Attorney General (at the relation of O.F. Fishing Ltd) v Port of Waterford Company

• Jurisdiction: Ireland
• Judge: MR JUSTICE FENNELLY
• Judgment Date: 12 July 2006
• Neutral Citation: [2006] IESC 47
• Court: Supreme Court
• Docket Number: [S.C. Nos. 444 & 454 of 2005]
• Date: 12 July 2006

[2006] IESC 47

THE SUPREME COURT

Geoghegan J.

Fennelly J.

Macken J.

No. 454/2005

AG (O F FISHING LTD) v PORT OF WATERFORD COMPANY

BETWEEN

ATTORNEY GENERAL AT THE RELATION OF O.F. FISHING LTD)

Plaintiff/Appellant

v

PORT OF WATERFORD COMPANY

Defendant/Respondent

HARBOURS ACT 1996 S96

WATERFORD & LIMERICK RAILWAY ACT 1878 S7(A)

HARBOUR DOCKS & PIERS CLAUSES ACT 1847 S33

HARBOURS ACT 1946 S191

WATERFORD HARBOUR ACT 1919 S35

WATERFORD HARBOUR WORKS ORDER 1947

WATERFORD CMSRS (ACQUISITION OF PROPERTY) ACT 1964 S4

WATERFORD CMSRS (ACQUISITION OF PROPERTY) ACT 1964 S2(A)

INTERPRETATION ACT 1937 S21

SHIPSEY v BRITISH & SOUTH AMERICAN STEAM NAVIGATION CO 1936 IR 65

RSC O.11 r1(E)

AG v GREAT EASTERN RAILWAY 1880 5 APP CAS 483

HARBOURS ACT 1996 S7

HARBOURS ACT 1996 S8

HARBOURS ACT 1996 S10

HARBOURS ACT 1996 S11

HARBOURS ACT 1996 S12

HARBOURS ACT 1996 S15

HARBOURS ACT 1946 S97

HARBOURS ACT 1996 S5

HARBOURS ACT 1996 S11(1)

HARBOURS ACT 1996 S12(2)

PORT OF CORK CO v CMSR OF VALUATION 2003 3 IR 272 2004 1 ILRM 151 2003/44/10776

POOR RELIEF (IRL) ACT 1838 S63

GREAT CHARTER OF THE LIBERTIES OF THE CITY OF WATERFORD 26.5.1626

LAND LAW:

Public rights

Sexual abuse - Judicial review - Appeal - Prohibitory injunction - Delay - Right to fair trial - Right to expeditious trial - Complainant delay - Whether inexcusable - Prejudice - Specific prejudice - Death of vital witnesses - Failure to disclose medical notes relating to psychiatric condition of complainant - Whether real and serious risk of unfair trial - M(J) v DPP [2004] IESC 47

Facts: The essential point in this appeal was whether the Port of Waterford Company had power to sell parts of Waterford Harbour. The Port contended that the Harbours Act 1996 conferred all necessary powers.

Held by the Supreme Court (Geoghegan, Fennelly and Macken JJ) in dismissing the appeal that the Harbours Act 1996 was intended to provide port companies with flexibility in the acquisition and sale of port property and no user of the port had the right to interfere in that process.

Reporter: R.W.

1 JUDGMENT of MR JUSTICE FENNELLY delivered on the 12th day of July, 2006.

2 The essential point in this appeal is whether the Port of Waterford Company, the Respondent in this appeal, and the successor to the Waterford Harbour Commissioners, has power to sell parts of the Harbour. There is a rather more complex history. The appellants have produced a veritable treatise on the complex history of the Port of Waterford, but the key legal issue is whether the Port of Waterford Company may exercise a power of sale.

3 The City of Waterford is situated on the south side of the River Suir. The North Wharf and the Frank Cassin Wharf are on the north side of the river. Over time the operations of the Port were extended to include areas on the north side of the river. These two wharves were built, respectively in the nineteenth and twentieth centuries. The former railway companies, Córas Iompair Eireann, the former Waterford Harbour Commissioners and Waterford Corporation have been involved in the development of the facilities. It is necessary to discuss several statutory provisions, including private acts of the British Parliament and of the Oireachtas and even a Royal Charter of 1626.

4 O.F. Fishing Limited, ("the appellant"), was incorporated in 2004 to carry on the fishing business of several O'Flaherty brothers. It operates fishing vessels which remain the property of the individual brothers. It claims that the O'Flaherty brothers have, since at least 1992, used the Port of Waterford to moor vessels and to land fish. In particular, it claims to have landed them at the point in the Harbour, known as the North Wharf and, to a lesser extent, at the Frank Cassin Wharf. The Port of Waterford Company has very largely moved all port operations downriver to Bellview and has agreed to sell the North Wharf. The appellant and the O'Flaherty brothers are dissatisfied with the services offered to it at Bellview. The principal purpose of this action is to prevent the Port of Waterford Company from implementing the sale.

5 Evidence was given in the High Court on behalf of the appellant, which was accepted by de Valera J, that it had used the facilities at the North Wharf and the Frank Cassin Wharf and that there is no other permanently safe harbour or anchorage within a reasonable distance of its headquarters at Kilmore Quay in County Wexford. However, the case for the appellant was that the proposed sale of the wharves was ultra vires the powers of the Port of Waterford Company. De Valera J held that the Port of Waterford Company had the power to sell and he dismissed the claim. The appeal is taken from that judgment and the order of the High Court made on 6 ^th December 2005.

6 While the appellant has naturally emphasised the effects on it and on its shareholders of the closure and sale of the wharves, I wish to make it clear from the outset that the appeal is not concerned with any private rights or interests. The appellant has engaged the Attorney General to represent the public interest. The notice of appeal specifies the reliefs sought. The principal grounds may be summarised as follows:

7 · A declaration that the proposed sale or alienation of the wharves is ultra vires;

8 · A declaration that the Port of Waterford Company holds the wharves as a public trustee pursuant to section 96 of the Harbours Act, 1996;

9 · A declaration that the Port of Waterford Company holds the wharves subject to a public right of way;

10 · A declaration that the wharves have become dedicated, by statute, by agreement, by charter or by necessity to public use, in particular the mooring of boats and landing of goods including fish by the public;

11 · A declaration that the Port of Waterford Company is estopped from using its statutory powers to close or to alienate the wharves, by reason of its closure of the closure of the South Quays and wharves in its port and harbour in the City of Waterford.

12 James O'Reilly, Senior Counsel, for the appellant emphasised that his clients were not claiming any private rights, by way of easements or otherwise but only public rights. He further agreed that the only actions of the Port of Waterford Company, of which complaint was made, were its proposals for the sale of the wharves. In reality, therefore, only the first two points mentioned in the notice of appeal have been argued.

13 In these circumstances, the appeal is concerned exclusively with the interpretation of the various legal texts governing the powers of the Port of Waterford Company, as these have been cited on behalf of the appellant.

14 The appellants' claim that the Port of Waterford Company does not have power to sell parts of the port is based, firstly, on a number of general propositions concerning the powers of sale of statutory bodies generally especially those established under private acts and, secondly, on some very specific provisions affecting the North Wharf in particular.

15 Counsel has placed in the forefront of his argument the provisions of a private act of the year 1878 which, it is claimed, has the effect that a "form of public user is stamped" on the North Wharf. It is better to note at once that Mr Bill Shipsey, Senior Counsel, for the Port of Waterford Company asserts that the relevant provision has been repealed. I will deal with this specific provision first.

16 The land on which the North Wharf was built was originally the property of the Waterford and Limerick Railway Company. The Waterford and Limerick Railway Act, 1878 ("the 1878 Act"), a private Act, authorised the Railway Company to construct an extension including a "quay, wharf or wall." It is common ground that those works included the North Wharf. The appellant relies on section 7(a) of the 1878 Act, which provided in respect of that area, whose dimensions are described in detail in the section, that it:

"...shall be used by the Company [i.e. the Railway Company] and the public jointly, and subject to the user of the Company shall be under the jurisdiction and control and management of the mayor, aldermen and burgesses of the borough of Waterford, in this section called the Corporation, free from toll to the Company, and in the same manner and to the same extent as the other public quays and streets in the said borough..."

17 The appellant draws attention, in connection with this provision to section 33 of the Harbours, Docks and Piers Clauses Act, 1847 which provided that, subject to its terms, any "harbour, dock and pier shall be open to all persons for the shipping and unshipping of goods......" However, section 191 of the Harbours Act, 1946 provided that the acts mentioned in the Fourth Schedule, including the Act of 1847, were to "cease to apply in relation to any harbour authority." I will return to his issue later.

18 The appellant has also referred to intermediate arrangements regarding the wharf. For example, section 35 of the Waterford Harbour Act, 1919 provided for the payment of up to £150 per annum by the Waterford Harbour Commissioners to Waterford Corporation for the maintenance of the "public quay part of the North Wharf." The Waterford Harbour Works Order, 1947, made under the Harbours Act, 1946, authorised the rebuilding of the North Wharf jointly by the Waterford Harbour Commissioners and Córas Iompair Eireann (CIE), which had by then taken over the railway interests. This is later called "the new wharf" and comprises part of the property covered by the 1878 Act. These later arrangements do no more than confirm the existence of the odd arrangement reached in 1878, whereby part of the harbour was owned by a railway company, but maintained either by the Harbour Commissioners or the Corporation or both.

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