Dublin County Council v Westlink Toll Bridge Ltd

JurisdictionIreland
JudgeO'Flaherty J.
Judgment Date13 February 1996
Neutral Citation1996 WJSC-SC 944
CourtSupreme Court
Docket Number(55/94),[1994 No. 55]
Date13 February 1996
DUBLIN CO COUNCIL v. WESTLINK TOLL BRIDGE LTD

BETWEEN:

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN
Plaintiff/Respondent

AND

WESTLINK TOLL BRIDGE LIMITED
Defendant/Appellant

1996 WJSC-SC 944

(55/94)

THE SUPREME COURT

Synopsis:

RATES

Hereditaments

Rateability - Road - Tolls - Scheme - Agreement - Terms - Road authority granted right to charge tolls for 30 years - Whether tolls used for public purposes - Grantee derived directly private profit or use - Grantee deemed to be occupier of a rateable hereditament - Poor Relief (Ireland) Act 1838, s. 63 - (55/94 - Supreme Court - 13/2/96) - [1996] 1 IR 487 - [1996] 2 ILRM 232

|Dublin County Council v. Westlink Toll Bridge Ltd.|

Citations:

DUBLIN CO COUNCIL V WESTLINK TOLL BRIDGE LTD 1994 1 IR 77

POOR RELIEF (IRL) ACT 1838 S63

LOCAL GOVT (TOLL ROADS) ACT 1979

ROADS ACT 1993

LOCAL GOVT (TOLL ROADS) ACT 1979 S2(1)

LOCAL GOVT (TOLL ROADS) ACT 1979 S5

LOCAL GOVT (TOLL ROADS) ACT 1979 S2(3)

LOCAL GOVT (TOLL ROADS) ACT 1979 S3

LOCAL GOVT (TOLL ROADS) ACT 1979 S9

POOR RELIEF (IRL) ACT 1838 S124

DUBLIN CORPORATION V DUBLIN CEMETERIES COMMITTEE UNREP 12.11.75

WYLIE IRISH CONVEYANCING STATUES (1994) 90–91

WYLIE IRISH LAND LAW 2ED 331–332 PARA 6.030

LYALL LAND LAW IN IRELAND (1994) 684–685 PARA 6.030

CHALLIS LAW OF REAL PROPERTY 3ED (1911) 48

MEGARRY & WADE THE LAW OF REAL PROPERTY 5ED 816

GUARDIANS OF THE LONDONDERRY UNION V LONDON BRIDGE COMMISSIONERS 1868 IR 2 CL 577

LONDONDERRY BRIDGE ACT 1959

POOR RELIEF (IRL) ACT 1838 S68

1

Judgment delivered on the the 13th day of February, 1996 by O'Flaherty J. [nem diss]

2

This is an appeal brought by the defendant, Westlink Toll Bridge Company Limited, from the judgment and order of the High Court (Geoghegan J.) of the 20th January, 1994, reported at [1994] 1 IR 77, holding that the plaintiffs were entitled to recover the sum of £348,559.20 in respect of rates due for the year 1992. The four hereditaments involved were tolls in respect of a toll road as well as offices, stores and a car-park in connection with the tolls.

3

Prima facie these hereditaments are all rateable. Section 63 of the Poor Relief (Ireland) Act, 1838 expressly refers to tolls. That section insofar as relevant provides:-

4

The following hereditaments shall be rateable hereditaments under this Act; viz., all Lands, Buildings and Opened Mines; all Commons and Rights of Common, and all other Profits to be had, received, or taken out of any Land; all Rights of Fishery; all Canals, Navigations and Rights of Navigation; and Rights of Way and other Rights or Easements over Land, and the Tolls levied in respect of such Rights and Easements, and all other Tolls: Provided also, that no ....... Building, Land or Hereditament, dedicated to or used for Public Purposes, shall be rateable, except where any private Profit or Use shall be directly derived therefrom, in which Case the Person deriving such Profit or Use shall be liable to be rated as an Occupier according to the annual Value of such Profit or Use.

5

However, if a hereditament is dedicated to or used for public purposes it is not to be rateable unless a private profit or use is directly derived therefrom.

6

The defendants advanced two grounds of defence in the High Court, viz.

7

(1) That the defendant is not in occupation of a rateable hereditament. The defendant is not in beneficial occupation of a rateable hereditament in that the defendant is nothing but an agent for the plaintiff who is the real occupier of the hereditament — if there is one. This submission when toned down somewhat can be converted, the judge said, into an argument that even if there is some kind of "occupation" by the defendant it is not sufficiently exclusive or at least "paramount" to make it rateable.

8

(2) That if, contrary to that submission, the defendant is in occupation of a rateable hereditament as alleged, then it is entitled to exemption under the proviso attached to s. 63 of the Poor Relief (Ireland) Act, 1838.

9

We are concerned exclusively with the rateability of the tolls. The rateability of the buildings and other structures (other than the structure at which the tolls are collected) is not in issue. The defendant comes to be involved in these hereditaments as a result of the enactment of the Local Government (Toll Roads) Act, 1979. 1

10

The Act, in its long title, provides that it is:-

11

An Act to provide for the charging of tolls in respect of the use of public roads, to enable road authorities, with the consent of the Minister for the Environment, both to make schemes for the establishment of systems of such tolls and to enter into agreements under which persons do one or more of the following, that is to say, provide, maintain,

improve, manage and operate roads the subject of such tolls for, with or on behalf of those authorities upon such terms and conditions as may be specified in the agreements (including the payment to, or retention by, them of all or part of the proceeds of the tolls) and to provide for matters connected with the matters aforesaid
12

Section 2(1) of the Act provides that a road authority may charge and collect tolls of such amounts as may be specified for the time being in bye-laws made by it under s. 5. Sub-section (3) of s.2 provides:-

13

Where an agreement under section 9 of this Act provides for the collection of tolls by a person specified in the agreement, that person and his servants and agents may collect the tolls to which the agreement relates.

14

Section 3 provides that a road authority may make a toll scheme for the establishment of a system of tolls in respect of the use of a public road.

15

Broadly speaking, such a toll scheme will give consideration to who is to be exempted from the tolls; will specify the public road in which a system of tolls will be established; will indicate the class of vehicles and road users as well as the charges that will be specified for the respective classes. An explanatory statement must accompany the scheme and is to contain information in relation to the general arrangements for the construction, maintenance, improvements, management and operation of the toll road to which the scheme relates and for the payment of the cost of such construction etc. Also, it deals with estimates of the capital cost and of the operating costs of the road, and estimates of the volume and kind of traffic that will use the road, and the amounts of the tolls in respect of such traffic.

16

Section 9 provides that where a toll scheme is approved by the Minister for the Environment a road authority may, with the consent of the Minister, enter into an agreement with another person under which, upon such terms and conditions as may be specified in the agreement (including the payment to, or retention by, the person of all or part of the proceeds of tolls in respect of the toll road the subject of the scheme), and whereby the person agrees to do all or one or more of the following:-

17

(a) to pay some or all of the cost of the provision of the road,

18

(b) to pay some or all of the cost of the maintenance and improvement of the road,

19

(c) to provide or join or assist in the provision of the road for or with the authority,

20

(d) to maintain and improve or join or assist in the maintenance and improvement of the road for or with the authority,

21

(e) to operate and manage (including provide, supervise and operate a system of tolls in respect of the use of the road) the road for or with the authority,

22

(f) such other things connected with or incidental or ancillary to s. 9 or consequential upon the foregoing as may be specified in the agreement.

23

The relevant toll scheme was made by the plaintiff on the 10th June, 1985 and was approved by the Minister on 22nd December, 1988. It provided for the construction of a four lane divided carriageway extending from the N4 Galway Road to the N3 Navan Road in Dublin. It included the provision of a high-level bridge over the Liffey, a toll plaza and bridges across to Luttrelstown Road, Carpenterstown Road and Castleknock Road. The scheme specified that the road should be a public road in the ownership of the plaintiff and provided also that the plaintiff would apply to the Minister for the Environment for his consent to enter into an agreement with National Toll...

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