Wexford County Council v Kielthy
| Jurisdiction | Ireland |
| Judge | Mr. Justice Tony O'Connor |
| Judgment Date | 05 February 2019 |
| Neutral Citation | [2019] IEHC 162 |
| Docket Number | [2011 No. 5186 S.] |
| Court | High Court |
| Date | 05 February 2019 |
[2019] IEHC 162
[2011 No. 5186 S.]
THE HIGH COURT
Laid-up charges – Bye-laws – Rate of charge – Plaintiff seeking to recover harbour charges for the laying up of a sea fishing vessel – Whether the County Manager can amend a rate of charge set by a bye-law introduced by councillors pursuant to their reserved function
Facts: The plaintiff, Wexford County Council, applied to the High Court seeking to recover harbour charges amounting to €106,339.85 under Kilmore Quay Bye-Laws 2004 for the laying up of a sea fishing vessel called the M.F.V. Morgensome from July 2006 to November 2009, which was owned by the defendant, Mr Kielthy. The principal legal issue concerned the Council’s contention that the County Manager can amend a rate of charge set by a bye-law introduced by councillors pursuant to their reserved function.
Held by O’Connor J that, concerning the correct rate applicable for the laid-up charges, the Oireachtas has vested in the elected councillors of the County Council by way of a reserved function the entitlement and obligation to make bye-laws and to amend bye-laws; those councillors cannot sub-delegate the power to make or to amend bye-laws to any officer of the Council or to the County Manager unless the Oireachtas so provides. O’Connor J held that if bye-law 84 had stated expressly that the County Manager could amend the harbour charges set by bye-law 51, this would have been ultra vires the elected councillors; bye-law 84 merely states that the Council may amend the charges referred to in the earlier bye-laws, which is declaratory of the true legal position that the Council must conform to the procedures and processes provided for in the Local Government Act 2001 relating to the amendment of bye-laws. O’Connor J held that the fact that the printed edition of the bye-laws available referred to €0.63 per day per metre of length was support for the proposition that the Council had not actually amended the bye-law; the bye-laws had not provided for the alteration of the rate. Thus, O’Connor J held that if the Council is entitled to recover harbour charges from Mr Kielthy, it is at the rate set by the elected councillors in 2004.
O’Connor J held that, concerning whether the Harbour Master was entitled to impose the laid-up charges, Captain Murphy did exercise his discretion in favour of Mr Kielthy; however, he was under pressure to free up space in the harbour. O’Connor J held that, in the circumstances, he would invite counsel at a convenient time to address him on the precise amount owed by the defendant based on the Court’s determination that the rate of €0.63 per metre per day laying-up charge from 1st November, 2006, to 29th October, 2009, was applicable to the vessel.
Judgment approved.
The plaintiff Council (‘the Council’) seeks to recover harbour charges amounting to €106,339.85 under Kilmore Quay Bye-Laws 2004 (‘ the bye-laws’) for the laying up of a sea fishing vessel called the M.F.V. Morgensome (‘ the vessel’) from July 2006 to November 2009, which was owned by the defendant (‘ Mr. Kielthy’). The principal legal issue concerns the Council's contention that the County Manager can amend a rate of charge set by a bye-law introduced by councillors pursuant to their reserved function.
These proceedings were commenced by way of summary summons issued on 22nd December, 2011. Following exchanges of affidavits, Kearns P. directed on 19th January, 2015, that they proceed to a plenary hearing followed by the hearing of the proceedings entitled Kevin Kielthy v. Minister for Agriculture, Fisheries and Food, Ireland and Attorney General (‘ the State defendants’) having record number [2008 No. 6263 P.] (‘ 2008 proceedings’) in which I am delivering judgment also today (‘ accompanying judgment’). Kearns P. gave these directions due to an alleged overlap between the claim of the Council and Mr. Kielthy's claim against the State defendants.
The defence in the 2011 proceedings delivered on 23rd February, 2015, pleaded, inter alia, the following which became the focus of the hearing before this Court:-
‘5. The fees purportedly charged to [Mr. Kielthy] have not been charged in accordance with the relevant bye laws.
…
10. Any purported increase in the fees was not carried out in accordance with the bye laws or in accordance with law.
11. [Mr. Kielthy] has not been treated in a fair and reasonable manner or in a like manner to other boat owners and users who owe harbour charges.
…
16. [Mr. Kielthy] could not scrap the boat of his own accord because the [vessel] was the subject of an application for a grant under a Bord Iascaigh Mhara decommissioning scheme. Under the terms of that scheme, the boat could not be scrapped without the consent of the Department of Agriculture Fisheries and Food (as it then was). A decision was made in favour of [Mr. Kielthy] receiving the grant. The department sought a judicial review of the said decision and was unsuccessful; they therefore appealed to the Supreme Court which found in the department's favour. Throughout this period (during which the impugned laid up fees arose the Department would not consent to the scrapping of the boat)…’
The history and detail of this litigation can be gleaned from the accompanying judgment which clarifies the claims of Mr. Kielthy in those proceedings against the State which are mentioned in this plea at para. 16 of his Defence.
Senior counsel for the State defendants also made submissions in support of Mr. Kielthy's defence in these proceedings due to the potential effect on the quantum claim in the 2008 proceedings. Those submissions were adopted for Mr. Kielthy. All of the submissions sought to assist the Court in making a fully informed decision about the issues. I gave a ruling on Day 2 (pp. 84-85 of the transcript) about the cross-examination of witnesses in these proceedings by counsel for the State defendants in the 2008 proceedings. Ultimately, little turns upon that cross-examination other than to ensure a consistency in the portrayal of facts in both sets of proceedings.
The long-established harbour at Kilmore Quay (‘ the harbour’) is controlled by the Council as opposed to the State. It is a small but vibrant harbour and the number of berths is limited. It services sea fishing vessels, has a sixty berth blue flag marina and facilitates a ferry to the Saltee Islands during the tourist seasons. Captain Philip Murphy was appointed in July 2006 as Marine Officer for the Council and he acted as Harbour Master for Kilmore Quay at the relevant time. He also had responsibilities for other piers and harbours within the county. At that time, his office was in Kilmore Quay Harbour which allowed him a very good view of the harbour. At the time of giving evidence to this Court in 2018, Captain Murphy was Senior Marine Officer with the Council based in Wexford Town and had an assistant who was the day-to-day Harbour Master in Kilmore Quay.
Captain Murphy outlined how the vessel had been towed into Kilmore Quay in the summer of 2006 by the lifeboat and remained most of the time after that date tied up at the East Wall of Kilmore Quay until it was scrapped at the end of 2009. The vessel took up some 23 metres of one side of the harbour wall.
Mr. Kielthy explained that the vessel was laid-up while he was awaiting the result of his application under a decommissioning scheme. The accompanying judgment includes a chronology which outlines how Mr. Kielthy's expectation of a payment under the decommissioning scheme for the vessel was met initially but ultimately dashed by the judgment of the Supreme Court in May 2014.
In 2006, there were seven laid-up vessels in Kilmore Quay, which included Mr Kielthy's vessel. Captain Murphy attributed that laying up to the collapse of the scallop fishing industry. Most of those vessels were moved.
The letter dated 18th September, 2006, from Captain Murphy to Mr. Kielthy effectively commenced the communications leading to the dispute which the Court will now resolve. That letter allowed Mr. Kielthy until 1st November, 2006, to remove the vessel or face a charge of €0.70 per metre per day laid-up charge. The laid-up rate had been increased from €0.63 to €0.70 by Order No. 25/2006 of the Schedule of Charges of Wexford County Council Register of County Manager's Orders signed on 18th January, 2006. Order No. 14/2007 increased the rate again from €0.70 to €1.00, applicable from the 1st January, 2007. On 1st July, 2007, the charge was further increased to €5 per day by Order No. 405/2007 signed on 31st May, 2007. It is quite apparent that Captain Murphy prompted these increases to free up space in the harbour for working vessels.
Captain Murphy issued several letters to Mr Kielthy detailing the laid-up fees for which he was liable. After the vessel was scrapped, Captain Murphy wrote to Mr Kielthy on the 18th November, 2009, setting out the final invoice:-
‘Laid up fees 2006 €1,014.98 [applying the rate of €0.70 per metre per day from the 1st November, 2006 to the 31st December, 2006]
Laid up fees 2007 €26,170.77 [applying the rate of €1.00 per metre per day until the 30th June 2007, and the rate of €5.00 per metre per day after that]
Laid up fees 2008 €43,499.10 [applying the rate of €5.00 per metre per day]
Laid up fees 2009 €35,655.00 [applying the rate of €5.00 per metre per day up to and including the 27th October, 2009]’
The total sought is €106,339.85.
There are two issues in this case:-
(a) What is the correct rate applicable for the laid-up charges, i.e. were the increases in the rate for laid-up charges permissible?
(b) Was the Harbour Master...
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