Harrington v Crowley
| Jurisdiction | Ireland |
| Judgment Date | 01 January 1946 |
| Date | 01 January 1946 |
| Court | Supreme Court |
Supreme Court.
Local Government - Rates - Liability to assessment - Municipal rate - Dwelling house the property of Irish Sailors and Soldiers Land Trust - Occupier holding under agreement with Trust - No rent payable by occupier to Trust - Occupier a tenant at will or tenant by sufferance of the Trust - Whether occupier properly rateable - Degree of permanence of tenure necessary to render occupier liable to rates - Cork City Management (Amendment) Act,1941 (No. 5 of 1941), s. 16.
The defendant, an ex-serviceman, who had served with His Majesty's forces in the war, 1914-1918, had, for a number of years, been in occupation of a dwelling-house in the city of Cork, the property of a public eleemosynary corporation known as the Irish Sailors and Soldiers Land Trust. Originally the defendant had held the premises from the Trust by virtue of a purported agreement for a weekly tenancy at a weekly rent, the rates being paid by the Trust pursuant to the provisions of the Local Government (Rates on Small Dwellings) Act, 1928 (No. 4 of 1928). Subsequently the Supreme Court inLeggett and Others v. Irish Sailors and Soldiers Land Trust and the Attorney-General(reported post, p. 398) decided that ex-servicemen occupying dwelling-houses under the Trust were not bound to pay any rent in respect of such occupation, and in a later case, Casey and Others v. Irish Sailors and Soldiers Land Trust, [1937] I.R. 208, the Supreme Court decided that ex-servicemen occupying such houses were tenants at will or tenants by sufferance of the Trust. Following the former decision, the defendant ceased to pay rent to the Trust or to any person, and shortly afterwards the name of the defendant was substituted for that of the Trust in the rate book. The defendant never at any time paid any rates in respect of his occupation of the premises, and on the complainant, a rate collector for the city of Cork, issuing a summons in the District Court for payment of the rate for the year ending 31st March, 1943, the District Justice gave a decree against the defendant for the amount claimed.
On a Case Stated by the District Justice:
Held, by Maguire P., applying the test laid down by Lush J. in R. v. St. Pancras Assessment Committee, 2 Q. B. D. 581, at p. 588, that the occupation of the premises by the defendant had an element of permanence sufficient to make him liable to be rated.
Byrne v. City of Dublin Steam Packet Co., 12 L. R. Ir. 220, distinguished.
On appeal to the Supreme Court, the decision of Maguire P. was affirmed.
Case Stated by District Justice D. B. Sullivan, the Justice of the District Court for the County Borough of Cork, District No. 29.
The complainant, Cornelius Harrington, a rate collector for the County Borough of Cork, issued a summons charging the defendant, Michael Crowley, with having failed to pay to the complainant the sum of £7 10s. for municipal rate for the service of the year ended on the 31st day of March, 1943. The District Justice gave a decree for the full amount, together with a sum for costs. On the application of the defendant he stated a Case for the opinion of the High Court.
The facts were set out in the Case Stated as follows:—
"1. The Lord Mayor, Aldermen and Burgesses of the County Borough of Cork, hereinafter referred to as 'the Corporation,' is the lawful rating authority for the area in which the house and premises, No. 10 Fair Hill houses, Fair Hill, otherwise known as 10 Kerry Hall Road, occupied by the defendant is situate. The complainant, Cornelius Harrington, is the lawfully appointed City Rate Collector for the said area.
2. The defendant is an ex-serviceman, residing, and has been residing, for upwards of ten years without interruption, with his family in the said house and premises. The said house is furnished.
3. The defendant was originally put into possession of the said house and premises as a weekly tenant of the Irish Sailors and Soldiers Land Trust, the legal owners of the said house and premises, under an agreement made with the Trust. The defendant paid rent to the Trust, but, following the decision in Leggett and Others v. Irish Sailors and Soldiers Land Trust and the Attorney-General [reported post, p. 398], ceased to do so and has paid none since.
4. For the year ending the 31st March, 1929, the rates on the said house and premises were made on the occupier. For the years commencing the 1st day of April, 1929, and ending the 31st day of March, 1934, the Trust was rated for the same premises under the provisions of the Local Government (Rates on Small Dwellings), Act, 1928 (No. 4 of 1928). For the period from the 1st day of April, 1934, up to the passing of the Local Government Act, 1941 (No. 23 of 1941), the rates on the said premises were made on the occupier. No rates in respect of the said house and premises were ever paid by the defendant.
5. The annual valuation of the said house and premises is £6.
6. Following the passing into law of the Local Government Act, 1941, the Corporation assessed the defendant on the 28th day of April, 1942, for municipal rates for the service of the year ending 31st March, 1943, in respect of the said house and premises. The power to assess the municipal rates is given to the Corporation by s. 16 of the Cork City Management (Amendment) Act, 1941 (No. 5 of 1941).
7. A demand note for the rate on the said house and premises, amounting to £7 10s., was duly served on the defendant on the 23rd day of October, 1942. A six-day notice to pay the said rate was also duly served on the defendant. All the necessary legal requirements in connection with the demand note and the six-day notice have been duly complied with by the Corporation and the complainant.
8. The defendant failed to pay the said rate, and on the 16th day of November, 1942, the complainant issued a summons against the defendant to recover the same.
9. The summons was heard on the 23rd day of December, 1942. On behalf of the defendant it was contended that he was not the 'occupier' of the said premises within the meaning of the Poor Law, Rating, Valuation, or Local Government Acts, having regard to his legal position as determined by the judgment of the Supreme Court in Casey and Others v. Irish Sailors and Soldiers Land Trust(1). I gave a decree against the defendant for £7 10s., the amount sued for, and 4s. costs.
10. On the assumption that the defendant is liable for the municipal rate, the amount £7 10s. sued for, is the correct amount.
11. All the facts appearing in the foregoing were proved or admitted.
12. The opinion of the Court is sought as to whether I was right in law in giving a decree against the defendant for £7 10s. on the 23rd day of December, 1942."
From this decision the defendant appealed to the Supreme Court (1).
Cur. adv. vult.
| Maguire P. :— |
The question in this case is whether Mr. Crowley is rateable. He is an ex-serviceman who was put in possession of the house by the Irish Sailors and Soldiers Land Trust, and has for ten years been in occupation. For a time he paid rent as a weekly tenant. Since the decision in Leggett and Othersv. Irish Sailors and Soldiers Land Trust and the Attorney-General,[reported post, p. 398] he has not paid any rent.
The problem as to the relationship between him and the Trust has been settled by the decision in Casey and Others v.Irish Sailors and Soldiers Land Trust(1).
Murnaghan J. in a judgment, which was the judgment of the Court, says at p. 219:—
"In my opinon the true view of the Acts is that the Trust is a public eleemosynary corporation and that the selected men have no estate in the land equitable or otherwise, but are put into occupation at the will of the Trust. The technical legal position of the selected ex-serviceman is that of tenant-at-will or tenant by sufferance of the Trust which is charged with the duty of administering the trust
of its lands for the benefit of all ex-servicemen. The Trust will no doubt control the property in a reasonable manner and there is nothing to prevent the Trust from permitting a selected ex-serviceman to continue in occupation so long as he remains a proper object of the Trust."
At p. 221 he says:—
"Again, the liability of the ex-serviceman in occupation to payment of rates will depend, not upon the clauses in the agreement between him and the Trust, but upon the fact of the ex-serviceman being in occupation, subject to the provisions of the Local Government (Rates on Small Dwellings) Act, 1928, as to hereditaments rated at £6 or under."
As a result of the Local Government Act, 1941, s. 56, the provisions of the Local Government (Rates on Small Dwellings) Act no longer extend to hereditaments vested in the Irish Sailors and Soldiers Land Trust.
The question I have to decide is whether the defendant's occupation is of a kind to make him liable to be rated. This is a question of fact.
The case of Reg. v. St. Pancras Assessment Committee(1)has been accepted as a guide as to the elements which must be present in order to give to physical possession that quality which makes it the kind of occupation which attracts liability to rates. Lush J. says at p. 588:—"Another element, however, besides actual possession of the land, is necessary to constitute the kind of occupation which the Act contemplates, and that is permanence." He instances the case of the occupation of an itinerant showman, who erects a structure intending only to occupy it for a few days, as an occupation which lacks the element of permanence required to give rise to liability for rates. The case itself was concerned with the question whether a man who had erected hoardings on lands was rateable. The Court held he was not liable.
In Byrne v. City of Dublin Steam Packet Co.(2) the Court held as a fact that the defendant, who had a licence to use a berth at the North Wall, had not exclusive...
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