Brennan v Attorney General

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.
• Judgment Date: 20 January 1984
• Neutral Citation: 1984 WJSC-SC 75
• Court: Supreme Court
• Date: 20 January 1984

1984 WJSC-SC 75

THE SUPREME COURT

O'Higgins C.J.

Finlay P.

Walsh J.

Henchy J.

Griffin J.

(255-1982)

BRENNAN v. ATTORNEY GENERAL & WEXFORD CO COUNCIL

BRENNAN AND OTHERS

Plaintiffs/Respondents

and

THE ATTORNEY GENERAL

Defendant/Appellant

THE COUNTY COUNCIL OF THE COUNTY OF WEXFORD

Subject Headings:

CONSTITUTION: statute

RATES: heriditament

1 JUDGMENT OF THE COURT delivered the 20th day of January1984by O'HIGGINS C.J.

2 The Plaintiffs are farmers, each of whom owns and depends for his livelihood on a holding or farm of land situate in the County of Wexford. They are members of the Wexford Branch of the Irish Farmers' Association and of a committee thereof known as the "PLV Action Committee". This committee has been concerned with the manner in which agricultural land in Wexford is valued for rating purposes. The main purpose and object of the action was to have certain sections of the Valuation Actsas defined by the Interpretation Acts 1923and 1937, in so far as these provide for the valuation for rating purposes of agricultural land, declared unconstitutional. Consequential declarations were sought in relation to other statutes which depend upon the rateable valuations of agricultural land for the purpose of assessing tax or other liability or of determining grant or other entitlement.

3 In his full and careful judgment Mr. Justice Barrington dealt with the historical background to the Valuation Acts and with their purpose. While it will involve some repetition, it is necessary to refer to this historical background in order to understand how it is that a system of local taxation, devised in the last century, has survived so many administrative and other changes and continues in operation, virtually unchanged, to the present day.

4 For the purpose of this judgment the Valuation Acts may be taken to be so much as now remains unrepealed of the Valuation (Ireland) Act. 1852 (hereinafter referredto as the 1852 Act and of five Amending Acts passed in 1854, 1860, 1864, 1874 and 1901. Prior to the 1852 Act there were in operation in Ireland in relation to agricultural land, two systems of local taxation or rating. The first of these was the grand jury or county cess. This was a charge imposed by a grand jury on a particular townland, generally for the purpose of defraying the expenses of public works, and which was collected proportionately from the inhabitants therein according to a warrant issued by the appropriate officer. For the purpose of assessing individual liability to county cess, land was valued according to a scale of agricultural prices. In addition to that cess there was the poor rate, which had been introduced by the Poor Relief (Ireland) Act 1838. This was a poundage rate made upon an estimate of the net value of each rateable hereditament, based upon its annual letting value. The purpose of the 1852 Act was to provide, in the words of the preamble, "one uniform valuation of lands and tenements in Ireland, which may be used forall public and local assessments and other ratings." To this end, by section 11 of the Act, it was provided that in relation to land a valuation of each tenement or rateable hereditament would be made upon an estimate of the net annual value thereof, with reference to a scale of average prices of specified items of agricultural produce. This section also provided for the valuation of houses and buildings upon an estimate of the net annual letting value thereof, but, as this case is concerned only with land, this provision need not be furtherconsidered.

5 Both cess and poor rate continued to be levied and collected after the passing of the 1852 Act. However, by section 32 of that Act each tenement or hereditament was to be rated for poor rate according to the valuation thereof determined in accordance with the 1852 Act. Similarly, with regard to cess by section 33 of the 1852 Act this was to be levied, in each townland, on tenements and hereditaments according to the same valuation. The result was that upon thepassing of the 1852 Act, both systems of rating continued in operation and each was based on the same valuation of tenements and hereditaments which, in turn, was determined in accordance with the provisions of the 1852 Act. These two systems of local taxation continued in operation until the passing of the Local Government (Ireland) Act 1898 which introduced sweeping changes in local government. Under this Act the administrative and financial functions of the former grand juries were transferred to newly constituted county councils and the former cess was merged in the poor rate. Upon the passing of this Act all sums required to be raised by means of local taxation for the requirements of any of the local authorities established under its provisions were to be raised by means of this poor rate.

6 It is unnecessary to consider the many changes which have since been made in the machinery of local government. It is sufficient to say that the term "poor rate" continued to be applied to the methodofraising local taxation until the Local Government Act 1946. Under this Act a "county rate" was established for county councils and a "municipal rate" was established for urban authorities. Section 11 of this Act, however, expressly obliges county councils to raise money for the purposes of the section "by means of the poor rate". This section is in the following terms:

7 2 "11(1) The council of a county shall obtain the moneys necessary to supply any deficiency (whether actual or prospective) in the county fund as follows:

8 (a) Where the deficiency arises from expenses charged wholly on an area which is not an urban area, the council shall raise the amount of the expenses equally over that area by means of the poor rate,

9 (b) Where the deficiency arises from expenses charged wholly on an urban area, the council shall demand the amount of the expenses from the urban authority of the urban area, in the prescribed form andmanner,

10 (c) Where the deficiency arises from expenses charged as to part on an area which is not an urban area and as to the remainder on an urban area or two or more urban areas, the council shall raise so much of the expenses as is charged on thearea, which is not an urban area, equally over that area by means of the poor rate and, -

11 (i) where the remainder of the expenses is charged on one urban area, shall demand the amount of such remainder from the urban authority of the urban area in the prescribed form and manner, and

12 (ii) where the remainder of the expenses is charged on two or more urban areas, shall demand the portion of such remainder charged on each urban area from the urban authority of such urban area in the prescribed form and manner.

13 (2) An urban authority shall pay to the council of the county in which their urban area is situated a sum demanded by the council under this section."

14 The phrase "by means of the poor rate" which occurs in this section is not defined. It is, however, a well-known phrase in local government law. It is referred to in the following terms by Street in his work " The Law relating to Local Government", 1955 edition, at page 324:

"The Phrase "by means of the poor rate" is, and has always been, accurate wherever expenses are levied at a uniform poundage rate over all hereditaments within the poor law area (See sections 63, 64 and I and II Vict., ch.56)".

15 Section 12 of the Local Government Act 1946furtherprovides as follows:

16 2 "12(1) The poor rate raised pursuant to section 11 of this Act by the council of a county shall be known as the county rate.

17 (2) Subsection (1) of this section shall be construed as effecting a change of name only and shall not prejudice the existence of the poor rate nor the effect of any reference to it in any statutory or other enactment, but, for the purpose of conforming to such change of name, for every reference to the poor rate in any resolution, notice, rate book or other document passed or used by the council of a county in the making, levying, collecting or recovery of rates, there shall be substituted, in the case of the county rate, a reference to the rate, and every form used for the purpose of the making, levying, collecting or recovery of poor rate, shall, in its application in respect of the county rate, be amended accordingly."

18 The effect of these sections of the Local Government Act 1946is to substitute for the term "poor rate" the term "county rate" and to oblige county councils when raising moneys by rates to do so "by means of the poor rate". While this must be by means of a poundage rate levied over the area of charge,eachtenement or hereditament must be rated, in accordance with section 32 of the 1852 Act, according to the value thereof determined in accordance with that Act. Similar provisions are contained in the Local Government Act of 1946in relation to municipal rates. In this manner both these rates, now termed, respectively, "county rate" and "municipal rate", depend for their efficacy on the valuations of tenements and hereditaments determined in accordance with section 11 of the 1852 Act. In so far as land is concerned this association or linking of the county rate with valuations determined under section 11 of the 1852 Act is decreed by section 11 of the Local Government Act 1946.

19 It follows that in so far as the constitutional challenge raised in these proceedings relates to the use of such valuation for the purpose of assessing county rates, it must be regarded as including a challenge to the validity of this section of a post-constitutional Statute. It is for this reason that in the course of the hearing of this appeal the Court by consent allowedan amendment of the Plaintiffs' Statement of Claim to include a claim that section 11 of the Local Government Act 1946in so far as it provides for the raising of money by means of the poor rate on land,...