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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Pierce t/a Swords Memorial -v- The Dublin Cemeteries Committee & ors [2009] IESC 63 (30 July 2009)
URL: http://www.bailii.org/ie/cases/IESC/2009/S63.html
Cite as: [2010] 2 ILRM 73, [2009] IESC 63
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Judgment Title: Pierce t/a Swords Memorial -v- The Dublin Cemeteries Committee & ors Neutral Citation: [2009] IESC 63 Supreme Court Record Number: 256 & 370/06 High Court Record Number: Date of Delivery: 30/07/2009 Court: Supreme Court Composition of Court: Hardiman J., Kearns J., Macken J. Judgment by: Kearns J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||||||||
THE SUPREME COURT Hardiman J. Kearns J. Macken J. [S.C. No. 256 of 2006] [S.C. No. 370 of 2006] BETWEEN DAVID PIERCE T/A SWORDS MEMORIALS AND ANDREW PIERCE MOMUMENTS PLAINTIFF/APPELLANT AND THE DUBLIN CEMETERIES COMMITTEE, GLASNEVIN CEMETERY MOMUMENT WORKS LIMITED AND GLASNEVIN CREMATORIUM LIMITED DEFENDANTS/RESPONDENTS
This is an appeal from a judgment of the High Court (Laffoy, J.) delivered on the 11th May 2006 and the order dismissing the plaintiff’s claim made on the 23rd May 2006. It concerns the correct interpretation of the Dublin Cemeteries Committee Act 1970 (“the Act of 1970”) a private Act by which the first defendant (“the committee”) was established, which committee replaced a body corporate, Dublin Cemeteries Committee (“the 1846 committee”), established under the Cemeteries Act 1846, in turn described as a public Act. The committee is a registered charity for tax purposes and has incorporated the second and third named defendants which are limited liability companies. The committee owns and manages several cemeteries in Dublin City and County, including Goldenbridge Cemetery, Glasnevin Cemetery, Palmerstown Cemetery, Dardistown Cemetery and Newlands Cross Cemetery. Goldenbridge cemetery (which is now full) and Glasnevin Cemetery already existed at the time of the passing of the 1846 Act and the creation of the 1846 committee, whereas the last three named cemeteries were established between 1978 and 1999 to serve the much larger population of Dublin. The plaintiff has been engaged in business since 1988. This business involves the design, construction and sale of headstones and monumental sculpting, also in the Dublin area, which was originally conducted in partnership with his brother but in 1999 the first plaintiff acquired his brother’s interest in the business. It has been carried on from the beginning from Swords in County Dublin and the plaintiff’s business services cemeteries in the City and County of Dublin which would ordinarily include all of the cemeteries owned and managed by the committee. In the High Court proceedings the plaintiff alleges that the manner in which the second defendant (“the company”) carries on its business is unfair to him and to other persons who operate both monumental sculpting businesses and provide headstones, and is damaging to such businesses. Before the plaintiff commenced these proceedings he raised these issues with politicians, the Revenue Commissioners with the Competition Authority, but without any successful outcome. As was stated by the learned High Court judge, the nub of the plaintiff’s complaint is that the Act of 1970 does not empower the committee, or any company operating under the control of the committee such as the company or the third defendant (I deal with both together in this judgment) to sell on a commercial basis, monuments or headstones or to provide inscription services or similar products or services and that its activities, whether operated by the committee itself, or through the medium of the company, are ultra vires the Act of 1970. The plaintiff sought declarations that neither the committee nor the company was entitled to engage in the commercial sale of headstones, nor entitled to prohibit the engagement of monumental sculptors, such as the plaintiff, for the purposes of placing inscriptions on headstones, inter alia, in the Garden of Remembrance at Glasnevin cemetery. The plaintiff also sought injunctions to prevent or prohibit the committee engaging in any such activity, and damages for breach of his constitutional right to earn a livelihood. It was accepted by the committee that if it was not entitled to engage in the activities which the plaintiff contended were ultra vires its powers, then any company owned or controlled by the committee such as the company, could not either engage in such activities. The core issue in the case in the High Court was whether the activities, as contended by for the plaintiff, were ultra vires the powers of the committee under the Act of 1970. It follows therefore that if they were, the company established by the committee and under its control, cannot carry on the same activities. In an earlier decision delivered on the 28th day of May on the question whether the plaintiff had locus standi to bring the proceedings, I found that the respondents could not succeed by virtue of the provision of the Competition Act 1991 in preventing the plaintiff from seeking the relief which he claims in these proceedings. The background: the legislation The Act of 1846 included in its preamble that the committee for the management of Goldenbridge and Glasnevin cemeteries had existed prior to the enactment of that Act but that its members had either died or had declined to act. Certain named persons and other persons who might be nominated and elected to fill vacancies were constituted the 1846 committee and they were granted power by the legislation, inter alia, to hold Goldenbridge and Prospect cemeteries. Further the Act of 1846 provided that it would be lawful for the 1846 committee subject to such conditions as they might think proper, to sell – 1 the exclusive right of burial in any vault catacomb or place of burial constructed by them within the cemeteries 2 the right of constructing any vault catacomb or place of burial within any such cemetery with exclusive right of burial therein 3 the right of single internment in any vault catacomb or other place of burial constructed within the cemeteries or in the open ground thereof 4 the right of erecting and placing any monument tombstone or gravestone in the cemeteries or any monument or monumental inscription on the walls of the chapels or other places within the cemeteries. Turning to the Act of 1970, this was described as an Act “to establish a body corporate to undertake and carry out the functions at present undertaken and carried out by the ‘Dublin Cemeteries Committee’ and “to enlarge and extend such functions”. The preamble also recited the Act of 1846, the acquisition by the 1846 committee of further lands in the parish of Glasnevin, and to avid doubts which had arisen in relation to the nature and constitution of the 1846 committee and as to its power to acquire and provide burial facilities in the county and county borough of Dublin elsewhere than in the parish of Glasnevin aforesaid to sell or dispose of land, and to invest or deal with surplus monies. The committee was established by s.3 as “a body corporate with perpetual succession and an official seal … and power to sue and be sued in its said name and to purchase, take, hold, and dispose of land and other property”. Members of the 1846 committee were to be members of the committee established under the Act of 1970, and subject to certain exceptions were to hold office for life. Further the committee was to be self perpetuating subject to an upper limit on membership. Of particular importance in relation to this case are the provisions of s.16 and also s.17 of the Act of 1970 which respectively provide as follows: “16 The objects for which the Committee is established are as follows: ( a ) To maintain, improve and extend the existing Cemeteries and to preserve the bodies interred in them from disturbance and desecration. ( b ) To acquire, provide, maintain, improve, lay-out, construct and operate in the County and County Borough of Dublin cemeteries, burial grounds and other places and means for the burial, interment, preservation or disposal of human remains in accordance with the rites, services and beliefs of any of the religious denominations specified in Article 44 of Bunreacht na hÉireann or of any other religious denomination existing in the Republic of Ireland on the establishment date.
(b) to sell, improve, manage, develop, exchange, lease, hire, mortgage, dispose, turn into account or otherwise deal with all or any part of the undertaking property and rights of the Committee. (c) to borrow … (d) to invest … (e) to employ … (f) to accept … grants, subscriptions, donations, devises, and bequests for all or any of the purposes of the Committee and generally to manage, invest and expend all moneys or property belonging to the Committee. (g) … (h) … (i) to build, construct, erect, improve and maintain buildings, chapels, monuments, headstones and structures for use or decoration in or in connection with cemeteries or burial grounds. (j) To bury … (k) To do all such other things as the Committee may consider incidental or conducive to the attainment or advancement of any of the objects of the Committee.” Of relevance in this appeal are the provisions of s.17(i) and (k). The former provides for a power to build construct erect, inter alia, headstones and structures for use or decoration in or in connection with cemeteries or burial grounds, and (k) gives all appropriate ancillary powers or powers incidental or conducive to the attainment of any of the objects of the committee. It does not seem to me that it is necessary to refer to other sections of the Act save to say that all of the functions of the committee can be performed to any of the members or employees of the committee authorised in that behalf. The judgment: Having dealt with the question of locus standi, in favour of the appellants, the learned High Court judge then considered the claim that the activities being carried on by the committee through the company were ultra vires the powers of the committee under the Act of 1970. I now turn to the learned judge’s findings. In light of my agreement with the findings of the learned High Court judge and her conclusions, it is useful to set out the most relevant parts of the judgment at this stage. Having referred in particular to Keane v An Bórd Pleanála [1997] 1 IR 184 the learned trial judge cited as a correct statement of the law the following extract of Hamilton, C.J. in that case:
She also adopted the extracts from the judgment of Hamilton, C.J. in Howard v Commissioners of Public Works [1994] 1 IR 101 at p.112 in the following terms:
The learned High Court judge pointed out that the corporations involved in the latter two cases were both public bodies, but noted correctly in my view, that in the case of statutory corporations established by Private Act of parliament the normal canons of construction applicable to the ascertainment of the powers of statutory corporation, must be applied having regard to the special rules of construction which have evolved in relation to such Acts. In that regard she cited extracts or commentaries from academic writings including Collins and O’Reilly on Civil Proceedings and the State (2nd edition Thomson Roundhall, 2004) and Bennion on Statutory Interpretation in the latter of which is found the following citation:
It has been said of private Acts generally that their wording ‘is to be treated as the language of the promoters of them’. The Act is framed by the very persons who desire that the general law shall be eased in their private favour. So where there is any doubt its language is to be construed against them. The rule is verba cartarum fortius accipiuntur contra proferentem (the words of written instruments are to be taken most strongly against those who put them forward).” The appellants had submitted that the question for the court was whether the Act of 1970, properly construed, gave the committee power to sell headstones on a commercial basis, to which the respondents replied that the power to manufacture headstones could not have been contemplated unless there was an entitlement to receive payment for the headstones it erected. The appellants accepted that s.17 paragraph (i) of the Act of 1970 contained an express power to manufacturer headstones, but argued that this was an innovation and that the 1846 committee did not have express power to do so under the 1846 Act. Because of the innovation in the Act of 1970, however, they argued that paragraph (i) could not lawfully confer an express power to manufacture headstones for sale. Therefore, it was said, it was necessary to consider three questions, that is, whether the power to sell headstones (1) is expressly conferred by some other provision, or (2) is an incidental power, or (3) can be implied applying the normal canons of construction. In relation to the first question the appellants submitted that paragraph (b) does not empower the committee to sell a headstone manufactured by the committee under paragraph (i), because, it was said, the context of paragraph 17(b) suggests that it is essentially a power to deal with lands owned by the committee. The learned High Court judge did not accept that argument but found that under paragraph 17(b) the committee has power to sell “any property” , whether it is office equipment or a lawnmower, or, subject to compliance with s.18, land. The actions enumerated in paragraph (b) she found, do not relate exclusively to land. Leases and mortgages of chattels are a common phenomenon, whereas the use of the word “hire” is not a concept which applies in relation to land. The appellants had argued that the words “undertaking property” meant property properly held for the purposes of the undertaking, leading to the conclusion that under paragraph 17(i) the committee had power to manufacture headstones only for the purposes of maintaining a cemetery and not for the purposes of sale. It was suggested that this interpretation was borne out by the legislative history and the preamble to the Act of 1970 indicating that the legislative intent was to clarify existing powers but not to extend them. It was accepted however that in the event of any inconsistency between the operative part of the Act of 1970 and its long title or preamble, the operative part must prevail. The learned High Court judge found that the appellant’s approach to the interpretation of s.17 required a reading into that section of something which is not there. The intention of the legislature she found in enacting paragraph (i) was clear, namely an intention to vest in the committee a power to construct or manufacture specified items, including headstones, and also power to manufacture other structures, but with an express restriction in that such other structures must be for the use or decoration in or in connection with cemeteries or burial grounds. Because of that restriction the committee does not have power to manufacture, say, garden gnomes. The learned High Court judge found that there was no other restriction in paragraph 17(i) and she could see no basis for reading into it a condition or proviso limiting the power to manufacture headstones solely for the purposes of maintaining the cemeteries. Further she found that there was no basis for reading into paragraph 17(b) any limitation on the committee’s power of sale, other than the limitations stipulated in s.18 in relation to land. Nothing else in the Act of 1970 necessitated the implication of any limitation in s.17 paragraph (b) or paragraph (i) to avoid inconsistency. The learned trial judge clarified that in the plain words of s.17 the committee has power to manufacture headstones, and that any headstones it manufactures thereupon becomes “undertaking property”. It is entitled to sell any headstones so manufactured by virtue of paragraph (b). That interpretation is not so wide as to authorise the committee to do anything, as the plaintiff had suggested. The defendant does not have power to manufacture items extraneous to their powers, such as garden gnomes, nor power to sell any such items. The appeal: In this appeal the appellants contend, in essence, that the learned trial judge erred in law in her interpretation of s.17 of the Act, in particular s.17(b) and in (i) of the Act and further erred in finding on her interpretation that they conferred a power on the committee to manufacture and sell headstones on a commercial basis. In particular the appellants allege that this interpretation: 1. Failed to take adequate account of the first sentence of s.17 of the Act that the powers referred to were “subject to the provisions of the Act” 2. Failed adequately to take account of the final sentence of s.17(i) that the power to “construct” inter alia headstones was “for use or in decoration in or in connection with cemeteries or burial grounds”. 3. Erroneously interpreted the power in s.17(i) to “construct” as a power to manufacture on a commercial basis. 4. Erroneously equated the bare power to “sell” property in the possession of the first named defendant, with a power to enter into the business of the commercial sale thereof. 5. Incorrectly expanded the power in s.17(b) to “deal with undertaking property” and to “construct” inter alia headstones so as to confer upon the first named defendant a power which went beyond its expressly limited statutory objectives under s.16. 6. Failed to have adequate count of the objects of the first named defendant provided for in s.16. 7. Failed to take adequate account of the provisions of the Act as a whole. 8. Interpreted the provisions of s.17(b) and (i) out of their proper context and legislative intent and finally 9. Misunderstood the provisions of the sections relied on to such an extent that the construction placed upon the sections by the learned trial judge to construct and sell commercially headstones could have permitted it to become a seller of lawnmowers or office equipment or to commence business or even to become a property developer. Mr Hogan, senior counsel for the appellants, and Mr Allen, senior counsel on behalf of the respondents, were in substantial agreement as to the tests to be applied in the interpretation of such Private Acts were content to rely effectively on the same case law in that regard, which was also relied upon by the learned High Court judge. Mr. Allen on behalf of the respondents did suggest that the more recent English case law suggests a more fluid and less rigid approach. I do not consider it necessary to analyse that more recent case law, as I consider the approach of the learned High Court judge, on her analysis of the law, correct. Nor were counsel for each of the parties in disagreement with the appropriate extracts from Bennion on Statutory Interpretation which ought to be applied or with the general approach which should be adopted in relation to the issue of statutory interpretation of a private Act insofar as objects and powers are concerned. In reality where the parties disagree is in their acceptance or rejection of the analysis carried out by the learned High Court judge of the particular statutory provisions found in the Act of 1970 and in particular on her interpretation of s.17(b) and (i), in the light of the object clause found in s.16, and the provisions of the Act of 1846. . The objects provided for in s.16 of the Act of 1970 are clear and have been set out above in that part of the judgment relating to the legislative framework. The powers of the committee flowing from those objects are equally clearly set out in s.17 of the Act of 1970. It seems to me that no limitation whatsoever is to be found in s.17 of the Act of 1970 which for convenience is, in its relevant part, in the following terms:
(b) to sell, improve, manage, develop, exchange, lease, hire, mortgage, dispose, turn into account or otherwise deal with all or any part of the undertaking property and rights of the Committee. (c) … (d) … (e) … (f) … (g) … (h) … (i) to build, construct, erect, improve and maintain buildings, chapels, monuments, headstones and structures for use or decoration in or in connection with cemeteries or burial grounds. (k) to do all such other things as the Committee may consider incidental or conducive to the attainment or advancement of any of the objects of the Committee” The committee contends in this appeal it has an express power by s.16, to “construct and operate” cemeteries in the County and County Borough of Dublin and a specific power under s.17(i) to “build, construct, erect, improve and maintain … monuments, headstones and structures … in connection with cemeteries …”. This is correct, on the clear wording of the provision. The provisions of s.16 in respect of which the power contained in s.17, including s.17(b) and s.17(i) are granted, appear to me to be adequately broad to include all the powers contended for on behalf of the respondents. Nor is there any ambiguity in the wording used in s.17(i) which would require or would have required the learned High Court judge to adopt a different and more restricted approach to the one adopted. The learned High Court judge, correctly in my view, also drew specific attention to the fact that, tellingly, the power to sell land is subject to certain restrictions in s.18 of the Act of 1970, whereas in relation to the powers found in s. 17 in respect of other property, no restrictions or conditions are imposed. It might be thought normal that if any such restriction or condition was to be imposed, it would be found in the terms of the legislation. I agree with the respondent’s fairly simple contention that if there is a power to construct monuments or tombstones it is tautologous to suggest that these cannot be done on a commercial basis, given that the construction or manufacture is for the purpose of sale, and such power of sale is found in paragraph 17(b). I accept also the learned trial judge’s interpretation of the various words used in the latter paragraph, and their application respectively to chattels on the one hand, and to land on the other, and with the conclusion she drew from this interpretation. It is also argued on appeal that, in line with the case law on interpreting such Private Acts in a strict and even limited manner, since there was no right to construct monuments in the Act of 1846, there could be no legitimate right to do so pursuant to the Act of 1970, and the Act should be interpreted as meaning that any monuments if constructed could only be for maintenance or remedial works within the cemeteries. I do not accept that this is a legitimate argument in the context of the present case. Under the act of 1846, there was a clear right to construct vaults, and such like, for example, as well as a right to control the erection of monuments and of inscriptions, and to remove both. The purpose of the Act of 1970 is, inter alia, to provide for an extension of the functions previously vesting in the 1846 Committee. I consider that the powers provided for in the Act of 1970, can readily be included in the phrase ”an extension of the functions”, of the Committee, if it were necessary to do so. The power to sell as well as to construct monuments, following on from the power to construct, for example, vaults, is clearly within “an extension of the functions” while at the same time being wholly related to the objects clause in s.16 of the Act of 1970, which include as an object the acquisition construction and operation of cemeteries and other burial grounds. On this ground also, I find myself in agreement with the arguments of the Committee that the power it contends for is properly permitted by the terms of the Act of 1970. I am satisfied that the learned High Court judge correctly analysed the position in law, properly interpreted the provisions of the Act of 1970, in particular the relevant provisions relating to objects and powers, and came to a correct view that the powers vesting in the first named respondent included a power to construct headstones and sell on a commercial basis. Provided therefore that the respondents are carrying on the activities complained of, as I find they are, within the powers and objects of the Act, the plaintiff cannot succeed in this appeal. For the purposes of the claim made in these proceedings, which is limited strictly to whether or not the committee have, by carrying on the business of the manufacture and sale of headstones through the company, acted ultra vires its powers, I am satisfied it has not. I would in the circumstances dismiss the appeal and affirm the order of the High Court. JUDGMENT of Mr. Justice Kearns delivered the 30th day of July, 2009 By Private Act of Parliament enacted in 1846 a governing body or committee was established for the maintenance of the cemeteries at Golden Bridge (established in 1827) and Prospect (later called Glasnevin) (established in 1832) in County Dublin. Prior to that time burial facilities in those cemeteries were provided by an unincorporated committee or association. The 1846 committee was replaced in 1970 by the Dublin Cemeteries Committee, the first named respondent herein, pursuant to the provisions of a Private Act of the Oireachtas, namely the Dublin Cemeteries Committee Act 1970. Following the enactment of the Act of 1970 the Dublin Cemeteries Committee acquired new cemeteries at Palmerstown (established in 1978), Dardistown (established in 1990) and Newlands Cross (established in 1999). The Dublin Cemeteries Committee is a registered charity which operates private cemeteries. While it does ask for interment fees and subscriptions from those who can afford them, it provides burial space regardless of whether or not the family of the deceased has the resources to pay for a grave. The Committee permits families to provide monuments on foundations which the Committee provides. Rules have been made providing for the dimensions, design, composition and so forth of permitted memorials. Prior to the Act of 1970, the Committee did not engage commercially in the business of manufacturing or selling tombstones or monuments. However, the second and third named respondents were incorporated thereafter as limited liability companies, the first being formed to carry on the business of manufacturing and selling tombstones and monuments and the latter to operate the crematorium at Glasnevin Cemetery. Both of these companies are wholly owned by the Committee. The plaintiff in these proceedings is in the business of manufacturing and selling monuments and has been in that business since 1988. He initially carried on the business in partnership with his brother but in December, 1999 he bought out his brother’s interest in the partnership and has since been carrying on business on his own account. The plaintiff is one of a number of undertakings in the Dublin area who engage in the design, manufacture and sale of headstones. The development by the first named defendant of a commercial undertaking in respect of the sale of headstones has impacted severely on the ability of the plaintiff and other undertakings to compete for and obtain business. The evidence at trial and the correspondence passing between the various undertakings in this field and the Competition Authority from 1988 onwards reveal the extent of the disadvantage suffered by these undertakings as a result of the commercial enterprise now being conducted by the Committee. By way of illustration, the Committee offer a display of their headstones and monuments inside the cemetery. The Committee have an employee who also acts as a headstone salesperson. To buy a grave one must go to their office which is adorned with pictures and brochures of headstones. Further, the cemetery registrar has all the deceased’s personal family details on computer, including next of kin, home address, etc., and may use this information to advantage in marketing and selling. Other outside sculptors are not permitted a display area which might compete with the Committee. In a letter written on behalf of the Dublin Sculptors Alliance to the secretary of the Competition Authority in February, 2000, the selling of headstones inside the gates of the Committee’s cemeteries was described as being: “akin to the Eastern Health Board selling prams inside the doors of the Rotunda and Holles Street maternity hospitals. They are selling to a captive and vulnerable market. Everybody who buys a grave buys a headstone, similarly every mother wants to buy a pram.” On first consideration this state of affairs, which is not controverted by the Committee, would suggest that the plaintiff might have brought a legal challenge alleging abuse of a dominant position under the provisions of the Competition Acts. However, for reasons which are more fully elaborated in the judgment already delivered herein by Macken J. on the 28th day of May, 2009, the Competition Authority declined to take up cudgels against the Committee on foot of these complaints and gave the plaintiff and his colleagues reasons why, in the view of the Authority, it would not and should not do so. This Court has already concluded that in the particular circumstances of this case an adequate alternative remedy under competition law such as would disentitle the plaintiff from locus standi to mount the present proceedings was not in reality available to him. The key question arising for consideration in this judgment is whether the provisions of the Dublin Cemeteries Committee Act 1970 give a power to the Committee to engage commercially in the production of headstones for sale and/or establish subsidiary companies for this purpose. As the Act upon which the Committee relies is a Private Act of the Oireachtas, and as this judgment addresses the interpretation of that Act, it is appropriate to first consider the rules of construction applicable to Private Acts. CONSTRUCTION OF PRIVATE ACTS While private legislation was a relatively common feature in the 19th century, the number of Private Acts such as the Act of 1970 which have been enacted by the Oireachtas since 1922 are few. Because it is legislation introduced for the benefit of its promoters, it is well established that such legislation is to be treated as a contract between the promoters (or that portion of the public which might benefit from it) and the legislature. Under well settled legal principles, such legislation is to be read strictly against the promoters. In this jurisdiction Standing Order 1 of the Oireachtas Standing Orders (Private Bills) provides that:-
As text-book writers Erskine May state (Parliamentary Practice, 23rd Ed. at 967):-
It has been said of private Acts generally that their wording ‘is to be treated as the language of the promoters of them’. The Act is framed by the very persons who desire that the general law shall be eased in their private favour. So where there is any doubt its language is to be construed against them.” In the instant case, the content of the Parliamentary Notice published prior to the enactment of the Act of 1970 was adduced in evidence. It is instructive as to what was put to the public prior to the enactment becoming law:-
(2) To provide for the transfer of the property vested in the present Committee to the newly established body corporate. (3) To enable the Committee:
(b) To acquire, maintain, improve, lay-out, construct and operate in the City of the County of Dublin cemeteries and burial grounds and other places or areas for the burial, internment, preservation and disposal of human remains. THE RELEVANT STATUTORY PROVISIONS Section 16 of the Act of 1970 provides as follows:
(b) To acquire, provide, maintain, improve, lay-out, construct and operate in the County and County Borough of Dublin cemeteries, burial grounds and other places and means for the burial, interment, preservation or disposal of human remains in accordance with the rites, services and beliefs of any of the religious denominations specified in Article 44 of Bunreacht na hÉireann or of any other religious denomination existing in the Republic of Ireland on the establishment date.”
(b) to sell, improve, manage, develop, exchange, lease, hire, mortgage, dispose, turn into account or otherwise deal with all or any part of the undertaking property and rights of the Committee. (c) to borrow … (d) to invest … (e) to employ … (f) to accept … grants, subscriptions, donations, devises, and bequests for all or any of the purposes of the Committee and generally to manage, invest and expend all moneys or property belonging to the Committee. (g) … (h) … (i) to build, construct, erect, improve and maintain buildings, chapels, monuments, headstones and structures for use or decoration in or in connection with cemeteries or burial grounds. (j) to bury … (k) to do all such other things as the Committee may consider incidental or conducive to the attainment or advancement of any of the objects of the Committee.”
The preamble to that Act describes the Act as being one “for the maintenance of the cemeteries at Golden Bridge and Prospect in the County of Dublin and (1) “To create a perpetual succession in the Governing Body or Committee from managing the same.” Section 14 of that Act provided that the Governing Body “shall, by and out of monies to be received by virtue of this Act, keep all and singular the burial grounds and cemeteries, chapel and chapels, and the several buildings thereon and therein, and the external walls and fences thereof, and all other parts of the same which by this Act they are authorised to erect and maintain, in thorough and complete repair.” Section 18 of the Act provided that “it shall be lawful for the said Governing Body, under such regulations and restrictions and subject to such conditions as they shall think proper, to sell the exclusive right of burial, either in perpetuity or for a limited period, in any vault, catacomb, or place of burial constructed by them within any such burial ground or cemetery, and also the right of constructing any vault, catacomb, or place of burial within any such cemetery, with the exclusive right of burial therein and perpetuity or for a limited period, and also the right of single internment in any vault, catacomb or other place of burial constructed within any such burial ground, cemetery, or in the open ground of any burial ground, and also the right of erecting and placing any monument, tombstone, or gravestone in any burial ground, or any monument or monumental inscription on the walls of the chapels or other place within such burial ground.” Section 20 of the Act provided “that all the monies which shall arise by any such sale of any right or place of burial, or any vault, catacomb or monument, shall be applied in the first place in paying the head rents, fees, salaries, stipends, and other charges and expenses which by virtue of this Act shall from time to time be due or payable or otherwise incurred in carrying the same into execution; and the surplus of such monies (if any) shall from time to time be applied in such manner as to the majority of the said Governing Body shall seem fit.” It will be apparent from the foregoing that the Act of 1846 did not in express terms create or confer any right to sell tombstones or headstones, it was a right to “erect” and “place” any monument, tombstone or gravestone in any burial ground. The language of the Act of 1970 is different insofar as Section 17 confers an express power on the Committee to build, construct, improve and maintain headstones. Section 17(b) further provides a power to the Committee to “sell” “all or any part of the undertaking property and rights of the Committee.” The critical question arising in the case is whether those two express powers are so limited by the objects for which the Committee is established - as detailed in Section 16 of the Act of 1970 - so as to preclude the Committee from developing a business for the sale of headstones, either generally or limited to cemeteries which the Committee itself owns. To determine that issue, it is necessary to consider at this point the interrelationship between the powers conferred by the Act of 1970 and the objects set out therein. OBJECTS AND POWERS That the Committee has clearly restricted objects is apparent from the terms of s. 16 of the Act of 1970. Those restricted objects include the maintenance of its existing cemeteries and the acquisition and development of new ones. For these purposes it has powers conferred in s.17 “subject to the provisions of this Act” and at s. 17(k) a general power to do such things as are incidental to the “attainment or advancement of any of the objects of the Committee.” It will be noted that the general “incidental” power is wholly tied to the more limited “objects”. It will be recalled that when the intention to apply for the Act of 1970 was published it was done expressly on the basis that matters not specifically referred to therein were “incidental to the aforesaid”, being the powers elaborated at s. 17. In my view it is impossible to approach the construction of the Act of 1970 on any basis which divorces the powers from the objects set out in the Private Act. If it were possible to do so, then as instanced by Mr. Gerard Hogan, senior counsel for the appellant, it would be possible for the Committee to become, for example, a property developer. S. 17(a) confers a power to “purchase … lease … any lands, buildings or other property whatsoever …”. Section 17(b) permits them to “sell, develop, or otherwise deal with the undertaking property”. Section 20 permits it to dispose of lands not required for burial grounds. Mr Hogan furnished a number of colourful illustrations of what could happen if the powers clause was divorced from the objects clause. He instanced by way of extreme example how the Committee could, by adopting such an approach, buy a bare site outside Tullamore or an abandoned office block on Achill Island. Once acquired, those assets would then become part of the “undertaking property”. The Committee could then “employ professional persons” (as authorised by s. 17(e)) to apply for planning permission on the Tullamore site, including lobbying for re-zoning, then sell it as development land pursuant to s. 20. It could also renovate or develop the office block in Achill and then either sell or rent it. The only potential restriction would be that it could not build houses on the Tullamore site itself because that construction would not be connected with burial grounds. Other examples included the possibility of the Committee becoming a commercial landlord, buying a commercial lease (under s. 17(a)) and leasing the premises for a commercial rent (s. 17(b)). Nothing in the Parliamentary Notice adduced in evidence gave any indication that the powers elaborated in the Act might be exploited in some such fashion or in a manner unconnected to the objects. If the powers contained in s. 17 are ‘stand alone’ entitlements, none of the activities mentioned by way of example would be ultra vires. The respondents in this case have argued that the insertion in the Act of 1970 of a power to sell headstones must necessarily imply the receipt of money for same, and by implication the development of a business arising therefrom. However, I believe there is a world of difference between a power to sell what one owns and an entitlement to go into the business of selling a particular item. As the House of Lords pointed out in McCarthy & Stone (Developments) Limited v. LB Richmond [1992] 2 AC 48, a case in which the council’s power to charge for consultations between planning officers and applicants for planning (prior to the formal application) was held to be ultra vires:-
I think these cases can be distinguished from the decision of the Court of Appeal in Hazell v. Hammersmith & Fulham LBC [1992] 2 A.C. 1 upon which considerable reliance was placed by the trial judge. At issue in that case were the powers of Hammersmith and Fulham LBC, which were governed by the Local Government Act 1972, s.111 of which provided that, subject to the provisions of that Act, a local authority should have power “to do any thing (whether or not involving expenditure, borrowing or lending of money …) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”. A wide and generous latitude by way of interpretation was afforded to the statutory terminology in that case which is hardly surprising having regard to the express language of the enabling statute. However, I do not think the word “functions” can be seen as embracing both “objects” and “powers” where the Act is a private one with the restricted objects of maintaining existing cemeteries and acquiring and developing new ones. I am satisfied the Act of 1970 does not permit the Committee to carry on business at all. If, instead of being established by Private Act, the Committee was a company whose memorandum adopted the wording of the Act of 1970, I believe it would still not be legally entitled to sell headstones commercially. The legislation contains none of the boilerplate clauses or “belt and braces” clauses typical of modern company memoranda of association. It has only two objects. It has no “independent objects” clause and no “Bell House” clause. Entering the business of selling headstones and the incorporation of subsidiaries for that purpose is to embark on ventures which are plainly outside the objects delineated in the Act of 1970. Were the Act of 1970 a Memorandum of Association, the powers in s. 17 could only be used to further the objects in s. 16 and any contracts outside the scope of the objects would be ultra vires the Committee and void. In general, bodies established under Private Acts are rarely authorised to be businesses in the ordinary sense and usually follow charitable purposes. A similar situation pertains in relation to the Committee in this case. It is a charity and s. 19 of the Act requires that the income from its activities be “applied solely towards” the objects of the Committee. If the Committee had opted to conduct the sale of headstones as a self-sustaining commercial enterprise it would be in breach of its charitable status and its obligations in relation to income. CONCLUSION I therefore conclude that the commercial manufacture and retail of headstones is ultra vires the power of the Committee under the Act of 1970. It follows that I would therefore allow the appeal. | ||||||||||||||||||||