Dublin Port Companies Ltd v B.J. Marine Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kinlen |
| Judgment Date | 20 March 2002 |
| Neutral Citation | [2002] IEHC 19 |
| Court | High Court |
| Date | 20 March 2002 |
[2002] IEHC 19
THE HIGH COURT
BETWEEN
AND
Citations:
HARBOURS ACT 1996
DUBLIN PORT & DOCKS ACT 1902
HARBOURS ACT 1946
HARBOURS ACT 1946 S55
HALSBURYS LAWS OF ENGLAND 4ED V9 PARA 1333
HOWARD V CMRS OF PUBLIC WORKS 1994 1 IR 101
KEANE V BORD PLEANALA 1997 1 IR 184
HARBOURS ACT 1946 S157
MIN FOR EDUCATION V REGIONAL TECHNICAL COLLEGE LETTERKENNY 1995 ILRM 438
FORAS AISEANNA SAOTHAIR V ABBOTT UNREP SUPREME 23.5.1995 1995/8/2336
LANDLORD & TENANT (AMDT) ACT 1980 S3
IRISH SHELL V JOHN COSTELLO LTD 1981 ILRM 66
NATIONAL MATERNITY HOSPITAL V MCGOURAN 1994 1 ILRM 521
KENNY HOMES & CO LTD V LEONARD UNREP COSTELLO 11.12.1997 1998/23/8779
LANDLORD & TENANT (AMDT) ACT 1980 S35
CEMENT LTD V COMMISSIONER OF VALUATION 1960 IR 283
MASON V LEAVY 1952 IR 40
WYLIE LANDLORD AND TENANT LAW 2ED 1998 PARA 30.06
RENT RESTRICTIONS ACT 1946
LANDLORD & TENANT (AMDT) ACT 1980 PART II
HARBOURS ACT 1946 S65
HARBOURS ACT 1946 S157(2)
Synopsis:
LAND LAW
Lease
Ejectment Civil Bill for Overholding - Licence - Appropriation of property - Ultra vires - Landlord and Tenant Amendment Act, 1980 - Harbours Acts, 1946 & 1996 - Whether an appropriation of property by the plaintiff to the defendant constitutes a lease or a licence to the premises (2000/116CA; 117CA & 118CA - Kinlen J - 20/3/2002)
Dublin Port Companies Ltd v B.J. Marine Ltd
The plaintiff is a successor in title to the Dublin Port and Docks Board (the Board) by virtue of the Harbours Act, 1996. At the relevant time the quays were owned by the Board and by written agreements the Board made appropriations of two sheds to the defendant, pursuant to Section 55 of the Harbours Act, 1946 initially for terms of three years and two years eight months respectively. They were subsequently renewed for a further period of five years and were then renewed on an annual basis until they were terminated in May, 1996 as a result of a letter dated, 5th July, 1995. The defendant paid charges for these appropriations. The matters in the present case arose on foot of two Ejectment Civil Bills for over holding, a Notice of Intention to Claim relief under the Landlord and Tenant Amendment Act, 1980 and a Notice of Application and Orders of the Circuit Court.
The Board is expressly empowered to grant leases by virtue of Section 157 of the Harbours Act, 1946. This section provides that the Board may make leases not exceeding two hundred years but shall not make a lease in excess of ten years without the consent of the Minister for the Marine and any such lease shall include the two provisions set out in the Act. These provisions are not contained in the agreements between the parties in this case. The plaintiff submitted that any lease of property not containing the aforesaid provisions is ultra vires and accordinly the plaintiff argued that the disposal of property by way of appropriation to the defendant could not constitute a lease. The plaintiff contended that the appropriation amounted to no more than a license to the premises and that it was not a tenement if it was not held under a contract of tenancy. The defendant on the other hand argued that there is nothing in Section 55 which states or from which it can be inferred that the appropriation must be a tenancy or must be a licence. The defendant made the primary submission that the use of the phrase "exclusive use" in Section 55 is more compatible with a tenancy than a licence and accordingly submitted that it had tenancies by way of appropriation and sought to claim the right to a new tenancy. In the alternative the defendant argued that it had leases under Section 157 and that the conditions contained in Section 157(2) were present by virtue of a clear statutory requirement even though they were not expressly included in the documentation.
Held by Kinlen J. in amending the Civil Bill to ejectment on the title and finding in favour of the plaintiff:
1. That the agreements between the parties in the present case can only be legal if they do not constitute leases.
2. That the plaintiff had no statutory power to grant a lease in the present case and if it did so it was ultra vires its powers.
Reporter: L. O'S
Mr. Justice Kinlen delivered the 20th day of March, 2002.
This matters arises on the foot of two Ejectment Civil Bill for over holding dated the 20th March, 1997 and a Notice of Intention to claim relief under the Landlord and Tenant Amendment Act, 1980dated the 20th of January, 1997 and a Notice of Application dated the 23rd of October, 1999 and Orders of the Circuit Court (Judge Devally) dated the 9th of March, 2000.
The Plaintiff is a successor in title to the Dublin Port and Docks Board by virtue of the Harbours Act, 1996.At the relevant time to these proceedings the quays were owned by Dublin Port and Docks Board which is a statutory Corporation created originally by Royal Charter and regulated by various amending statutes including a private act, the Dublin Port and Docks Act, 1902. From 1946 until recently and at the times relevant for considerations in this case the Board was regulated by the Harbours Act, 1946.
Section 55 of the 1946 provides:-
2 "(1) A harbour authority may appropriate any part of their harbour (including, in particular, any of the following or any part thereof, that is to say any dock, pier, quay, wharf, jetty, boat slip, works, plant or equipment) to the exclusive use of any person, trade or class of vessels and may make any such appropriation either gratuitously or in consideration of the payment to them of such charges as they consider reasonable.
(2) Where any part of a harbour stands appropriated whether under this section or otherwise, by the harbour authority for the harbour to the exclusive use of any person, trade or class of vessels, any person aggrieved by the appropriation may request the Minister to direct that the appropriation shall terminate and the Minister may, if he so thinks proper after consideration by him of such request and the circumstances of the appropriation direct that the appropriation shall terminate.
(3) Whenever the Minister directs that the appropriation by a harbour authority of a part of their harbour to the exclusive use of any person, trade or class of vessels shall terminate, the harbour authority shall forthwith terminate the appropriation."
By written agreements made on the 17th of June, 1982 and on the 16th of December, 1982, the Board made appropriations of two sheds to B.J. Marine known as sheds B. and C. The appropriations were initially for terms of three years and two years eight months respectively and were subsequently renewed for a further period of five years by an appropriation of the 12th of December, 1985.
From then on the appropriations were renewed annually sometimes by letter until terminated on 31st May, 1996 by a letter of the 5th of July 1995. The initial charge of the appropriation was £800 per month rising to £1,100 per month in aggregate which sum continues to be the charge until determination. The Board relies on a passage in the 4th Edition of Halsbury's Laws of England Volume 9 para. 1333:-
"The powers of a corporation created by a statute are limited and circumscribed by the statutes which regulate it, and extend no further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of incorporation, or may be fairly regarded as incidental to, or consequential upon, those things which the legislature has authorised. What the statute does not expressly or impliedly authorise is to be taken to be prohibited."
That statement of the law has been accepted and adopted in many Irish cases in particular by Costello P. in Howard v....
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