THE HIGH COURT
No. 718 S.S. 1988
IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS 1961 TO 1986
THE COUNTY COUNCIL OF THE COUNTY OF LOUTH
Case Stated by Flann Brennan District Justice.
Judgment of Mr. Justice Gannon delivered the 14th day of April 1989.
This is a Case Stated pursuant to Section 52 of the Courts (Supplemental Provisions) Act 1961 submitted by District Justice Flann Brennan upon two questions of law which have
arisen in the course of proceedings before him at Dundalk District Court. The Plaintiff is the County Council for the County of Louth which has sued the Defendant for a total sum of
£110 in respect of charges for domestic refuse clearance service for the years 1983 to 1988. Such clearance of refuse service has been made available by the Plaintiff as sanitary authority for the rural area in which the Defendant resides, but the Defendant has not availed of the service.
The claim as stated in the civil process entitled "For a debt or liquidated money demand" is as follows:
"The Plaintiff's claim is to recover against the Defendant the sum of £108 being the amount due and owing by the Defendant to the Plaintiff within the past six years on foot of charge for refuse levied by the Plaintiff on the Defendant under the provisions of Section 2 of the Local Government (Financial Provisions) (No. 2) Act 1983 full particulars of which the Defendant has already received. The Plaintiff further claims interest under the Courts Act 1981 and costs."
As so expressed the amount claimed could be for the reasonable value of services rendered or expenses incurred on foot of an implied request or alternatively for money levied in the nature of a tax or charge on the property of the Defendant. The amount claimed is founded upon Orders of the County Manager the first of which is dated the 17th of July 1983. The certified copy thereof furnished recites as follows:
"The Council at Meeting held on 17th July 1983 agreed that the reasonable charge for householders benefiting from the Council's refuse collection service would be at the rate of £20 per annum to take effect in the present year. The meeting recommended that where a charge of £20 per annum is also made by the Council for water supply for domestic purposes, the combined charge for water supply and refuse collection in respect of that dwelling should not exceed the sum of £26."
The Order which follows that recital on the 17th of July 1983 is as follows:
"ORDER: It is hereby ordered that a charge of £20 be made in respect of each dwelling in the County Health District benefiting from the Council's refuse collection service in the present year. The charge to be payable by the occupier of the premises except in any case where a premises comprises more than one dwelling (e.g. house let in flats or a block of rented apartments) when the charge is to be payable by the owner. The combined charge for water supply and refuse collection service in the present year to be £26 in respect of each dwelling."
The wording in subsequent Orders was gradually varied as appears from the following Orders dated the 24th of April 1984 and the 31st of December 1984. The Order of the 24th of April 1984 reads:
"ORDER: Having consulted with the members of the Council at recent Estimates Meeting and having obtained their agreement, I hereby order that a charge of £20 be made in respect of each dwelling in the County Health District of County Louth served by the Council's refuse collection service except in any case where a charge of £30 has already been levied on the dwelling in respect of a water supply. The charge to be payable in one installment not later than 31st of October 1984."
This is signed by the County Manager. The Order signed by the County Manager for the 31st of December 1984 reads:
"ORDER: Having consulted with the members of the Council at recent meeting I hereby order that a charge of £20 be made in respect of each dwelling in the County Health District of County Louth served by the Council's refuse collection service except in any case where a charge of £30 has already been levied on the dwelling in respect of a water supply. The charge for the year is to be payable in one installment in advance and is due and payable on the issue of the demand."
The wording was changed in the Orders of the 19th of December 1986 and the 25th of May 1987. The Order of the 19th of December 1986 recites:
"At meeting of the Council on the 24th February 1986 it was decided by resolution that the charges for water supply and refuse collection remain the same as in 1985 i.e. £30 per dwelling for public water supply and £20 per dwelling where no public water supply is available but a refuse collection service is available."
The Order included the following:
"The charge for domestic refuse collection service in any case where the domestic water charge does not apply shall be at the rate of £20 per dwelling for the same period."
It was further ordered that "in the case of the charge for the domestic refuse collection the charge is payable in advance on demand." The Order dated the 25th of May 1987 recited that:
"At meeting of the Council on 27th April 1987 it was decided by resolution that the following charges for water supply and refuse be levied in 1987 - £52 for water supply and £25 for refuse collection only."
It then Orders:
It is hereby Ordered that the charge for water supplied by the Council for domestic purposes for the period 1st April 1987 to 31st March 1988 be at the rate of £52 per dwelling. The charge for domestic refuse collection service in any case where the domestic water charge does not apply shall be at the rate of £25 per dwelling for the same period."
It was further ordered that in the case of the refuse collection charge the charge is to be payable by the occupier of the premises and it also provided that in the case of the charge for domestic refuse collection the charge is payable in one installment on demand. That Order was signed by the County Manager. The changes in the wording of the Orders may have evolved from the effect of Section 2 of the Local Government (Financial Provisions) (No. 2) Act 1983. Prior to the passing of the Local Government (Financial Provisions) (No. 2) Act 1983 the power of a rural sanitary authority conferred by the Public Health (Ireland) Act 1878 to raise the money required to meet the expense of domestic refuse clearance service by levy of domestic rates on householders had been abolished by the Local Government (Financial Provisions) Act 1978.
The Public Health (Ireland) Act 1878 cast upon the local sanitary authority the obligation of removal of house refuse from occupied premises. This obligation might be discharged in one of the ways prescribed in Sections 52 and 54 of that Act. Under Section 52 the authority may either itself remove the refuse or have it removed by a contractor engaged by the authority for that purpose. Section 54 provides the alternative of casting, by means of bye-laws prescribing the manner and frequency thereof, on the occupier the duty of removing the refuse. If the obligation is not cast on the occupier the sanitary authority has to discharge the obligation either by itself or by its contractor engaged by it for that purpose. In the case of a rural authority the expense incurred by that authority, whether of paying its contractor or for its own labour, was by a poundage rate added to the poor rate of the contributory place, be it electoral division, or townland or dispensary district which was the appropriate area of charge.
The District Justice in the Case Stated asks the opinion of this Court on the two questions submitted namely:
(1) "Whether Section 52 of the Public Health Act 1878 is in the words of Section 2 (1) of the Local Government (Financial Provisions) (No. 2) Act 1983 "an existing enactment which requires or enables a local authority to provide a service but which apart from this subsection does not empower the authority to charge for the provision of the service"?
(2) "Whether a proper construction of the meaning of Section 3 (1) of the Local Government (Financial Provisions) (No. 2) Act 1983 is that a charge made by a local authority by virtue of Section 2 of that Act should be payable by and recoverable from the person for whom the service is provided whether or not such person avails of the service?"
The expression "to provide a service" is not defined in Section 1 of the 1983 Act, which is the interpretation Section of that Act, but the word "service" is there defined as follows:
""service" means any service, facility, licence, permit, certificate, approval or other thing which a local authority may render, supply, grant, issue or otherwise provide in the performance or exercise of any of its functions, powers or duties to any person or in respect of any premises and includes the processing of an application for such a licence, permit, certificate or approval."
Subsection 2 of the Section 1 which contains that definition states:
"(2) References in this Act to the provision of a service shall be construed as including references to the rendering, the supply, the grant, the issue or the provision otherwise of the service and kindred words shall be construed accordingly."
Sections 2 and 3 of that Act which are referred to in the questions posed in the case stated are as follows:
"2 - (1) Subject to section 4 of this Act, any existing enactment which requires or enables a local authority to provide a service but which, apart from this subsection, does not empower the authority to charge for the provision of the service shall be deemed so to empower that authority.
(2) Subsection (1) of this section shall have effect as regards an enactment notwithstanding the inclusion in the enactment of a provision which either precludes a local authority from charging for the provision of a service or requires that a service be provided by such an authority free of charge.
(3) Subject to section 4 of this Act, notwithstanding any provision in any existing enactment whereby there is specified -
(a) the amount of the charge which may be made by a local authority in respect of . a service which the authority is required or enabled to provide, or(b) an amount which a charge described in paragraph (a) of this subsection is not to exceed,the local authority may make a charge which exceeds the amount so specified, and any charge made by virtue of this subsection shall for all purposes be deemed to have been duly made under the enactment."
"3 (1) A charge made by a local authority by virtue of section 2 of this Act shall be of such amount as the authority considers appropriate and shall be payable by and recoverable from the person for whom the service is provided, or, where the service is provided in respect of premises -
(a) in case the premises are not owned by a local authority and comprise more than one dwelling, the owner of the premises, and(b) in any other case, the occupier of the premises, and different such charges may be made by such an authority in respect of persons, premises or services of different classes or descriptions."
It is unnecessary to quote Subsection 2 of Section 3 but it is important to note that that Subsection contains two definitions of words used in that Section namely the word "dwelling" and the word "owner".
Mr. O'Donnell for the Defendant, by whom the Case Stated was requested, takes exception to the wording of the second question on the grounds that as it is expressed it appears to imply that the Defendant is a person to whom the service for which the charge was made was provided. His argument in this Court, and as I understand in the District Court, is that because the Defendant does not avail, nor therefore receive, and did not benefit from, the service of clearance of domestic refuse by the Plaintiff he is not a person to whom that service as defined in Section 1 was rendered or provided in respect of his premises. From that submission it would seem to follow that he would prefer the second question to be considered as if expressed in either of the following alternative forms namely: Is the service relative to which the Plaintiff claims payment a service which has been rendered or provided to the Defendant in respect of his premises? Or, is the Defendant, whose domestic refuse in the periods relevant to the claim has not been cleared by the Plaintiff or its contractor, a person for whom a refuse collection service as defined has been provided in such periods? It is clear from the wording of the Case Stated that in the same period the Defendant could have had his refuse collected and cleared by the Plaintiff if he had so wished or consented, and there has been no default or breach of their statutory duty in this regard on the part of the Plaintiff. To get to the true meaning of Sections 2 and 3 of the 1983 Act Mr. O'Donnell suggests the question might equally be asked: Is the premises of which the Defendant is the owner and occupier during the relevant period a premises in respect of which the domestic clearance service was provided? He submits that the answer to the question must be the same for whatever form of the question and cannot be answered affirmatively in one form and negatively in the other.
In the course of his argument Mr. Coffey for the Plaintiff, the sanitary authority, drew attention to a difficulty in regard to the first question submitted. He pointed out that Section 52 of the 1878 Act was part of an enactment in which Section 232 of the same Act enabled the local authority to raise the amount of the expenses incurred in providing the service specified in Section 52 by way of a levy on all persons in an area of charge. By reason of the repeal by Section 4 of the Local Government (Sanitary Services) Act 1948 of Section 232 of the 1878 Act, Mr. Coffey submitted, that Section 52 then became an enactment which requires the local authority to provide a service but does not, apart from the 1983 Act, empower the local authority to charge for the provision of that service. He pointed out that between 1978 and 1983 the local authority had no power to raise by levy of rates the expense of providing the service prescribed in Section 52 of the 1878 Act. It followed therefore that the first question as expressed is restricted unduly in so far as it seems to confine the inquiry, in relation to an "existing enactment", to only Section 52 of the 1878 Act. The latter Act is the enactment, albeit without Section 232, which is the "existing enactment" for the purpose of the application of Section 2 of the 1983 Act. Mr. Coffey argues that because of the repeal of Section 232 of the 1878 Act the latter Act became an existing enactment which by virtue of Section 2 of the 1983 Act shall be deemed to contain a provision enabling the local authority to charge for the provision of clearance of domestic refuse. He submitted that by virtue of Section 3 of the 1983 Act the person to be charged is the person for whom the service is provided or the owner or occupier of the premises in respect of which it is provided regardless of whether such person choose to or not to avail of the service. It was his argument that the provision and making available for the person or premises of the services of the Plaintiff whether availed of or not constituted a discharge by the Plaintiff of the statutory duty under Section 52 of the 1878 Act, and created a right to recover whatever might be the appropriate amount under Section 3 of the 1983 Act. He argued that Sections 2 and 3 of the 1983 Act must be read together and that the definition of "service" in Section 1 should be read consistently with those Sections. I have noted that Section 3 has its own "definitions" of "owner" and "dwelling" for the purposes of that Section under which the amount charged for a service may be determined and pursuant to which the obligation to pay and the right to recover payment are created.
In the course of his argument for the Defendant Mr. O'Donnell submitted that the language used in the 1983 Act is the language of the market place, and if construed, as sought by the Plaintiff, the words appropriate to contract would be used to mask an intention to impose a liability in the nature of a tax. This he argues would give rise to an ambiguity or lack of clarity entirely inconsistent with statutes intended to give power to raise money or impose liability for payment of money in the nature of a tax. Both Counsel cited and adopted for their argument the observations of Henchy J. in Inspector of Taxes v. Kiernan 1981 I.R. 117 at page 121 which were quoted in the course of his judgment by McCarthy J. in McCann Limited v. O'Culachain (Inspector of Taxes) 1986 I.R. 196 at page 200. The quotation is as follows:
"Leaving aside any judicial decision on the point, I would approach the matter by the application of three basic rules of statutory interpretation. First, if the statutory provision is one directed to the public at large, rather than to a particular class who may be expected to use the word or expression in question in either a narrowed or an extended connotation, or as a term of art, then, in the absence of internal evidence suggesting the contrary, the word or expression should be given its ordinary or colloquial meaning...
Secondly, if a word or expression is used in a statute creating a penal or taxation liability, and there is looseness or ambiguity attaching to it, the word should be construed strictly so as to prevent a fresh imposition of liability from being created unfairly by the use of oblique or slack language...
Thirdly, when the word which requires to be given its natural and ordinary meaning is a simple word which has a widespread and unambiguous currency, the judge construing it should draw primarily on his own experience of its use."
As the matter was argued in this Court there appears to be no great controversy as to the answer which should be given to the first question. It has been agreed in the argument in this Court:
(a) that the Public Health Act 1878, subject to partial amendment and repeal, creates a statutory obligation which must be born by the Plaintiff as rural sanitary authority to provide a service of refuse clearance in the rural area of Christianstown, Readypenny in the County of Louth where the Defendant resides;
(b) that by reason of the repeal by Section 4 of the Local Government (Sanitary Services) 1948 of Section 232 of the Public Health Act 1878 the Plaintiff cannot raise by way of levy of a poundage rate based on valuation of property the expenses involved in discharging that statutory obligation;
(c) that since the enactment of the Local Government (Financial Provisions) Act 1978 the Plaintiff has no statutory authority to recover the expenses involved in discharging that statutory obligation otherwise than pursuant to the provisions of the Local Government (Financial Provisions) (No. 2) Act 1983.
On the case as presented I am of opinion therefore that the answer to the first question must be in the affirmative. The definition given to the word "service" in Section 1 of the 1983 Act is expressed to apply to all uses of that word throughout the Act. I do not accept the submission that the word "service" so defined when used in Sections 2 and 3 should be interpreted as being provided for a person without regard to whether or not it was provided to that person. The wording of Section 3 which empowers the Plaintiff to prescribe as appropriate different charges for different classes of persons or for different classes of premises when coupled with Section 5 in relation to giving relief in cases of hardship seems to me to be more consistent with creating a contractual relationship. I am of opinion that having regard to the definition to "service" in Section 1, in Section 3 it must be given the same interpretation in the same way with the same meaning for that word in every case of rendering a service, issuing a permit, or a certificate, or granting a facility, or a licence or an approval, or providing anything of the nature of any of these. As pointed out in argument in this Court the Plaintiff could not by virtue of Section 3 sue for the recovery of a licence fee from a person to whom no licence issued merely because such licence would be available for such class of person. The word "charge" is defined in Section 1 of the Act as follows:
""charge", except where the context otherwise requires, includes fee".
It is notable from a reference to earlier Health Acts and Local Government Acts that the word "charge" can be used with a variety of distinct and different meanings according to the context. Examples which may be found are: the imposition upon an interest in property of a liability to pay money or to satisfy a judgment; the imposition of a liability to pay a tax or levy; the requirement to pay for goods supplied or services rendered and even the allegation of guilt for commission of an offence. Having regard to the previous withdrawal by the legislature of the authority to raise money by a levy of a poundage upon the valuation of property I am of opinion that it was not the intention of the legislature to reintroduce this power in the oblique use of words capable in their ordinary use of a different meaning, rather than by expressly conferring a power to impose a levy to meet anticipated expenses. For these reasons I am of opinion that the second question should be answered in the negative.
It is my opinion that the Defendant whose domestic refuse has not been cleared by the Plaintiff in the relevant period is not liable to pay the Plaintiff the sums claimed.