Athlone Urban District Council v Gavin

• Jurisdiction: Ireland
• Judge: Finlay C.J.
• Judgment Date: 01 January 1986
• Neutral Citation: 1985 WJSC-SC 823
• Docket Number: [S.C. No. 103 of 1985],103/85
• Court: Supreme Court
• Date: 01 January 1986

1985 WJSC-SC 823

The Supreme Court

Finlay C.J.

Henchy J.

Griffin J.

Hederman J.

McCarthy J.

103/85

ATHLONE URBAN DISTRICT COUNCIL v. GAVIN

THE ATHLONE URBAN DISTRICT COUNCIL

Plaintiffs and Applicants

and

OLIVER GAVIN

Defendant and Respondent

Citations:

COUNTY MANAGEMENT ACT 1940 S19

COUNTY MANAGEMENT ACT 1955 S20

COURTS OF JUSTICE ACT 1947 S16

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S2

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S1(3)

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S4(1)

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S4(2)

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S3

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S8

LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S2(1)

LOCAL GOVT (SANITARY SERVICES) ACT 1962 S7

LOCAL GOVT (SANITARY SERVICES) ACTS 1878 TO 1964

PUBLIC HEALTH (IRL) ACT 1878 S65(a)

Synopsis:

LOCAL GOVERNMENT

Service charges

Domestic dwelling - Statutory order - Validity - Plaintiff local authority claiming #60 from occupier in water charge, sewerage charge and refuse collection service charge - Order of county manager invalid because of failure to specify distinct sum in respect of each charge - Public Health (Ir.) Act, 1878, s. 65A - Local Government (Financial Provisions) (No. 2) Act, 1983, s. 2 - (103/85 - Supreme Court - 28/6/85).

Athlone U.D.C. v. Gavin

1 JUDGMENT delivered on the 28th day of June 1985 by Finlay C.J. [Nem Diss]

2 This is a consultative Case Stated by His Honour Judge Peter O'Malley, S.C., Circuit Court Judge of the Midland Circuit, to this Court pursuant to the provisions of Section 16 of the Courts of Justice Act 1947.It arises from an appeal brought by the Plaintiffs against the decision of the District Court allowing in reduced form a claim made by them for a sum of £60 for water charges, sewerage charges and refuse collection service charges. That sum was claimed by them pursuant to the provisions of Section 65A of the Public Health (Ireland) Act 1878, as inserted by Section 7 of the Local Government (Sanitary Services) Act 1962, as amended by the Local Government (Financial Provisions) (No. 2) Act 1983and pursuant to section 2 of the said Act of 1983.

Facts

3 The relevant circumstances found in the Case Stated and appearing from the documents exhibited with it may thus be summarised.

4 1. The Local Government (Financial Provisions) (No. 2) Act 1983was passed on the 12th July 1983 and came into force at the date of its passing.

5 2. It gave power to local authorities, including the Plaintiffs, to fix and recover a charge in respect of services which they were by any existing enactment required or enabled to provide and in respect of which they were either not entitled or expressly prohibited from raising a charge or in respect of which they were entitled to raise a limited to fixed charge only.

6 3. On the 1st September 1983 the County Manager of the Plaintiffs" authority made an Order in the following terms:

"SUBJECT: Charges 1983

ORDER

7 I HEREBY ORDER that a charge of £60 be levied on and collected from every domestic dwelling in the Athlone urban area for water, sewerage and refuse collection services in respect of 1983 in accordance with the Local Government (Financial Provisions) Act 1983and the Local Government (Sanitary Services) Acts 1878 to 1964."

8 On the 2nd September 1983 the Plaintiffs issued to the Defendant and others a demand for these charges which identified £40 thereof as being a water charge and £20 thereof as being a sewerage and refuse charge.

9 4. The Defendant did not then nor has he since paid any amount on foot of this demand.

10 5. By civil process issued on the 24th August 1984 the Plaintiffs claimed from the Defendant the said sum of £60 for these charges and the matter coming on for hearing before District Justice Connellan at Athlone District Court on the 20th November 1984, he gave a decree for £28.27 being his calculation of the amount due on the basis that the charge of £60 was for a period of twelve months from the 1st January 1983 to the 31st December 1983 and that the Plaintiffs were only entitled to so much of that charge as dated from the passing of the Act on the 12th July 1983.

11 6. The Plaintiffs appealed against that decision to the learned Circuit Court Judge and upon the hearing of that appeal gave, in addition to formal evidence of the making of the Orders; of the service of the Demand and of non-payment, evidence by an assistant staff officer that prior to the making of the Order fixing the charge at £60 a decision had been reached that that figure should be divided as to £40 in relation to water, £10 in relation to sewerage and £10 in relation to refuse.

12 7. During the course of the hearing of that appeal the Plaintiffs applied to the learned Circuit Court Judge to state a Consultative Case to this Court to determine certain issues of law which had arisen.

Issues arising on the Case Stated

13 Although eight questions are raised in the Case Stated, two main issues arose in the argument before this Court. In the order in which they were submitted, they were as follows:

14 (a) Whether the Order made by the County Manager on the 1st September 1983 fixing a charge of £60 in respect of water, sewerage and refuse collection was valid, having regard to the fact that it did not fix separate amounts in respect of each of the three separate services provided.

15 (b) Whether the Order of the 1st September 1983, if...