Representative Church Body v Dublin Board of Assistance and Others

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1949
• Date: 01 January 1949

Representative Church Body v. Dublin Board of Assistance and Others.

THE REPRESENTATIVE CHURCH BODY

Plaintiffs

and

THE DUBLIN BOARD OF ASSISTANCE, THE MINISTER FOR LOCAL GOVERNMENT AND PUBLIC HEALTH AND THE ATTORNEY-GENERAL

Defendants.

Supreme Court.

Landlord and tenant - Rates - Fee Farm Grant - Construction - Covenant to pay rent "over and above all manner of taxes" - Liability for poor rate - Premises used for charitable purposes - Poor rate paid by landlords on the half rent - Whether amount paid recoverable from the occupier - Whether covenant indemnified landlords against poor rate - Poor Relief (Ir.) Act,1838 (1 & 2 Vict., c. 56), ss. 34, 35, 77 - Poor Relief (Ir.) Act, 1849 (12 & 13Vict., c. 104), s. 12 - Valuation (Ir.) Act, 1854 (17 & 18 Vict., c. 8), s. 2 -Local Government (Ir.) Act, 1898 (61 & 62 Vict., c. 37), s. 51, sub-s. 7 -Constitution of the Irish Free State (1922), Art. 11 - Adaptation of Enactments Act, 1922 (No. 2 of 1922), s. 15 - State Lands (Workhouses) Act,1930 (No. 9 of 1930), s. 11 - Local Government (Dublin) Act, 1930 (No. 27of 1930), s. 91, sub-s. 2 - Public Assistance Act, 1939 (No. 27 of 1939),s. 4, sub-s. 1 and First Schedule.

Certain lands were granted by the R.C.B. to D. by a foe farm grant made in 1885. The reddendum provided that the rent was to be paid "clear over and above all taxes charges assessments and impositions whatsoever as well ordinary as extraordinary imposed or to be imposed on the said demised premises or any part thereof or on the rent thereof by Act of Parliament or otherwise however quit rent and crown rent only excepted." The grantee covenanted that he would "well and truly pay . . . the said reserved fee farm rent . . . clear rent over and above all manner of taxes as aforesaid."The interest of the original grantee passed through various owners and ultimately, on 6th December, 1901, became vested in the Local Government Board for Ireland. After the lands had been devoted to public purposes in 1903, they appeared in the general valuation lists as exempt from rating under s. 2 of the Valuation (Ir.) Act, 1854, and the R.C.B. were entered on the valuation list as the occupiers of the rateable hereditament known as the half rent which arises in such circumstances and the R.C.B. were in law liable to direct assessment of rates in respect thereof. They were not, for many years, called on to pay this rate, apparently by reason of the exemption the covenant in the fee farm grant gave them. In March, 1930, a demand notice was served on them for the second moiety of the rates for the year 1929. This they paid and the amount was refunded to them by the Dublin Board of Assistance and that practice continued to the year 1934-35, when the Dublin Board of Assistance refund to refund the amount. The R.C.B. paid the rate for that year and for each succeeding year up to and including the year 1945-46. The Dublin Board of Assistance were, at the time of the action, in occupation of the lands as the successors of the Local Government Board for Ireland, and it was contended that the grantee's interest was vested in the Minister for Local Government and Public Health. The Minister contended that by reason of the provisions of s. 11, sub-s. 1, of the State Lands (Workhouses) Act, 1930, which make it the duty of a local authority to discharge all outgoings payable in respect of all land to which the Act applies situate within the functional area of such local authority, the liability (if any) to indemnify the R.C.B. under the covenant was on the Dublin Board of Assistance.

Held by Dixon J.: 1. That the covenant contained in the fee farm grant imposed on the grantee the Liability to indemnify the grantors against poor rate paid by the grantors but that the plaintiffs had not shown that either of the two first-named defendants was liable under that covenant as a covenanting party. 2. That the performance of the duty of the first-named defendant under s. 11, sub-s. 1, of the State Lands (Workhouses) Act. 1930, was not enforceable by the plaintiffs in the present proceedings. Accordingly, the action was dismissed with costs.

On appeal:

The Supreme Court affirmed Dixon J. and made the following declaration:—"On the true construction of the covenant the grantors are entitled to be indemnified against asessments made on them in respect of the half rent. This declaration is, however, as to the construction of the covenant and it does not necessarily follow that the plaintiffs are in present circumstances entitled to recover the amounts sued for in this action."

Palmer v. Power, 4 Ir. C. L. R. 191; Gloster v. Murphy, [1894] 2 I. R. 49 and Murray and Others v. The Minister for Finance,[1928] I. R. 635, discussed.

Summary Summons.

By a fee farm grant dated 28th April, 1885, made between the Representative Church Body and one Matthew Duffy, the Representative Church Body granted to Matthew Duffy, his heirs and assigns that part of the lands of Pelletstown, otherwise Riversdale, situate on the south side of the Royal Canal, containing 38 acres, 1 rood and 35 perches, situate in the Barony of Castleknock and County of Dublin, to hold the same unto Matthew Duffy, his heirs and assigns for ever "yielding and paying therefor and thereout yearly and every year for ever hereafter unto the said Representative Church Body their successors and assigns the yearly fee farm rent of £184 13s. 0d. sterling, the said fee farm rent to be paid by two equal half-yearly payments on every 1st day of May and 1st day of November in each and every year the first payment to be made on the 1st day of May, 1885, the said fee farm rent of £184 13s. 0d. to be paid clear over and above all taxes charges assessments and impositions whatsoever as well ordinary as extraordinary imposed or to be imposed on the said demised premises or any part thereof or on the rent thereof by Act of Parliament or otherwise however quit rent and crown rent only excepted. . . . And the said Matthew Duffy doth hereby for himself his heirs and assigns covenant with the said Representative Church Body their successors and assigns that he the said Matthew Duffy his heirs executors administrators and assigns shall and will from time to time and at all times hereafter during this grant well and truly pay or cause to be paid to the said Representative Church Body their successors and assigns the said reserved fee farm rent of £184 13s. 0d. on the days and times and by the gales and in the manner hereinbefore appointed for the payment thereof clear rent over and above all manner of taxes as aforesaid."

In or prior to 1903 the interest of Matthew Duffy under the fee farm grant became vested in the Local Government Board for Ireland under or for the purposes of the Poor Relief (Ireland) Acts, 1838 to 1914, being occupied and used by the South Dublin Rural District Council for the purposes of schools in connection with the auxiliary workhouse, in consequence of which the premises were exempt from rating under s. 2 of the Valuation (Ireland) Act, 1854, and, since that date, half of the rent reserved by the grant had been included in the valuation lists as a rateable hereditament pursuant to s. 12 of the Valuation (Ireland) Act, 1852. The premises subsequently became vested in Saorstát Éireann éireann by virtue of Art. 11 of the Constitution of 1922, and were, at the time of action brought, the property of the defendant, the Minister for Local Government and Public Health. It was contended by the plaintiffs that by virtue of s. 11 of the State Lands (Workhouses) Act, 1930, the defendants, the Dublin Board of Assistance, as the local authority, were bound to discharge all outgoings in respect of the premises, as they were situated within the functional area of the Board. The Board was, at the time of action brought, and had been, prior to and since 1934, in possession and occupation of the premises.

Up to 1929 the defendants, the Dublin Board of Assistance, or their predecessors, paid the rates assessed on the premises or on the half rent, but in March, 1930, a demand notice was served on the Representative Church Body for the second moiety of rates for the year 1929. The Representative Church Body paid the rate and the amount was refunded to them by the Dublin Board of Assistance or their predecessors. That practice was continued in subsequent years until the year 1933-34, when the Dublin Board of Assistance intimated that they would not continue to refund the rates, stating that as the premises were used for charitable purposes, they were not liable for the payment of the rates, but that they were payable by the landlord receiving the rent out of the premises. The Representative Church Body continued to pay the rates and did so from the year 1934-35 to the year 1945-46 inclusive, and various sums were paid each year amounting in all to £868 3s. 2d. Payment of this sum was, in October, 1945, demanded from the Dublin Board of Assistance, who denied liability therefor; payment was then demanded from the Minister for Local Government and Public Health, but he also denied liability, on the grounds that the Dublin Board of Assistance was liable therefor by virtue of s. 11 of the State Lands (Workhouses) Act, 1930. The plaintiffs issued a summary summons, claiming the sum of £868 3s. 2d. from one or other of the defendants—other than the Attorney-General—under the terms of the covenant already referred to. The sum of £868 3s. 2d. was made up of annual moieties of rates paid by the plaintiffs in the years 1934-35 to 1945-46 inclusive.

The plaintiffs appealed to the Supreme Court (2).

Cur. adv. vult.

Dixon J. :—

The claim of the plaintiffs for £868 3s. 2d. is based on a fee farm grant made the 28th day of April, 1885, by the plaintiffs to one Matthew Duffy, wherein the fee farm rent was expressed, in the reddendum, as "to be paid clear over and above all taxes, charges, assessments and impositions whatsoever as well...