Ballybay Meat Exports Ltd v Monaghan County Council

JurisdictionIreland
JudgeMr. Justice Gannon
Judgment Date15 January 1990
Neutral Citation1990 WJSC-HC 78
Date15 January 1990
CourtHigh Court
Docket NumberNo. 343/1988

1990 WJSC-HC 78

THE HIGH COURT

JUDICIAL REVIEW

No. 343/1988
BALLYBAY MEATS EXPORTS LTD v. MONAGHAN CO COUNCIL

BETWEEN

BALLYBAY MEAT EXPORTS LIMITED
APPLICANT

AND

MONAGHAN COUNTY COUNCIL
RESPONDENT

Citations:

LOCAL GOVT (WATER POLLUTION) ACT 1977 S16

PUBLIC HEALTH (IRL) ACT 1878 S23

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

LOCAL GOVT (WATER POLLUTION) ACT 1977 S1

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

PUBLIC HEALTH (IRL) ACT 1878 S65A

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

LOCAL GOVERNMENT ACTS 1925–1983

LOCAL GOVT (SANITARY SERVICES) ACTS 1878–1964

RIVER POLLUTION PREVENTION ACTS 1876–1893

FISHERIES (CONSOLIDATION) ACT 1959

LOCAL GOVT (WATER POLLUTION) ACT 1977 S1(1)

LOCAL GOVT (FINANCIAL PROVISIONS) ACT 1978 S9

LOCAL GOVT (WATER POLLUTION) ACT 1977 S4(1)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S4(2)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S4(10)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S4(12)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S3(1)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S3(5)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S4(1)(a)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S4(1)(b)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S26

LOCAL GOVT (WATER POLLUTION) ACT 1977 S26(2)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S16(1)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S16(a)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S16(2)(b)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S16(3)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S16(4)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S16(4)(b)

LOCAL GOVT (WATER POLLUTION) ACT 1977 S4

LOCAL GOVT (WATER POLLUTION) ACT 1977 S16

LOCAL GOVT (SANITARY SERVICES) ACT 1962 S7

LOCAL GOVT (WATER POLLUTION) ACT 1977 S17

LOCAL GOVT (IRL) ACT 1898

LOCAL GOVT (IRL) ACT 1941

LOCAL GOVT (IRL) ACT 1946

LOCAL GOVT (RATES) ACT 1970

LOCAL GOVT (FINANCIAL PROVISIONS)(NO.2) ACT 1983 SS 1–9

Synopsis:

LOCAL GOVERNMENT

Sanitary services

Sanitary authority - Charges - Validity - Sewer - Trade effluent - Discharge to sewer - Licence of authority required - Licence granted - Permission later granted to connect applicant's drains to sewer - Payment of capital and annual sums demanded - Statutory basis of demand - Distinction between local authority and sanitary authority - Sums demanded not payable - Public Health (Ireland) Act, 1878, s. 23 - Local Government (Water Pollution) Act, 1977, ss. 16, 17 - Local Government (Financial Provisions) Act, 1983, s. 2 - (1988/343 JR - Gannon J. - 15/1/90) - [1990] ILRM 864

|Ballybay Meat Exports v. Monaghan County Council|

STATUTORY INTERPRETATION

Local authority

Powers - Services - Payment - Imposition of charges for provision of services - Power given to local authority - Power not exercisable by sanitary authority - (1988/343 JR - Gannon J. - 15/1/90) - [1990] ILRM 864

|Ballybay Meat Exporters v. Monaghan County Council|

WORDS AND PHRASES

"Local authority"

Sanitary authority - Distinction - Powers - Services - Payment - Imposition of charges for provision of services - Power given to local authority - Power not exercisable by sanitary authority - (1988/343 JR - Gannon J. - 15/1/90) - [1990] ILRM 864

|Ballybay Meat Exporters v. Monaghan County Council|

1

Judgment of Mr. Justice Gannon delivered the 15th day of January 1990

2

The Applicant Company engages in the business of butchering processing, packaging and freezing of pre-slaughtered animal carcasses, employing 106 people at locations at Corbrack, Ballybay in the County of Monaghan. The Applicant is thus identified in the affidavit sworn on the 19th of November 1988 by Peter Judge who is the projects manager and accountant of the Company. His affidavit grounds an application of the Applicant Company for Judicial Review by way of Certiorari to quash a decision of the Respondent County Council notified to the Company by letter dated the 3rd of May 1988. That was a decision made upon an application dated the 10th of March 1988 by the Applicant Company for a licence pursuant to Section 16 of the Local Government (Water Pollution) Act 1977to discharge trade effluent into the Respondent's sewer. The Order giving leave to apply for Judicial Review by way of Certiorari and for declaratory reliefs was made by Mr. Justice Barron on the 24th of November 1988. The reliefs sought on that Order include

3

a "(a) A declaration that the following charges to be paid in advance namely:

4

(i) a capital contribution of £42,014 (once off) plus

5

(ii) an annual running charge of £3,600 or

6

(iii) an annual running charge of £12,394.00 (subject to annual review) which were purportedly imposed by the Respondent in the letter dated the 3rd of May 1988 are ultra vires the Respondent and null and void.

7

(b) A declaration that the Applicant is entitled to connect with and cause drains to empty into the Respondent's sewers without the imposition of any financial pre-condition or other term or condition in accordance with Section 23 of the 1878 Act the planning permission and the licence to discharge to sewers.

8

(c) An Order of Certiorari quashing the decision of the Respondent which levied the said charges by letter dated the 3rd day of May 1988.

9

(d) An Order of Mandamus directing the Respondent to allow the Applicant to connect into and cause his drains to empty into the said sewers without any financial pre-condition or charge payable in advance or otherwise and in particular without payment of the said charges sought to be levied by the Respondent's letter of the 3rd day of May 1988."

10

Other reliefs in the nature of injunctions were also sought. The grounds which were relied upon at this hearing are set out in that Order of the 24th of November 1988 as follows:

11

"(2) that the Applicant do have leave to apply for the aforesaid reliefs by way of application for Judicial Review on the following grounds:

12

(i) by a grant of planning permission dated the 16th of August 1987 the Applicant became entitled to erect a meat processing plant and related site works at Corkeeran Ballybay in the County of Monaghan subject to the conditions therein and in particular subject to full compliance with the terms and conditions expressed in a licence to discharge trade effluent into the adjacent sewers of the Respondent at Corkeeran granted to the Applicant on the 16th of August 1987 pursuant to the provisions of Section 16 of the Local Government (Water Pollution) Act 1977

13

(ii) in addition to the above the Applicant is entitled pursuant to the provisions of Section 23 of the Public Health (Ireland) Act 1878 to connect with or cause its drains to empty into the existing sewers of the Respondent the Applicant has notified the Respondent of its intention to do so and has complied with the Respondent's regulations in the said planning permission sewer discharge licence and the conditions specified by the Respondent numbered 1, 2, 3, and 4 in their letter dated the 3rd day of May 1988 all in connection with the mode in which the communications between the Applicant's drains and the Respondent's sewers are to be made pursuant to the Applicant's request for a sewer connection dated the 10th day of March 1988

14

(iii) the purported imposition by the Respondent of further conditions in its said letter of the 3rd day of May 1988 requiring the payment in advance of: (i) a capital contribution of £42,014.00 (once off) plus (ii) an annual running charge of £3,600.00 or (iii) an annual charge of £12,394.00 (subject to annual review) which were subsequently stated to be levied under the Local Government (Financial Provisions) (No. 2) Act 1983in respect of the cost to the Council of providing plant to treat and dispose of the Applicant's licensed trade effluent is ultra vires the Respondent and null and void in that:-

15

(a) the said Act of 1983 has no application to the facts

16

(b) the charges sought to be levied are properly the subject matter of a condition attached to and specified in the licence to discharge trade effluent into the Respondent's sewer and are not the proper subject matter of a letter dated the 3rd day of May 1988

17

(c) the said charge was sought to be imposed some five months after the date chosen by the Respondent for the coming into force of the conditions attached to the said licence and some nine months after the date of granting of planning permission and consequently outside the time for any appeal under those provisions

18

(d) the said charges are unappealable and not subject to negotiation or arbitration

19

(e) the said charges are not properly levied.

20

(iv) without prejudice to the foregoing the said charges are unauthorised unfair and excessive restriction on the Applicant's exercise of it's right pursuant to Section 23 of the Public Health (Ireland) Act 1878 in that:

21

(a) the said charges have no relation to the terms and conditions authorised by the said Section 23

22

(b) the said charges are excessive and out of all proportion to the actual volume of discharge of trade effluent from the Applicant's premises

23

(c) the Respondent has at all times failed neglected and refused to give the Applicant particulars of precisely what the said charges are sought to be levied in respect of and how the same are calculated in relation to the Applicant

24

(v) by reason of the Respondent's insistence on the Applicant's payment in advance of the said charges prior to the Applicant being permitted to connect or cause it's drains to be emptied into the existing adjacent sewer of the Respondent the Applicant is unable to bring the said plant into operation or to commission the equipment thereof and is in grave and Immediate danger of sustaining severe contractual and economic loss thereby."

25

The events leading to the decision notified in the letter of the 3rd of May 1988 are set out in paragraphs 3 to 12 inclusive of the affidavit of Peter Judge. The contents of these paragraphs may be summarised as...

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