a surprise choice as Attorney-General (AG) as many expected Fine Gael trustee and party grandee, Frank Callanan, to be appointed. His accession is widely believed to be a result of his close political relationship with education minister, Richard Bruton.The New AG is a prominent member of Fine Gael in Clontarf in Bruton’s Dublin Bay North constituency.
However, he is well got with the party leadership and as with the case of the Wicklow CPO review, he has devoted many, including unpaid, hours to assisting the organisation in its time of legal need.
Woulfe has acted for Fine Gael in high profile legal cases including the action taken by former TD, John Perry, against the trustees of the party in 2015 after the former junior business minister failed to get a nomination in the Sligo Leitrim constituency to run in the 2016 election.
In 2016, he acted for the Government when it lost against a ‘Save Moore Street’ campaigner who successfully convinced Judge Max Barrett to preserve the entire area as a significant battlefield site. The judgment was recently overturned on appeal by the State.
In the past, Woulfe has worked as legal assessor to the Fitness to Practice Committees of the Irish Medical Council and the Nursing and Midwifery Board of Ireland while as a junior barrister he cut his teeth in the beef tribunal and in the X case involving a teenage girl seeking access to abortion.
Born in 1962, Woulfe attended the Jesuit-run Belvedere College before going on to study law at Trinity College, in Dublin. He did post-graduate studies in Nova Scotia where he obtained an LLM degree before he returned to Dublin where he commenced his practice at the Bar in 1987 and the Inner Bar as senior counsel in 2005. While he was unsuccessful in his 2016 attempt to become chairman of the Bar Council, instead being made vice-chair following victory by Paul McGarry SC, his elevation as AG last year was no doubt ample compensation for his loss.
Over recent months, Woulfe has advised the Government on the need to replace the Eight Amendment of the Constitution with a clause which gives it power to legislate for abortion. This would allow for a law enabling abortion up to 12 weeks as proposed by the Oireachtas committee on the Eight.
In February, he told young solicitors at a graduation ceremony in Blackhall Place in Dublin that “a small minority of solicitors had lowered the standards of the profession due, in part, to the pressures of the economic crash”. He said solicitors “can’t dip into clients’ funds… even if you think you are just doing it for a temporary loan and you really intend to pay it back next week”.
The standards of the same legal profession took another bit of a battering when two barristers ended up in fisticuffs following a street row over a taxi after Woulfe’s ‘benching’ in the Kings Inn’s last month.
Although he was not involved in the fracas after a late night in the bar of the lawyers’ Church Street office complex, news of the altercation spread across the law library and distracted from the pomp and dignity of the occasion for the AG. With Leo Varadkar in attendance earlier the whole affair could have turned into an even greater embarrassment for the AG.
With the forthcoming repeal referendum and subsequent legislation as well as Brexit among the legal challenges ahead, Woulfe will have to spend many more nights reading complex briefs than he will spend on the town. He should take heed of the implicit warning by Judge Baker in the Wicklow case and make sure to study closely all the documents provided to him.
Frank Connolly
