Dublin County Council v Westlink Toll Bridge Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 20 January 1994
• Neutral Citation: 1994 WJSC-HC 611
• Docket Number: No. 992/1992,[1992 No. 992]
• Court: High Court
• Date: 20 January 1994

1994 WJSC-HC 611

THE HIGH COURT

No. 992/1992

DUBLIN CO COUNCIL v. WEST LINK TOLL BRIDGE LTD

BETWEEN

THE COUNTY COUNCIL OF THE COUNTY OF DUBLIN

PLAINTIFF

AND

WEST LINK TOLL BRIDGE LIMITED

DEFENDANT

Citations:

LOCAL GOVT (TOLL ROADS) ACT 1979 S9(1)

LOCAL GOVT (TOLL ROADS) ACT 1979 S9(2)

TELECOM EIREANN V COMMISSIONER OF VALUATION UNREP O'HANLON 5.10.92 1992/13/4254

LANCASHIRE TELEPHONE CO V OVERSEERS OF MANCHESTER 14 QBD 267

DUBLIN CORPORATION V DUBLIN PORT & DOCKS BOARD 1978 IR 266

GUARDIANS OF LONDONDERRY UNION V LONDONDERRY BRIDGE COMMISSIONERS IR 2 CL 577

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

LOCAL GOVT (TOLL ROADS) ACT 1979 S2

LOCAL GOVT (TOLL ROADS) ACT 1979 S9

POOR RELIEF (IRL) ACT 1838 S63

LONDONDERRY BRIDGE ACT 1859

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 deemed to the occupier of a rateable profit or use - Poor Relief (Ireland) Act, 1838, s. 63 - (1992/992 - Geoghegan J. - 20/1/94)1994 1 IR 77 1994 2 ILRM 204

|Dublin County Council v. West Link Toll Bridge Ltd.|

1 Judgment delivered the 20th day of January 1994 by Mr. Justice Geoghegan

2 This is an action to recover £348,559.20 rates allegedly due by the the Defendant to the Plaintiff. The rates claimed represent rates made and levied pursuant to the County rate struck on the 5th of February 1992 for the year 1992. The four alleged rateable hereditaments involved comprise for the most part tolls in respect of a toll road but one of them consists of offices stores and car-park in connection with the tolls.

3 Each of the claimed hereditaments arises out of the provisions of a toll road under the Local Government (Toll Roads) Act 1979. Subsections (1) and (2) of Section 9 of the 1979 Act read as follows:-

4 2 "(1) Where a toll scheme is approved of by the Minister, a road authority may, with 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), the person agrees to do all or one or more of the following:

5 a a. to pay some or all of the cost of the provision of the road,

6 b b. to pay some or all of the cost of the maintenance and improvement of the road,

7 c c. to provide or join or assist in the provision of the road for or with the authority,

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

9 e 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,

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

11 2. Without prejudice to the generality of subsection (1) of this section, an agreement under this section may -

12 a a. provide for the application of the proceeds of tolls, systems of accounting for tolls collected and the methods and times of payment of proceeds of tolls to the persons to whom they are paid under the terms of the agreement,

13 b b. provide for its duration and for its termination or suspension and for matters connected with or incidental or ancillary to or consequent upon the expiration of the agreement or such termination or suspension, and

14 c c. provide for the giving of such security as may be specified therein to the road authority concerned by the other party or parties to the agreement in relation to the carrying out an observance by the other party or parties aforesaid of the terms and conditions of the agreement."

15 The Plaintiff entered into a written agreement with the Defendant under Section 9 of the 1979 Act on the 16th of October 1987 and pursuant to a toll scheme made on the 10th of June 1985 and approved by the Minister on the 22nd of December 1986. The agreement contained elaborate provisions for establishing operating and maintaining a toll road including the dedication by the Defendant of the toll road to the public as a public road. The agreement in paragraphs 4.00, 4.01 and 4.02 provides as follows:-

16 2 "4.00. on the dedication referred to in the last preceding clause the following provisions shall take effect:

17 3 4.01. The toll company shall, for a period of thirty years, occupy the toll road and shall be required to manage, supervise and operate a system of tolls for traffic using the toll road.

18 4 4.02 The toll company shall apply the proceeds of its tolls in meeting firstly all of its financial obligations and commitments including but not limited to the following:-

19 a a. the payment of a share of gross toll revenue as set out in clause 4.03 hereof and

20 b b. the cost and charges of operating, managing and supervising the system of tolls and the cost of maintaining the toll road and

21 c c. the recovery of construction and associated costs (including the cost of the land) in accordance with clauses 3.03, 3.05, 3.06, 3.07, 3.09, 3.10 and 3.11."

22 In the light of certain defences made to the action it is important to note the use of the expression "its tolls" in paragraph 4.02. While it would be plainly wrong to determine the contractual relationship between the Plaintiff and the Defendant solely on the juxtaposition of the short word "its", I think nevertheless that the use of that word confirms an overall impression gained from a careful perusal of the agreement that in essence the agreement was not just some kind of agency or service agreement with the County Council but was intended as a thirty year profitable benefit to the Defendant albeit subject to obligations. It is unnecessary to put a name on this benefit. In my view in relation to the legal issues which arise in this case and to which I am about to refer, it is immaterial whether the thirty year benefit is in the nature of a lease, a licence or a franchise. It was at the very least a benefit conferring "paramount occupation" for the thirty years of the tolls and the ancillary buildings in the sense referred to by O'Hanlon J. in Telecom Eireann .v. Commissioner of Valuation unreported judgment delivered the 5th of October 1992 following in particular Lancashire Telephone Company .v. Overseers of Manchester 14 QBD 267.

23 I now turn to the actual grounds of defence. Essentially the action...