news1

McDonough -v- Irish Water [2014] IEHC 646

An example of a recent case which was brought by this firm involved a challenge to the levying of charges for the removal of waste water from and for the supply of water to a caravan park. These judicial review proceedings were originally brought against Meath County Council, but following the creation of Irish Water and the coming into force of the regime in the guise of the Water Services Acts 2007 to 2013, Irish Water was substituted as the Respondent to the proceedings.

The full judgment is available here on the Courts Service website:

http://www.courts.ie/Judgments.nsf/0/0782F0A9CB183AAC80257DE100334C9A

The basis for the proceedings was a challenge to the legality of the levying of charges for water services to the proprietors of a caravan park given that the waste water was removed from and the water supplied to mobile homes, which the Applicants submitted constitute domestic dwellings, and as such should have been exempt from water charges prior to the introduction of the current water charges regime. The legislation which the Court had to consider was section 65A of the Public Health (Ireland) Act 1878 (as amended)*. Despite the introduction of the Water Services Acts 2007 to 2013, section 65A of the 1878 Act continues in force. Therefore the High Court’s judgment is particularly relevant to the current debate in respect of domestic water charges.

The Applicants in the case contended that the Respondent was originally permitted by section 65A of the Public Health (Ireland) Act 1878 to make charges for water services supplied by them. However, following the amendment by the Local Government (Financial Provisions) Act 1997 the Applicants submitted that the Respondent was not entitled to charge for the supply of water used for domestic purposes or the disposal by it of domestic sewerage.

The definition of a supply of water for domestic purposes is found is section 65A(11) of the Public Health (Ireland) Act 1878 (as amended). It provides:-

Any reference in this Act, or in any Act incorporated with or amending this Act, to a supply of water for domestic purposes shall be construed as a reference to a supply of water for ordinary household purposes (for example, drinking, washing and sanitation), to a dwelling house or a group water supply scheme, but exclusive of—

  1. a supply for agriculture or horticulture,

  2. a supply for any trade, industry or business,

  3. a supply for any purpose incidental to a dwelling-house or private garden (including washing a private vehicle) if the water is drawn otherwise than from a tap inside a dwelling-house or if a hosepipe or similar apparatus is used,

  4. a supply for central heating other than central heating of a dwelling-house,

  5. a supply for apparatus depending while in use upon a supply of continuously running water, not being an apparatus used solely for heating water.

  6. a supply to a sanitary authority.” (emphasis added)

The High Court (Baker J.) found that the Applicants were correct in their contention that they were exempt from charges for the removal of waste water from the mobile homes. The Court described the mobile homes as resembling “chalet type units surrounded by picket fences, in many cases having decking or similar paving and small garden”. The Court found that the waste that came from the mobile homes was wholly domestic waste as it is a by-product of the occupation and use by individual owners of their units in the park and arises from the normal occupation of the units as domestic dwellings. As the Oireachtas had abolished the power of local authorities to charge for the disposal of domestic waste in section 12 of the Local Government (Financial Provisions) Act 1997, the Court found that the imposition of waste water charges on the proprietors of the caravan park was ultra vires (i.e. unlawful).

This is a very significant finding as the Court concluded that the express language of the section 12 of the Local Government (Financial Provisions) Act 1997 makes no reference to the source of the waste water, and no express link is made to a domestic dwelling, or to an organised group of dwellings, as is found in the case of the abolition of the power to charge for the supply of water. Therefore it is certainly arguable that any charges for the removal of domestic waste water (which crucially does not necessarily have to come from a domestic dwelling) imposed prior to the 31st December 2013, if challenged, would similarly be found to be ultra vires.

In respect of the challenge to the imposition of charges for the supply of water to the caravan park, the Court found that these dwellings were not entitled to the exemption from domestic water charges which existed prior to the 31st December 2013. The Court concluded that while the water is used for domestic purposes, the supply is not to a dwelling house (which would have been exempt) but rather the supply was to a collective of dwelling houses (which did not qualify for the exemption) nor was the supply to a group water scheme, and as no other supply is exempt in the legislation, the charges were permitted.

This case raised a number of novel issues in respect of water charges and required detailed submissions by highly experienced counsel on the historical and current legislative scheme. The most significant finding of the Court in this case was that even if a premises can be considered a commercial or trade premises, and is therefore legitimately subject to charges for the supply of water, if the waste water that comes from the premises can be constituted as domestic waste (i.e. the waste is produced in a residential context and is a by-product of normal domestic activity) then it was exempt from water charges up to the 31st December 2013. In addition, it is arguable, but not determined by the Court, that such waste water should be charged at domestic rates rather than commercial rates under the current regime.

Should you wish to discuss any of the matters which this judgment deals with, or if you have any queries in respect of the current water charges regime, or in respect of the powers of Irish Water to charge for domestic or commercial water, please feel free to contact this office at (041) 9834822 or email info@pholohan.com

* Section 65A of the Public Health (Ireland) Act 1878 (as inserted by section 7 of the Local Government (Sanitary Services) Act 1962, as amended by section 8 of the Local Government (Financial Provisions) (No. 2) Act 1983, as amended by sections 2 and 3 of the Local Government (Delimitation of Water Supply Disconnection Powers) Act 1995, as amended by section 12 of the Local Government (Financial Provisions) Act 1997)

Posted in Legal.