Island Ferries Teoranta v Galway County Council

JurisdictionIreland
JudgeMr. Justice Cooke
Judgment Date18 December 2013
Neutral Citation[2013] IEHC 587
Docket Number[No. 47 J.R./2012]
CourtHigh Court
Date18 December 2013

[2013] IEHC 587

THE HIGH COURT

[No. 47 J.R./2012]
[No. 3 CMP/2012]
Island Ferries Teoranta v Galway Co Council
MR JUSTICE COOKE
APPROVED TEXT
COMPETITION

BETWEEN

ISLAND FERRIES TEORANTA
APPLICANT

AND

GALWAY COUNTY COUNCIL
RESPONDENT

RSC O.63B

ISLAND FERRIES TEORANTA v MIN FOR COMMUNICATIONS & ORS UNREP COOKE 18.10.2011 2011/27/7216 2011 IEHC 388

FISHERY HARBOUR CENTRES (RATES & CHARGES) ORDER 2003 SI 439/2003 SCHED 1 CHARGE NO 10(A)

LOCAL GOVT ACT 2001 PART XIX

MARITIME SAFETY ACT 2005 PART II

HARBOURS ACT 1996 S13

HARBOURS ACT 1996 S89

HARBOURS ACT 1996 SCHED 6

HARBOURS ACT 1996 S13(1)

HARBOURS ACT 1996 S13(2)

HARBOURS ACT 1996 S89(3)(A)

LOCAL GOVT ACT 2001 S199(1)

LOCAL GOVT ACT 2001 S199(3)

LOCAL GOVT ACT 2001 S199(3)(H)

COMPETITION ACT 2002 S5

CONSTITUTION ART 6

CONSTITUTION ART 15.2

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

CONSTITUTION ART 43

CASSIDY & ORS v MIN FOR INDUSTRY 1978 IR 297

KRUSE v JOHNSON 1898 2 QB 91 19 COX CC 103 1895-9 AER REP 105

LOCAL GOVT ACT 2001 S199

HARBOURS ACT 1996 S13(3)

LOCAL GOVT ACT 2001 S69

COMPETITION ACT 2002 S3

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 102

DALY v REVENUE CMRS & ORS 1995 3 IR 1 1996 1 ILRM 122 1995/17/4225

FISHERY HARBOUR CENTRES ACT 1968

LOCAL GOVERNMENT

Bye laws

Application for certiorari of harbour charge imposed by bye law - Operation of passenger ferries - Passenger rates - Redevelopment of harbour - Operating costs of harbour - Power to impose harbour charges - Ultra vires - Proportionality of charge - Unlawful discrimination - Discrepancy in treatment with cargo vessels - Abuse of dominant position - Constitutional right to property and to carry on business - Intention of Oireachtas - Nature and effect of charge - Distinguishing between multiple journey rates and single entries and visitors and local residents - Functions of local council - Undertaking - Essential facility - Whether Oireachtas intended council to have authority to make bye law imposing charge - Whether charge so manifestly arbitrary, unjust or partial as to require it be set aside as unreasonable in law and therefore falling outside scope of delegated powers - Whether dominant position occupied - Whether abuse of dominant position - Whether infringement of constitutional right to property and right to carry on business - Whether charge constituted attack on property rights or business activities - Island Ferries Teoranta v Minister for Communications, Marine and Natural Resources [2011] IEHC 388, (Unrep, Cooke J, 18/10/2011); Kruse v Johnson [1898] 2 QB 91; Cassidy v Minister for Industry [1978] IR 297 and Daly v Revenue Commissioners [1995] 3 IR 1 considered - Fishery Harbour Centres (Rates and Charges) Order 2003 (SI 493/2003) - Rules of the Superior Courts 1986 (SI 15/1986), O 63B - Harbours Act 1996 (No 11), ss 13 and 89 - Local Government Act 2001 (No 37), s 69 and 199(1) - Maritime Safety Act 2005 (No 11) - Competition Act 2002 (No 14), ss 1 and 5 - Fishery Harbour Centres Act 1968 (No 18) - Constitution of Ireland 1937, Arts 6, 15.2, 40.1, 40.3 and 43 - Application refused (2012/47JR & 2012/3CMP - Cooke J - 18/12/2013) [2013] IEHC 587

Irish Ferries Teoranta v Galway County Council

These proceedings concerned an application for judicial review challenging a bye law entitled ‘Bye Laws for the Regulation of Cill Ronân Harbour and Cill Éinne Harbour’ (the ‘Bye Laws’) made by the respondent, which imposed certain harbour charges at Kilronan Harbour, Aran Islands, Co. Galway. In particular, leave was granted to the applicant to apply for a series of declaratory reliefs and an order of certiorari quashing Charge No. 12 in Part 1 of the Second Schedule of the Bye Law, which imposed a charge of €0.80 per passenger using Kilronan harbour on disembarking from a passenger vessel entering the harbour. The applicant was a company that offered a passenger ferry service, which included transport between the harbour at Rossaveel and the harbour at Kilronan.

The applicant argued that Charge No. 12 was ultra vires the bye law making powers of the respondent, because the charge that was fixed per passenger should be considered manifestly unreasonable, disproportionate and discriminatory when regard was given to the costs properly recoverable by the respondent in respect of the uses of the harbour and the minimal use made by the applicant. It was also argued that the respondent had not conducted an assessment of how to reasonably apportion the costs of the running of the harbour amongst the various harbour users. Further, it was said that virtually the entirety of the costs of operating the harbour were, in effect, being assigned to the applicant as the main passenger service provider. The applicant also argued that the respondent”s action was an abuse of its dominant position as main provider of harbour services at Kilronan, contrary to s. 5 of the Competition Act 2002; and that Charge No. 12 was invalid it that it violated the rights of the applicant protected by Articles 6, 15.2, 40.1, 40.3 and 43 of the Constitution of Ireland.

The respondent argued that the Bye Law had been enacted as a result of a major redevelopment of Kilronan harbour, which had the effect of increasing operating costs. It was said that this redevelopment had benefited various users of the harbour but action needed to be taken to meet the estimated €150,000 to €200,000 per annum operating costs. It was also pointed out that a draft of the bye laws went on public display, which resulted in 187 submissions being received, and that the final version of the Bye Laws was a reasonable and proportionate compromise between the various opinions.

Held by Cooke J. that a public authority, such as the respondent, could act ultra vires in the exercise of a delegated power (such as the making of bye laws) if it imposed a burden or obligation which went beyond the scope of what was authorised by the enabling statute, or where the effect of the public authority”s action had an effect that was manifestly unreasonable, unjust or partial that it could only lead to the conclusion that the Oireachtas never intended to give authority to make such rules.

It was undisputed that the Bye Law had been enacted pursuant to powers delegated to the respondent by s. 199 of the Local Government Act 2001 and s. 13 of the Harbours Act 1996, and that s. 199 of the former Act gave the respondent the authority to charge passengers a fee for entering its harbour. On that basis, it was said that in considering whether the enactment of Charge No. 12 was ultra vires, it was for the Court to determine whether a charge of €0.80 per passenger disembarking at Kilronan harbour was grossly unfair, disproportionate or excessive in the circumstances, and not whether the imposition of such a charge was unreasonable when compared with charges imposed upon other harbour users, as argued by the applicant.

On consideration of the application for judicial review, it was held that the applicant had not satisfied the Court that the enactment of Charge No. 12 of the Bye Law had been an arbitrary decision because it appeared that it there had been reasonable justification. It was clear that the respondent had been keen to avoid imposing additional financial burdens on residents and businesses of the Aran Islands, which the Court judged to be a reasonable consideration. It was also said the applicant had failed to sufficiently demonstrate how Charge No. 12 was unfair or unreasonable. It was held that the respondent was not obliged to evenly spread out the operating costs of the harbour between all harbour users. Instead, the respondent had been entitled to act in accordance with what it considered to be needed to best achieve its objectives, as long as the action was not so disproportionate that it was objectively oppressive or economically irrational. However, it was said that the modest charge of €0.80 per passenger, which the applicant did not necessarily have to bear in full, could not be considered in such a way.

In regards to the allegation that the respondent had abused its dominant position as main provider of harbour services at Kilronan, it was said that the adoption of Charge No. 12 had not been adopted without objective justification for the reasons outlined above. For that reason, it was said that there was had been no breach of s. 5 of the Competition Act 2002. It was also said that there had been no violation of the applicant”s rights under the Constitution of Ireland as the adoption of Charge No. 12 did not constitutes an attack on the property rights or business activities of the applicant company. This determination was made on the basis that the proposed charge to passengers was modest and did not necessarily have to be borne in full by the applicant. For all of the reasons set above, the relief sought was refused.

Relief sought refused.

Mr. Justice Cooke
1

By order of the Court (Peart J.) of the 23rd January, 2012, the applicant was granted leave to apply for judicial review of a bye law made by the respondent imposing certain harbour charges at Kilronan Harbour on Inis Mór in the Aran Islands, Co. Galway. More particularly, leave was granted to the applicant to apply for a series of declaratory reliefs and an order of certiorari quashing Charge No. 12 in Part 1 of the Second Schedule to the "Bye Laws for the Regulation of Cill Ronan Harbour and Cill Éinne Harbour" (the "Bye Laws") upon the grounds set forth in para. E of the Statement of Grounds dated the 23rd January, 2012. By order of the Court of the 2nd October, 2012, (Cooke J.) the proceedings were entered in the Competition List pursuant to O. 63B of the Rules of the Superior Courts.

2

The general factual background and context to the application are similar to that of a previous claim brought by the...

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4 cases
  • Muldoon v The Minister for the Environment and Local Government
    • Ireland
    • Court of Appeal (Ireland)
    • 16 Marzo 2023
    ...revenue amounted to an abuse of that position (paras 80–81). 89 In the second action ( Island Ferries Teoranta v Galway County Council [2013] IEHC 587) the plaintiff's claim failed. The bye-laws did not go beyond permissible bounds and, even though it was “ probably correct” that Galway Cou......
  • Island Ferries Teoranta v Minister for Communications
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    ...for using the harbour at Ros a' Mhíl in County Galway; [2012] IEHC 256, as to damages in respect of the same case; and Island Ferries Teoranta v Galway County Council [2013] IEHC 587, as to charges for using the harbour at Cill Rónáin on Inis Mór. Effectively, therefore, there are two set......
  • McDonagh v Galway County Council
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    • 10 Mayo 2019
    ...a certain democratic legitimacy. (Counsel cited the judgment of the High Court (Cooke J.) in Island Ferries teo v. Galway County Council [2013] IEHC 587). This is reinforced by the extensive provision made for public participation under section 13 of the Control of Horses Act 68 Precisely ......
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    ...or provisions. Bye-law 84 does not entitle the County Manager to amend a provision contained in bye-law 51. Island Ferries Teoranta v. Galway County Council 41 The judgment of Cooke J. in Island Ferries Teoranta v. Galway County Council [2013] IEHC 587, (unreported, High Court, 18th Dece......

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