CPD Presentation – Galway Solicitors Bar Association
David Browne BL1
5th June 2015
1. Introduction
The purpose of this paper is to provide an overview of certain aspects of local authority law
which may be of interest to practitioners. First, the paper and presentation will examine the
liability of local authorities insofar as they have traditionally been immune from suit for
nonfeasance. The paper will examine the dichotomy between misfeasance and nonfeasance as
well as some of the recent case-law in the area. Secondly, the paper will review recent
developments in the area of judicial review of local authorities, particularly in the context of
local authorities acting qua planning authority and the statutory judicial review procedures in
s.50 of the Planning and Development Act 2000, as amended. Thirdly, the paper will look at
some of the recent provisions in the Local Government Reform Act 2014 which relate to
rating law and the duty to inform a rating authority on the transfer of relevant property.
2. Negligence of Local Authorities and Misfeasance/Nonfeasance
As public bodies local authorities are subject to the same common law of tortious liability as
private individuals or companies.2 They do not enjoy any special position in the law of torts
and are not generally immune from liability for tortious acts unless there is an express
statutory immunity or where immunity has been conferred by virtue of the doctrine of
nonfeasance.3 Local authorities that commit tortious acts, for example negligence, trespass or
nuisance, in the course of their activities or fail to do something which they are required to do
are potentially liable for damages. As statutory corporations or bodies corporate with separate
legal personality from their members, local authorities are liable for any negligent actions
1
David Browne BL is a practising barrister on the South-Eastern Circuit and in Dublin, specialising in
administrative and property law and judicial review, and is the author of the ‘The Law of Local
Government’ which was published by Roundhall Thomson (Reuters) in December 2014. Any queries
may be sent to the author at david.browne@lawlibrary.ie and/or davidbrowne2@gmail.com.
2
Larkin v Joosub and Dublin City Council [2007] 1 I.R. 521.
3
See Emerald Meats Ltd. v Minister for Agriculture [1997] 1 I.R. 1. See s.36 of the Fire Services Act
1981 and s.29 of the Water Services Act 2007 for examples of statutory immunity.
1
carried out or negligent omissions made on their behalf. Local authorities may also be
vicariously liable for the actions of their employees or officials.4
The liability of local authorities evolved from the liability of poor law guardians and
emanates from their role as corporate trustees acting in the public interest and carrying out
public functions.5 Because local authorities act as corporate bodies engaged in private
transactions and/or as public authorities performing statutory duties or exercising powers, it is
not always entirely clear whether the liability of a local authority arises in the private context
such as to give rise to a claim for damages or in the public context in which case it would be
subject to the full panoply of public or administrative law remedies. This will depend on the
facts of the case and the nature of the relationship between the local authority and the injured
or affected party. Thus, in Coppinger v Waterford County Council6, the plaintiff was injured
on collision with a Council truck and Geoghegan J. held that the Council qualified as an
‘emanation of the State’ since he found it “difficult to see how it could be argued that an
Irish County Council does not fall within” the definition of ‘State body’.7 However,
depending on the circumstances, a local authority may be deemed to be acting in a private
law context, e.g. in the case of employment law. Furthermore, a breach of duty of care in
private law does not necessarily confer a right of action for damages per se and it will be
necessary to show that the acts complained of were indeed negligent.8
Local authorities may be liable for negligence both in the general execution of their functions
as a statutory authority as well as negligence caused by the specific acts of their officials or
employees.9 In particular, local authorities may be liable in the discharge of specific
functions, for example qua sanitary authority; housing authority; highway authority; planning
authority; fire authority or harbour authority.
4
In X. (Minors) v Bedfordshire County Council [1995] 2 A.C. 633; [1995] 3 All E.R. 353 a distinction
was drawn between the direct liability of a local authority and vicarious liability which may arise as a
result of the tortious acts of its employees and officers.
5
See James Levingston v The Guardians of the Poor of the Lurgan Union (1868) I.R. 2 C.L. 202 and
Brennan v The Guardians of the Poor of the Limerick Union (1878) 2 L.R. Ir. 42 [Q.B. Div.].
6
Coppinger v Waterford County Council [1998] 4 I.R. 220.
7
Foster v British Gas plc. [1988] I.C.R. 584 (C.A.); [1990] 2 C.M.L.R. 833.
8
See Cocks v Thanet District Council [1983] 2 A.C. 286 and Hutchings v Islington London Borough
Council [1998] 3 All E.R. 445.
9
See Wheeler v Commissioners of Public Works in Ireland [1903] 2 I.R. 202 [Appeal] and Dunbar v
The Guardians of The Poor of the Ardee Union [1897] 2 I.R. 76.
2
Duty of Care of Local Authorities
In order to establish that a local authority has been negligent, it is necessary to show that: (i)
the local authority owed a duty of care, either to the general public and/or to the individual(s)
that is/are affected; (ii) the duty exercised by the local authority is for the benefit of the
defined category of persons and the plaintiff(s) belong/s to that category; (iii) the local
authority was in breach of its duty of care; (iv) the claimant has suffered damage as a result of
that breach; and (v) it is ‘fair, just and reasonable’ in the circumstances that a duty of care
should be imposed on the defendant local authority.10
Although the duty of care may apply to both acts and omissions of the public authority, in
Stovin v Wise11 it was held that the public authority which had failed to exercise a statutory
power to remove a roadside danger and was partially responsible for a serious road accident
was not liable for omitting or failing to exercise its statutory discretion. It was held by Lord
Hoffmann at 827-828 that “The Council had done nothing which, apart from statute, would
have attracted a common law duty of care. It had done nothing at all….Statutory duty does
not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave
rise to a duty of care at common law which made the public authority liable to pay
compensation for foreseeable loss caused by the duty not being performed. It will often be
foreseeable that the loss will result if, for example, a benefit or service is not provided. If the
policy of the Act is not to create a statutory liability to pay compensation, the same policy
should ordinarily exclude the existence of a common law duty of care”.
The principle of duty of care has its origins in the ‘neighbour principle’ which was
formulated by Lord Atkin in Donoghue v Stevenson12, wherein it was held that “you must
take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure a neighbour”. The term ‘neighbour’ was considered to include “persons who
are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts or omissions
which are called into question”. In order to establish a breach of duty of care one must
10
In Capital and Counties plc and Others v Hampshire County Council and Others [1997] 2 All E.R.
865, the Court of Appeal refused to grant immunity to a fire brigade on public policy grounds and
disagreed with the contention that liability for fire services would detract from the ability of firefighters to adequately fulfil their duties.
11
[1996] A.C. 923.
12
[1932] A.C. 562.
3
establish that such a duty existed and that it was reasonably foreseeable by the defendant that
its acts or omissions would be likely to injure a potentially affected party who was
sufficiently proximate.13 In Home Office v Dorset Yacht Co. Ltd.14, it was held by Lord Reid
and Lord Pearson that the neighbour principle should apply unless there was some
justification or valid reason why it should not. This was somewhat circumscribed by Lord
Diplock who considered the neighbour principle to be more of a guiding principle rather than
a principle of universal application. The principle was adopted in Dutton v Bognor Regis
Urban District Council15, wherein it was held that the local authority owed a duty of care to
the plaintiff and was liable as its inspector had negligently failed to ascertain that a house had
been constructed on a former rubbish tip during an inspection and the foundations had not
been properly constructed, which was its statutory duty.16
The duty of care arising from a duty to carry out inspections was somewhat qualified in Anns
v Merton London Borough Council17 wherein it was held that the local authority was not
under a duty to carry out an inspection but was under a duty to give proper consideration as to
whether it should carry out an inspection or not. Lord Wilberforce set out the principles
which in his view determined the existence of the scope of a duty of care 18: “First, one has to
ask whether, as between the alleged wrongdoer and the person who has suffered damage,
there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable
contemplation of the former, carelessness on his part may be likely to cause damage to the
latter - in which case a prima facie duty of care arises. Secondly, if the first question is
answered affirmatively, it is necessary to consider whether there are any considerations
13
See Spring v Guardian Assurance plc [1995] 2 A.C. 296; Henderson v Merrett Syndicates Ltd.
[1995] 2 A.C. 145; Murphy v Brentwood District Council [1991] 1 A.C. 398. See also Walsh v
Kilkenny County Council [1978] I.L.R.M. 1, wherein it was held by Gannon J. that it was not
foreseeable that the plaintiff’s cattle would break through a weakened wall onto the defendant’s
property and be poisoned by eating yew. The probability of an accident occurring was also considered
in Swift v Westport Urban District Council (UDC) [1944] I.R. 259, where a gully trap on a street was
held to be a “manifest danger to little children with no playgrounds”. In Purtill v Athlone Urban
District Council (UDC) [1968] I.R. 205, it was held by the Supreme Court that the parties had been
sufficiently proximate to impose a duty of care on the defendants in circumstances where the plaintiff
who was a 14 year old boy lost his right eye as a result of the explosion of a detonator which he had
purloined from the defendants’ abattoir.
14
[1970] A.C. 1004.
15
[1972] 1 Q.B. 373; [1972] 1 All E.R. 462.
16
Donoghue v Stevenson [1932] A.C. 562.
17
[1978] A.C. 728.
18
Ibid. at 751.
4
which ought to negative, or to reduce or limit the scope or the class of person to whom it is
owed or the damages to which a breach of it may give rise”. Therefore, the case of Anns saw
the development of a two-stage test in the determination of the scope of the duty of care. The
high-water mark of this approach found expression in Junior Books Ltd. v Veitchi Co. Ltd.19,
where a duty of care was found to exist between the sub-contractor defendant who was
engaged to install a factory floor and the owner of the factory.
Evolution of the Two-Stage Test and the Three-Stage Test
The duty of care of local authorities in this jurisdiction has also been expressly recognised
and has somewhat mirrored the jurisprudence in our neighbouring jurisdiction, particularly in
the evolution of the ‘two-stage’ and ‘three-stage’ tests. In Siney v Corporation of Dublin20,
O’Higgins C.J. found for the plaintiff in his claim for breach of contract and negligence and
found that it was an implied term that the flat should be fit for human habitation even if there
was no express warranty. O’Higgins C.J. reviewed the authorities on local authority
negligence and found that the defendants were liable in negligence given that a defective
inspection had been carried out and the flat was handed over to prospective tenants in an unfit
condition. Henchy J. also found that there was breach of contract and negligence and held
that the flat had been handed over with a concealed defect which the occupier could not have
discovered by inspection and allowed the plaintiff to recover for economic loss suffered as a
result of the defect.
In Ward v McMaster and Louth County Council21, Costello J. found that local authorities
owed a common law duty of care when performing their statutory functions and adopted the
two-stage test proposed by Lord Wilberforce in Anns.22 It was held that: “When deciding
whether a local authority exercising statutory functions is under a common law duty of care
the court must firstly ascertain whether a relationship of proximity existed between the
parties such that in the reasonable contemplation of the authority carelessness on their part
might cause loss. But all the circumstances of the case must in addition be considered,
including the statutory provisions under which the authority is acting. Of particular
19
[1982] 3 All E.R. 201; [1983] 1 A.C. 520.
Siney v Corporation of Dublin [1980] I.R. 400.
21
Ward v McMaster and Louth County Council [1985] I.R. 29 (HC); [1988] I.R. 337 (SC).
22
See Donoghue v Stevenson [1932] A.C. 562; Dorset Yacht Company Limited v The Home Office
[1970] A.C. 1004; Dutton v Bognor Regis Urban District Council [1972] 1 Q.B. 373; Anns v Merton
London Borough Council [1978] A.C. 728; and Siney v Corporation of Dublin [1980] I.R. 400.
5
20
significance in this connection is the purpose for which the statutory powers were conferred
and whether or not the plaintiff is in the class of persons which the statute was designed to
assist. It is material in all cases for the court in reaching its decision on the existence and
scope of the alleged duty to consider whether it is just and reasonable that a common law
duty of care as alleged should in all the circumstances exist”.23 On the facts, Costello J.
imposed liability on the Council on the basis that “there was a sufficient relationship of
proximity or neighbourhood between the plaintiff and the Council such that in the reasonable
contemplation of the Council carelessness on their part in the carrying out of the valuation of
the bungalow…..might be likely to cause him damage”.24 Costello J. considered that it was
just and reasonable that a local authority should be ascribed a private law duty of care.25
On appeal to the Supreme Court, the finding of liability by Costello J. was unanimously
affirmed although the Court opted for a somewhat different approach, electing not to
determine whether a duty of care was just and reasonable. McCarthy J. noted the decision in
Anns as the ‘high-water mark’ in determining local authority liability and found that the duty
of care that was owed arose from the proximity of the parties as mortgagor and mortgagee,
the foreseeability of the damage and the “absence of any compelling exemption based on
public policy”.26 Furthermore, it was noted that there was no distinction between personal
injury and pure economic loss, which had previously existed at common law and the Council
owed a duty of care to all applicants arising from its discharge of statutory and public
duties.27 Thus, it was held that where a local authority exercises its statutory functions and
does so in a negligent manner it will be liable for any loss or damage caused to persons to
whom a duty of care is owed unless there are particularly compelling public policy reasons to
allow for an exemption from liability.
23
Ward v McMaster and Louth County Council [1985] I.R. 29 at 49-50.
Ibid. at 52.
25
Ibid. at 45-53.
26
Ward v McMaster and Louth County Council [1988] I.R. 337 at 349-350.
27
See Hedley Byrne v Heller & Partners Limited [1963] All E.R. 575; [1964] A.C. 465.
24
6
The two-stage Anns test, as endorsed in this jurisdiction in Siney and Ward, was subsequently
modified in the evolution of the ‘three-stage’ test, which contained the following elements: (i)
reasonable foreseeability of damage; (ii) a relationship of ‘proximity’ or propinquity between
the parties such as to establish a relationship under the ‘neighbourhood’ principle; and (iii)
that it is fair, just and reasonable in the circumstances that the law should impose a duty of
care.28 The third element to the test is essentially a policy consideration and has been
considered within the context of the ‘floodgates’ argument.29 In Caparo Industries plc. v
Dickman30, Lord Bridge held that: “What emerges is that, in addition to the foreseeability of
damage, necessary ingredients in any situation giving rise to a duty of care are that there
should exist between the party owing the duty and the party to whom it is owed a relationship
characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and the situation should
be one in which the court considers it fair, just and reasonable that the law should impose a
duty of a given scope upon the one party for the benefit of the other.”31
Glencar and Public Policy Considerations
The issue of public policy considerations was further expanded in this jurisdiction in Glencar
Explorations plc v Mayo County Council (No.2).32 On appeal to the Supreme Court, Keane
C.J. held that the decision in Ward was not necessarily an ‘unqualified endorsement’ of the
two-stage test in Anns and did not necessarily form part of the ratio of the decision.33 It was
noted by Keane C.J. in an obiter dictum comment that there was no reason why the court
should not consider public policy considerations and “take the further step of considering
whether, in all the circumstances, it was just and reasonable that the law should impose a
duty of care on the defendant for the benefit of the plaintiff”.34 Keane C.J. examined the
28
See Murphy v Brentwood District Council [1991] A.C. 398.
See Capital and Counties plc and Others v Hampshire County Council and Others [1997] 2 All
E.R. 865; Barrett v Enfield London Borough Council [1999] 3 All E.R. 193; [2001] 2 A.C. 550;
Osman v Ferguson and Chief Officer of the Metropolis [1993] 4 All E.R. 344; and Osman v United
Kingdom [1998] EHRR 101.
30
[1990] 2 A.C. 605 at 617.
31
See also X (Minors) v Bedfordshire County Council [1995] 3 All E.R. 353; Stovin v Wise [1996] 3
All E.R. 801; and Phelps v Hillingdon London Borough Council [2000] 4 All E.R. 193.
32
Glencar Explorations plc v Mayo County Council (No.2) [2002] I.R. 84.
33
Glencar Explorations plc v Mayo County Council (No.2) [2002] I.R. 84 at 138.
34
Glencar Explorations plc v Mayo County Council (No.2) [2002] I.R. 84 at 86. See, however, Gaffey
(a minor) v Dundalk Town Council [2006] IEHC 436 and Larkin v Dublin City Council [2007] IEHC
416; [2008] 1 I.R. 391. In Dempsey v Waterford Corporation [2008] IEHC 55, the plaintiffs suffered
damage to their house when sewage entered from an old culvert as a probable cause of the blockage
or damage of the culvert in the Corporation’s sewage replacement works. However, the Corporation
7
29
decisions in Anns, Siney and Ward and drew distinctions between local authority entitlements
and duties or obligations, noting that: “difficulties have arisen…….in determining whether,
and to what extent, a statutory authority can be made amenable in damages for the negligent
exercise of a power which they were entitled, but not obliged, to invoke”35
The mere exercise of a statutory duty on a public authority which may confer a benefit on a
person does not give rise to a duty of care at common law and there must be some nexus or
proximity between the parties arising from the statutory duty which is exercised for a defined
category of persons, as held in Siney. The decision in Glencar also notes that it is essential
that where a local authority is considered to be negligent that the damage that ensued was
reasonably foreseeable and there is a differentiation between negligence arising from a breach
of duty of care and a finding that the actions of the local authority are such that no reasonable
local authority would have arrived at.36
Breach of Statutory Duty
A breach of statutory duty will give rise to a right of action if the breach amounts to an act
which is wrongful independently of the statute or where the statute places the parties in a
relationship which, independently of the provisions of the statute, gives rise to a duty of care
in negligence. Although breach of statutory duty does not of itself necessarily give rise to a
private cause of action, such a cause of action may be inferred by way of statutory
construction. In Gorringe v Calderdale Metropolitan Borough Council37, Lord Hoffmann
held that: “In the absence of a right to sue for breach of the statutory duty itself it would in
my opinion have been absurd to hold that the Council was nevertheless under a common law
duty to take reasonable care to provide accommodation for homeless persons whom we could
reasonably foresee would otherwise be reduced to sleeping rough. And the argument would
in my opinion have been even weaker if the Council, instead of being under a duty to provide
accommodation merely had a power to do so.”
was held not to be liable as it was acting qua sanitary authority in the performance of its statutory duty
under s.17 of the Public Health (Ireland) Act 1878. In the circumstances, Peart J. had regard to the
third limb of the Glencar test and held that it was not reasonable to impose a duty on the Council to
carry out exploratory digging for culverts, pipes of drains of which it was unaware but which might be
defective and similarly found that the Corporation was not liable in nuisance.
35
Glencar Explorations plc v Mayo County Council (No.2) [2002] I.R. 84 at 140.
36
Glencar Explorations plc v Mayo County Council (No.2) [2002] I.R. 84 at 132.
37
See Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All E.R. 326.
8
In X. (Minors) v Bedfordshire County Council38, the plaintiffs sought damages arising from a
breach of statutory duty insofar as the local authority had failed to properly investigate
serious allegations of parental neglect and abuse. It was held that, although mere breach of
statutory duty does not necessarily give rise to a private law cause of action, for a cause of
action to exist it is necessary to show that as a matter of statutory construction it was intended
to show that the statutory language imposed a duty for the benefit of a ‘limited and specific’
class of the public which was intended to give rise to a private right of action for damages
and there was no alternative remedy provided for by the statute.
Local authorities may have a particular statutory duty of care imposed upon them. In Flynn v
Waterford County Council39, Finnegan P. considered a statutory duty of care in the context of
s.95(3)(a) of the Roads Act 1993 and held that even though the word ‘shall’ was used in the
statutory language this conferred a discretionary power on the road authority and was not an
obligation. Accordingly, it was held that “it was not the intention of the Legislature in
enacting that provision to confer on an individual an entitlement to claim for damages.
Where a statutory provision does not give a private right to sue it would be most unusual that
it should nevertheless give rise to a duty of care at common law”. Thus, it was held that the
Council merely had the statutory power to erect signs and this did not give rise to a cause of
action where a person suffered injury as a result of this statutory breach. In addition, the
Council’s failure did not give rise to an action for negligence at common law.
Reasonable Foreseeability
In order for a local authority to be held liable, the cause of the accident should be reasonably
foreseeable. In Shelton v Creane and Arklow Urban District Council (UDC)40, Lardner J.
held that no duty of care existed for the benefit of the neighbour of a tenant of the Council
who had injured her foot when she stepped into the drain from which a grate had been
removed as she had been an invitee. It was held that the Council could not have foreseen the
removal of the cover from the drain. However, in Weir v Corporation of Dún Laoghaire41,
the plaintiff was injured when she fell while walking directly across a road towards a
38
X (Minors) v Bedfordshire County Council [1995] 2 A.C. 633; [1995] 3 All E.R. 353.
Flynn v Waterford County Council [2004] IEHC 335.
40
Shelton v Creane and Arklow Urban District Council (UDC), unreported, High Court, Lardner J.,
December 17, 1987.
41
[1983] I.R. 242.
9
39
shopping centre and claimed damages for the alleged negligence of the defendant. At the
time of the plaintiff’s accident, a bus lay-by was being constructed by a third party alongside
the far pavement. The surface of the proposed lay-by was two inches lower than the
surface of the road and the plaintiff's fall was caused when she tripped in passing from the
level of the road to the surface of the proposed lay-by. It was ultimately found that the
defendant Corporation had been negligent on the basis that the lay-by had been constructed
with the ‘knowledge and approval’ of the defendant local authority and the fact that the local
authority had insisted on the construction of the lay-by as a condition which was taken to be
tantamount to be authorisation for the work.42 It was held that the Corporation owed a duty to
persons using the road to ensure that reasonable precautions were taken to prevent exposure
to risk of injury arising from the construction of the bus lay-by, having authorised its
construction and approved its layout.
The standard of care in cases involving negligence of local authorities is that which must be
reasonably expected of a local authority acting with reasonable caution and prudence and
acting with the diligence that would be expected in the circumstances.43 Thus, a local
authority may not be considered liable if the incident complained of was unlikely or unusual
and was not reasonably foreseeable. In Healy v Bray Urban District Council (UDC)44, the
plaintiff was injured when a rock became loose and struck the plaintiff having rolled down a
hill. It was held that the Council was not liable due to the unlikely nature of the combination
of events. On the other hand, a local authority may be held to a higher standard of care when
there is a particular risk or vulnerability factor which is reasonably foreseeable. Thus, in
Paris v Stepney Borough Council45, it was held that the defendant Council was liable as the
standard of care owed by the Council as employer to the plaintiff was greater than would
normally be expected given the fact that he had diminished eyesight.
This decision was considered to be ‘clearly irreconcilable’ with the subsequent decision in
Sunderland v McGreavey, Flynn-Rogers and Louth County Council [1987] I.R. 372, c.f. Convery v
Dublin County Council [1996] 3 I.R. 153 per Keane J.
43
Vaughan v Menlove (1837) 132 E.R. 490 (CP). See also Loughrey v Dún Laoghaire Rathdown
County Council [2012] IEHC 502 per Cross J.
44
[1962-1963] Ir. Jur. Rep. 9.
45
[1951] A.C. 367.
10
42
In Phillips v Dublin Corporation46, Barron J. held that the defendant was under an
“obligation to take reasonable steps to prevent unauthorised entry to the lift shaft or
unauthorised interference with the lift mechanism…..In considering whether the defendant
[acted] reasonably, it must be remembered that an occupier is not an insurer [and] the
defendant must expect [that] perhaps parental supervision would be lacking”.47 In Danaher v
Roscommon County Council48, it was held by the Supreme Court, in considering potential
liability for the defendant for failing to give adequate warning to motorists of the dangers of
speed, that the obligation of the roads authority could not be extended beyond circumstances
which are reasonably foreseeable and the question is whether the accident which occurred to
the plaintiff was reasonably foreseeable, having regard to the circumstances prevailing at the
time. In general, the standard of care expected of local authorities by the courts ranges from a
supervisory approach to a somewhat more detached approach where the courts take the view
that liability should not be imposed.49
Social Utility of the Defendant’s Conduct
The courts may also consider the social utility of the defendant’s conduct when deciding on
the standard of care that applied in the circumstances. Thus, in Watt v Hertfordshire County
Council50, the court considered the social utility of the defendant’s conduct where the
plaintiff fireman was injured rescuing a woman when a heavy jack which was required to
assist the woman rolled on the truck and injured him. It was held that the defendant Council
was not liable as it had acted in a particular manner in order to save the life of a woman who
46
DPIJ: Hilary and Easter Terms 1991 at p.46.
Local authorities also have a duty of care in respect of common areas, stairwells and lift spaces in
housing or accommodation that is leased and maintained, c.f. Tully v Dublin Corporation, unreported,
High Court, Carney J., March 14, 1997, wherein it was held that it was foreseeable that children had a
natural propensity to access the particular green area in question.
48
Danaher v Roscommon County Council, unreported, Supreme Court, December 21, 1973.
49
In Skelly v Dublin Corporation, DPIJ: Hilary and Easter Terms 1993 at p.173, Barr J. imposed
liability in negligence against the Corporation and considered that local authorities had an “obligation
to review the safety of play equipment at reasonable intervals in the light of generally accepted
improvements in safety standards……Regard ought to have been had to generally accepted changes
in design practice over the years”. Similarly, in Casey v Tralee Urban District Council (UDC), DPIJ:
Hilary and Easter Terms 1995 at p.49 Geoghegan J. considered that, having regard to the obvious
danger to young children, the Council had been under a duty “to take all reasonable steps on an
ongoing basis to at least minimise the problem”. However, in Gaffey (a minor) v Dundalk Town
Council [2006] IEHC 435, Peart J. concluded that it could not be “reasonable for the Council to have
imposed upon it a duty to ensure that the lids [were] at all times in place on hydrants in the town –
the more so in the absence of any information being given to them that the lids [were] being
removed”.
50
[1954] 2 All E.R. 368.
11
47
had been trapped under a vehicle. In Whooley v Dublin Corporation51, the plaintiff had been
walking along a footpath in Dublin city and injured her foot when she stepped into an open
hydrant box. The defendant argued that the box had been specially designed to be easily
accessible to the fire brigade in cases of fire. It was held that the Corporation was not liable as
the purpose of the hydrant was to allow for ease of access and “there is…..no reason for
holding that this type of hydrant box is of the kind that is likely to be interfered with by young
irresponsible children to the knowledge of the Corporation’s officials or that any such
knowledge should be imputed to them”.
Duty of Roads Authority to Maintain and Repair Roads and Public Highways
The principle that a local authority is not liable for injury or damage to a user of a highway
resulting from the failure to repair the public highway originated in Russell v The Men
Dwelling in the County of Devon52 on the basis that, at common law, the duty to repair
highways fell on the community at large and because the inhabitants were not a corporation
they could not be sued collectively in respect of their failure to carry out their duty to
maintain and repair roads. In Russell, the plaintiff’s claim was dismissed on the basis that “no
action shall lie by an individual against the inhabitants of a county for an injury sustained in
the case of a county bridge being out of repair” with Ashurst J. holding that “Better an
individual should suffer injury than the public should suffer an inconvenience”. In Harbinson
v County Council of County Armagh53 it was held that the common law immunity of a
highway authority from liability for injuries caused by non-repair was not altered by the
provisions of the Local Government (Ireland) Act 1898.
The principle of nonfeasance developed at common law from the traditional duty on the
inhabitants of a parish to put and keep their highways in repair. The duty was to keep
highways “in such good repair as renders it reasonably passable for the ordinary traffic of
the neighbourhood at all seasons of the year without danger caused by its physical
condition”, as held in Burnside v Emerson.54 This principle of common law was retained on
the statutory incorporation of highway or roads authorities. In Gorringe v Calderdale
51
[1961] I.R. 60.
Russell v The Men Dwelling in the County of Devon (1788) 2 T.R. 667.
53
Harbinson v County Council of County Armagh [1902] 2 I.R. 538.
54
Burnside v Emerson [1968] 1 W.L.R. 1490 at 1497 per Diplock L.J.
52
12
Metropolitan Borough Council,55 Hoffmann L.J. held that “This remained the law when the
duty was transferred to highway authorities. An individual who had suffered damage because
of some positive act which the authority had done to make the highway more dangerous
could sue for negligence or public nuisance in the same way as he could sue anyone else. The
highway authority had no exemption from ordinary liability in tort. But the duty to take active
steps to keep the highway in repair was special to the highway authority and was not a
private law duty owed to any individual. Thus, it was said that highway authorities were
liable in tort for misfeasance but not for non-feasance”.
Local authorities have specific statutory obligations in their capacity as roads authorities.
Under s.82 of the Local Government (Ireland) Act 1898, county and district councils had a
duty to maintain works and keep all public works in “good condition and repair, and to take
all steps necessary for that purpose”.56 This conferred or created a duty on councils to
construct public roads, as distinct from the power to make presentments for new roads under
s.55 of the Grand Jury (Ireland) Act 1836. Prior to the 1898 Act, the grand juries could not be
held liable for damages from failure to maintain roads and were exempt from liability for
nonfeasance. Following the creation of councils as statutory authorities, they continued to be
absolved of liability for nonfeasance but became liable for claims in misfeasance. Thus, local
authorities are not liable for a claim for damages where they fail to carry out their duty to
repair and maintain public roads (nonfeasance).57
Section 24(1) of the Local Government Act 1925 placed a duty on county councils to
maintain and construct main roads in a county, while urban district councils (UDCs) had a
duty to maintain and construct urban roads in the district. Section 2(3) of the Roads Act 1993
states that “Nothing in this Act affects any existing rule of law in relation to the liability of a
road authority for failure to maintain a public road”. Road authorities retained their
traditional common law immunity from injuries caused as a result of the failure to maintain
public roads. Section 13 of the Roads Act 1993 provides that “the maintenance and
construction of all national and regional roads shall be a function of the council or county
borough, corporation of that county”.
55
Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All E.R. 326.
See also ss.24-25 of the Local Government Act 1925.
57
Maguire v Liverpool Corporation [1905] 1 K.B. 767; O’Connor v Kerry County Council (1927) 61
I.L.T.R. 73.
13
56
This appears to place a positive obligation on local authorities to maintain national and
regional roads although it does not necessarily impose liability for the failure to maintain a
public road or highway. However, s.19(4) of the Roads Act 1993 provides that no action or
proceedings “shall lie or be maintainable” against the National Roads Authority (NRA) or
against any of the roads authorities or a committee providing performing functions for or a
body providing services to the NRA for the “recovery of damages in respect of injury to
persons, damage to property or loss alleged to have been caused or contributed to by a
failure of the [NRA] to perform or to comply with any of the functions conferred on it.”
Furthermore, s.19(5) provides that “the [NRA] shall not be liable for damages caused as a
result of any failure to maintain a national road”. Thus, it appears that while the immunity
for the NRA has been statutorily enshrined, the situation for roads authorities is less clear-cut
and it appears that the immunity in s.19 only arises insofar as roads authorities are performing
functions on behalf of the NRA as opposed to the separate and independent requirement to
repair and maintain local and regional roads.
Principle of Nonfeasance
Traditionally, roads authorities could be held to be liable where there was evidence of
misfeasance but enjoyed immunity from suit if they neglected or omitted to repair a public
road (nonfeasance). Nonfeasance involves cases of pure omission where the roads authority
fails to take measures to construct or repair. The roads authority has traditionally been
immune at common law from liability for nonfeasance where it fails to carry out its duty to
repair and maintain public roads and is consequently not liable for any injury or damage. 58
One of the criticisms against this doctrine is that it may result in a sense of passive
complacency if a roads authority fails to take active steps to repair and maintain a public
road. As a result of the principle of nonfeasance, local authorities have been held not to be
liable for injuries caused to users of a public road where there was a hole in the road arising
from the failure to repair the highway59 or for the failure to clear out ditches or gullies60 or for
58
This was confirmed in Convery v Dublin County Council [1996] 3 I.R. 153. See also Flynn v
Waterford County Council [2004] IEHC 335.
59
Maguire v Liverpool Corporation [1905] 1 K.B. 767.
60
Masters v Hampshire County Council [1915] 84 L.J.K.B. 2194.
14
the failure to cut branches overhanging a highway61 or for the failure to level off a drop in the
highway.62
Principle of Misfeasance
Although a local authority is generally protected for liability under the doctrine of
nonfeasance, if it performs its duties of repair and maintenance in a negligent manner it may
be liable for damages or injury arising therefrom (misfeasance). For example, local
authorities have been held to be liable in instances where the local authority failed to properly
guard or light materials left on a road63 or use proper machinery64 or proper materials65 and
where it removed a protective fence along a highway.66 A roads authority cannot necessarily
escape liability on the basis that it engaged an independent contractor to do the work. 67 Local
authorities have also been held to be liable where a licence was granted to another person or
body to dig trenches or carry out work on a highway and damage resulted from the
negligence of the licensee.68
In Lewis v Cork County Council69, Murphy J. held that “where a local authority engages in
repairs….those repairs must be effective…..but to conduct or carry out a repair which is
temporary and then not to follow up that repair to ensure that the danger did not re-emerge,
must be taken as negligence by a local authority”. In Geraghty v Dublin Corporation70, it
was held by Barr J. that “Misfeasance only applies here - the Corporation have done
something and have done it negligently. Then they will be responsible for their own
negligence as any other person would be. They are not responsible for failing to remedy…..a
dangerous condition on the roadway brought about by some other person or body”. In the
circumstances, the defendant Corporation was relieved of liability as the defective work in
the roadway had been caused by an unknown third party. In Nason v Cork Corporation71, it
61
Tregellas v London County Council (1897) 14 T.L.R. 55.
Cowley v Newmarket Local Board [1892] A.C. 345.
63
O’Brien v Waterford County Council [1926] I.R. 1.
64
Alliance and Dublin Consumers’ Gas Co. v Dublin County Council [1901] 1 I.R. 492.
65
Breen v County Council of the County of Tyrone (1908) 42 I.L.T.R. 250.
66
Whyler v Bingham Rural County Council [1901] 1 K.B. 45.
67
Clements v Tyrone County Council [1905] 2 I.R. 415 [K.B. Div.]; [1905] 2 I.R. 542 [Appeal].
68
Rossiter v Carlow County Council, Unreported, High Court sitting on Circuit, Lavery J., 1965; see,
however, Hall v McKone Ltd. [1975] I.R. 292.
69
Lewis v Cork County Council, DPIJ: Trinity and Michaelmas Terms 1993, p.72.
70
Geraghty v Dublin Corporation, DPIJ: Michaelmas Term 1990, p.245.
71
Nason v Cork Corporation, DPIJ: Hilary and Easter Terms 1991, p.170.
15
62
was held by Keane J. at 173, in imposing liability on the defendant Corporation, that the
Corporation was the body which had “created the hazard in the first place” and was
“probably the only body with power to do anything about it”. If there is any interference with
the road by way of repair then the act or omission which causes injury may amount to
misfeasance.72
In Ryan v Tipperary County Council (NR)73, it was held that the defendants were liable for
steps taken in repairing a road using a steam roller. It was held by Wright J. that “the very act
of interference imposes upon [the defendants] a duty to use due care that the road, as well as
the portion not interfered with as that interfered with, shall be kept in a safe condition for the
public to travel along it, and therefore any injury resulting from a want of such care,
although directly caused by an act of non-feasance….is to be referred back to the act which
caused that act of omission to be dangerous, the act of interference”. In O’Brien v Waterford
County Council74, where a bridge was under repair but was not lit at night, it was held by
Murnaghan J. that “it is not a proper method of argument to say that, because the defendants
would have incurred no liability if they had done nothing, therefore they are under no
liability if they have negligently replaced the bridge which had been destroyed”.75 If the
highway authority takes no action at all there may be a claim in negligence but not for
misfeasance.76
72
See Brennan v Limerick Corporation, DPIJ: Hilary and Easter Terms 1993, p.27 (liability imposed
for failure to properly fill in a small excavation on a footpath); Johnson v Cork County Council, DPIJ:
Michaelmas Term 1991, p.71 (liability imposed where pedestrian fell on loose chippings near a kerb;
Hegarty v Donegal County Council, DPIJ: Hilary and Easter Terms 1998, p.83 (liability imposed
where pedestrian tripped on pavement due to height differential on a slope); Martin v Louth County
Council, DPIJ: Hilary and Easter Terms 1998, p.99 (liability imposed where cyclist skidded on loose
gravel); Carthy v Sligo Corporation, DPIJ: Hilary and Easter Terms 1993, p.120 (liability imposed for
failure to place cones as a precaution to pedestrians at the edge of a pavement); and Kennevan v
Limerick Corporation, DPIJ: Trinity and Michaelmas Terms 1993, p.277 (liability imposed for the
manner in which tarmacadam as laid in circumstances where a pedestrian tripped on a large
indentation in the footpath).
73
[1912] 2 I.R. 392.
74
[1926] I.R. 1.
75
See Oldham v Sheffield Corporation (1927) 25 L.G.R. 94.
76
Walsh v Mayo County Council (1905) 39 I.L.T.R. 189.
16
The local authority is not liable, however, if the work is performed by another party under its
own enabling statutory powers.77 The nonfeasance principle does not apply where statutory
works are undertaken on a public road by a local authority and a local authority has been held
to be liable for failing to repair a meter box for watering a road or manhole or drain pipe or
failing to repair a traffic stud placed on a road. Where a statute authorises the local authority
to interfere with a public road, the authority is under a duty to use reasonable care and skill to
exercise its statutory powers and in its choice of place and manner. This duty is not confined
to the original works and extends to their subsequent maintenance, use and improvement.78
Misfeasance is not always restricted to negligent repairs. In Carey v Mould and Donegal
County Council79, which concerned a road traffic accident in which the sole issue was the
apportionment of liability between the defendants in circumstances where the second named
defendant claimed that it had fulfilled its statutory obligation by placing a stop sign at a
junction of a major road and a minor road and was not required to draw a white line at the
junction and liability was admitted. In that case, the first named defendant had driven from a
minor road onto a major road without heeding a stop sign which had apparently been turned
in the opposite direction. Peart J. held that the County Council was “primarily liable as
between the defendants for the fact that this junction presented a greater hazard than it ought
to have on the day in question” and was satisfied that “while the Council had fulfilled the
letter of their statutory obligation by erecting the STOP sign at this junction, that is not the
full extent of its obligations to the public. Firstly, this is an inherently dangerous junction
requiring special steps to be taken in order to ensure as far as possible that an accident, such
as the present one, did not happen.”
As a result, the County Council had “a statutory obligation to maintain a safe road system.
While it cannot be expected to be aware automatically of every occasion on which a sign is
turned around the wrong way, perhaps by mischief, it retains an overall responsibility to
ensure that roads are safe and that all traffic users are aware of potential dangers”. That
decision would appear to somewhat conflate liability under misfeasance and nonfeasance and
placed an obligation on the Council even though it technically carried out its statutory duties
77
Johnston v Kilkenny County Council, unreported, High Court sitting on Circuit, Teevan J., July 6,
1970; Byrne v Ireland [1972] I.R. 241.
78
Carroll v Clare County Council [1975] I.R. 221.
79
[2004] IEHC 66.
17
in relation to the junction. Accordingly, it could be argued that the failure on the part of the
roads authority to maintain and provide road signs for the safety of road users and the failure
to maintain a road to the detriment of the safety of road users is a breach of statutory duty.
However, this should be considered in the context of the judgment in Brady v Cavan County
Council80, wherein it was held by the Supreme Court that road authorities cannot be
compelled to repair certain portions of public roads due to the limitations on public resources
and the margin of discretion that should be afforded to public authorities which are charged
with the allocation of resources, even where they are in a state of serious disrepair. In Flynn v
Waterford County Council,81 which appears to conflict with the decision of Peart J. in Carey,
Finnegan P. held that he was “satisfied that it was not the intention of the legislature in
enacting [s.95(3)(a) of the Road Traffic Act 1961] to confer on an individual an entitlement
to claim for damages……In the present case [the County Council] merely has a power to
erect signs. I am satisfied that that power does not give rise to a cause of action in a person
who suffers injury because of their failure to do so as a breach of statutory duty. Neither can
the failure to do so give rise to an action for negligence at common law.” In that case, the
plaintiff drove onto a major road from a minor road without realising that there was an
intersection and collided with two vehicles and was seriously injured as a result. There was
no stop line visible at the junction and the stop sign at the junction had become obscured by
vegetation. Although the local authority had the necessary powers to provide appropriate
information and road signs under the Roads Act 1993 it was held that a statutory obligation
did not arise nor did the failure to erect warning signs give rise to an action for negligence at
common law nor was there a common law duty to erect warning signs, apart from any
potential claims in nuisance. In effect the relevant statutory provision was deemed to be an
enabling provision rather than a statutory requirement.
80
81
[1999] 4 I.R. 99; [2000] 1 I.L.R.M. 81.
[2004] IEHC 335.
18
Distinction between Misfeasance and Nonfeasance
The distinction between misfeasance and nonfeasance has been described as both
‘unsatisfactory’ and ‘anomalous’. In Kelly v Mayo County Council82 it was held by Lavery J.
at 318-319 that the defendant Council was the “highway authority charged with the repair
and maintenance of roads and particularly of the road upon which the plaintiff's accident
occurred. As such authority they are liable in damages for injuries suffered by a road user if
they have been negligent in doing repairs or in interfering with the road. They are not liable
for injuries suffered or caused by the want of repair of a road. This is the familiar distinctionthey are liable for misfeasance but not for non-feasance.”83 Kingsmill Moore J. also held at
324 that “The real cause of the injury, assuming the plaintiff not to have been guilty of
negligence (which I doubt), was this failure of the County Council to fill up pot-holes
inevitably caused by reasonable and proper use of the road combined with the effects of
weather and the gradients and construction of the road. For this failure, a matter of nonfeasance, they as a road authority are not liable. This may be an unsatisfactory state of the
law, but law it is”.
In O’Brien v Waterford County Council84, the defendant road authority had erected a
temporary structure which extended to about half the width of a former bridge which had
been destroyed. To protect persons using the road over the reconstructed bridge from falling
into the gap left by the unrestored part of the bridge the defendant erected a fence, consisting
of larch spars attached to posts sunk into the ground. A warning notice was posted at each
side of the bridge drawing attention to the fact that the bridge was for light traffic and stating
that persons using it did so solely at their own risk and on their own responsibility. No lights
were maintained at night on or near the bridge. The road approaching the bridge from one
side had a considerable decline and there was a sharp bend just beside the portion that had
been repaired. A motorcar in which the plaintiff was travelling at night descended the slope,
struck the end paling guarding the portion of the bridge under repair, dashed through the
82
Kelly v Mayo County Council [1964] I.R. 315.
In Kelly the plaintiff was a 14-year old schoolboy who was injured when he was thrown from his
bicycle which had caught in a pothole as the plaintiff cycled on a public road. It was alleged that for a
few weeks prior to the accident the Council had been engaged in the drawing of stones and gravel in
heavy lorries along the road where the accident had occurred. The plaintiff contended that the Council
had damaged the road through excessive user, thereby creating the pot-hole. The Supreme Court
rejected the plaintiff’s claim that the evidence of the user of the road was such as to amount to
nuisance.
84
O’Brien v Waterford County Council [1926] I.R. 1.
19
83
paling and was suspended over the unrepaired gap. The plaintiff sustained severe injuries,
and sued the defendant for damages, alleging that they were guilty of negligence in the repair
and reconstruction of the bridge by having erected a defective fence. The jury found that the
defendant had undertaken to repair the bridge, that they had been negligent as to notice to the
public of the condition of the bridge but had not been negligent as to the fencing alongside
the temporary bridge.
Murnaghan J. held that “Although the County Council are responsible for the proper
maintenance of roads and bridges under their care, and owe a duty to the public in respect of
them, there are good reasons why the County Council should not be subjected to actions for
damages at the suit of persons who have suffered by reason of the omission to repair. This
doctrine is not to be whittled down by making fine distinctions between non-feasance and
misfeasance”. However, Murnaghan J. described this as an “anomalous rule which may be
justified by special circumstances”.
In McClelland v Manchester Corporation85, Lush J. differentiated between misfeasance and
nonfeasance and held that “If a highway authority, therefore, leaves a road alone and it gets
out of repair there is, of course, no doubt that no action shall be brought, although damage
ensues. But this doctrine has no application to a case where the road authority has done
something, made up or altered or diverted the highway, and have omitted some precaution,
which, if taken, would have made the work done safe instead of dangerous”.
Statutory Abolition of Nonfeasance
Although s.60(1) of the Civil Liability Act 1961 provided that “a road authority shall be
liable for damage caused as a result of their failure to maintain adequately a public road”,
subject to specified defences in s.60(2)-(3), no Ministerial Order has been signed to give
effect to this provision. This provision was to be commenced by order of the Government no
earlier than the 1st April 1967.86 In The State (Sheehan) v The Government of Ireland87, which
85
McClelland v Manchester Corporation [1912] 1 K.G. 118.
Civil Liability Act 1967 s.60(7).
87
The State (Sheehan) v The Government of Ireland [1987] 1 I.R. 550. It was held by Costello J. at
554 that “There at present exists in the law relating to the liability of road authorities for defects in
public roads and footpaths a distinction between misfeasance and non-feasance. If an authority
commits a positive act of negligence in the construction of a footpath or in its maintenance (that is, an
act of misfeasance), it is liable to a person injured thereby. But if it merely fails to maintain a footpath
20
86
concerned an application for an order of mandamus to compel the Government to commence
s.60, the defence of nonfeasance in actions against road authorities was upheld. It was held by
Henchy J. at 560 that had “the section been brought into operation before the prosecutor met
with his accident, it would have the effect of eliminating the defence of nonfeasance and have
made Cork Corporation liable if they had merely failed to maintain the footpath adequately”.
In effect, the Supreme Court held that s.60 was merely an enabling provision and that the
discretion vested in the Government was not reviewable. The court declined to compel the
highway authority to fulfil its statutory duty to maintain the road in good repair. The decision
in Brady v Cavan County Council88 affirmed this position.
The statutory provisions in s.60 of the 1961 Act are analogous to similar provisions in s.1 of
the Highway (Miscellaneous Provisions) Act 1961 in England. In Burnside v Emerson89,
Lord Denning M.R. noted that highway authorities were no longer able to avail of the shield
of nonfeasance since the introduction of that Act and the Court of Appeal held that the road
surface was in a dangerous condition due to a failure to maintain and the authority had been
aware of the propensity of the road to flood although it did limit the liability of the highway
authority due to perceived contributory negligence. However, even though the nonfeasance
rule has been abolished in England, a claim for damages may still be defended where it can
be shown that the highway authority was not aware of the danger or took reasonable care in
the circumstances.90 It is submitted that this appears to be an eminently sensible proposition
and the blanket defence of immunity on the basis of nonfeasance should be more malleable
where it can be shown that the roads authority was manifestly aware of the potentially
hazardous state of disrepair of a particular public road in its jurisdiction and did not take
active steps to address this.
In McCabe v South Dublin County Council91, which is a very recent decision from a Circuit
Court appeal, the fundamental question identified by Hogan J. was whether the local
authority in question was liable in negligence for the injuries suffered by the plaintiff or
so that it falls into disrepair (that is guilty merely of non-feasance) it is not liable to someone injures
due to its lack of repair.”
88
Brady v Cavan County Council [1999] 4 I.R. 99.
89
Burnside v Emerson [1968] 1 All E.R. 74; [1968] 1 W.L.R. 1490.
90
Goodes v East Sussex County Council [2000] 3 All E.R. 603; [2000] 1 W.L.R. 1356.
91
McCabe v South Dublin County Council [2014] IEHC 529.
21
whether it could invoke the traditional rule of immunity for nonfeasance.92 Ultimately, it was
held by Hogan J. that the Council was not negligent by reason of the operation of the
nonfeasance rule and the Council had no liability by reason of its inaction. In conclusion, it
was held that: “No one can pretend that the non-feasance/misfeasance distinction is perfectly
satisfactory or that the rule in this blunt and indiscriminate form sits easily with general
principles of tort law. The rule, after all, has its origins in a decision of the English King’s
Bench in 1788 (Russell v. Men of Devon (1788) 2 Term Rep. 667) which declined to hold that
a statutory duty to repair the highway was enforceable because the local parish (on whom
the duty fell) was not a legal entity. Yet the “illogical distinction” between nonfeasance and
misfeasance nonetheless survived the transfer of the statutory duty to repair the highways to
local authorities with legal personality who could sue and be sued”.
Hogan J. commented with some reluctance that “This is especially so given that the
Oireachtas has, in fact, legislated on this topic. It is often, perhaps, overlooked that the
distinction between non-feasance and misfeasance was actually abolished by the enactment
of s.60(1) of the Civil Liability Act 1961 (“the 1961 Act”), but over 50 years later the
commencement of that sub-section awaits the making of a Government order. That subsection has never been brought into force by the Government and in Sheehan the Supreme
Court rejected the argument that the Government was legally obliged to make such an order.
It follows, therefore, that, for the moment, at least, as Cross J. put the matter in Loughrey, the
distinction still retains “its ancient purity in this jurisdiction”. Subject only to some future
challenge to its constitutionality (an issue on which I express no view), the rule nonetheless
remains embedded in the fabric of the common law……., even if - as the Supreme Court
pointed out over 90 years ago in O’Brien - the rule can be regarded as anomalous and
although the historical underpinning for the rule (such as it ever was) vanished no later than
1898 with the enactment in that year of the Local Government (Ireland) Act 1898 which
vested all local authorities with a legal personality.” Ultimately it was concluded by Hogan J.
that it was a matter for the Government to enact the relevant statutory provision or for the
Oireachtas to introduce legislative change.
Interestingly, Hogan J. held that “the perfectly common act of using a mobile telephone while
walking on a footpath cannot in itself be regarded as amounting to contributory negligence.”
22
92
Pavement Tripping
A particular category of liability for road authorities is what may be euphemistically referred
to as ‘pavement tripping’ cases which are determined on the basis of the liability of the roads
authority for the manner in which public pavements are maintained. Where there is a defect
in a pavement, allowance will generally be given for what might be perceived as de minimis
defects. There is no rigid rule for what is a permissible crack or defect but rather the test is
whether there is a reasonable foreseeability of danger. In Griffiths v Liverpool Corporation93,
it was held that a gap of half an inch in a paving slab was dangerous although the Court of
Appeal did express a view that such a defect did not necessarily amount to a failure to
maintain. Sellers L.J. held that “we are all of us accustomed to walk on uneven and irregular
surfaces and we can all of us trip on cobblestones, cat’s eyes, studs marking pedestrian
crossings……”, while Diplock L.J. held that the “common law duty to maintain the highway
is not based in negligence but in nuisance and it is an absolute duty to maintain not merely a
duty to take reasonable care to maintain….”94 In Loughrey v Dún Laoghaire Rathdown
County Council95, it was held by Cross J., in awarding significant damages to the plaintiff for
a trip and fall on an uneven pavement and finding that there was no contributory negligence,
that the plaintiff had “established that the differential of between 5mm and 6mm was a
tripping hazard to the plaintiff.” It was held that there was subsidence between two slabs on
the pavement and the differential in the two slabs caused a tripping hazard and the differential
in height between the slabs was caused by faulty construction and/or poor specification and
design which represented an act of misfeasance on the part of the local authority.
In Mills v Barnsley Metropolitan Borough Council,96 Steyn L.J. stated that in order for a
plaintiff to succeed in a claim against the highway authority for failure to maintain or repair
the highway, the plaintiff must prove:-“(a) the highway was in such a condition that it was
dangerous to traffic or pedestrians in the sense that in the ordinary course of human affairs,
danger may reasonably have been anticipated from its continued use by the public; (b) the
dangerous conditions created by the failure to maintain or repair the highway; and (c) the
injury or damage resulting from such a failure.” It should be noted that the English
93
Griffiths v Liverpool Corporation [1967] 1 Q.B. 374.
In Littler v Liverpool Corporation [1968] 2 All E.R. 343, it was held by Cumming-Bruce J. at 345
that “A highway is not to be criticized by the standards of a bowling green”.
95
Loughrey v Dún Laoghaire Rathdown County Council [2012] IEHC 502.
96
[1992] PIQR at p.291.
23
94
authorities must be considered in the context of the Highways Act 1961 (as replaced by the
Highways Act 1980) which abolished the defence of nonfeasance).
3. Judicial Review of Local Authorities
In this section it is proposed to briefly look at the scope of judicial review of local authority
administrative decisions, with specific focus on statutory judicial review and planning law.
As public bodies, local authorities must operate within the constraints and limits of their
functions and legal competencies and in accordance with the general tenets and precepts of
administrative law. Public bodies who commit an ultra vires act, that is where they act in
excess of or in breach of their legal competencies or powers, may be subject to judicial
review remedies such as certiorari97, mandamus98, prohibition and quo warranto, as well as
binary public and private law remedies such as injunctions and declarations.99 Local
authorities are subject to judicial review in their capacity as administrative decision-makers,
particularly in the area of planning law, housing law and public procurement.
Judicial review remedies are generally invoked in order to set aside a particular impugned
decision or to restrain an act from being committed rather than to recover damages. 100 This
arises where an administrative decision was made in error and involved a substantive
illegality or was fundamentally unreasonable or irrational or where the decision-making
97
The State (Abenglen Properties Ltd.) v Dublin Corporation [1984] I.R. 381.
The power of enforcement of mandamus in s.81 of the Local Government (Ireland) Act 1898
allowed the court to appoint an officer of the county council or district council for the purpose of
carrying out the obligations of the defaulting council, c.f. R. (Westropp) v County of Clare County
Council and Scariff Rural District County Council [1904] 2 I.R. 569 and R. (Hewson) v The County
Council of Wicklow and the Rathdown (No.2) Rural District Council [1908] 2 I.R. 101. In R. (Butler)
v Navan Urban District Council (UDC) [1926] I.R. 92 (HC); [1926] I.R. 466 (SC), it was held by
Fitzgibbon J. that before an order of mandamus can be made “it is an established rule that the
prosecutor must make a specific demand for the performance of the public duty in question, and it
must be shown that this demand has been refused, or has been followed by conduct which the Court
considers as tantamount to a refusal”. This was applied by Maguire J. in State (Modern Homes
(Ireland) Ltd.) v Dublin Corporation [1953] I.R. 202.
99
In O’Donnell v Dún Laoghaire Rathdown Corporation [1991] I.L.R.M. 301, it was held by Costello
J. that a “declaratory judgment is one which declares the rights of parties”; see also Grianán an
Aileach v Donegal County Council [2004] 2 I.R. 625, where the Supreme Court declined to grant
declaratory relief.
100
Glencar Exploration plc v Mayo County Council (No.2) [2002] 1 I.R. 84 at 128; see also Orange
Communications Ltd. v Director of Telecommunications Regulations (No.2) [2000] 4 I.R. 159 where
Keane C.J. commented at 183 on the development of judicial review of administrative decisions
“from the narrow, jurisdictional constraints which were associated with the prerogative writs and
state-side orders [to the current] machinery for striking down such decisions”.
24
98
process was procedurally unfair or flawed. The duty of the court in judicial review
proceedings is not to usurp the jurisdiction of the decision-making body or tribunal nor to
impose its views on an administrative decision-maker but rather to adjudicate on the
procedural and/or substantive fairness and lawfulness of a decision and, if it deems there to
have been a procedural and/or substantive impropriety or illegality or it deems that the
decision was not properly made, it should remit the matter to the decision-making body.101
Although it is somewhat trite to state that judicial review is not an appeal on the merits of a
decision, it should be noted that judicial review only concerns itself with the substantive
legality and procedural fairness of a decision.
In Chief Constable of the North Wales Police v Evans102, Lord Brightman commented that
“judicial review is concerned not with the decision, but with the decision-making process.
Unless that restriction on the power of the court is observed, the court will in my view, under
the guise of preventing the abuse of power, be itself guilty of usurping power…..Judicial
review, as the words imply, is not an appeal from a decision, but a review of the manner in
which the decision was made." This passage was cited with approval by Griffin J. in The State
(Keegan) v Stardust Victims’ Compensation Tribunal.103 In Meadows v Minister for Justice,
Equality and Law Reform104, Fennelly J. stated that the “the decision is that of the
administrative body and not of the court” and, therefore, the court “may not substitute its own
view for that of the former”. In ACT Shipping (PTE) Ltd. v Minister for the Marine105, Barr J.
noted that “the court cannot interfere with the decision of an administrative decision-making
authority merely on the grounds that…..it is satisfied that on the facts as found it would have
raised different inferences and conclusions”. In Devlin v Minister for Arts, Culture and the
Gaeltacht106, Murphy J. held that “the only function of the courts in relation to the exercise of
[judicial review] powers is to review the procedures in which they are exercised”.
In Laker Airways Ltd. v Department of Trade [1977] Q.B. 643, Lawton L.J. stated that: “…..I
would regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but
when the game restarts I must neither take part in it nor tell the players how to play”. In R. v
Secretary of State for Trade and Industry, ex p. Lonrho plc [1989] 1 W.L.R. 525 Lord Keith of Kinkel
held at 535: “The question is not whether the Secretary of State came to…a conclusion which meets
with the approval of the…..Court but whether the discretion was properly exercised”.
102
[1982] 1 W.L.R. 1155 at 1173. See also State (Keegan) v Stardust Victims’ Compensation Tribunal
[1986] I.R. 642 and Ryanair Ltd. v Flynn [2000] 3 I.R. 240.
103
The State (Keegan) v Stardust Victims’ Compensation Tribunal [1986] I.R. 642 at 658.
104
[2010] 2 I.R. 701 at 817.
105
[1995] 3 I.R. 406 at 431.
106
[1999] 1 I.L.R.M. 462 at 474.
25
101
Local authorities are public bodies and may be subject to judicial review where they act: (a)
by an abuse of power; (b) in a manner that is mala fides or capricious; or (c) irrationally or
unreasonably.107 As local authorities are public bodies they are susceptible to judicial review
insofar as they are responsible for the making of administrative decisions and the discharge of
executive functions consistent with their public nature. Therefore, the courts have an
obligation to exercise a supervisory role over public authorities and to prevent public bodies
from arbitrary or capricious abuse of the powers conferred upon them by the legislature in
order to protect the public at large or specific individuals.108 In Smith v East Elloe Rural
District Council109, Lord Radcliffe noted the supervisory role of local authorities and held
that “Courts of Law have always exercised a certain authority to restrain the abuse of
statutory power…..it is an abuse of power to exercise it for a purpose different from that for
which it was entrusted to the holder, not the less because he may be acting ostensibly for the
authorised purpose”.
Lord Radcliffe outlined some of the standard grounds for judicial review, including “the
introduction of illegitimate considerations, the rejection of legitimate ones, manifest
unreasonableness, arbitrary or capricious conduct, the motive of personal advantage or the
gratification of personal ill will”. This approach was adopted in Council of Civil Service
Unions v Minister for the Civil Service (“the GCHQ” case)110, wherein Lord Diplock
summarised the grounds for judicial review. These broadly include: (a) illegality, i.e. where
the tribunal or authority lacks jurisdiction to make the decision, including unlawful subdelegation, error of law or breach of substantive statutory provisions or requirements in
European Directives; (b) irrationality or unreasonableness; and (c) procedural impropriety,
including breach of statutory procedures and/or natural justice, failure to afford a fair hearing
and display of bias. An administrative decision may be deemed to be irrational or
unreasonable where the decision-maker takes into account irrelevant considerations and/or
fail to takes into account relevant considerations. In Council of Civil Service Unions, it was
held by Lord Diplock that an irrational decision is any “decision which is so outrageous in its
defiance of logic or of accepted moral standards that no sensible person who had applied his
mind to the question to be decided could have arrived at it”.
107
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 K.B. 223.
Hazell v Hammersmith and Fulham London Borough Council [1992] 2 A.C. 1.
109
Smith v East Elloe Rural District Council [1956] A.C. 736 at 752.
110
Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374.
108
26
In Associated Provincial Picture Houses Ltd. v Wednesbury Corporation111, it was held by
Lord Greene that “When an executive discretion is exercised by Parliament to a body such as
the local authority…, what appears to be an exercise of that discretion can only be
challenged in the courts in a strictly limited class of case…..When discretion of this kind is
granted the law recognises certain principles upon which that discretion must be exercised,
but….the discretion….is an absolute one and cannot be questioned in any court of law”. Lord
Greene then outlined factors which he considered curtailed that discretion, including bad
faith, dishonesty, unreasonableness, attention given to extraneous circumstances and
disregard of public policy.
The courts are likely to pay considerable deference to the expertise and discretion of expert
administrative bodies such as local authorities and the professional judgment that they are
entitled to exercise. In Bailey v Flood112, Morris P. held that the “function of the High Court
on an application for judicial review is limited to determining whether or not the impugned
decision was legal, not whether or not it was correct. The freedom to exercise a discretion
necessarily entails the freedom to get it wrong”. However, where local authorities are
exercising their discretion they must do so rationally and on reasonable grounds. 113 The
remedies available in judicial review may be granted by the courts to prevent the abuse by
public bodies of their administrative powers and functions. However, they are discretionary
in nature.114 Thus, the court must be persuaded that it is ‘just and proper in all the
circumstances’ to grant the reliefs sought, having regard to the discretionary powers of the
court to grant such reliefs.115
111
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 K.B. 223.
Unreported, High Court, Morris P., March 6, 2000. In Carrigaline Community Television
Broadcasting Co. Ltd. v Minister for Transport, Energy and Communications (No.2) [1997] 1
I.L.R.M. 241 Keane J. held at 284 that it is “clear….that this Court cannot set aside a decision of a
competent authority merely because it disagrees with the view of that authority. It cannot, in short, act
as a court of appeal from the decision where no such appellate jurisdiction has been conferred on it
by law”.
113
In Council of Civil Service Unions v Minister for the Civil Service [1985] A.C. 374, it was held by
Lord Diplock that an irrational decision is any “decision which is so outrageous in its defiance of
logic or of accepted moral standards that no sensible person who had applied his mind to the question
to be decided could have arrived at it”. See also Roberts v Hopwood [1925] A.C. 578 at 613 and
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 K.B. 223.
114
Hazell v Hammersmith and Fulham London Borough Council [1992] 2 A.C. 1.
115
See State (Cussen) v Brennan [1981] I.R. 181 at 195.
27
112
Where judicial review of a local authority decision is sought, the authority must have been
acting in a public capacity. In deciding whether a decision of a local authority is an
administrative decision or a private decision which has its basis in a contractual arrangement
or gives rise to tortious liability, one must consider the ‘public element’ test.116
Conventional Judicial Review Procedures
Order 84 of the Rules of the Superior Courts sets out the procedures to be followed in
conventional judicial review applications.117 It should be noted that, unlike Order 84, rule
18(1) of the Rules of the Superior Courts, which states that an application for an order of
certiorari, mandamus, prohibition or quo warranto must be made by way of an application
for judicial review, Order 84, rule 18(2) provides that an application for a declaration or an
injunction may be made by way of an application for judicial review and, therefore, gives the
courts the discretion to make orders for a declaration or an injunction either in judicial review
or plenary proceedings. Order 84, rule 20(1) stipulates that an application for judicial review
may not be made unless the leave of the court has been obtained. This serves as a filtering
process and is designed to ‘weed out’ frivolous or vexatious or unmeritorious applications.118
The application at the leave stage is normally made ex parte grounded on a Statement of
Grounds, which sets out with sufficient information and detail the alleged illegality or flaw in
the impugned decision.119 The Statement is accompanied by a verifying Grounding Affidavit.
The court may adjourn an application for leave and direct that it should be made on notice or
on an inter partes basis if there is ‘good and sufficient’ interest for doing so.120 The applicant
See Murtagh v Board of Governors of St. Emer’s National School [1991] I.L.R.M. 549 and
Murphy v The Turf Club [1989] I.R. 171. In Geoghegan v Institute of Chartered Accountants in
Ireland [1995] 3 I.R. 86, where the applicant sought judicial review of the proceedings of the
respondent’s disciplinary committee, Denham J. held that the functions of the Institute originated
from its charter which was ‘public in nature’ and the applicant was entitled to judicial review.
117
This has been amended by the Rules of the Superior Courts (Judicial Review) 2011 (S.I. No.691 of
2011).
118
Inland Revenue Commissioners v National Federation of Self Employed and Small Businesses Ltd.
[1982] A.C. 617 at 642-643; G. v Director of Public Prosecutions [1994] 1 I.R. 374 at 382; O’Leary v
Minister for Transport, Energy and Communications [2000] 1 I.L.R.M. 81 at 86.
119
Order 84, rule 20(2)-(3). Order 84, rule 20(3), as amended, now requires greater particularity and
precision in the drafting of a Statement of Grounds and Affidavit. Order 84, rule 20(4) provides for
the amendment of a Statement of Grounds to include different or additional grounds of relief although
it would appear that this would only be allowed in exceptional or strict circumstances, for example
where facts come to light which the applicant could not possibly have known at the time of the leave
application, c.f. McCormack v Garda Síochána Complaints Board [1997] 2 I.R. 489.
28
116
for leave has a duty of uberrimae fides or utmost good faith and must disclose all relevant
information before the court on Affidavit.121 The applicant must also demonstrate sufficient
interest in bringing the application and that there are stateable or sustainable grounds to
support the application.122 The particular threshold in conventional judicial review is that the
applicant must demonstrate an ‘arguable case’. Where an order is made granting leave to
apply for judicial review following an ex parte application, it is open to the respondent to
bring an application to set aside the order granting leave.123 Order 84, Rule 21(1) provides
that: “An application for leave to apply for judicial review shall be made within three months
from the date when grounds for the application first arose.” Prior to the amendment in 2011,
the timeframe for an order of certiorari was six months.
A different regime applies to public procurement cases and is set out in Order 84A of the
Rules of the Superior Courts, as inserted by the Rules of the Superior Courts (Review of the
Award of Public Contracts) 2010 (S.I. No.420 of 2010). In addition, there is a specific
statutory regime for decisions of planning authorities which is set out in s.50 of the Planning
and Development Act 2000. Both of these regimes have different time limits compared with
conventional judicial review, i.e. 30 days in the case of public procurement and 8 weeks in
the case of planning.
Section 50(6) of the Planning and Development Act 2000 provides that an application for
leave to apply for judicial review must be made to the High Court within eight weeks of the
decision. Section 50(8) provides that the court may extend the time if: (a) it is satisfied that
there is good and sufficient reason for doing so and (b) the circumstances that resulted in the
120
Order 84, rule 24(1)-(2) of the Rules of the Superior Courts. In certain instances, the court may
require a fortified undertaking as to damages, c.f. Broadnet Ireland Ltd. v Office of the Director of
Telecommunications Regulations [2000] 3 I.R. 281; O’Connell v Environmental Protection Agency
[2001] 4 I.R. 494; Seery v An Bord Pleanála [2001] 2 I.L.R.M. 151 at 153. The courts may also make
orders for discovery in judicial review proceedings under Order 84, rule 24(3) although this is seldom
the case, c.f. Carlow/Kilkenny Radio Ltd. v Broadcasting Commission of Ireland [2003] 3 I.R. 528;
Shortt v Dublin City Council [2003] 2 I.R. 69 at 89; and Arklow Holidays Ltd. v An Bord Pleanála
[2005] IEHC 303.
121
Adams v Director of Public Prosecutions [2001] 2 I.L.R.M. 401 at 416; McMahon v Law Society
of Ireland [2009] IEHC 339.
122
G. v Director of Public Prosecutions [1994] 1 I.R. 374 at 377-378.
123
In Adam v Minister for Justice [2001] 2 I.L.R.M. 452 it was held by McGuinness J. at 469 that this
jurisdiction should “only be exercised sparingly and in a very plain case”; see also Grimes v Cork
County Council [2005] IEHC 420; Burke v Martin [2010] IEHC 450; and Kerry Fish (Ireland) Ltd. v
Kerry County Council [2008] IEHC 459.
29
failure to make the application for leave within the period were outside the control of the
applicant. Where an application for leave is granted, the court may make an order staying the
relevant proceedings (s.50(5) of the PDA 2000).
Section 50A(2) provides that leave applications are made ex parte although the court may
also direct that the leave application be contested on an inter partes basis and adjourn the
application on such terms as may be directed, for example in the case of a lay litigant. These
applications are made on Monday at 12pm before Noonan J. (formerly Peart J.). The court
may also treat the leave application as if it was the hearing for judicial review, either on the
consent of all parties or where there is good and sufficient reason for doing so. In order to
grant leave, the court must be satisfied that the applicant has demonstrated: (a) substantial
grounds and (b) has a sufficient interest in the matter which is the subject of the application
or is a recognised eNGO where the decision or act relates to a development which requires an
environmental impact statement (EIS) and has potentially significant environmental effects
(s.50A(3) of the PDA 2000).124 In McNamara v An Bord Pleanála,125 Carroll J. considered
the concept of “substantial grounds” and noted that this means reasonable, arguable and
weighty and “not trivial or tenuous”. The term ‘sufficient interest’ must be construed in
accordance with ‘wide access to justice’ pursuant to the EIA Directive (Directive
2011/92/EU) and art.9 of the Aarhus Convention where the decision concerns a project
requiring environmental impact assessment (EIA).
Section 50A(4) provides that at the substantive hearing the applicant may only rely on the
grounds for which leave was granted. The determination of the High Court at the substantive
stage is final unless leave of the Court is granted where the Court certifies that its decision
involves a point of law of exceptional public importance and that it is desirable in the public
interest that an appeal should be taken to the Supreme Court (s.50A(7) of the PDA 2000).
Interestingly, s.50A(10) provides that “The Court shall, in determining an application for
This was changed from the previous ‘substantial interest’ threshold by s.20 of the Environment
(Miscellaneous Provisions) Act 2011.
125
McNamara v An Bord Pleanála [1995] 2 I.L.R.M. 125 at 130; See also Scott v An Bord
Pleanála [1995] 1 I.L.R.M. 424; Lancefort Ltd v An Bord Pleanála [1997] 2 I.L.R.M. 508 at 516;
Blessington and District Community Council Ltd v Wicklow County Council [1997] 1 I.R. 273 at 279;
Arklow Holidays Ltd v An Bord Pleanála [2007] 4 I.R. 112; Kildare County Council v An Bord
Pleanála [2006] IEHC 173; Talbotgrange Homes Ltd. v Laois County Council [2009] IEHC 535; CIÉ
v Cork City Council [2009] IEHC 262; and Morrison v Dún Laoghaire Rathdown County Council
[2010] IEHC 385.
30
124
section 50 leave or an application for judicial review on foot of such leave, act as
expeditiously as possible consistent with the administration of justice.” However, in practice,
the progress of cases through the judicial review lists is far from expeditious, unless a case is
transferred to the Commercial Court.
Finally, s.50B of the Planning and Development Act 2000 provides that where a judicial
review is taken which concerns a decision on a project requiring EIA or an IPPC licence or a
policy or programme requiring strategic environmental assessment (SEA), the default
provision is that each side (including any notice parties) will pay its own costs. However,
s.50B(2A) provides that “The costs of proceedings, or a portion of such costs, as are
appropriate, may be awarded to the applicant to the extent that the applicant succeeds in
obtaining relief and any of those costs shall be borne by the respondent or notice party, or
both of them, to the extent that the actions or omissions of the respondent or notice party, or
both of them, contributed to the applicant obtaining relief.”126
This default provision is somewhat modified by s.50B(3) which allows the court to award
costs against any party in the proceedings “if the Court considers it appropriate to do so— (a)
because the Court considers that a claim or counterclaim by the party is frivolous or
vexatious, (b) because of the manner in which the party has conducted the proceedings, or (c)
where the party is in contempt of the Court.” Section 50B(4) confirms that the new costs
provisions do not affect the Court’s entitlement to award costs in favour of a party in a matter
of exceptional public importance and where in the special circumstances of the case it is in
the interests of justice to do so, i.e. where a party raises a point of exceptional public
importance which was ventilated and determined by the High Court.
The test for judicial review of planning decisions has traditionally been the test set out in
O’Keeffe v An Bord Pleanála127 wherein the Supreme Court adopted the dictum of Henchy J.
in Keegan which echoes the language in Wednesbury and held that the court should only be
concerned with how the decision was arrived at and not whether the substantive decision was
correct or incorrect in fact. Finlay J. also held that “the court cannot interfere with the
126
This was inserted by s.21 of the Environment (Miscellaneous Provisions) Act 2011 following the
amendment by s.33 of the Planning and Development (Amendment) Act 2010.
127
O’Keeffe v An Bord Pleanála [1993] 1 I.R. 39.
31
decision of an administrative decision-making authority on the grounds that (a) it is satisfied
that on the facts as found it would have raised different inferences and conclusions or (b) it is
satisfied that the case against the decision made by the authority was much stronger than the
case for it”. The decision in O’Keeffe confirmed the principle that an administrative body is
vested with the relevant professional expertise, skill and competence to take certain decisions
in accordance with the principle of ‘curial deference’ which is afforded to specialist
professional bodies and the courts should not substitute their view as to what an alternative
decision might be. However, certain areas of judicial review such as public procurement are
distinctly influenced by European administrative law and have adopted a standard of review
which contains a less onerous threshold for review than the standard set down in O’Keeffe
and which may be distinguished from the anxious scrutiny or proportionality tests. This is
most prevalent in public procurement law which has endorsed a ‘manifest error’ test.128
In Keane v An Bord Pleanála and PWWP Development Limited129, Hogan J. stated that “the
case for applying the manifest error test would seem to be a powerful one in this context, not
least given that the relevant discretionary powers vested in the Board with regard to the
environmental impact assessment contained in the 2001 Regulations cannot be regarded as
purely autonomous, autochthonous items of secondary legislation, but rather derive their
root of title from the 1985 Directive (or, for that matter, the codified 2011 version of that
Directive)”. Hogan J. referred to the decision in Case C-19/00, SIAC Construction Ltd. v
County Council of Mayo130, wherein the ECJ expressed doubt as to whether the O’Keeffe test
could be properly applied in the case of discretionary powers which derived from European
law, as is the case with both public procurement law and review of decisions requiring EIA.
In SIAC Construction Ltd. v County Council of Mayo 131, it was held by Fennelly J., in the
Supreme Court, that “the word, "manifest", should not be equated with any exaggerated
description of obviousness. A study of the case law will show that the community courts are
prepared to annul decisions, at least in certain contexts, when they think an error has clearly
been made.” This was not to be equated with that of plainly and unambiguously flying in the
face of fundamental reason or common sense which is the traditional rationality test.
128
SIAC Construction Ltd v Mayo County Council [2002] 3 I.R. 148
Keane v An Bord Pleanála and PWWP Development Limited [2012] IEHC 324.
130
Case C-19/00, SIAC Construction Ltd. v County Council of Mayo [2001] E.C.R. I-7725.
131
SIAC Construction Ltd. v County Council of Mayo [2002] 3 I.R. 148.
129
32
In Sweetman v An Bord Pleanála132, it was considered by Clarke J. that the ‘manifest error’
test which has been adopted in public procurement law may be more applicable in cases
involving judicial review of decisions involving EIA. It was held that the appropriate
approach to be taken by a court in respect of a challenge to a particular decision to which the
EIA Directive related was to consider whether there were substantial grounds for suggesting
that a higher level of scrutiny was required on the facts of the case.
More recently, in Ratheniska Timahoe and Spink (RTS) Substation Action Group & Anor. v
An Bord Pleanala & Ors.,133 it was noted by Haughton J. that a “different regulatory
framework applies to public procurement and the review of public procurement
decisions……..Thus, the test of “clearly established error” or “manifest error” applies to
reviews of public procurement decisions. It is the view of this court that the more limited test
for substantive review on grounds of irrationality set by the O’Keeffe case, and reiterated in
the case law derived from that case, is both well established and remains appropriate, and
continues to bind the High Court at least in its review of decisions of the Board, including
EIAs forming part of such decisions.” The reference to the appropriate standard of judicial
review is further elaborated in paras.62-72 of that judgment, with specific reference to
O’Keeffe v An Bord Pleanála134 and The State (Keegan) v Stardust Compensation Tribunal135
in which Henchy J. set out the grounds of irrationality and unreasonableness. It is submitted
that the potential tension between these judicial decisions or observations should be
reconciled.
4. Duties of Rating Authorities
In this section it is proposed to examine the historic basis for rating property and rate
collection and the evolution from rateable hereditaments to relevant property as described in
s.14 of the Valuation Act 2001. It is also proposed to specifically examine the recent reforms
in rating law in Part 5 of the Local Government Reform Act 2014, which introduced a
number of key provisions, including: (a) the harmonisation of commercial rates; (b) the
amalgamation of local funds and valuation lists; (c) rates on vacant premises which extended
132
Sweetman v An Bord Pleanála [2008] 1 I.R. 277 at 298-299.
Ratheniska Timahoe and Spink (RTS) Substation Action Group & Anor. v An Bord Pleanala &
Ors. [2015] IEHC 18.
134
O’Keeffe v An Bord Pleanála [1993] 1 I.R. 39.
135
The State (Keegan) v Stardust Compensation Tribunal [1986] I.R. 642.
33
133
the provisions in s.14 of the Local Government Act 1946 and (d) the duty to inform the rating
authority on change in occupation which is a critical and perhaps the most controversial
provision.
Traditionally cess charges were levied on the inhabitants of the parish. The Poor Relief Act
1601 (the “Old Poor Law”) allowed the overseers of the parish to raise tithes or taxes for poor
relief according to the ability of the parish inhabitants to pay. The Poor Relief (Ireland) Act
1838 enabled Poor Law Commissioners to levy a cess or charge on land for the alleviation of
poverty and for the construction and maintenance of roads, courthouses, lunatic asylums and
infirmaries and other public works. Section 12 of the Valuation (Ireland) Act 1852
(‘Tenement Valuation Act’) provided that: “For the Purposes of this Act the following
Hereditaments shall be deemed to be rateable Hereditaments, viz., all Lands, Buildings and
opened Mines; all Commons and Rights of Common, and all other Profits to be had or
received or taken out of any Land … all Rights of Way and other Rights or Easements over
Land, and the Tolls levied in respect of such Rights and Easements, and all other Tolls.”
Section 63 of the 1838 Act sets out the definition of ‘rateable hereditaments’ and included
lands, buildings, opened mines, rights of common and profits, rights of fishery and
navigation, etc. Section 64 provided that the rate should be made as a poundage rate based on
the net annual value (NAV) of the rated hereditaments. Sections 63 and 64 of the 1838 Act
were repealed in Schedule 1 to the Valuation Act 2001.
Section 65 provided that the particulars of every rate that was struck should be entered into a
rate book. The preparation of the rate book is now provided for in Part 4 of the Local
Government (Financial and Audit Procedures) Regulations 2014.136 Section 71 provided for a
method of recovery of unpaid rates from the occupier and conferred a right of distress on rate
collectors who were authorised to collect the county cess. This allowed the rating authority to
levy rates on a subsequent occupier of rateable property in the event that rates were not paid.
This was qualified by s.19 of the Poor Relief (Ireland) Act 1849 which provided a two-year
period for the institution of proceedings seeking the recovery of the arrears of rates from a
subsequent occupier. Section 19 states that “When any rate for the relief of the poor shall be
made, it shall not be lawful to commence any proceeding for the recovery of any arrear
thereof against any person not primarily liable to pay the same, unless within the period of
136
S.I. No.226 of 2014.
34
two years next after the making and publishing of the said rate.” This was deleted in Part 6 of
Sch.2 to the Local Government Reform Act 2014. The relevant provision is now set out in
s.32 of the 2014 Act.
The basis for rate collection is the net annual value (NAV). The Valuation Act 1826 and the
Valuation Act 1836 provided that rateable hereditaments were to be valued by reference to
their NAV, which was the sum for which the property could be let, less the liabilities which
were to be discharged by the tenant. This was subsequently expanded following the Valuation
(Ireland) Act 1852 (the “Tenement Valuation Act”) which removed the differentiation
between valuations for the county cess and the poor rate. The definition of hereditaments in
the Tenement Valuation Act 1852 was extended by ss.2-3 of the Valuation Act 1986 and
Reference No.1 in the Schedule to that Act. The Valuation Act 1986 was repealed in Sch.1 to
the Valuation Act 2001.
The powers of rate collectors were set out in the Poor Relief (Ireland) Act 1862. Section 13
provided that rate collectors could be appointed with the approval of the Poor Law
Commissioners. Section 12 provided that property which was not occupied should be subject
to rates. The building was included in the rate and deemed to be rated for poor relief as if it
had been occupied at the time that the rate was made. If the building continued to be
unoccupied for the whole of the period for which the rate was estimated, the rate was not
recoverable. If the building was occupied after the making of the rate and before the
expiration of the period for which the rate was estimated, the board of guardians was entitled
to recover a proportionate amount of the rate from the occupier or immediate lessor or, in
default of payment, from the subsequent occupier.
Section 2 of the Poor Law Acts (Ireland) Amendment Act 1890 provided that where a
property was occupied by two or more parties in any given year, the rating liability for the
property should be apportioned in accordance with the duration of their occupation. Thus,
where a poor rate had been made for a particular period and the owner or occupier of any
rateable property which was rated ceased to be owner or occupier before the end of the period
and had not paid the poor rate, the board of guardians of the poor law union could determine
that the owner or occupier was liable for the rates proportionate to the period for which he
was owner or occupier. The Local Government (Ireland) Act 1898 abolished the grand jury
35
cess and transferred charges to the poor rate which subsequently became the county rate.
Sections 6(a), 21(2) and 28 of the 1898 Act transferred the rating obligations of the guardians
of the poor to county councils, borough councils and urban district councils.
These were subsequently re-classified as rating authorities pursuant to s.2 of the Local
Government Act 1946. Part II of the 1946 Act made a number of changes to the rating system
and introduced a county rate for county councils and municipal rates for urban areas,
including boroughs and urban districts. The budget for town councils which were not rating
authorities was financed mainly by way of an addition to the county rate in the relevant
county budget. This addition to the county rate was levied in the town only. Owners of
property were also responsible for rates in vacant premises where the hereditament was
situated in an urban area and was not a ‘small dwelling’ within the meaning of the Local
Government (Rates on Small Dwellings) Act 1928 and was unoccupied at the time of the
making of the municipal rate (see s.14 and s.23 of the Local Government Act 1946).
Rates could be reclaimed if the owner could show that he bona fide tried to lease the property
to a suitable tenant at a reasonable rate but was unsuccessful in doing so. Section 21 of the
Local Government Act 1946 introduced a degree of differential rating where rates were
levied on the basis of area and class of property. This was justified on the basis that property
does not benefit equally from expenditure and was also applied to consolidate municipal
rates. These are precursors to what was implemented in the Local Government Reform Act
2014. Section 12 provided that the poor rate was to be construed as and referred to as the
“county rate”. Section 34 of the Local Government Reform Act 2014 provides that any
reference to a county rate pursuant to s.12 of the 1946 Act should be read as a reference to a
rate for a county council or a city and county council.
As a result of the antiquity and disparate nature of these statutory provisions, rating law has
been interpreted as a complex statutory code. The law on rating was described by Costello J.
in Pfizer Chemical Co Ltd v Commissioner of Valuation137as “a confusing mosaic of partly
repealed and imperfectly drafted Victorian statutes encrusted with … judicial decisions. It
should long ago have been repealed and modernised”. This is qualified by the enactment of
the Valuation Act 2001 but some of the Victorian-era statutes have survived. In particular, the
137
Pfizer Chemical Co Ltd v Commissioner of Valuation [1989] IEHC 32.
36
provisions on recovery of unpaid rates by distress and at the suit of the rate collector or rating
authority are in need of modernisation. Because of the disparate provisions across the rating
code, there has been inconsistency in different judicial decisions.138 Although the 2001 Act
repealed most of the extant rating code, s.28 of the Tenement Valuation Act, which provides
that when appealing the rate the valuation of the property could not be challenged, was not
repealed and would appear to be still relevant. The remainder of the Tenement Valuation Act
was repealed in Sch.1 to the 2001 Act.
Rates were traditionally levied on rateable hereditaments. Section 63 of the Poor Relief
(Ireland) Act 1838, which was repealed in Sch.1 to the 2001 Act, originally set out the
hereditaments which were regarded as being rateable. Part 4 of the Valuation Act 2001
includes a definition of ‘relevant property’ to be rated (see sections 13-17 and s.14 in
particular). Section 14 of the Valuation Act 2001 provides that references to “rateable
hereditaments” or “tenements” should be construed as references to relevant property for the
purposes of construing the Act. Section 15 of the 2001 Act provides that rates may be levied
on the occupier of relevant property which is deemed to be rateable. The categories of
relevant property are set out in Sch.3 to the 2001 Act and broadly include land which is used
and developed for any purpose. Properties which are liable for rates are generally fixed or
immutable and include mines, rights of common, profits from land, rights of fishery, canals,
rights of navigation, railways and tolls. In addition, the term “relevant property” expressly
includes profits à prendre (other than rights of fishery), easements and rights associated with
land such as water, gas and electricity infrastructure. In order for property to be considered a
relevant property, it must be occupied and the nature of the occupation must constitute
‘rateable occupation’.
Section 61 of the 1838 Act provided for the making and levying of rates on “every occupier
of rateable hereditaments” which are now construed as relevant property. Section 67 of the
1838 Act required that accounts be kept of tolls and profits which are liable to be rated, and
tolls were included as rateable property in s.63 of the 1838 Act. They are now included as
relevant property in s.14 of and Sch.3(1) to the 2001 Act. Section 71 of the 1838 Act provides
that the rate is to be paid by “the person in the actual occupation of the rateable property at
the time of the rate made”. This allowed local authorities to levy rates on the subsequent
138
Denis Coakley & Co. Ltd. v Commissioner of Valuation [1996] 2 I.L.R.M. 90 per Egan J.
37
occupier of the rateable property.139 Sections 14 and 23 of the Local Government Act 1946
provided that where premises were unoccupied at the making of the rate, the rate would still
be levied on the owner of the property subject to qualifications.
Liability for Rates
In order to determine liability for rates it is necessary to determine who is in rateable
occupation. The general principle is that the owner of lands is treated as being in beneficial
occupation although this is a rebuttable presumption.140 In Telecom Éireann v Commissioner
of Valuation141, O’Hanlon J. outlined a tripartite test. First, there must be exclusive and actual
occupation.142 In Associated Cinema Properties Ltd v Hampstead Borough Council143, it was
held that a mere intention to occupy premises cannot be regarded as evidence of occupation
and the company was not in rateable occupation of the premises as it had not in fact been in
actual occupation. Where there is more than one person in the immediate use or enjoyment of
the hereditament, it is a question of fact as to who is in paramount occupation, irrespective of
whether the property is occupied subject to a lease, licence, or easement.144
139
In Murray v Judd [1943] Ir. Jur. Rep. 17, it was held that subsequent actual occupation was
necessary to impose liability for the rate. In that case, it was held that the owner was never in actual
occupation and was not a subsequent occupier. The occupier is defined as including “every person in
the immediate use or enjoyment of any hereditaments rateable under the Act, whether corporeal or
incorporeal”.
140
In Iarnród Éireann v Commissioner of Valuation, unreported, High Court, Barron J., November
27, 1992, it was held by Barron J. that if there was a hypothetical tenant prepared to pay rent, then the
property must be valued accordingly, otherwise it would have a nil valuation. On the facts, it was held
that Iarnród Éireann was the rateable occupier of the passenger terminal.
141
Telecom Éireann v Commissioner of Valuation [1994] 1 I.R. 66.
142
In John Laing & Son Ltd v Kingswood Assessment Committee [1948] 1 All E.R. 943; [1949] 1
K.B. 344, it was held that the four conditions of rateable occupation are (i) actual occupational
possession (which involves actual as opposed to intended user of the land in question); (ii) occupation
or possession which is exclusive; (iii) occupation or possession which is of some value or benefit to
the occupier/possessor; and (iv) occupation or possession which has a sufficient quality of
permanence.
143
Associated Cinema Properties Ltd v Hampstead Borough Council [1944] 1 K.B. 412; see also
Carroll v Mayo County Council [1967] I.R. 364 and Marconi Communications Optical Networks Ltd
v Commissioner of Valuation [2007] IEHC 114, wherein it was held by de Valera J. that the Valuation
Tribunal was correct in determining that the appellant was not liable to rates on the basis that it was
not in occupation of the premises.
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Secondly the occupation must be of value or benefit to the occupier. The occupation should
be beneficial to the occupier, although the occupier is not required to derive a pecuniary
benefit or profit therefrom. Where the property is incapable of beneficial occupation by virtue
of its inherent condition, it is not rateable.145 In Harper Stores Ltd. v Commissioner of
Valuation,146 it was held by Henchy J. that the Commissioner of Valuation was obliged to
make the revised valuation and that the appellants had been the occupiers of the rateable
hereditament at the date of the revision as they had been “in the immediate use or enjoyment”
thereof, within the meaning of s.124 of the 1838 Act. Although the respondent was obliged to
make the revised valuation upon an estimate of the rent for which the hereditament “in its
actual state” might be reasonably expected to let from year to year, the respondent was
entitled to take into account all the potentialities of the hereditament as the subject matter of a
tenancy from year to year.
Thirdly, the occupation should be permanent and not be transient or temporary. In London
County Council v Wilkins (Valuation Officer)147, it was held that the test of rateability was
whether there was evidence that the structures were occupied for a period which was not
transient and were enjoyed with the land and enhanced its value. It was held by Lord Tucker
that: “A hereditament only becomes a subject of rateability if there is a sufficient element of
“permanence” in its occupation. This is essentially a question of fact and degree. It has long
been settled that occupation for a defined period of time or even under a tenancy at will or by
virtue of licence subject to revocation at any time may not be too transient to be regarded as
“permanent”. It was further held by Lord Oaksey that: “A consideration of the authorities
leads me to the conclusion that an occupier who makes any beneficial use of land is rateable
if he does so for a period which is not transient.” In order to qualify as a rateable
hereditament, the interest must be in the nature of a right or interest in land. Furthermore,
something affixed to and supported by a building may be the subject matter of occupation of
the land by which the building is supported, and the owner of such thing is in exclusive
occupation of something which occupies a part of the land and, therefore, liable to rating.
145
See Sinnott v Neale [1948] Ir. Jur. Rep. 10, wherein it was held that even though the Great Saltee
Island was unoccupied and uninhabited and produced no monetary profit, it was still a rateable
occupation
146
Harper Stores Ltd v Commissioner of Valuation [1968] I.R. 166.
147
London County Council v Wilkins (Valuation Officer) [1957] A.C. 362.
39
Recent Local Government Reforms
The Local Government Reform Act 2014 introduced major reform of the local government
system on the same scale as the Local Government (Ireland) Act 1898. In policy terms it had
been presaged by the 2008 Green Paper on local government reform “Stronger Local
Democracy – Options for Change” and the 2012 White Paper “Putting People First: Action
Programme for Effective Local Government”, which, inter alia, proposed the abolition of
town councils and the amalgamation of Limerick and Waterford city and county councils as
well as a new unitary authority for Tipperary. Part 5 (including ss.29-34) made a number of
provisions for rating consequent on the dissolution of town councils.
Section 29 of the Local Government Reform 2014 provides for the harmonisation of
commercial rates and has implications for the merger of local authorities.148 In particular, it
places an incentive to lower commercial rates to the lowest denominator within a county at
the time of amalgamation and provides for base year adjustment over an adjustment period
which is a discount or levy payable by ratepayers in a specified area during an adjustment
period. The base year adjustment is calculated in Year 1 of the adjustment period in respect
of a specified area. It is the difference between the annual rate on valuation in respect of the
year immediately preceding Year 1 that is applicable in the specified area and the annual rate
on valuation determined by the rating authority in Year 1 of the adjustment period applicable
generally in the area of the rating authority. In respect of each year of the adjustment period
subsequent to Year 1, the base year adjustment is adjusted separately for each specified area
by the rating authority concerned, following consultation with municipal district members in
that area, by reducing the discount or levy (as the case may be) incrementally each year until
the divergence is eliminated.
In 2014 North Tipperary had a commercial rate of €60.13 while South Tipperary had a rate of
€56.77. Clonmel Borough Council had ARV of €58.44 while Carrick-on-Suir was €50.99. In July
2014 the commercial rates were set at €77.14 for Kilkee, €75.05 in Shannon, compared with a county
rate of €72.99 and €65.45 in Ennis. In comparison, Limerick had a rate of just €59.9. Shannon was
17% higher than Ennis while the rate for County Clare was 11% higher than Ennis.
40
148
The base year adjustment applicable to a specified area is applied to rating bills issued to
ratepayers in the specified area and operates as either a discount or levy (as the case may be)
on the amount due calculated by reference to the annual rate on valuation. Base year
adjustments cease at the end of the adjustment period for the specified area. This period is no
greater than ten years commencing with the first year. It may be a shorter period in respect of
any specified area within the administrative area at the discretion of the rating authority. The
adjustment period ceases in respect of a specified area when the base year adjustment has
been eliminated for a period of ten years. The annual rate on valuation determined by a
rating authority in Year 1 of the adjustment period may not be increased in subsequent years
until the adjustment period has ceased for every specified area within the administrative area
of the rating authority. Where a revaluation under the Valuation Act 2001 takes effect in a
rating authority in any year after the first year of the adjustment period, the base year
adjustment will continue to be applied to relevant properties by means of a percentage
discount or levy equivalent to the former base year adjustment as a percentage of the annual
rate on valuation as determined by such rating authority in Year 1 of the adjustment period.
This does not apply where a revaluation takes effect in the first year of the adjustment period.
Section 30 of the Local Government Reform Act 2014 provides for amalgamation of funds
for city and county councils including Tipperary, Limerick and Waterford following the
establishment of the new successor authorities on the 2014 establishment day. Section 33 of
the Local Government Reform Act 2014 provides for amalgamated valuation lists. Where the
Commissioner of Valuation made valuation orders pursuant to s.19 of the Valuation Act 2001
for two or more rating authorities which were subsisting before the 2014 establishment day or
transfer date and the councils were subsequently dissolved, the Commissioner must publish
an amalgamated valuation list for the successor authority pursuant to s.23 of the Valuation
Act 2001. This should be done as if: (a) the successor authority was in existence when the
valuation orders concerned were made; (b) the orders in respect of that area were orders that
related to the successor authority, (c) the successor authority was the rating authority when
the orders were made. Any valuation list which is published does not affect the continuance
of the central valuation list.
41
Rates on Vacant Premises
Traditionally, rates were only imposed on the occupier of the rateable hereditament. Section
14 of the Local Government Act 1946 imposed a liability on the owner who was entitled to
occupation. Thus, where a hereditament was situated in a county but not in an urban area and
was not a small dwelling within the meaning of the Local Government (Rates on Small
Dwellings) Act 1928 and was unoccupied at the making of the rate the rate was made upon
the owner who was entitled to occupy the hereditament. The owner was obliged to pay the
rate that was incurred but was entitled to claim and receive a refund from the rating authority.
This was one twelfth of the rate for every completed month during which the
premises/hereditament were unoccupied for the purpose of executing additions, alterations or
repairs or where the tenant was bona fide unable to find a suitable tenant at a reasonable rent
or at the maximum rent permitted under the Rent Restrictions Act 1946 where that Act
applied.
Where the premises were unoccupied for the entire year, the owner was entitled to claim a
full refund although was still obliged to discharge the rate liability. Where a rate was made on
the owner of an unoccupied hereditament and that hereditament was subsequently let by or on
behalf of the owner and the rate was in arrears or unpaid, the rate collector could serve a
notice on the occupier of the hereditament requiring the occupier to discharge the unpaid rate
arrears even where these had been incurred prior to occupation. This is without prejudice to
any other remedy for the recovery of unpaid rates or rate arrears. Section 23 of the Local
Government Act 1946 allowed for refunds on rates on vacant premises in urban areas where a
hereditament was unoccupied at the making of the municipal rate. This essentially allowed
for rates to be levied on unoccupied premises in urban areas and to be recovered from the
owners and is identical to s.14 with the exception of the making of the municipal rate.149
149
In McLaughlin v Buncrana Urban District Council (UDC) (1952) 86 I.L.T.R. 23, it was held that
s.23 of the Local Government Act 1946 did not specify any test as to how the rating authority should
satisfy itself as to the bona fides of a claim. In that case, the claim was for the recovery of the rates for
the three years immediately after the enactment. The plaintiff was allowed to recover the refund in
respect of the three-year period, although it was held that the onus was on the plaintiff to demonstrate
that he genuinely could not obtain a tenant at a reasonable rent.
42
Section 71 of the Local Government (Dublin) Act 1930 provided that Dublin City
Corporation and Dún Laoghaire Borough Corporation could raise rates on unoccupied
property in order to meet any deficiencies in their municipal funds. However, refunds were
limited to half the rate due in each month for which the property was unoccupied, as well as a
right of refund where the owner of the property could demonstrate that the property was the
subject of additions, alterations or repairs or because the property owner was bona fide
unable to secure a tenant. This was later adopted for Cork by s.20 of the Cork City
Management Act 1941 and was recognition of the different property market in Dublin and
Cork where demand was likely to be more buoyant and robust.
Section 31 of the Local Government Reform Act 2014 amends certain provisions relating to
rates on vacant premises, specifically s.71 of the Local Government (Dublin) Act 1930, s.20
of the Cork City Management Act 1941 and s.14 of the Local Government Act 1946. The Bill
originally provided that while rates refunds for vacant properties outside of Dublin, Cork and
Limerick cities are currently allowed at 100 per cent, the 50 per cent refund applicable in
these cities would be extended elsewhere. The intention was to equalise rate rebates on
vacant premises across all local authorities, although concerns were expressed that extending
this provision would impose an onerous burden on rate-payers in areas where commercial
demand may not be strong.
Section 31, as enacted, provides that the rating authorities for Dublin City and Cork City may
specify a local electoral area or areas within its administrative area where owners of vacant
premises are entitled to claim and receive a refund of a differing proportion of the municipal
rate and determine the proportion of the refund that applies in respect of each specified local
electoral area. It also allowed the Minister to make regulations specifying the financial
considerations and administrative and other procedures to apply in relation to the
performance by Dublin City Council and Cork City Council of these functions. This
expressly amended s.71 of the Local Government (Dublin) Act 1930 and s.20 of the Cork
City Management Act 1941.
43
Section 31(3) of the Local Government Reform Act 2014 amended s.14(1) of the Local
Government Act 1946 and removed the reference to areas situated in a county but not in an
urban area. Thus, the provision for rates refund is not limited to rural areas. Section 14(1B) of
the Local Government Act 1946, as inserted, states that a local authority may: (a) specify a
local electoral area or local electoral areas within its administrative area where owners of
vacant premises are entitled to claim and receive a refund of a differing proportion of the
county rate (which includes the rate adopted by a city and county council); and (b) determine
the proportion of the refund to apply in respect of each specified local electoral area or local
electoral areas.
This offers a considerable degree of discretion to the particular local authority to determine
whether a full rebate or the more limited 50 per cent rebate that traditionally applied in
Dublin, Cork and Limerick should be available. However, local authorities now have
discretion to confer a full refund or limited refund of different proportions which may be less
than, equivalent to or greater than 50%. The changes in the Dublin and Cork Acts now allow
for a refund or rebate of greater than 50% but this may be offset by more limited rebates in
other urban areas or indeed in rural areas. Rating authorities may target such refunds to
specified areas. Specifying the specific local electoral areas and determining the proportion of
the refund are reserved functions to be performed by the plenary council of the local
authority.
Duty to Inform the Rating Authority
Section 32 of the Local Government Reform Act 2014 is possibly the most controversial
provision and deals with the obligation to notify the rating authority. It imposes a duty on the
owner of property or the authorised agent to notify the rating authority in writing no later than
two weeks after change in occupation, i.e. where the property is sold or there is a change in
tenancy or where the property becomes vacant on the termination of a tenancy. The owner or
agent of the owner is required to notify the rating authority of the details of transfer and the
details of the incoming/outgoing occupier. The obligation arises on all sales and leases
closing after the 1st July 2014. The second obligation in s.32(2) is that the owner or occupier
must discharge all rates for which he or she is liable at the date of transfer of the property or
an interest in the property. This imposes a liability for rate arrears on the owner or occupier as
44
the case may be. Outgoing tenants are required to discharge all rates for which they may be
liable prior to or on the date of transfer of the property or the date the premises are vacated.
Section 32(4) provides that the owner of relevant property is liable for a charge which is
equivalent to no more than two years of outstanding rates which are due from the previous
occupier(s) where the owner has not notified the rating authority in writing of a transfer of
relevant property or interest in relevant property and the person transferring the property has
failed to discharge all the rates for which he or she is liable. Any rates which are due by the
owner of the relevant property and which are not discharged remain as a charge on the
property for up to twelve years. Thereafter a purchaser in good faith will not be liable. This
applies to the owner of the property and not the occupier. Thus, s.32(5) provides that if the
occupier incurs rate arrears and these are not discharged they do not remain as a charge on
the property.
Section 32(6) states that this does not affect the liability of any previous occupier for
outstanding rates for which he or she was primarily liable or the powers of the rating
authority to collect any outstanding rates from the occupier or occupiers primarily liable for
outstanding rates. Thus, the ordinary powers of distress remain conferred on the rating
authority insofar as an occupier fails to discharge outstanding rates. The equivalent charge or
penalty is incurred by the owner of the property: (a) where the owner is liable for the
outstanding rates and/or (b) where the owner fails to notify the rating authority within two
weeks.
The penalty arises after the expiration of the two-week period following the date of transfer.
Thus, the owner has two weeks to notify the rating authority and thereafter the penalty is
incurred. It is submitted that this is particularly draconian given the truncated period of time
within which to notify the rating authority. This is an equivalent charge and does not displace
the actual rates liability. It is limited to two years of the outstanding rates from the previous
occupier. Even where the rates liability is greater the equivalent charge is capped at two years
of the outstanding rates liability. The penalty may be incurred after the two-week period and
is equivalent to the rates that remained outstanding from the previous occupier on the date on
the date the interest in the property was transferred up to a maximum of two years of rates
liability. If there are no outstanding rates due from the previous occupier on the date of
45
transfer, the penalty of the equivalent charge cannot be applied although the obligation to
notify the rating authority remains. It appears that there is no free-standing liability for the
owner and the charge only arises where there is an outstanding rates liability.
It should be noted that s.19 of the Poor Relief (Ireland) Act 1849 imposed a two-year
limitation period on the recovery of arrears of rates from persons who were not primarily
liable for that liability. The reference in s.32 to two years is a different provision and refers to
a cap on the equivalent charge. Section 19 has been deleted in Part 6 of Sch.2 to the Local
Government Reform Act 2014. It is not certain if it was intended that s.32 of the Local
Government Reform Act 2014 would replace this provision but the intention and purpose of
both sections are different. Accordingly, it now appears that there is no limitation period for
recovering rate arrears from subsequent occupiers who are not primarily liable for the arrears.
The penalty/equivalent charge is not affected by the subsequent payment of the outstanding
rates. The penalty/equivalent charge which applies to an owner for failing to notify a rating
authority of a change in occupation also arises where the owner was the previous occupier.
The owner must notify the rating authority of the transfer of ownership regardless of whether
or not he or she is in occupation of the premises. If the owner does not inform the rating
authority and discharge the outstanding rates due, he or she will be liable for the penalty of
two years’ rates liability in addition to any other rates liability that may arise. Both the unpaid
rates due from an owner and not discharged on transfer and the equivalent charge remain as a
charge on the property if they are not paid. The liability for unpaid rates of a previous
occupier does not become a charge on the property unless the occupier is also the owner of
the property and the local authority can seek recovery of rates in the normal manner. Section
32(2) provides that any rates due from the owner of a property that are not discharged prior to
the transfer of the property become a charge on the relevant property.
Section 32 will have a significant impact on the way commercial rates are dealt with in sales
by receivers. Prior to the 1st July 2014 the accepted practice was to deal with rates arrears on
the basis of the purchaser's legal liability whereby purchasers would be liable for up to two
years arrears. The effect of s.32 is that the current practice will no longer be possible as any
unpaid arrears will become a charge on the property. In respect of all receiver sales, the onus
will be shifted onto the receiver who will be obliged to notify the rating authority of any sale
46
within two weeks of that sale and to pay all outstanding rates arrears at the time of sale.
Where a receiver fails to notify, the rating authority may impose a penalty of up to two years
arrears in addition to the arrears already owed by receiver. The amount of the penalty is at the
discretion of the rating authority. Undoubtedly, the two week period is too limited
particularly for receivers although it could be argued that receivers who are dealing with
multiple transactions will be familiar with the provision. There is a particular concern for the
ordinary vendor who is not suitably advised by his or her solicitor of the duty to notify the
rating authority.
I would query the provision whereby the equivalent charge is placed as a charge on the
property for up to twelve years or where the owner fails to discharge his or her rate liability
and that is placed as a charge on the property. This effectively places a burden on the
subsequent purchaser in the following twelve years as the property will carry a charge. This
will have to be disclosed as a burden on the property. The local authority is entitled to pursue
the equivalent charge of up to two years from the owner for failure to notify as well as the
rate arrears where the owner is responsible for the rates arrears and fails to discharge liability.
In the sense that a subsequent occupier or owner is now being penalised, it should be noted
that where the owner fails to discharge the outstanding rates liability that debt becomes a
charge on the relevant property for up to twelve years. If the arrears are incurred by the
occupier they do not become a charge but may be recovered by the rating authority by
distress, etc. This is counter-balanced by the amendment of s.71 of the Poor Relief (Ireland)
Act 1838 which removes the right of the rate collector to pursue unpaid rates from the person
who is subsequently in occupation. However, the fact that an equivalent charge can be levied
as a charge on the property is a burden on a subsequent owner or occupier, albeit limited to
two years of the unpaid rates owed by the owner or occupier.
© David Browne, 3rd June 2015. All rights reserved.
No liability is accepted for any statement or omission contained herein, whether in contract,
negligence, negligent misstatement or at all, and no representation or warranty is offered in
respect of the veracity of these materials.
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