Humphrey v. Minister for Environment
and Local Government [2000]
IEHC 149 1 ILRM 241 (13th October 2000).
The High Court
Between:
Christopher Humphrey, Tony Doyle, Thomas O’Connor, And Kevin Brady (Applicants)
-and-
The Minister For The Environment And Local Government,
The Minister Of State At The Department Of The Environment,
And Local Government, Ireland, The Attorney General,
Dundalk Urban District Council,
The Right Honourable Lord Mayor Aldermen And Burgesses Of The City Of Dublin,
The National Taxi Drivers Union And Thomas Gorman,
(In His Representative Capacity As General Secretary Of The Union)
(Joined By Order) (Respondents)
Judgment of Mr. Justice Roderick Murphy delivered the 13th Day of October 2000:
Decision
5.1 In relation to applying for judicial review, Order 84 Rule21(1) provides as follows:
"An Application for leave to apply for judicial review should be made promptly and in any event within 3 months from the date when grounds of the Application first arose, or six months where the relief sought is Certiorari, unless the Court considers there is good reason for extending the period within which the Application shall be made."
The applicants say they were unaware of the possible illegality of the various regulations until recently when Statutory Instrument No 3 of 2000 "exacerbated the situation." Moreover, they argue that delay should not protect regulations which are ultra vires.
It seems to me that such delay may indeed be a ground for acquiescence and laches in respect of earlier regulations which, on the Applicants own arguments, are defective without reference to the most recent statutory instrument. Accordingly, the Court cannot, it seems to me, extend the period within which Application should be made in respect of those regulations unless there was a good reason for so doing. The reasons given do not justify an extension of the period requested. However, it is clear that the Applicants are within time to seek judicial review in relation to the Statutory instrument No3 of 2000.
5.2 In O’Dwyer -v- the Minister for the Environment (unreported) High Court 27th March 1998 Geoghegan J held that the position regarding Taxis and hackneys are quite different:
"The Minister’s duties under the Road Traffic Acts are to provide for public transport services. Under the scheme which he has traditionally operated there are two types of small Public service Vehicles: the Taxi and the Hackney. As a side effect of the manner in which taxis are regulated there is in practice a saleable market in taxi licences…
Hackney licences are regulated quite differently and the mere fact that the regulation of hackneys does not produce similar side effects as the side effect produced by the regulation of taxis does not in any way render the regulatory scheme discriminatory.
Hackney licences are regulated quite differently and the mere fact that the regulation of hackneys does not produce similar side effects as the side effect produced by the regulation of taxis does not in any way render the regulatory scheme discriminatory.
Indeed, subsection 3 of section 82 of the Road traffic Act 1961 allows different regulations to be made under Section in respect of different classes of vehicles and for different circumstances and for different areas".
It Follows the regulations may differentiate between both categories. Can regulations differentiate in relation to fees and quantative restrictions in respect of different Applicants?
5.3 The Statutory Instrument proposes to delegate to the local authorities the power of raising of fees which go beyond the economic cost of control and operation.
Section 82(2) of the Act of 1961, as amended by Section 57 of the Road Traffic Act of 1968, provides that the Minister may by way of regulation make provision for the payment of specified fees in respect of licences, badges or plates granted or applied for. The Act does not confer this power on local authorities.
The provisions of the local Government (Financial Provisions) (No2) Act, 1983 does not seem to me to answer the question. That act was introduced to permit local authorities to make certain changes consequent on the abolition of the rates on domestic dwelling and agricultural land. Section 2 of that Act empowers the authority to charge for the provision of services notwithstanding that it may be precluded from doing so or required to do so free of charge under any enactment.
In AG -v- Wlts United Dairies Limited (1921) 37TLR 884 at 886 Atkin LJ declined to infer that a power expressed in wide terms included the right to raise charges:
"… the circumstances would be remarkable indeed which would induced the Court to believe that the legislator had sacrificed all the well known check and precautions and, not in express words, but merely by implication, had entrusted a minister of the Crown with undefined and unlimited powers of imposing charges upon the subject for purposes connected with his department."
In Gos -v- Veley (1850) 12QB328 at 407 Wilde C.J. stated:
"The rule of law that no pecuniary burden can be imposed upon the subjects of this country, by whatever name it may be called, whether tax, due, rate or toll, except upon clear and distinct legal authority established by those who seek to impose the burden, has been so often the subject of legal decision that it may be deemed a legal axiom, and requires no authority to be cited in support of it."
It seems clear to me that the imposition of a licence fee in the case of Dundalk Urban District Council where such a fee is related to the capital value of the subject of a licence is indeed in the nature of a tax. It is clearly not limited to the administration of the licence or to the regulation and control of the same. It does not seem to have been in the contemplation of the legislature to delegate to the Minister such a right let alone allow the Minister to delegate to a local authority. Indeed such a right is more properly reserved to the Oireachtas.