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Judgment Title: An Post -v- The Commission for Regulation Neutral Citation: 2012 IEHC 405 High Court Record Number: 2012 106 JR Date of Delivery: 04/10/2012 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
NEUTRAL CITATION NUMBER [2012] IEHC 405 THE HIGH COURT JUDICIAL REVIEW [2012/106 JR] BETWEEN:- AN POST APPLICANT v.
THE COMMISSION FOR REGULATION RESPONDENT Judgment of Mr. Justice Hedigan delivered the 4th day of October 2012 1. The applicant address is General Post Office, O'Connell Street Lower, Dublin 1. The respondents address is Block DEF, Abbey Court, Irish Life Centre, Lower Abbey Street, Dublin 1. 2. Reliefs Sought:-
(2) A declaration by way of an application for judicial review that An Post's obligation under Section 16(1) of the 2011 Act or under Section 6(3) of the 2011 Act or otherwise relates to the 'postal address' as determined by An Post. (3) A declaration by way of an application for judicial review that the Applicant is not required to recognise an address based on a District Electoral Division (now referred to, pursuant to Section 223 of the Local Government Act, 2001, as an "electoral division") ("DED") which is different from the post town which applies to the premises as a "true direction" within the meaning of Section 47(4) of the 2011 Act for the purposes of its obligations as universal postal service provider (the "USP") pursuant to Section 17(1) of the 2011 Act. (4) A declaration that the phrase "properly addressing" in Section 25 of the Interpretation Act, 2005 relates to the 'postal address' and not to such various addresses as the Respondent may decide to be a "legal address". (5) Such interim relief as the Court deems fit. (6) Directions if need be on matters of interpretation of Order 84 RSC as it affects these proceedings. 3.1 The dispute which is the subject matter of these proceedings, relates to a direction issued by the respondent on the 22nd November 2011, requiring the applicant to deliver post to a disputed address. The address in question belongs to two of the applicant's customers Patrick and Sandra O'Connell. The O'Connell's seek to use the address "Blackstone Bridge, Watergrasshill, County Cork." They argue that this address is an accurate geographical description of their location. The applicant however argues that their correct postal address is "Blackstone Bridge, Rathcormac, Co. Cork". The O'Connell's purchased their current property in 2002 and since that time they have used an address bearing a reference to Rathcormac. However they say that as their address is located in Watergrasshill, a small amount of post inevitably bore the Watergrasshill address. 3.2 Between 2002 and January 2011 the O'Connell's received post marked with this address "Blackstone Bridge, Watergrasshill, County Cork", albeit that such post was often delivered one day late. The O'Connell's were prepared to overlook this delay in order to accommodate the local postmen as much as possible. In 2011 An Post introduced its address verification tool to increase the use of correct 'postal addresses'. As part of this program, incorrectly addressed postal packets had adhesive stickers or written instructions placed on them in order to inform the addressee that the postal packet had been incorrectly addressed. 3.3 From 2011 postal packets sent to the O'Connell's and addressed as "Blackstone Bridge, Watergrasshill, County Cork" arrived with stickers or instructions indicating that the address used was an incorrect one. On the 11th of March 2011, the O'Connell's submitted a complaint to An Post customer services stating that:-
(ii) while they had been willing to comply with this request they were dissatisfied that some of their mail which was addressed by reference to "Watergrasshill" had been delayed and often had stickers or writing applied to it; and (iii) they were of the view that their property had at all times been in Watergrasshill.
(ii) if they did not use this 'postal address' then mail addressed to them would be automatically sorted to a Delivery Service Unit that serves Watergrasshill and that this would result in delays in the delivery of the mail in question.
3.6 On 31st of August 2011, Mr. Plunkett wrote to Mr. Fay. In this letter Mr. Plunkett stated that there can be no "confusion or debate as to Mr. O'Connell's established address" which he states as "Blackstone Bridge, Ballinaltig, Watergrasshill, Co. Cork". Mr. Plunkett went on to assert that An Post's legal obligation is to deliver mail to the "marked address" on the next working day and that: "How An Post designs its delivery network is a matter for An Post." Mr. Plunkett requested An Post to confirm by 7th of September 2011, that it "shall immediately comply with its legal obligations to deliver mail to this addressee at his legal address at Blackstone Bridge, Ballinaltig, Watergrasshill, Co. Cork on the next working day". Finally Mr. Plunkett indicated that in the event of An Post failing to provide this confirmation ComReg would regard it as being in breach of its legal obligations under Section 16(1) of the Communications Regulation (Postal Services) Act, 2011. On 14th September, 2011 Mr. Fay wrote to Mr. Plunkett. In this letter he explained to Mr. Plunkett that Section 16(1) (a) of the 2011 Act which describes An Post's universal postal service obligation makes no reference to addressing. Mr. Fay further noted that notwithstanding Mr. Plunkett's assertion that there could be no "confusion or debate" as to the customer's "established address" there clearly was such a debate since a number of variations of the customers address were in use. Mr. Plunkett wrote to Mr. Fay on the 4th of October 2011, and asserted that An Post's legal obligation to deliver relates to the 'official address' as determined by the local authorities, and not to "postal addresses' '. 3.7 On the 22nd of November 2011, An Post received a Direction from ComReg requiring An Post:-
(ii) to comply with its statutory requirement to deliver all postal packets marked with either "Blackstone Bridge, Ballinaltig, Watergrasshill, County Cork" or "Blackstone Bridge, Watergrasshill, County Cork" on the next working day; and (iii) to ensure that it shall not refuse delivery of postal packets marked with either "Blackstone Bridge, Ballinaltig, Watergrasshill, County Cork" or "Blackstone Bridge, Watergrasshill, County Cork", nor shall it detain, withhold, return or dispose of such postal packets save where it does so in accordance with section 47 of the 2011 Act." 3.9 On the 25th of January 2012, the company secretary of An Post received a letter from George Merrigan, Director with ComReg. Mr. Merrigan asserted that both variations of the address identified in the Direction constituted "a complete and accurate description of the geographic location of the customer's home and therefore a true direction for the purposes of the 2011 Act". Mr. Merrigan acknowledged that Mr. Fay had emphasised the necessity for An Post to understand the rationale behind the Direction and said that: "While I see no purpose in setting out the rationale again in this letter, I shall describe the actual past behavior of An Post which necessitated the Direction..." Mr. Merrigan then gave a number of examples of postal packets which had been addressed to the customers by reference to Watergrasshill which had been either delayed or, in one instance, returned to sender. Mr. Merrigan stated that An Post had "demonstrated a worrying indifference to the principles of the universal service and to the reasonable needs of one of its customers". In relation to An Posts queries as to ComReg's understanding of "the essential elements of an address" Mr. Merrigan stated that the addresses which appeared in the Direction were "sufficient information for An Post to effect delivery". 3.10 On the 13th of February 2012, An Post sought and were granted leave by Peart J. to take Judicial Review proceedings. An Post were granted a stay in relation to ComReg's Direction pending the determination of the issue. The reliefs which An Post now seek include inter alia an order quashing the Direction of the 22nd November 2011, and a Declaration that An Posts obligations under the 2011 Act relate to the 'postal address' as determined by An Post. Applicants Submissions 4.2 In order to comply with the Direction on a permanent basis, An Post would need to restructure the delivery routes originating from both Rathcormac and Watergrasshill post offices so that the disputed address would be on a delivery route which originates in Watergrasshill post office. This would logically require some of the disputed address's neighbours (who are currently served by the same delivery route from Rathcormac post office as it is) changing their 'postal addresses' to incorporate a reference to Watergrasshill which will become their new "post town", so that they will be on the route. This would then mean the mail addressed to the disputed address and any others impacted by the change which bears the address of Rathcormac would be delayed as their homes would now be served from Watergrasshill. This would open the possibility of a flood of customer complaints. 'Postal addresses' are linked to the history of the development of the postal service. If District Electoral Divisions (DED's) were to be used as a component in postal addressing on a nationwide basis this would require a fundamental restructuring of the manner in which mail is sorted and delivered throughout Ireland with attendant disruption, cost, and quality of service issues. Further, such reorganization would require a high proportion of households to assume new 'postal addresses'. Many of these addresses would be very different since DED's have never played a role in postal addressing in Ireland. Furthermore, the 'postal address' has evolved for a reason- to ensure postal delivery- and is stable. DED's are not stable over time or in accuracy of their data. DED's serve a different function. Any such reorganisation would require households to change their addresses when the DED's were changed for electoral purposes. Further, such readdressing would have an impact on property values and consequently property loans and insurance. 4.3 At paragraph 5 of its Statement of Opposition ComReg denies that these consequences will result from the Direction since the Direction relates to one address only. An Post submits that this defence is illogical. If in principle the Direction is correct in law, then An Post's system of addressing (and the system of addressing used by the population of Ireland) appears to be incorrect. Furthermore, if the Direction is upheld by the Court then An Post would have no assurance that ComReg will not issue further similar directions regarding particular addresses elsewhere in Ireland or even a more general direction requiring An Post to comply on a nationwide level with the principles which underpin the Direction or that customers will not raise complaints, or make claims, on the basis of a variety of addresses. An Post's concern in this regard is heightened by ComReg's failure to appreciate the necessary operational role which the use of the correct addressing components plays in the manner in which post is sorted and ultimately delivered via pre-designed delivery routes. 4.4 An Post has been designated as the Universal Service Provider by the Communications Regulation Postal Services Act 2011 Act. Section 16(1) of the 2011 Act provides that:-
(a) That on every working day, except in such circumstances or geographical conditions as the Commission considers to be exceptional, there is at least- (i) One clearance, and (ii) One delivery to the home or premises of every person in the State or, as the Commission considers appropriate, under such conditions as it may determine from time to time, to appropriate installations ..." 4.5 There is no statutory definition of an "address". The 2011 Act does not define an "address". At paragraph 6 of the Statement of Opposition, ComReg denies that there is a "distinct concept of postal addressing...which has any status in law". An Post fundamentally disagrees with this assertion. There are instances in which Irish and European law operates on the basis of the distinct concept of "postal addressing". More fundamentally, the law, the State, and the EU operates on the assumption that there are 'postal addresses'. Examples of instances include:-
(b) The Planning and Development Regulations 2011 distinguishes between 'postal address' and other address details. (c) The Arbitration Act 2010 also distinguishes between 'postal address' and other address details. 4.6 The applicant submits that the concept of postal addressing is a day to day fact of Irish life which is sufficiently well-known that a Court is entitled to take judicial notice of it. Post towns (i.e. Rathcormac in the case of the disputed address) have always played a critical role in postal addressing in Ireland. The addressing requirements for postal packets being placed in the postal system were explained in Eolai an Phoist which was published by the Minister for Posts and Telegraphs annually from 1924 to 1982. In 1995 An Post issued an updated Eolai an Phoist which remains current. Eolai an Phoist has consistently since 1924 identified the following as the components of a "true direction" for the purposes of a 'postal address' in a "Country District": (i) name of addressee; (ii) name (if any) of house; (iii) name of townland or village; (iv) name of post town in capitals; and (v) name of county. The purpose of a 'postal address' is a direction to postal operatives to sort the mail directly through the An Post system to arrive at the correct post office and to then allow the postal operative to deliver the item to the correct address point where he/she is to deliver the mail. The particular importance of the use of the correct "post town" is that it relates to the post office where the final sorting of the mail is conducted in respect of the address in question before it is taken by the postal operative to make delivery. In the event that the sender diverts a postal packet to the wrong post office for final sorting, An Post must redirect the postal packet to the correct post office thereby entailing a delay in the delivery of the mail to the addressee. In recent years, elements of the mail sortation pipeline were mechanised. However not all mail is handled by the machines. From an information technology perspective, it is not possible to program the machines to make specific provision for the specific customers to whom the Direction refers without enormous additional cost. 4.7 The disputed address is on a delivery route covered by a postal operative who collects mail for delivery from Rathcormac post office. In line with the postal addressing system described above, the customers have previously been advised by An Post that Rathcormac is the "post town" for their mail and, accordingly, mail addressed to them should refer to Rathcormac. This ensures that when mail addressed to the disputed address reaches a mail centre it is sorted for delivery to Rathcormac post office where it will be further sorted by hand into the delivery route of the postal operative who serves the delivery route on which the disputed address is located. Where a sender intended mail to reach the disputed address and this mail refers to Watergrasshill in the address used, it will be sorted in a mail centre for delivery to the Watergrasshill post office. At the Watergrasshill post office it will become apparent that the mail does not relate to any delivery route originating in that post office. It will require to be rerouted (via the Cork Mail Centre in Cork City) to Rathcormac post office in order to be delivered to the Customers which will entail a delay in the final delivery of the mail to the disputed address. Furthermore, there is no crossover between the delivery routes operated by An Post from different post offices. No one house is ordinarily served by deliveries from two different post offices since such a crossover would be wasteful. 4.8 The applicant submits that ComReg is not given power in the 2011 Act, or anywhere else to prescribe a system of addressing to be followed by An Post in providing postal services. ComReg denies at paragraph 7 of the Statement of Opposition that it is "determining the system of addressing to be applied by the applicant in the provision of the universal service..." Notwithstanding this denial, ComReg has in fact purported to compel An Post to comply with a system of addressing whereby the DED forms part of the disputed address. At paragraph 4 of the Direction, ComReg states that:
4.9 The State, in this instance the national regulatory authority, in the purported implementation of European Union law is bound by the general principles of EU law, including the principle of proportionality. An Post submits that ComReg breached the principle of proportionality in that it carried out no assessment of the proportionality of the Direction prior to its adoption. Further the Direction pursues an illegitimate aim in that ComReg's aims are to secure delivery by An Post to a non-'postal address' and to allow the addressees choose the form of their address which could potentially include ''vanity addressing". The extent of the obligation on An Post, namely to reorder the principles and mechanisms by which it delivers mail throughout the State is disproportionate to the result to be achieved namely that the addressees at a disputed address can receive their mail at an address other than their postal address. 4.10 The applicant submits that the direction irrationally denies the crucial role which consistent and accurate postal addressing plays in the delivery of a universal postal service. The logic which underpins the Direction would require An Post to adapt to, and comply with, a potentially endless number of address variations based on the preferences of individual users. ComReg in adopting the Direction breached the principles of natural and constitutional justice in particular the principle of audi alterem partem. The documentary evidence compiled by ComReg, referred to in paragraph 10 of the Direction and on which ComReg relies was not provided to An Post prior to the issuing of the Direction. ComReg failed to afford An Post an opportunity to be heard in respect of the value of this material and the conclusions to be drawn from it, in advance of issuing the Direction and in so doing ComReg breached the principle of audi alterem partem. Finally in relation to the standard of review the O'Keeffe test has come to be recognised as the standard test to determine whether or not the action of an administrative body ought to be quashed. An Post submits that the direction falls foul of this test since the direction is vitiated by errors of law in the face of the record, is disproportionate, was made in breach of natural and constitutional justice, is unreasonable and irrational. Respondents Submissions 5.2 The O'Connell's have indicated to the respondent that they have been severely inconvenienced by the failure of the applicant to deliver their post in a timely fashion. The respondent argues that the delay and or failure to deliver post to the O'Connell's is part of a deliberate and conscious decision by the applicant to enforce its address verification tool. For nine years prior to January 2011, the O'Connell's were receiving post when "Watergrasshill" was included in their address with minimal delays such that they were reasonably happy with their postal service. However after enforcement of the address verification tool delays have increased significantly, post has also been defaced with stickers and also returned to sender. For example a letter from the Motor Tax Office posted on the 31st January 2001, was received on the 28th February 2011, 20 working days later with a sticker affixed marking it as "incorrect postal address". Two letters from the Department of Transport Motor Taxation Office and one from Allianz insurance were returned to sender. A copy of the deeds of the O'Connell's house posted by the O'Connell's solicitor on the 14th October 2011, at Blackstone Bridge, Watergrasshill, Co Cork" was delivered on the 26th October 2011. This letter was marked "incorrect postal address". 5.3 The respondent argues that the Direction related to a particular complaint from specific postal users and arose out of that particular factual background. It is this narrow issue with which the Direction is concerned and the applicant's attempt to characterise the Direction as being of more general application is unjustified. It is not the case that the rationale for the Direction is that addressees must be free to choose their own address for postal purposes. The Direction relates specifically to the O'Connell's address and the issue that arose for them and the customer complaint which they made to the respondent. The question of choice by the O'Connell's is irrelevant and was not taken into account by the respondent in making the Direction. The address is an accurate description of the location of the O'Connell's residence. The applicant's attempt to characterise this issue as one of general application and one which has an impact on the general system of addressing in the State is disingenuous. The O'Connell's are not asking that the applicant afford them special treatment as is suggested by the applicant. They are merely asking that post bearing the correct particulars of the location of their residence be delivered to them. 5.4 The respondent submits that in making a determination in relation to this issue the court should take into account recent developments in the postal sector. The European and Irish postal services has undergone significant change in recent times. The 3rd EU Postal Directive provided for full market opening and liberalisation of the EU postal services market by 1st January 2011, and the applicant is merely one of a number of postal service providers operating in the liberalised postal market in the State. If the applicant's contention that it should be able to require persons to use a particular addressing system (which does not reflect geographic locations of residences or business premises) were to be accepted then arguably every postal service provider could operate a different addressing system and insist on different requirements when postal users wish to use this service. This would result in a situation where intended recipients of post would need to inform the senders of post to them of the appropriate address to use depending on which postal service provider is going to be used by the sender. This clearly is an unworkable system. The respondent submits that the applicant's contention that it is responsible for determining 'postal addresses', a term it has coined, is inaccurate and has no basis in law. There is no statutory basis for this contention. The applicant's contention that the 1995 version of Eolai an Phoist entitles them to set addresses is groundless. Eolai an Phoist is simply an internal operations manual. It has no statutory basis or legal standing. It cannot be the case that the applicant is the sole arbiter of addresses in a liberalised market, where the applicant is merely one of many private companies which provides a postal service. 5.5 The applicant complains that that it would have huge practical difficulties complying with the direction. The respondent disputes this. At paragraph 37-38 of his affidavit Seamus Plunkett Manager at ComReg addresses this point as follows:-
38. Furthermore, it is notable in this context that An Post has closed a number of its 'post-towns' over the years. This has resulted in a transfer of delivery routes into adjacent post-towns. For example, An Post closed Clones in 2011 and transferred the delivery routes into Monaghan. This would be a greater revision than including the town land of Ballinaltig on the Watergrasshill delivery route. Indeed Watergrasshill is itself a 'post-town'. As such it would not need any additional tray on the automation system or sort box on the manual sorting benches at the Cork Mail Centre. The address is feasible for the efficient automation/manual sorting. There is no operational reason why the address cannot be served from the Watergrasshill 'post-town' other than custom and practice that has built up over the years." 5.6 The respondent as the statutory body responsible for the regulation of the postal services sector has specialist knowledge and particular expertise and skill in the area of postal services regulation. The respondents statutory functions relating to postal services include to ensure the provision of a universal postal service that meets the reasonable needs of postal service users" (section 10(1)(ba) of the 2002 Act, as inserted by the Communications Regulation (Postal Services) Act 2011 ("the 2011 Act"); and to monitor and ensure compliance by postal service providers with the obligations imposed on them by or under the Communications Regulation Acts 2002 to 2011 in relation to the provision of postal services (section 10(1)(c) of the 2002 Act, as inserted by the 2011 Act). Under the 2011 Act the Commission should take all reasonable measures to ensure a high level of protection for postal service users in their dealings with postal service providers. 5.7 An applicant who seeks certiorari of a decision of an expert administrative body must demonstrate that the decision was unreasonable or irrational. In The State (Keegan) v. Stardust Compensation Tribunal [1986] 21.R. 642 Henchy J. held:-
5.8 The respondent issued the Direction pursuant to section 21(2) of the 2011 Act. The respondent submits that the power to direct the applicant to deliver a postal packet to a specific address is one which is necessarily encompassed in this express statutory power. The test in relation to implied powers is in general terms whether the power can be shown to be "reasonably incidental" to the powers giVen in legislation. This test is often supplemented by the principle of effectiveness i.e. that the courts will seek to avoid a construction of a statutory provision which renders it largely ineffectual. The respondent submits that the power to direct the applicant to deliver postal packets to a particular address is one which is reasonably incidental to its express statutory powers pursuant to Regulation 21(2) of the 2011 Act which provides:-
5.9 The applicant makes the case that the respondent in making the Direction breached the principles of natural and constitutional justice, in particular the principle of audi alteram partem. The applicant complains that the respondent failed to give it an opportunity to be heard in respect of documentary material relied upon by the respondent in making its Direction. The respondent submits that this is not the type of decision that attracts the rules of constitutional and natural justice. Hogan and Morgan in Administrative Law in Ireland at p. 708 acknowledge that there are decisions which are exempt from the strict application of the audi alteram partem rule and give examples of types of decisions where this is the case. They outline the rationale for this as follows:
Thus, the requirements of constitutional justice are largely dictated by the circumstances and it must be emphasised that the right to fair procedures and, in particular, the right to be consulted which must be regarded as an aspect of the audi alteram partem rule is subject to the exigencies of pragmatism. This is particularly so in the context of the legislative process." 5.10 Without prejudice to the respondents submission that this is not the type of decision that attracts the rules of fair procedures, the respondent submits that the extensive engagement including correspondence and meetings between the respondent and the applicant between May 2011 and November 2011 fully addressed any obligation it has to allow the applicant to make representations and satisfied the principles of audi alteram partem. Between May and November 2011, the respondent outlined the reasons why it considered that the applicant was obliged to recognise the address and, in particular, to deliver postal packets bearing the address to the O'Connell's residence in a timely fashion. The applicant was furnished with the basic reasoning behind the making of the Direction and was fully appraised of the main rationale behind the respondent's Direction (i.e. the fact that the address accurately described the location of the O'Connell's residence), the applicant was notified that the respondent proposed to take enforcement action and was given ample opportunity to make representations. In these circumstances, the fact that some documentary evidence may not have been provided to the applicant prior to the issuing of the Direction does not mean that the applicant has not been given the right to be heard nor does it invalidate the Direction. 5.11 The applicant argues that there are errors on the face of the record, the respondent's position is that the record does not contain errors of law material to its validity. The respondent relies on the judgment in McKernan v. The Employment Appeals Tribunal [2008] IEHC 40. McKernan involved a judicial review of a decision of the Employment Appeals Tribunal and one of the grounds for review was that the Tribunal misdirected itself as to the law in its determination and that this error appeared on the face of the record. Feeney J. stated the test to be applied as:-
5.12 The applicant makes the case that the Direction was unreasonable and/or irrational and the applicant's takes issue with the weight afforded to the documentary evidence. The applicant in making these pleas is attempting to ask the Court to re-open the respondent's decision making process and to second-guess the merits of the respondent's decision. However judicial review is not an appeal on the merits. On the basis of the above, the respondent submits that any error it made (and it denies that any error was made) was an error within jurisdiction and accordingly that the Court should not interfere with same. The applicant also makes the case that the Direction breached the principle of proportionality. The way in which this is advanced reflects a misunderstanding of the principle of proportionality as established by the courts in this jurisdiction. The applicant views the proportionality test as allowing the Court to assess the aim of the respondent's decision and to conduct a balancing exercise whereby the Court decides whether a less restrictive means to achieve this aim could have been used by the respondent. This view of the doctrine of proportionality is misconceived and this is apparent from the recent decision of the Supreme Court in Meadows v. MJELR [2010] 2 IR 701:-
Decision 6.2 The respondent argues that the applicant is essentially trying to establish itself as the addressing authority of the State. It maintains that the obligation imposed upon it to regulate the applicant's provision of its postal service both obliges and empowers it to direct An Post to deliver post addressed to the customer's actual geographical address as opposed to the customer's 'postal address'. 6.3 It is agreed that the customer's house herein is located at Blackstone Bridge, Watergrasshill, County Cork. It is also agreed that in the applicant's delivery system, the customer's address for postal purposes is Blackstone Bridge, Rathcormac, County Cork. Since 2002 when he purchased the house, the customer has accepted to use the address as directed by the applicant. This means that "Rathcormac" had to be present in the address because that is the postal town for sorting and delivering mail to this customer's house. Since 2011, with the introduction of its address verification tool, An Post have been affixing adhesive stickers to letters or parcels where the correct postal address, as directed by them has not been used. On some occasions, mail has been delivered a few days late. In some cases it has been returned to sender. In one case, a letter from the Motor Taxation Office was delivered after a delay of twenty days. The customer now insists on being able to use his actual geographic address in the address he gives to those wishing to post items to him. It is the respondent's case that this is a valid requirement of the customer and that it is thus both obligated and empowered to make the direction impugned herein. 6.4 The power invoked by the respondent is contained in s. 21(2) of the Communications Regulation Act 2011. Section 21 provides as follows:-
(a) to provide a universal postal service in accordance with the obligations imposed on a universal postal service provider by or under the Communications Regulation Acts 2002 to 2011, subject to the interruption, suspension or restriction otherwise of all or any part of the universal postal service in cases of force majeure, (b) to provide identical services to postal service users under comparable conditions, and (c) to comply with the terms and conditions of its universal postal service provision published under section 22 or 23 , as the case may be, and any amendments to or modifications of those terms and conditions under that section. (2) Where the Commission is of the opinion that a universal postal service provider is failing, or has failed, to comply with any of the requirements of this section, the Commission may give a direction to the universal postal service provider to ensure compliance with the requirement concerned." 6.5 An Post has been designated as Universal Service Provider by s. 17(1) of the 2011 Act. As such, it is subject to stringent duties that require it, inter alia, to deliver 94% of mail by the next day delivery. This is a highly demanding and vitally important requirement. In order to fulfil its obligations, An Post has established and maintains a complex web of delivery routes which it considers necessary to achieve those ends. The evidence before the court establishes that designated post distribution centres close to delivery points and called 'post towns' are a critical link in the delivery chain that permits fast delivery to a customer located anywhere in this web. The evidence has also established that in some cases, notably in rural areas, this results in a customer being served his post by a post town not located in his exact geographic location. Thus there exists, and has existed since the foundation of this State and long before, a concept of a postal address which is different to the exact geographical location. Examples have been given in this case of post towns located in a village a mile away from a particular location e.g. Ballymun Cross and Santry and even in an adjacent county, e.g. Galbally, County Limerick with Tipperary. The evidence is that these are but two examples of many locations which have a geographic address different to a 'postal address'. I accept that the concept of a 'postal address' is one that exists and is an essential part of the delivery web maintained by An Post. This concept appears to be accepted both by the State and the EU as set out in 4.5 above i.e by the rules with regard to the Registration of Deeds, by the Planning and Development Regulations, in the Arbitration Act 2010 and the 2011 European Standard EN 14142-1:2011. The latter seems to recognise this in that it states:
6.7 I can find no merit in this argument. In my judgment, the concept of a 'postal address' is and has been since the foundation of the State and long before a well known and accepted reality. It may be an irritant to some customers but this irritant is more than outweighed by the benefit of a complex web of delivery routes that enable the fastest possible delivery of the mail albeit that it cannot in all cases exactly mirror the precise geographic location of a particular house. It was accepted at the hearing by the respondent that there is no official addressing authority in the State. There were examples given of countries that did have such an authority but Ireland it not one of them. No body either is or, absent legislation, can be the addressing authority for the State. The applicant thus is not and cannot, in my view be considered as attempting to do that. It is engaged in continuing to use its well established delivery system to provide a speedy and efficient service. Postal towns and therefore 'postal addresses' form an essential part of this system. For those who wish to avail of postal services provided by An Post at peak efficiency, it is necessary for them to use the name of the postal town from which the mail will be finally distributed. This obligation, in my view, is only a minor inconvenience. 6.8 The court of judicial review is limited in the extent to which it can intervene in the decisions of administrative bodies. This is particularly so in the case of bodies that exercise a particular expertise (see O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39). In my judgment, the respondent is such an expert body. However, the picture is somewhat unusual in this case because the applicant is also a body exercising a particular expertise. The applicant in fact claims and with some justification that it is the real expert in the field of postal delivery. Allowing that both have considerable expertise, it seems to me that the court must defer to both insofar as that expertise touches on the decision made. It seems to me that the respondent's decision to issue the direction was made without consideration of the highly relevant fact that the concept of the 'postal address' was an established reality that has existed as long as the postal delivery service itself. It undoubtedly was attempting to resolve a customer complaint as best it could but, in my view, stepped out the area of its expertise and into the realm of the applicants when it apparently ignored the central significance of the 'postal address' in the applicant's complex delivery system. Failing to take account of a relevant consideration when it makes its decision may be grounds upon which this Court can hold that an administrative body has exceeded its jurisdiction. I think that that is what has occurred in this case. Thus I consider the direction given was made, ultra vires, and I will make an order of certiorari quashing the direction of the 22nd November, 2011. I think the declarations sought at (2), (3) and (4) of the notice of motion are also appropriate in order to clarify the situation and thus will order those also. This decision being dispositive of the case, I see no reason to address the other issues that arose.
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