Cork County Council and Burke v Commissioners of Public Works and Others

JurisdictionIreland
CourtSupreme Court
Judgment Date02 March 1945
Date02 March 1945

Supreme Court.

Cork County Council and Burke v. Commissioners of Public Works and Others.
CORK COUNTY COUNCIL AND RICHARD BURKE
and
THE COMMISSIONERS OF PUBLIC WORKS IN ÉIRE éire, THE MINISTER FOR FINANCE AND THE ATTORNEY-GENERAL (1)

Rates - Small dwellings - Formerly the property of the Crown - Crown property transferred to State - Prerogative - Crown not liable for rates - Crown not bound by statute unless by express words or necessary implication - Meaning of "necessary implication" - Whether State entitled to similar rights - Claim for rates by local authority - Constitution of the Irish Free State, Arts. 12, 51, 73 and 80 - Constitution of 1937, Arts. 6, 10, clauses 1 and 2Art. 49 - Increase of Rent and Mortgage Interest (Restrictions) Act, 1923,s. 4, sub-s. 1 (e), s. 16 - Local Government (Rates on Small Dwellings) Act, 1928, s. 4, sub-ss. 1 and 6.

Case Stated by Overend J., Sitting as Judge of the High Court on Circuit, on the hearing of an appeal from the Judge of the Circuit Court for the County and City of Cork.

The plaintiff, Richard Burke, as lawfully appointed rate collecter under warrant to the Cork County Council in respect of property situate at Haulbowline Island, and the Cork County Council as co-plaintiffs, brought a Civil Bill claiming £199 12s. 9d., being rates and arrears of rates due out of the said property. The Commissioners of Public

Works were sued as rated occupiers or as "owners"within the meaning of the Local Government (Rates on Small Dwellings) Act, 1928 (1) and also as landlords within the meaning of s. 16 of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (2), in respect of any of the premises to which s. 16 applied. The Minister for Finance was sued in his official capacity and also as the person receiving, or entitled to receive, the rents out of the premises. The Minister was also sued as the person and Corporation in whom are vested the powers and duties conferred by s. 1, sub-s. (ii) of the Ministers and Secretaries Act, 1924 (No. 16 of 1924).

Both the Commissioners of Public Works and the Minister, in their defences, pleaded (inter alia) that the property at Haulbowline was dedicated to, and used for, public purposes and was exempt from rates under the Poor Relief (Ir.) Act, 1838 (1 & 2 Vict. c. 56), s. 63. The Minister further pleaded that the property in question was State property and that the statutes relating to rating did not apply to it.

The Circuit Court Judge gave judgment in favour of the defendants. From this judgment the plaintiffs appealed to the High Court on Circuit.

The appeal originally came for hearing before Meredith J., who stated a Case for the determination of the Supreme Court. Pending the determination by the Supreme Court of the questions contained in the Case Stated, Meredith J. died, and the Supreme Court struck the Case Stated out of the list without further order.

The Civil Bill was remitted to the High Court on Circuit at Cork, and the appeal from the decree was re-entered for hearing.

On the rehearing of the appeal by Overend J., the following Case was stated by him for the opinion of the Supreme Court.

It was as follows:—

"(1) The island of Haulbowline is situated in Cork Harbour in the County of Cork and was formerly vested in the Crown and occupied by the Lords Commissioners of the Admiralty, who used it as a Royal Dockyard. In 1923, possession was formally handed over to the Commissioners of Public Works as agents for the Government of Saorstat Éireann éireann. By virtue of the Constitution, the island was, and is now, held for the use and benefit of the people.

(2) For some years after the island was taken over by the Commissioners of Public Works they continued to use the island or part of it as a dockyard, but in March, 1929, its use as a dockyard was discontinued. The dwelling-houses on the island were formerly used as workmen's dwellings in connection with the dockyard, and, after March, 1929, some persons formerly employed in the dockyard or otherwise in the service of the State were allowed to continue in occupation of some of the houses under Caretaker's Agreements pending a decision as to how the dockyard premises would be used or dealt with.

(3) The plaintiff, Richard Burke, is the Rate Collector for the district in which it is situated, and the plaintiff's claim is on foot of rates on certain of these houses for the year 1939-40 and arrears of earlier years, going back in some cases as far as the year 1935. The defendant Commissioners are a statutory body, one of whose functions is the management and control of property held for the use and benefit of the people, and at all times relevant to this action the management of the said island was committed to the defendants as agents for the Government.

(4) During the period covered by the plaintiffs' claim, some of the houses were occupied for part of the time by former employees under Caretakers' Agreements; others were, and still are, occupied by employees of the defendant Commissioners who also signed Caretakers' Agreements, but who were permitted to occupy same as one of the terms of their employment, and other houses were, and still are, occupied under Tenancy Agreements entered into with the defendant, the Minister for Finance.

(5) The four houses specified hereunder are typical of the manner in which the houses are held or occupied:"

  1. (1) House No. 17. Rate No. 121. P.L.V. £4 0s. 0d., amount claimed, £9 17s. 4d. This house is occupied by Joseph Coveney, who was at one time employed in the dockyard, but was not so employed at any time relevant to this action. He formerly occupied the premises under a Caretaker's Agreement, dated the 14/4/33, but he has been a tenant thereof since 1/8/38, under a Tenancy Agreement, dated 14/7/38 at a weekly rent of five shillings and eight pence.

  2. (2) House No. 20. Rate No. 124. P.L.V. £4 0s. 0d., amount claimed, £3 17s. 3d. This house is occupied by Maurice McCarthy, an employee of the Board as one of the terms of his employment. He signed a Caretaker's Agreement on 6/4/33, and he is one of several in the regular employment of the Commissioners who occupy houses on the island as a term of their employment, and all of whom were requested to sign Caretakers' Agreements. If this house had been let under a Tenancy Agreement, the rent payable would have exceeded the valuation and would have been received by the defendant Commissioners.

  3. (3) House No. 34. Rate No. 130. P.L.V., £3 10s. 0d., amount claimed, £2 5s. 5d. (one year's rates, 1939/40). The house was vacant when the rate was struck, but prior thereto had been occupied by Vincent Harmon under Tenancy Agreement, dated 30/5/38, at a weekly rent of six shillings and four pence.

  4. (4) House No. 53. Rate No. 6285. P.L.V., £8 10s. 0d., amount claimed, £5 10s. 5d. (one year's rates 1939/40). This dwelling-house was empty and unoccupied from 4/12/38, but prior to that had been occupied by Mrs. Hester Mason as a dwelling-house under a contract of tenancy with the Minister for Finance at a rent of seven shillings and nine pence per week.

[Copies of the relevant Caretakers' Agreements and Tenancy Agreements were annexed to and formed part of the Case.]

"(6) Demand Notes for the rates claimed in respect of the houses were served each year on the defendant Commissioners, who collected the rents on behalf of the Minister for Finance. The defendant Commissioners by themselves never entered into any contracts of tenancy, but in former years they paid rates on some of the houses without objection, and on the 25th August, 1939, they tendered to the plaintiffs in respect of the amount claimed in this action a draft for a sum of £36 9s. 3d., as indicated in the correspondence. This draft was returned to the said Commissioners by the plaintiffs' solicitor as being insufficient.

(7) [The documents which were incorporated with, and formed part of, the Case Stated were set out.]"

"(8) The above facts were proved or admitted, and on these facts the parties requested me to refer the following questions of law arising on the above facts to the Supreme Court by way of Case Stated for the determination of the Supreme Court, viz.:—

"I. Is the defendant, the Minister for Finance, or are the defendants, the Commissioners of Public Works in Éire éire, entitled to enjoy the like immunity from liability for rates as was formerly claimed and enjoyed by the Crown prior to the Constitution of the Irish Free State?

II. Do the provisions of section 4, sub-section 1, of the Local Government (Rates on Small Dwellings) Act 1928, apply to such of the dwelling-houses specified in paragraph 4 of this Case as do not exceed £6 valuation, and is the Minister, or any Department of State (including the defendants), the owner thereof within the meaning of the said sub-section?

III. Do the provisions of section 16 of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, or of any of the Acts amending the said section, apply to such of the said dwelling-houses as are empty and unoccupied, and is the Minister, or any Department of State, the landlord thereof for the purposes of the said section or any section amending the same?"

The Case Stated was dated the 14th July, 1943.

Prior to 1921, the Crown were the owners of certain small houses on Haulbowline Island in Cork Harbour which were used as workmen's dwellings in connection with the Royal Dockyard there. As Crown property these houses wore exempt from rates. Under the terms of the Treaty of 1921, these houses were transferred from the Crown to the Irish Free State, and in 1923, possession was handed over to the Commissioners of Public Works, as agents for the State. The Cork County Council claimed rates on these houses, and their claim not having been paid, they sued in the Circuit Court the said Commissioners us rated owners, or as "owners" under the Local Government (Rates on Small Dwellings) Act...

To continue reading

Request your trial
11 cases
  • Howard v Commissioners of Public Works
    • Ireland
    • Supreme Court
    • 1 January 1994
    ...Dublin Development Association v. Attorney GeneralDLTR (1969) 109 I.L.T.R. 69. Cork County Council v. Commissioners of Public WorksIR [1945] I.R. 561. Cox v. HakesELRUNKUNK (1890) 15 App. Cas. 506; 54 J.P. 820; 6 T.L.R. 465; sub. nom.Bell-Cox v. HakesUNKUNK 60 L.J.Q.B. 89; 63 L.T. 392; 39 W......
  • Geoghegan v Institute of Chartered Accountants
    • Ireland
    • Supreme Court
    • 16 November 1995
    ...[1938] I.R. 477. Le Compte v. BelgiumHRC (1981) 4 E.H.R.R. 1. Cork County Council v. The Commissioners of Public Works in IrelandIR[1945] I.R. 561. Foster v. British Gas plc (Case C-188/89)UNKUNK [1990] I E.C.R. 3313; [1990] 2 C.M.L.R. 833; [1990] 2 All E.R. 897. Glover v. B.L.N. Ltd.IR [19......
  • Health Service Executive (HSE) v Commissioners for Valuation
    • Ireland
    • High Court
    • 13 June 2008
    ...IR 241 COMMISSIONERS OF PUBLIC WORKS v KAVANAGH 1962 IR 216 LANDLORD & TENANT ACT 1931 CORK CO COUNCIL & BOURKE v OFFICE OF PUBLIC WORKS 1945 IR 561 HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED 1998 113 HEALTH ACT 1970 HEALTH ACT 2004 SCHED 3 HEALTH ACT 2004 S6(1) HEALTH ACT 2004 S6(2)......
  • Howard v Commissioner Public Works
    • Ireland
    • Supreme Court
    • 26 May 1993
    ...ACT 1963 S4(1)(i) LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S24(2) CORK CO COUNCIL & BOURKE V COMMISSIONERS OF PUBLIC WORKS & ORS 1945 IR 561 US V HOAR MASON 311 LORD ADVOCATE V DUMBARTON DC 1990 2 AC 580 BBC V JOHNS 1965 CH 32 WEST BENGAL V CORPORATION OF CALCUTTA SC INDIA 1967 CONSTITU......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT