Mark Mcdonough and Another v Irish Water

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 17 December 2014
• Neutral Citation: [2014] IEHC 646
• Court: High Court
• Date: 17 December 2014

[2014] IEHC 646

THE HIGH COURT

[No. 606 J.R./2013]

McDonough v Irish Water

JUDICIAL REVIEW

BETWEEN

MARK MCDONOUGH AND CAROLINE MCDONOUGH

APPLICANTS

AND

IRISH WATER

RESPONDENT

WATER SERVICES ACT 2013 S15(2)

PUBLIC HEALTH (IRELAND) ACT 1878 S65(A)

DUFFY v LAOIS CO COUNCIL UNREP HOGAN 29.10.2014 2014 IEHC 469

MURPHY v WALLACE 1993 2 IR 138 1990 ITR 229 1990/10/2838

WATERWORKS CLAUSES ACT 1847 S53

WATERWORKS CLAUSES ACT 1847 S61

PUBLIC HEALTH (IRELAND) ACT 1878 S65

LOCAL GOVERNMENT (SANITARY SERVICES) ACT 1962 S7

LOCAL GOVERNMENT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S2

LOCAL GOVERNMENT (FINANCIAL PROVISIONS) ACT 1997 S12

PUBLIC HEALTH (IRELAND) ACT 1878 S65(A)(1)

PUBLIC HEALTH (IRELAND) ACT 1878 S65(A)(1A)

PUBLIC HEALTH (IRELAND) ACT 1878 S65(A)(13)

LOCAL GOVERNMENT (FINANCIAL PROVISIONS) ACT 1997 S12(2)(B)

LOCAL GOVERNMENT (FINANCIAL PROVISIONS) ACT 1997 S12(2)(D)(13)

PUBLIC HEALTH (IRELAND) ACT 1878 S65(A)(11)

PUBLIC HEALTH (IRELAND) ACT 1878 S65(A)(12)

O'DWYER & CHARLETON v KEEGAN & CUMMINS 1997 2 IR 585 1997 2 ILRM 401 1997 ITR 515 2003/43/10428

DODD & CUSH STATUTORY INTERPRETATION IN IRELAND 2008 PARA 5.89

O'CONNELL v AN TARD CHLARAITHEOIR 1997 1 IR 377 1998/28/11190

PUBLIC HEALTH (IRELAND) ACT 1878 S30

REVENUE COMMISSIONERS v ASSOCIATED PROPERTIES LTD 1951 IR 140

FINANCE ACT 1944 S14(9)(B)(I)

ATHLONE URBAN DISTRICT COUNCIL v GAVIN 1985 IR 434 1986 ILRM 277 1985/4/823

Judicial Review – Water Charges – Public Health – Legislative Interpretation – Exemption – Commercial Purposes – Ultra Vires – Caravan Parks – Practice and Procedures – Charge – Supply of Water

Facts: This case was concerned with water and waste water charges levied by Meath County Council against the operators of a private caravan park at Bettystown Co Meath. The proceedings were commenced against Meath County Council, but following the coming into force on 1st January, 2014 of the Water Services Acts 2007 to 2013, the functions and powers of the local sanitary authority had been taken over by Irish Water, which was then substituted as defendant pursuant to s. 15(2) of the Act of 2013. The case involved the interpretation of s 65A of the Public Health (Ireland) Act 1878, as amended, and the extent of the exemption from water charges found in the legislation. The applicants claimed that the respondent was not entitled to levy water charges in respect of the units at the caravan park as the water was supplied for domestic purposes and exempt from charges. The respondent stated that as the water was supplied to the first applicant who conducted the business of caravan parks, the supply was for commercial purposes and not exempt from charges. The matter had progressed by modular trial and this part of the action concerned the interpretation of the exemptions in the legislative scheme, and whether the applicants were entitled to the benefit of the legislative exemption from water charges. The question before the Court was whether it looked at the ultimate destination or user of the water, or whether the Act created a power to levy water charges against the person to whom water was immediately supplied.

Held by Justice Baker in light of the available evidence and submissions presented that the applicants were not out of time and that the first applicant had a sufficient interest in the matters before the court, namely the interpretation of the statute and the legality of the disconnection notice to raise the matters raised in this module of the trial. It was the opinion of the Court that it did not offend the clear and unambiguous language of the amended legislation by refusing to accept the argument of the applicants that the legislation intended to exclude from the charging power a supply to any and all dwelling houses howsoever they receive their water supply. The mobile home units it was decided were not directly supplied by the water authority, and the direct supply was made through the park operators. It being accepted that there was no scheme of distribution which created a group water scheme within the wide definition in the legislation, Justice Baker considered that the water was not supplied to a dwelling house or to a group of dwelling houses which had the benefit of a group water scheme. Thus, it was concluded that the legislation contained no ambiguity, and that it followed from the express inclusion of a group water scheme from the exempting provisions that the Oireachtas did not intend to exclude from charges all water supplied to collective recipients, even when they use the water for domestic purposes, and where the supply was to a dwelling house. The tests in the legislation were said to be cumulative, and while the water was used for domestic purposes, the supply was neither to a dwelling house nor to a group water scheme and no other supply was exempt. Justice Baker determined then that Meath County Council did not act ultra vires in imposing a charge for the supply of water. In respects of the question whether the charges imposed by Meath County Council, were properly levied for the disposal of waste water, it was the opinion of the Court that as the legislation expressly excluded the power to levy a charge for the disposal of domestic sewage, the imposition of waste water charges from the park was ultra vires Meath County Council.

1 1. This judicial review relates to water and waste water charges levied by Meath County Council against the operators of a private caravan park at Bettystown Co Meath. The proceedings were commenced against Meath County Council, but following the coming into force on 1 ^st January, 2014 of the Water Services Acts 2007 to 2013, the functions and powers of the local sanitary authority have been taken over by Irish Water, which has now been substituted as defendant pursuant to s. 15(2) of the Act of 2013. The case involves the interpretation of s. 65A of the Public Health (Ireland) Act 1878, as amended, and the extent of the exemption from water charges found in the legislation. The applicants claim that the respondent was not entitled to levy water charges in respect of the units at the caravan park as the water is supplied for domestic purposes and exempt from charges. The respondent says that as the water is supplied to the first applicant who conducts the business of caravan parks, the supply is for commercial purposes and not exempt from charges.

2 2. The matter has progressed by modular trial and this part of the action concerns the interpretation of the exemptions in the legislative scheme, and whether the applicants are entitled to the benefit of the legislative exemption from water charges. In this judgment, except where the context suggests otherwise, I use the expression "water charges" to refer to charges for the supply of water and the disposal of waste water or sewage.

Facts

3 3. Bettystown Caravan Park is situate on the lands comprised in Folio MH6550 of which the registered owner is Liam McDonough, the deceased father of the applicants. There are positioned on the site 270 units of a type of caravan colloquially known as a mobile home. The evidence before me is that the units are not in any real sense mobile, that they are permanent to semi-permanent structures, that they do not have wheels and that it is very difficult and cumbersome to move them as heavy machinery is required. I have seen photographs of sample types of units on the site, and it would be fair to say that some of them resemble chalet type units surrounded by picket fences, in many cases having decking or similar paving and small gardens.

4 4. Many of the units are occupied as holiday homes, but one hundred and ten people live permanently in the park, ten of whom are children who go to school locally. Each of the units has a separate postal address and some of the residents have lived in the units for many years.

5 5. The caravan park is serviced with water, sewage disposal, electricity and other services commonly found in domestic or commercial premises, and two services are of particular note. The units had at the relevant times the benefit of mains water which was supplied by Meath County Council. The supply was brought to the entrance on the southern side of the site from where it was transmitted through conduits to the individual units. The units are also serviced by a public sewer which is situate outside the site on the north eastern corner, and the waste water is discharged into conduits on the site which feed into the public sewer at that point. Manholes are clearly visible on the ground and have been identified to me in the course of the hearing.

6 6. The owners of the units pay an annual licence fee to the park operator calculated at the beginning of every year, the fee being for the use of the site on which their individual unit is situate. The physical property in the units themselves is owned by the individual occupiers, and the licence fee is paid in consideration of an exclusive right to position a unit on an identified part of the park lands. The licence is created orally, but rules and regulations are made annually in a circular or letter sent to the individual owners identifying in any particular year the amount of the service charge, and the rules and requirements for the proper regulation of the caravan park.

7 7. The annual licence fee was for at the last identified year the sum of €2,600 plus VAT, and individual home owners are charged separately for electricity, but not for water or waste water disposal.

8 8. The park regulations, which do not take the form of covenants, include rules and regulations regarding the keeping of animals, the proper management of the pipes during winter months when some of the units are unoccupied, the proper maintenance of the parking areas etc. Of note is the fact that there...