Weir v Fermanagh County Council & Enniskillen Rural District Council

JurisdictionIreland
JudgeAppeal.
Judgment Date17 February 1913
CourtCourt of Appeal (Ireland)
Docket Number(1912. No. 21.)
Date17 February 1913
Weir
and
The County Council of Fermanagh, and The Rural District Council of Enniskillen (1).

Appeal.

(1912. No. 21.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1913.

Local Government — County council procedure — Proposal to make road — Necessity to include in proposal term for repayment of loan — Statutory rule — Mandatory or directory — Right of ratepayer to restrain Council — Joinder of Attorney-General — Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37), section 60 — Local Government (Procedure of Councils) Order, 1899, Article 13.

Held, by the Court of Appeal (affirming the decision of Ross, J.) that Article 13 (2) a was valid and consistent with section 60 of the Local Government Act, 1898, and that the proposal formulated by the District Council was accordingly defective and inoperative by reason of the aforesaid omission. But held (reversing the decision of Ross, J.) that the plaintiff was not legally competent to sustain the action, without the joinder of the Attorney-General, and that the action ought to be dismissed. Cherry, L.J., expressed no opinion on the first point.

This was an appeal from a decision of Ross, J. (reported ante at p. 63), giving judgment for the plaintiff in this action, which was brought for the purpose of obtaining a declaration that a resolution of the County Council of the 5th May, 1911, which approved of a proposal of the District Council adopted at a meeting of the 15th November, 1900, for the construction of a new road, was inoperative; that the proposal itself was bad; and for an injunction to restrain the Councils from carrying the proposal into effect.

The proposal of the District Council did not embody any decision as to the term within which the money proposed to be borrowed for the construction of the road was to be paid off, as directed by Article 13 (2) a of the Privy Council Order of 30th January, 1899 (1).

Ronan, K.C., Harrison, K.C., and Murnaghan, for the appellants:—

1. Our first contention is that it is not competent for the plaintiff to sustain this action without having the Attorney-General joined to represent the public; otherwise each ratepayer affected could bring a separate action. It is not suggested that the proposed road will cause any damage peculiar to the plaintiff distinct from that to other ratepayers, as by passing through his land; and where the only objection to the proposal is based on what is, at the furthest, a technical slip, it is of vast importance that the discretion of the Attorney-General should be exercised as to whether the action should be instituted: Devonport Corporation v. Tozer (2); London County Council v. Attorney-General (3); The Attorney-General v. Aspinall (4); Attorney-General v. Belfast Corporation (5); The Attorney-General v. Merthyr Tydvil Union (6);

(1) By Article 13 (2) of the Local Government (Procedure of Councils) Order, 1899, it is provided—

“Where … the Rural District Council or proposal committee decide to adopt any application either in whole or in part, they shall cause a proposal to be formulated in accordance with their decision, and if the proposal is for the execution of a public work—

“(a) Shall decide whether the expense of executing the work should be defrayed by means of borrowing, and, if it is so decided, the number of years within which the money borrowed should be paid off, and shall cause their decision to be embodied as part of the formulated proposal.”

Section 60 of the Local Government Act, 1898, is as follows:—

“The term within which a loan borrowed by the County Council is to be repaid shall be such period, not exceeding sixty years, as the Council, with the consent of the Local Government Board, determine in each case, having regard to the duration of the work or object for which the loan is borrowed.”

Evan v. The Corporation of Avon (1); Watson v. Mayor of Hythe (2); Holden v. The Corporation of Bolton (3); Herron v. Rathmines Commissioners (4); Attorney-General v. Manchester Corporation (5); Tynemouth Corporation v. Attorney-General (6).

2. The proposal passed by the County Council was not, in fact, bad on its face, owing to the omission of the number of years in which the borrowed money was to be paid off. The 13th clause of the Privy Council Order of the 30th January, 1899, is not mandatory, otherwise it would be inconsistent with section 60 of the Local Government Act, 1898, under which the term for repayment “shall be such period, not exceeding sixty years, as the Council,” i.e., the County Council, “with the consent of the Local Government Board, determine.” If the 13th clause of the Privy Council Order of 30th January, 1899, be held to be mandatory, and it is essential to the validity of a proposal that the term for repayment of the loan be embodied, then, as under the same Privy Council Order the functions of the County Council are limited by sub-clause (2) of clause 20 to the approval or rejection of a proposal formulated by a Rural District Council, or under sub-clause (3) to refer back to the District Council the proposal, with a statement of the modifications required, in the case of the County Council and District Council being unable to come to an agreement with regard to the number of years over which the loan was to extend, the entire proposal would fall through, and the provisions of section 60 of the Local Government Act, 1898, would be rendered inoperative, as the power would be transferred from the County Council to the District Council. Accordingly, if clause 13 be mandatory, it is ultra vires, as contravening the statute itself; we prefer, however, to argue that clause 13 is not mandatory, and that the proposal is good on its face.

3. As to the effect of the resolution of the 24th February, 1911, rescinding that of the 13th January, 1911, we say that under section 4 of the Local Government Act, 1898, the original resolution was equivalent to the former fiat of a Judge, and

that as such a fiat could not afterwards have been touched by the grand jury, so the first resolution could not validly have been rescinded. If, however, the first rescinding resolution was valid, so also was that of the 5th of May, 1911, by which the original resolution was setup.

[They also referred to In re Armagh and Caledon Road (1), and to sections 17, 47, 69, 126 of the Grand Jury Act, 1836.]

S. L. Brown, K.C., and W. E. Wylie for the respondent:—

We submit that the joinder of the Attorney-General in the action was unnecessary. No doubt if the plaintiff was suing simply as a member of the public, the Attorney-General would be a necessary party as representing the public, but here the plaintiff will suffer a peculiar damage, as he will be compelled to pay extra rates if the proposed road be made, and that damage entitles him to sue without the Attorney-General. This is recognized in many cases: Ware v. Regent's Canal Co. (2); Winterbottom v. Lord Derby (3); Boyce v. Paddington Borough Council (4); Attorney-General v. Ashborne Recreation Ground Co. (5); Benjamin v. Storr (6).

The question is not whether the plaintiff will suffer particular damage over and above other members of this class of ratepayers, but whether he will suffer that damage over and above other members of the public. The decision of Channell, J., in Attorney-General v. Garner (7) is expressly in our favour on this point, where he held that the rights which the Attorney-General interferes to protect as representing the Crown must be rights of the community at large, not those of a limited portion of the subjects of the Crown. It cannot be objected that this might lead to multiplicity of actions, to avoid which is one of the chief reasons for joining the Attorney-General, Iveson v. Moore (8), as the class to which the plaintiff belongs is strictly limited; also his action will finally conclude the matter. In any case the actions, if several were brought, could be consolidated.

2. As to Article 13 (2) of the Privy Council Order of 30th January, 1899, we say that this is mandatory, but we contend that so far from being ultra vires as contravening section 60 of the Local Government Act, 1898, it is supplementary and necessary for the proper working of that section. The Rural District Council cannot borrow, except through the County Council, and in cases where the expenses of the work proposed are to be repaid by the District Council, and do not become county charges, the County Council is merely the agent for the District Council in borrowing the money; the County Council knows nothing about the number of years convenient and proper to be provided for the repayment of the loan, and the object of Article 13 (2) is that it should be compulsory on the District Council, the members of which have local and special knowledge of the circumstances of the case, to embody in the proposal sent forward to the County Council the number of years in which the loan should be paid off, so that the County Council should have materials before them to carry out the provisions of section 60 of the Act of 1898.

The plaintiff, a farmer and ratepayer in the Rural District of Enniskillen, sought an injunction to restrain the County Council and the said Rural District Council from acting on a resolution approving of a proposal of the Rural District Council to make a new road. The proposal formulated by the Rural District Council, and approved of by the County Council, did not embody any decision as to the number of years within which the money proposed to be borrowed should be paid off, pursuant to Article 13 (2) a of the Privy Council Order, of 30th January, 1899.

Ronan, in reply.

Palles, C. B.:—

This is an appeal from an order of Mr. Justice Ross, whereby he declared that a proposal of...

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