CPD Presentation Galway Solicitors Bar Association 5 th

CPD Presentation Galway Solicitors Bar Association 5 th June 2015 David Browne BL

Introduction • Liability of local authorities • Duty of roads authorities and distinction between nonfeasance/misfeasance • Judicial review of local authorities • Statutory judicial review under the Planning and Development Act 2000 • Rating provisions and rateable occupation • Part 5 of the Local Government Reform Act 2014 (including rates on vacant premises and duty to notify the rating authority)

Part 1

Liability of Local Authorities • Liability for tortious acts at common law • Local authorities are statutory corporations with separate legal personality • Traditional liability of poor law guardians • May also be vicariously liable for actions of officials and employees • Public/private law distinction of local authorities • Range of liability for local authorities

Duty of Care of Local Authorities • Must establish: (a) breach of duty of care; (b) that duty of care was owed to the plaintiff and (c) that it is ‘fair, just and reasonable’ that a duty of care is imposed • Glencar considerations • Neighbour principle • Donoghue v Stevenson • Reasonable foreseeability – depends on whether potentially affected party was sufficiently proximate (principle of propinquity)

Duty of Care of Local Authorities • Development of two-stage test in Anns v Merton LBC • Siney v Dublin Corporation • Ward v Mc. Master and Louth County Council • Public policy considerations • Evolution of three-stage test • Addition of the ‘fair, just and reasonable’ test • Caparo Industries v Dickman • Glencar v Mayo County Council (No. 2)

Breach of Statutory Duty • 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 • Gorringe v Calderdale Metropolitan Borough Council • X. (Minors) v Bedfordshire County Council • Statutory duty of care on local authorities • Flynn v Waterford County Council

Reasonable Foreseeability and Standard of Care • Cause of the accident should be reasonably foreseeable to attract liability • Shelton v Creane and Arklow UDC • See in contrast Weir v Dún Laoghaire Corporation • Standard of care is that of a local authority acting with reasonable caution and prudence • Healy v Bray Urban District Council (UDC) • Paris v Stepney Borough Council

Social Utility of Local Authority Actions • 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 • Watt v Hertfordshire County Council • Whooley v Dublin Corporation • Where the actions of the defendant local authority are justified for a particular health or safety reason, a breach of duty of care may not arise

Capacity as Roads Authority • Traditional immunity from suit – at common law the duty to repair highways fell on the community at large • Developed at common law from traditional duty of parish inhabitants to keep public roads in good condition and repair • Traditionally, grand juries were exempt from liability for failure to maintain roads. After 1898 councils became liable for misfeasance

Capacity as Roads Authority • However, common law immunity for nonfeasance survived the enactment of the Local Government (Ireland) Act 1898 • Harbinson v Armagh County Council • Gorringe v Calderdale Metropolitan Borough Council

Duty to Maintain and Construct Roads • Section 82 of the Local Government (Ireland) Act 1898 • Duty to maintain and construct public roads (s. 24(1) of the Local Government Act 1925). • Differed from the power of grand juries to make presentments • Brady v Cavan County Council • Section 13 of the Roads Act 1993

Principle of Nonfeasance • Nonfeasance involves cases of pure omission where the roads authority fails to take measures to construct or repair public road • 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. • Anomalous rule – may lead to complacency

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 (misfeasance). • Geraghty v Dublin Corporation • Nason v Cork Corporation • Ryan v Tipperary County Council (NR)

Conflation of Principles • Misfeasance is not always restricted to negligent repairs – decision of Peart J. in Carey v Mould and Donegal County Council • Apportionment of liability between defendants • Brady v Cavan County Council • Flynn v Waterford County Council – conflict with Carey

Misfeasance/ Nonfeasance Dichotomy • Distinction between misfeasance and nonfeasance was considered in Kelly v Mayo County Council and described as an “unsatisfactory state of the law” by Kingsmill Moore J. • O’Brien v Waterford County Council – anomalous rule – Murnaghan J. • Mc. Clelland v Manchester Corporation

Abolition of Nonfeasance • Section 60(1) of the Civil Liability Act 1961 • No Ministerial Order has been signed • The State (Sheehan) v The Government of Ireland • Brady v Cavan County Council • Highway (Miscellaneous Provisions) Act 1961 in England • Burnside v Emerson • Interim position preferred?

Abolition of Nonfeasance • Statutory immunity for nonfeasance should be more malleable where roads authority is aware of particular defects and elects not to maintain or repair those defects • Position recently summarised by Hogan J. in Mc. Cabe v South Dublin County Council • Considered that nonfeasance rule was not satisfactory • Matter for the Government to commence s. 60 or for the Oireachtas to introduce legislative change

Pavement Tripping • Where there is a defect in a pavement, allowance will generally be given for what might be perceived as de minimis defects • No rigid rule for what is a permissible crack or defect • Test is whethere is a reasonable foreseeability of danger • Griffiths v Liverpool Corporation • Loughrey v Dún Laoghaire Corporation (Cross J. )

Part 2

Judicial Review of Local Authorities • Local authorities are public bodies subject to the full panoply of administrative law rights and judicial review remedies • Arises in the areas of planning, housing, public procurement and making of bye-laws • Judicial review invoked to set aside impugned administrative decision, e. g. where administrative decision made in error or was fundamentally unreasonable or irrational or is tainted by procedural unfairness or impropriety

Function of the Court in Judicial Review • The function of the court in judicial review is not to usurp the role or jurisdiction of the decisionmaking authority or substitute its own view • Curial deference • Role of the court is limited to ensuring the substantive and procedural legality of the decision • If a decision is quashed with an order of certiorari it is generally remitted to decisionmaking body

Function of the Court in Judicial Review • Chief Constable of the North Wales Police v Evans • State (Keegan) v Stardust Victims’ Compensation Tribunal • Meadows for Minister for Justice, Equality and Law Reform • ACT Shipping (PTE) Ltd. v Minister for the Marine • Devlin v Minister for Arts, Culture and the Gaeltacht

Function of the Courts in Judicial Review • Courts exercise a supervisory role in judicial review • Prevent public bodies from an arbitrary or capricious exercise or abuse of their discretionary powers • Ensure that administrative decisions are made within jurisdiction

Grounds for Judicial Review • Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) • Include illegality, irrationality or unreasonableness or procedural impropriety • An administrative decision may be deemed to be irrational or unreasonable where the decisionmaker takes into account irrelevant considerations and/or fail to takes into account relevant considerations and/or reaches a decision which is fundamentally at variance with common sense

Grounds for Judicial Review • Associated Provincial Picture Houses Ltd. v Wednesbury Corporation • Executive discretion • Lord Greene outlined factors which curtailed that discretion, including bad faith, dishonesty, unreasonableness, attention given to extraneous circumstances and disregard of public policy. • Necessary to consider the ‘public element’ test in determining whether decision is subject to judicial review

Judicial Review Procedures • Conventional judicial review – Order 84 of the Rules of the Superior Courts • Amended by S. I. No. 691 of 2011 • Order 84, rule 18(1) 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

Judicial Review Procedures • 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 • Serves as a filtering process and is designed to ‘weed out’ frivolous or vexatious or unmeritorious applications • Leave application is made ex parte • Statement of Grounds and Verifying Affidavit • Court may direct inter partes application and adjourn the application on terms

Judicial Review Procedures • Applicant must disclose all relevant information on Affidavit - obligation to be candid • Applicant must demonstrate an ‘arguable’ case • Applicant must demonstrate sufficient interest • 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. ” • Formerly was six months for order of certiorari

Statutory Judicial Review • Different regime applies for public procurement cases • Order 84 A of the Rules of the Superior Courts, as inserted by S. I. No. 420 of 2010 • Time limit of 30 days (reg. 7 of the Remedies Regulations) • Shorter standstill period of 14 days for e-mail communication and 16 days for written notification

Planning Judicial Review • 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 failure to make the application for leave within the period were outside the control of the applicant.

Planning Judicial Review • Section 50 A(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 • Applicant must demonstrate substantial grounds and sufficient interest or be a recognised e. NGO which has pursued the aim of environmental protection for the preceding twelve months • Mc. Namara v An Bord Pleanála

Planning Judicial Review • Section 50 A(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. 50 A(7) of the PDA 2000).

Planning Judicial Review • Section 50 B of the Planning and Development Act 2000 prescribes costs provisions • Where a judicial review is taken which concerns a decision on a project requiring EIA or an IPPC licence or a project requiring SEA, the default provision is that each side (including any notice parties) will pay its own costs. • However, the applicant may recover costs and costs are borne by the respondent/notice party to the extent that they are responsible

Planning Judicial Review • Section 50 B(3) 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. ” • Indaver NV v An Bord Pleanála (Kearns P. )

Planning Judicial Review • Section 50 B(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 • May arise where a party raises a point of exceptional public importance which was ventilated and determined by the High Court

Test for Reviewing Planning Authorities • O’Keeffe v An Bord Pleanála • Applied the irrationality/unreasonableness test in Wednesbury and State (Keegan) • Decision of planning authority was lawful once it had materials before it to enable it to make its decision • Curial deference afforded to specialist professional bodies • Move away from O’Keeffe?

Test for Reviewing Planning Authorities • Anxious scrutiny test in Meadows v Minister for Justice • Manifest error test in public procurement • SIAC Construction v Mayo County Council • Keane v An Bord Pleanála (Hogan J. ) • Sweetman v An Bord Pleanála (Clarke J. ) • Ratheniska Timahoe and Spink (RTS) Substation Action Group & Anor. v An Bord Pleanala (Haughton J. ) confirmed O’Keeffe test • Issue needs to be resolved

Part 3

Historic Basis for Rate Collection • Cess charges levied on the parish inhabitants – Poor Relief Act 1601 • Poor Relief (Ireland) Act 1838 enabled Poor Law Commissioners to levy a cess or charge • Definition of rateable hereditaments • Striking of rate and entry into rate book • Right of distress and recovery of unpaid rates • Section 19 of the Poor Relief (Ireland) Act 1849 – two year limitation of recovery of rates

Historic Basis for Rate Collection • Net annual value (NAV) - Griffith’s Valuation • Definition of hereditaments in Valuation Act 1986 • Powers of rate collectors (Poor Relief (Ireland) Act 1862) • Apportionment of rates (Poor Law Acts (Ireland) Amendment Act 1890) • Abolition of grand jury cess and establishment of county rate (Local Government (Ireland) Act 1898)

Establishment of Rating Authorities • Local Government Act 1946 • County rates and municipal rates • Funding for town councils • Rates on vacant premises • Differential rating on the basis of area and class of property • References to county rate • Pfizer Chemical Co. v Commissioner of Valuation • Denis Coakley & Co. Ltd. v Commissioner of Valuation

Valuation of Relevant Property • Prior to 2001 rates levied on rateable hereditaments (section 63 of the 1838 Act) • Part 4 of Valuation Act 2001 – relevant property • Categories of relevant property liable for rates set out in Sch. 3 • Relevant property must be occupied and constitute ‘rateable occupation’ • Section 61 of the 1838 Act • Liability on occupier of premises (s. 71 of 1838 Act)

Determining Rateable Occupation • Telecom Éireann v Commissioner of Valuation – O’Hanlon J. outlined tripartite test for determining rateable occupation 1. Must be exclusive and actual occupation 2. Occupation must be of value or benefit to the occupier 3. Occupation should be permanent and should not be transient or temporary

Local Government Reform • 2008 Green Paper on local government reform • 2012 “Putting People First: Action Programme for Effective Local Government” • Local Government Bill 2013 • Proposed reform on the same scale as the 1898 Act • Local Government Reform Act 2014 enacted • Part 5 deals with rating provisions and inserted at Committee stage

Harmonisation of Commercial Rates • Section 29 of the Local Government Reform Act • Base year adjustment should be determined for each year of the adjustment period for the specified areas of the rating authority • Adjustment in the form of a discount or levy • Adjusted for specified areas following consultation with municipal district members • Base year adjustment in the initial year • Calculated by reference to the annual rate on valuation

Harmonisation of Commercial Rates • Base year adjustments cease at the end of the adjustment period for each specified area which may be no greater than ten years commencing with Year 1 or a shorter period • Minister may grant extension subject to maximum of ten years where the local authority passes a resolution to that effect • Rating authority may increase ARV where adjustment period for specified area is subject of Ministerial order and the adjustment period applicable to all specified areas has ceased

Amalgamation of Local Funds and Valuation Lists • Section 30 of Local Government Reform Act 2014 • Amalgamation of funds for city and county councils including Tipperary, Limerick and Waterford • Commissioner must publish valuation list. When valuation list is published it replaces previous valuation list. Valuation certificate is issued to each occupier of relevant property by valuation manager • Section 33: amalgamated valuation lists

Rates on Vacant Premises • Section 14 of Local Government Act 1946 – liability of rates for vacant premises in rural areas – right of rebate where premises are subject to alteration or repair or owner cannot locate tenant for bona fide reasons • Section 23 allows for refunds on rates for vacant premises in urban areas • Section 31 of the Local Government Reform Act 2014 – amended provisions in Dublin and Cork

Rates on Vacant Premises • Rating authorities for Dublin 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 the municipal rate and determine the proportion of the refund that applies in respect of each specified local electoral area. • The Minister may make regulations specifying the financial considerations and administrative procedures that apply

Rates on Vacant Premises • Section 14(1) of the 1946 Act provides that where a hereditament is unoccupied at the time of the making of the county rate, the rate is made upon the person who is entitled to occupy the hereditament. • If the rate is paid by the owner he or she is entitled to claim and receive a refund for the period during which the hereditament is unoccupied for the purpose of additions, alterations or repairs or because the owner is bona fide unable to find a suitable tenant.

Rates on Vacant Premises • Section 14(1 B) of the 1946 Act 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 and (b) determine the proportion of the refund to apply in respect of each specified local electoral area or areas.

Rates on Vacant Premises • Considerable degree of discretion for the particular local authority to determine whether a full rebate or the more limited 50 per cent rebate that traditionally applied in Dublin and Cork should be available. • 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.

Collection of Rates • Part 4 of the Local Government (Financial and Audit Procedures) Regulations 2014 provides for the collection of rates by rating authorities. • Part 5 provides for rates on vacant premises. • Regulation 29 provides that the decision of the local authority to specify a local electoral area and determine the proportion of the refund which applies to rates on vacant premises must be taken at the budget meeting for the local financial year.

Duty to Inform Rating Authority • Section 32 of Local Government Reform Act 2014 • Duty on owner of property or authorised agent to notify rating authority in writing no later than two weeks after change in occupation • Obligation arises on all sales and leases closing after the 1 st July 2014 • Owner or occupier must discharge all rates for which he or she is liable at the date of transfer

Duty to Inform Rating Authority • Any rates which are due 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. • Duty to inform rating authority where premises become vacant or where vacant premises are occupied.

Duty to Inform Rating Authority • 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 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. • Penalty arises after the expiration of the twoweek period following the date of transfer.

Duty to Inform Rating Authority • Penalty may be incurred after two-week period and is equivalent to the rates that remained outstanding from the previous occupier 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 transfer, the penalty of the equivalent charge cannot be applied although the obligation to notify the rating authority remains.

Duty to Inform Rating Authority • 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.

Duty to Inform Rating Authority • 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.

Duty to Inform Rating Authority • 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.

Duty to Inform Rating Authority • Section 32(5) provides that any charge or penalty which is due by an owner will remain as a charge on the relevant property. • 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.

Duty to Inform Rating Authority • Any charge which is due by an owner of relevant property and which is not discharged will remain as a charge on the relevant property but the property will not retain that charge for a purchase in good faith for full consideration after a period of 12 years has elapsed. • The charge does not affect the liability of any previous occupier for outstanding rates for which he or she is primarily liable or the functions of a rating authority to collect any outstanding rates from the occupier who is primarily liable.

Recent Valuation Legislation • Valuation (Amendment) Act 2015 • Originally presented in August 2012 as Valuation (Amendment) (No. 2) Bill 2012 • Substantially amends the Valuation Act 2001 and facilitate self-assessment. • Will make the valuation code more transparent and streamline appeal procedures.

Any questions? Contact Details: davidbrowne 2@gmail. com david. browne@lawlibrary. ie