Supreme Court dismisses appeal preventing Port of Waterford from selling wharf lands under 1996 Act.

THE SUPREME COURT

No. 454/2005

Geoghegan J.

Fennelly J.

Macken J.

BETWEEN

ATTORNEY GENERAL at THE RELATION OF O.F. FISHING LTD

Plaintiff/Appellant

v

PORT OF WATERFORD COMPANY

Defendant/Respondent

JUDGMENT of MR JUSTICE FENNELLY delivered on the 12th day of July, 2006.

1. The essential point in this appeal is whether the Port of Waterford Company, the Respondent in this appeal, and the successor to

the Waterford Harbour Commissioners, has power to sell parts of the Harbour. There is a rather more complex history. The appellants

have produced a veritable treatise on the complex history of the Port of Waterford, but the key legal issue is whether the Port of

Waterford Company may exercise a power of sale.

2. The City of Waterford is situated on the south side of the River Suir. The North Wharf and the Frank Cassin Wharf are on the north

side of the river. Over time the operations of the Port were extended to include areas on the north side of the river. These two

wharves were built, respectively in the nineteenth and twentieth centuries. The former railway companies, Córas Iompair Eireann, the

former Waterford Harbour Commissioners and Waterford Corporation have been involved in the development of the facilities. It is

necessary to discuss several statutory provisions, including private acts of the British Parliament and of the Oireachtas and even a

Royal Charter of 1626.

3. O.F. Fishing Limited, (“the appellant”), was incorporated in 2004 to carry on the fishing business of several O’Flaherty brothers. It

operates fishing vessels which remain the property of the individual brothers. It claims that the O’Flaherty brothers have, since at

least 1992, used the Port of Waterford to moor vessels and to land fish. In particular, it claims to have landed them at the point in

the Harbour, known as the North Wharf and, to a lesser extent, at the Frank Cassin Wharf. The Port of Waterford Company has very

largely moved all port operations downriver to Bellview and has agreed to sell the North Wharf. The appellant and the O’Flaherty

brothers are dissatisfied with the services offered to it at Bellview. The principal purpose of this action is to prevent the Port of

Waterford Company from implementing the sale.

4. Evidence was given in the High Court on behalf of the appellant, which was accepted by de Valera J, that it had used the facilities

at the North Wharf and the Frank Cassin Wharf and that there is no other permanently safe harbour or anchorage within a reasonable

distance of its headquarters at Kilmore Quay in County Wexford. However, the case for the appellant was that the proposed sale of

the wharves was ultra vires the powers of the Port of Waterford Company. De Valera J held that the Port of Waterford Company had

the power to sell and he dismissed the claim. The appeal is taken from that judgment and the order of the High Court made on 6th

December 2005.

5. While the appellant has naturally emphasised the effects on it and on its shareholders of the closure and sale of the wharves, I

wish to make it clear from the outset that the appeal is not concerned with any private rights or interests. The appellant has engaged

the Attorney General to represent the public interest. The notice of appeal specifies the reliefs sought. The principal grounds may be

summarised as follows:

· A declaration that the proposed sale or alienation of the wharves is ultra vires;

· A declaration that the Port of Waterford Company holds the wharves as a public trustee pursuant to section 96 of the

Harbours Act, 1996;

· A declaration that the Port of Waterford Company holds the wharves subject to a public right of way;

· A declaration that the wharves have become dedicated, by statute, by agreement, by charter or by necessity to public use,

in particular the mooring of boats and landing of goods including fish by the public;

· A declaration that the Port of Waterford Company is estopped from using its statutory powers to close or to alienate the

wharves, by reason of its closure of the closure of the South Quays and wharves in its port and harbour in the City of

Waterford.

6. James O’Reilly, Senior Counsel, for the appellant emphasised that his clients were not claiming any private rights, by way of

easements or otherwise but only public rights. He further agreed that the only actions of the Port of Waterford Company, of which

complaint was made, were its proposals for the sale of the wharves. In reality, therefore, only the first two points mentioned in the

notice of appeal have been argued.

7. In these circumstances, the appeal is concerned exclusively with the interpretation of the various legal texts governing the powers

of the Port of Waterford Company, as these have been cited on behalf of the appellant.

8. The appellants’ claim that the Port of Waterford Company does not have power to sell parts of the port is based, firstly, on a

number of general propositions concerning the powers of sale of statutory bodies generally especially those established under private

acts and, secondly, on some very specific provisions affecting the North Wharf in particular.

9. Counsel has placed in the forefront of his argument the provisions of a private act of the year 1878 which, it is claimed, has the

effect that a “form of public user is stamped” on the North Wharf. It is better to note at once that Mr Bill Shipsey, Senior Counsel,

for the Port of Waterford Company asserts that the relevant provision has been repealed. I will deal with this specific provision first.

10. The land on which the North Wharf was built was originally the property of the Waterford and Limerick Railway Company. The

Waterford and Limerick Railway Act, 1878 (“the 1878 Act”), a private Act, authorised the Railway Company to construct an extension

including a “quay, wharf or wall.” It is common ground that those works included the North Wharf. The appellant relies on section 7(a)

of the 1878 Act, which provided in respect of that area, whose dimensions are described in detail in the section, that it:

“…shall be used by the Company [i.e. the Railway Company] and the public jointly, and subject to the user of the Company

shall be under the jurisdiction and control and management of the mayor, aldermen and burgesses of the borough of

Waterford, in this section called the Corporation, free from toll to the Company, and in the same manner and to the same

extent as the other public quays and streets in the said borough…”

11. The appellant draws attention, in connection with this provision to section 33 of the Harbours, Docks and Piers Clauses Act, 1847

which provided that, subject to its terms, any “ harbour, dock and pier shall be open to all persons for the shipping and unshipping of

goods……” However, section 191 of the Harbours Act, 1946 provided that the acts mentioned in the Fourth Schedule, including the

Act of 1847, were to “cease to apply in relation to any harbour authority.” I will return to his issue later.

12. The appellant has also referred to intermediate arrangements regarding the wharf. For example, section 35 of the Waterford

Harbour Act, 1919 provided for the payment of up to £150 per annum by the Waterford Harbour Commissioners to Waterford

Corporation for the maintenance of the “public quay part of the North Wharf.” The Waterford Harbour Works Order, 1947, made under

the Harbours Act, 1946, authorised the rebuilding of the North Wharf jointly by the Waterford Harbour Commissioners and Córas

Iompair Eireann (CIE), which had by then taken over the railway interests. This is later called “the new wharf” and comprises part of

the property covered by the 1878 Act. These later arrangements do no more than confirm the existence of the odd arrangement

reached in 1878, whereby part of the harbour was owned by a railway company, but maintained either by the Harbour Commissioners

or the Corporation or both.

13. The decisive enactment is another private act, the Waterford Harbour Commissioners (Acquisition of Property) Act, 1964. That

Act recited section 7(a) of the 1878 Act and the fact that CIE had agreed to sell to the Harbour Commissioners “the said new

wharf……” The sale was to be subject to certain rights in favour of CIE which are not relevant to the present appeal. Apart from

approving the sale, effected by section 4, section 2(a) of the Act provided as follows:

“The Act of 1878 is hereby repealed in so far as it applies to the south-eastern portion of the North Wharf and the powers,

duties and authority of the Corporation, the Commissioners, and the Board in relation thereto.”

14. The expression, “the south-eastern portion of the North Wharf” is defined so that it covers the area to which section 7(a) of the

1878 Act applied. Mr O’Reilly agreed that section 2(a) of the Act of 1964 referred to precisely the same property as section 7(a) of

the 1878 Act.

15. Mr O’Reilly suggested that this provision did not expressly refer to the removal of the public rights conferred by the 1878 Act. He

referred to section 21 of the Interpretation Act for the proposition that the repeal of a provision does not affect anything previously

done thereunder. He also argued that the section should be strictly construed.

16. It is impossible to find any room for doubt about the meaning and effect of the Act of 1964. It repeals section 7(a), insofar as it

affects the North Wharf. That provision has simply ceased to have any effect and the appellant cannot rely upon it.

17. That deals with the special provisions relating to the North Wharf. There are no equivalent provisions dealing with the Frank

Cassin Wharf. That facility was constructed in the 1960’s to provide for a container terminal. Those operations ceased after a number

of years. The Frank Cassin Wharf is now disused. It is unnecessary to deal with it individually. It is simply part of the harbour.

18. It is next necessary to address the more general attack of the appellant on the power of the Port of Waterford Company to sell

the wharves.

19. The claim is that the wharves at issue are public property, constructed pursuant to powers of compulsory purchase for the public

benefit. Bodies exercising such powers may only dispose of such property pursuant to the express authority of parliament.

20. Mr O’Reilly cited authority for the general proposition that powers conferred by a private act should be strictly interpreted and

should not be deemed to include powers not clearly conferred. He attached especial importance to the decision of this Court in

Shipsey v British and South American Steam Navigation Co Ltd. [1936] I.R. 65. That case concerned service out of the jurisdiction.

Waterford Harbour Commissioners wished to claim damages against a foreign shipping company, the owner of a vessel which sank in

Waterford Harbour, causing loss and expense to the Commissioners. The issue was whether a “local and personal” act had the effect

of creating a contract, for the purposes of Order 11, rule 1(e) of the Rules of the Superior Courts, sufficient to ground service of

notice of the claim out of the jurisdiction. Fitzgibbon J delivered the majority judgment (Kennedy C.J. concurring and Murnaghan J

dissenting). He conducted an exhaustive study of precedents concerning the powers of bodies exercising rights under private acts of

parliament. He concluded that the private act in question created no contract. In my view, this case tells us nothing useful about

whether the Port of Waterford Company has a power of sale. Certainly, Fitzgibbon J demonstrated that promoters or undertakers

under private acts were bound by the statutes authorising their activities. They had no powers not conferred upon them. But the true

meaning, in every case, was to be discerned from the applicable act.

21. I have little difficulty in accepting the well-established proposition that a body created by statute enjoys only those powers which

are expressly or by necessary implication conferred upon it. (See Attorney General v Great Eastern Railway 1880. 5 Appellant. Cas.

473.) That rule applies to a power of sale over the assets of the body. I also accept that such a statutory corporation would not

normally be permitted to dispose of the entire of its property where the effect of the disposal would be to disable it from performing

the duties imposed on it by statute. I do not think the Port of Waterford Company disputes those propositions. It claims that the

Harbours Act, 1996 (“the 1996 Act”) confers all necessary powers.

22. The long title to the 1996 Act recites among its objects that it is to provide for the establishment of “companies in respect of

certain harbours” and “to provide for the dissolution of harbour authorities.” Waterford is one of the harbours, listed in the First

Schedule, to which the Act applies. Section 7 of the Act authorises the Minister for the Marine, with the consent of the Minister for

Finance, to form and register companies under the Companies Acts. Other sections provide for the name and capital formation of a

company (section 8), the memorandum of association of a company (section 10) and its objects (section 11). Section 11 provides:

“(1) The principal objects of a company shall be stated in its memorandum of association to be—

(a) to take all proper measures for the management, control, operation and development of its harbour and the

approach channels thereto,

(b) to provide such facilities, services, accommodation and lands in its harbour for ships, goods and passengers as it

considers necessary,

(c) to promote investment in its harbour,

(d) to engage in any business activity, either alone or in conjunction with other persons, that it considers to be

advantageous to the development of its harbour,

(e) to utilise and manage the resources available to it in a manner consistent with the objects aforesaid.

(2) Nothing in this section shall prevent or restrict the inclusion among the objects of a company as stated in its

memorandum of association of all such objects and powers as are reasonably necessary or proper for or incidental or ancillary

to the due attainment of the principal objects aforesaid and are not inconsistent with this Act.

(3) A company shall have power to do anything which appears to it to be requisite, advantageous or incidental to, or which

appears to it to facilitate, either directly or indirectly, the performance by it of its functions as specified in this Act or in its

memorandum of association and is not inconsistent with any enactment for the time being in force.

(4) Without prejudice to the generality of subsection (3), a company may—

(a) take such steps either alone or in conjunction with other persons as are necessary for the efficient operation and

management of its harbour,

(b) appropriate any part of its harbour to the use of any person for the purposes of any trade or profession in

consideration of the payment to it of such charges as the company considers reasonable,

(c) promote leisure activities that may be carried on in its harbour or which relate to the marine generally,

(d) engage either alone or in conjunction with other persons in activities outside the State (related to its functions in

respect of its harbour) which, in its opinion, will promote the interests of trade or tourism in the State."

23. The Port of Waterford Company relies on the breadth of the powers described in that section and points out that its memorandum

of association includes the following objects:

“2(2) To provide such facilities, services, accommodation and lands in its harbour for ships, goods and passengers as it

considered necessary.

……

2(5) To utilise and manage the resources available to it in a manner consistent with the objects aforesaid.

………

2(8) Subject to Section 15 of the Harbours Act, 1996 to lease, sell, exchange or otherwise dispose of any land belonging to it.”

(emphasis added).

24. While it may be incorrect to describe the sale and leasing of property as an object rather than as a power, it is clear that, where

the memorandum provides for such an object, the company will have the power, by necessary implication, to carry its objects into

effect. In this case, that includes the power to sell any of its property.

25. Section 12 of the Act provides:

"(1) It shall be the general duty of a company—

(a) to conduct its affairs so as to ensure that the revenues of the company are not less than sufficient taking one year with

another to—

(i) meet all charges which are properly chargeable to its revenue account,

(ii) generate a reasonable proportion of the capital it requires, and

(iii) remunerate its capital and pay interest on and repay its borrowings,

(b) to conduct its business at all times in a cost effective and efficient manner,

(c) to regulate operations within its harbour,

(d) to have due regard to the consequences of its activities on the environment, the heritage (whether natural or manmade)

relating to its harbour and the amenities generally in the vicinity of its harbour.

(2) Nothing in section 11 or this section shall be construed as imposing on a company, either directly or indirectly, any form of

duty or liability enforceable by proceedings before any court to which it would not otherwise be subject."

26. In addition, section 15 of the 1996 Act provides:

“(1) A decision by a company to acquire any land or to dispose of any of its land (whether by sale or the grant of a lease) shall

only be made by the directors of the company.

(2) The consideration for which any land is sold by a company shall, in so far as is practicable, not be less than its open

market value.”

27. The Act, thus, contemplates a company incorporated under its provisions deciding to dispose of any of its land, subject only to

that decision being made by the directors.

28. Section 96 of the Act provides that, on a vesting day to be established under section 7, all land, which before that day was

vested in a harbour authority:

“……and all rights, powers and privileges relating to or connected with such land shall, without any conveyance or assignment,

but subject to subsection (2), stand vested in the company established pursuant to section 7 in respect of the said harbour

for all the estate or interest for which immediately before the said day it was vested in the harbour authority or the Minister,

as the case may be, but subject to all trusts and equities affecting the land subsisting and capable of being performed.”

(emphasis added)

29. The general tenor of the 1996 Act is that the former harbour authorities are to be transformed into companies with powers and

functions appropriate to the performance of public functions, but approximating much more to commercial enterprises than the public

bodies they replace. Although an express power of sale is not contained in the Act, it is specifically recognised by section 15 and, in

any event, the sale of property is recorded as an object of the appellant in the memorandum of association.

30. In my opinion, the 1996 Act disposes conclusively of any contention that the Port of Waterford Company does not have a power

of sale. It is true that the appellants rely on the continuing public obligations of the Port of Waterford Company as a public body.

They point to the reference in section 96 to the “trusts and equities affecting land.” I mentioned earlier that the appellants rely on

section 33 of the Harbours, Docks and Piers Clauses Act, 1847, which was effectively repealed by section 191 of the Harbours Act,

1946. Section 97 of the latter Act, nonetheless, provided:

“The facilities provided by a harbour authority in respect of their harbour shall, subject to the provisions of this Act and

anything done thereunder and to the bye-laws for the time being in force in respect of their harbour; be available equally to all

persons on payment of the appropriate rates.

31. That section was, in turn, repealed by section 5 of the 1996 Act. While section 11(1), quoted above requires the inclusion in the

memorandum of association of a company of the objective that it shall “provide such facilities, services, accommodation and lands in

its harbour for ships, goods and passengers as it considered necessary,” no obligation to that effect is imposed. Moreover, section

12(2) provides that:

"Nothing in section 11 or this section shall be construed as imposing on a company, either directly or indirectly, any form of

duty or liability enforceable by proceedings before any court to which it would not otherwise be subject.”

32. The appellant cites the judgment of Keane C.J. in Port of Cork Company v Commissioner of Valuation [2003] I.R. 272 to support

its argument that the Port of Waterford Company, although incorporated as a private company pursuant to the 1996 Act, remains in

substance a public body. The question in that case was whether the effect of the 1996 Act was to bring the port company (of Cork,

in that case) within the rating net. A conclusion on that issue depended, in large part, on whether the company was entitled to the

exemption from rateability to be ascertained by reference to the proviso to s. 63 of the Poor Relief (Ireland) Act 1838. That proviso

required that any hereditament to which such exemption applied should be “dedicated to or used for public purposes…” It had been

well-established, by a long line of authorities, that harbour authorities met the conditions of the proviso and were so exempt. The

contention of the Commissioner was that the 1996 Act had changed all that. However, Keane C.J., speaking for a unanimous court,

stated, at page 280:

“The harbour remained open to all members of the public who were prepared to pay the necessary dues. Its operations were

still governed by a body which, although taking the form of a private company established under the Companies Acts, is, in the

context of valuation and rating law, to be regarded as a body of a public nature.”

33. The judgments do not, however, contain any discussion of the section of the 1996 Act under which the public enjoyed rights of

access. The issue before the court did not call for any such discussion. I do not wish to arrive at any definitive conclusion concerning

the extent of the obligations of the new port companies under the 1996 Act. I do not think that is necessary for the purposes of a

conclusion on the issues in the present appeal. This appeal concerns only the rights of the public in general. Technically, the Attorney

General is the plaintiff. The case is not concerned with refusal of access to the appellant to the facilities of the port. The fact, if it be

the fact, that the Port of Waterford Company is under a duty to keep the port open and to provide reasonable facilities to the

appellant does not determine whether the Port Company has the power to sell individual parts of its harbour. It is possible for a port

company to buy and sell port property, consistently with an obligation to keep all port facilities, which form part of its property from

time to time, open to users of the port.

34. On a true construction, the 1996 Act permits a port company to buy and sell property for the purposes of performing its functions

under the Act. It is to be guided by the considerations set out in the Act, principally “to take all proper measures for the

management, control, operation and development of its harbour and the approach channels thereto.” (Section 11(1)). To the extent

that it is under a duty to the public in respect of the uses of its property in the harbour, that does not affect its power of sale. It is

quite clear that the Port of Waterford Company is empowered by the Act, and subject to its provisions, to sell parts of the harbour.

35. The Third Schedule to the 1996 Act defines the geographical limits of the harbour of Waterford as follows:

“Limits comprising the following two limits, viz—

(a) the outward limits consisting of the waters of the sea and River Suir within an imaginary arc with radius of 6.44 kilometres

drawn seaward from a point midway between Falskirt Rock and Hook Point;

(b) the inward limits are an imaginary straight line extending from a point 35 metres westward from the centre line of

Killoteran Pill and due north west to a position in the townland of Licketstown on the Kilkenny side of the River Suir.”

36. While it is true that, under the regimes of both the Port of Waterford Company and its predecessor, Waterford Harbour

Commissioners, port operations have almost entirely ceased in that part of the harbour which flows past the City of Waterford, that is

neither unusual nor unlawful. The Port of Waterford Company has transferred operations to Bellview, several miles downstream. That

is still well within the bounds of the harbour. The Port of Waterford Company continues to carry on its functions at Bellview and,

according to the evidence given in the High Court, has assured the appellant that it will provide facilities there for its vessels,

although the respondent readily admits that such facilities will be dependent on traffic demands at Bellevue. The appellant does not

consider Bellview suitable for a number of reasons. However, any dispute with the Company concerning those issues must await

another day. It is not appropriate to pronounce on that issue on this appeal.

37. The appellant also relied on certain provisions of the “Great Charter of the Liberties of the City of Waterford” of 26th may 1626

as conferring rights of landing fish at the quays of Waterford. It is claimed that the Charter remains in full force. Reliance is placed on

an entitlement “to load and unload at the quay of the City of Waterford aforesaid and nowhere else in the port…” all manner of

goods. These are listed at great length in the Charter. The version of the Charter, for which we are indebted to counsel’s obviously

very thorough researches, is an English translation from the original Latin and is dated 1752. It runs to more than 100 pages of closely

typed and impenetrable language. I would be very slow to accept that such a document could be used to contradict the very clear

effect of an Act of the Oireachtas. I am referring, of course, to the 1996 Act. However, I do not find it necessary to look beyond the

words of the Charter, which I have quoted. Any right to unload goods was expressly confined to “the quay of the City of Waterford…”

It has not been shown how, by statute or otherwise, the effect of that provision has been extended and applied to the north bank of

the river. It would call for the learning of a historian rather than the skills of a lawyer to divine the precise scope of the rights so

purportedly conferred. His Majesty King Charles I recited, at great length, the greatness of his ancestors as far back as King John

together with their multitudinous acts of generosity to the people of Waterford. Having recalled “the reduction of the said kingdom of

Ireland to the obedience of the Kings of England,” he praised the people of Waterford from that time for their “civil conversation

endowed with good learning and generous manners,” flowing apparently from their being of “English stocks, and to this day retain

English surnames…….” When it comes to the designation of the Urbs Intacta of Waterford, the Charter defines:

“…our said city of Waterford, and all and singular the house, edifices, lands, waters and water-courses, soil and ground,

situate, lying and being within the said city, liberties, circuits and precincts of the same……”

38. The definition proceeds for a further half page, including reference to the “walls of the said city of Waterford……”

39. Fascinating as all this may be, it fails to establish that the right or entitlement to land goods at the “the quay of the City of

Waterford…,” encompasses the north bank.

40. Finally, it was submitted that fishermen have from time immemorial landed fish in the Port of Waterford, have laid over in bad

weather, when not fishing to allow stocks to recover while victualling their boats and repairing their nets. It is said that the tidal part

of the River Suir between the flux and the reflux of tides is equivalent to a public maritime highway. Neither these points nor the

further historical exegesis accompanying it has any relevance for the appeal. It has not even been suggested that any rights of

navigation enjoyed by the appellant, in common with others, has been either impeded or threatened. Rights to land fish do not imply a

right to prevent the Port of Waterford Company from selling part of the port facilities and offering rights of landing at other places.

The 1996 Act is intended to provide port companies with flexibility in the acquisition and sale of port property. No user of the port has

the right to interfere in that process.

41. I am satisfied that the appeal should be dismissed.