Court allows appeal finding Dublin Cemeteries Committee ultra vires for commercial headstone sales under 1970 Act.

THE SUPREME COURT

Hardiman J.

Kearns J.

Macken J.

[S.C. No. 256 of 2006]

[S.C. No. 370 of 2006]

BETWEEN

DAVID PIERCE T/A SWORDS MEMORIALS

AND ANDREW PIERCE MOMUMENTS

PLAINTIFF/APPELLANT

AND

THE DUBLIN CEMETERIES COMMITTEE, GLASNEVIN

CEMETERY MOMUMENT WORKS LIMITED

AND GLASNEVIN CREMATORIUM LIMITED

DEFENDANTS/RESPONDENTS

JUDGMENT of Mr. Justice Kearns delivered the 30th day of July, 2009

By Private Act of Parliament enacted in 1846 a governing body or committee was established for the maintenance of the

cemeteries at Golden Bridge (established in 1827) and Prospect (later called Glasnevin) (established in 1832) in County

Dublin. Prior to that time burial facilities in those cemeteries were provided by an unincorporated committee or association.

The 1846 committee was replaced in 1970 by the Dublin Cemeteries Committee, the first named respondent herein,

pursuant to the provisions of a Private Act of the Oireachtas, namely the Dublin Cemeteries Committee Act 1970. Following

the enactment of the Act of 1970 the Dublin Cemeteries Committee acquired new cemeteries at Palmerstown (established in

1978), Dardistown (established in 1990) and Newlands Cross (established in 1999).

The Dublin Cemeteries Committee is a registered charity which operates private cemeteries. While it does ask for interment

fees and subscriptions from those who can afford them, it provides burial space regardless of whether or not the family of

the deceased has the resources to pay for a grave. The Committee permits families to provide monuments on foundations

which the Committee provides. Rules have been made providing for the dimensions, design, composition and so forth of

permitted memorials.

Prior to the Act of 1970, the Committee did not engage commercially in the business of manufacturing or selling tombstones

or monuments. However, the second and third named respondents were incorporated thereafter as limited liability

companies, the first being formed to carry on the business of manufacturing and selling tombstones and monuments and the

latter to operate the crematorium at Glasnevin Cemetery. Both of these companies are wholly owned by the Committee.

The plaintiff in these proceedings is in the business of manufacturing and selling monuments and has been in that business

since 1988. He initially carried on the business in partnership with his brother but in December, 1999 he bought out his

brother’s interest in the partnership and has since been carrying on business on his own account. The plaintiff is one of a

number of undertakings in the Dublin area who engage in the design, manufacture and sale of headstones.

The development by the first named defendant of a commercial undertaking in respect of the sale of headstones has

impacted severely on the ability of the plaintiff and other undertakings to compete for and obtain business. The evidence at

trial and the correspondence passing between the various undertakings in this field and the Competition Authority from 1988

onwards reveal the extent of the disadvantage suffered by these undertakings as a result of the commercial enterprise now

being conducted by the Committee.

By way of illustration, the Committee offer a display of their headstones and monuments inside the cemetery. The

Committee have an employee who also acts as a headstone salesperson. To buy a grave one must go to their office which is

adorned with pictures and brochures of headstones. Further, the cemetery registrar has all the deceased’s personal family

details on computer, including next of kin, home address, etc., and may use this information to advantage in marketing and

selling. Other outside sculptors are not permitted a display area which might compete with the Committee.

In a letter written on behalf of the Dublin Sculptors Alliance to the secretary of the Competition Authority in February,

2000, the selling of headstones inside the gates of the Committee’s cemeteries was described as being: “akin to the Eastern

Health Board selling prams inside the doors of the Rotunda and Holles Street maternity hospitals. They are selling to a

captive and vulnerable market. Everybody who buys a grave buys a headstone, similarly every mother wants to buy a

pram.”

On first consideration this state of affairs, which is not controverted by the Committee, would suggest that the plaintiff might

have brought a legal challenge alleging abuse of a dominant position under the provisions of the Competition Acts. However,

for reasons which are more fully elaborated in the judgment already delivered herein by Macken J. on the 28th day of May,

2009, the Competition Authority declined to take up cudgels against the Committee on foot of these complaints and gave the

plaintiff and his colleagues reasons why, in the view of the Authority, it would not and should not do so. This Court has

already concluded that in the particular circumstances of this case an adequate alternative remedy under competition law

such as would disentitle the plaintiff from locus standi to mount the present proceedings was not in reality available to him.

The key question arising for consideration in this judgment is whether the provisions of the Dublin Cemeteries Committee

Act 1970 give a power to the Committee to engage commercially in the production of headstones for sale and/or establish

subsidiary companies for this purpose. As the Act upon which the Committee relies is a Private Act of the Oireachtas, and

as this judgment addresses the interpretation of that Act, it is appropriate to first consider the rules of construction applicable

to Private Acts.

CONSTRUCTION OF PRIVATE ACTS

While private legislation was a relatively common feature in the 19th century, the number of Private Acts such as the Act of

1970 which have been enacted by the Oireachtas since 1922 are few. Because it is legislation introduced for the benefit of

its promoters, it is well established that such legislation is to be treated as a contract between the promoters (or that portion

of the public which might benefit from it) and the legislature. Under well settled legal principles, such legislation is to be read

strictly against the promoters. In this jurisdiction Standing Order 1 of the Oireachtas Standing Orders (Private Bills) provides

that:-

“Every Bill promoted for the particular interest or benefit of any person or a locality as distinguished from a

measure of public policy shall be treated as a Private Bill.”

Standing Order 50 requires that the Examiner of Private Bills report that the standing orders have been complied with by the

promoters and provision is made for a hearing on the Bill by a Joint Committee of the Oireachtas to determine whether the

Bill unnecessarily entrenches on the private rights and interests of others.

As text-book writers Erskine May state (Parliamentary Practice, 23rd Ed. at 967):-

“In private bills Parliament still exercises its legislative functions but its proceedings are also of a judicial

character. The persons who are applying for powers or benefits appear as petitioners for the bill while those

parties who fear that their interests may be adversely affected by its provisions have the opportunity to oppose

it. Many of the formalities of a court of justice are maintained: various conditions are required to be observed

and their observance to be strictly proved and if the parties do not meet such requirements the parties will not

be permitted to make further progress.”

As Maxwell (Interpretation of Statutes, 12th Ed. at 262) states:-

“Perhaps most strictly construed of all enactments are local and personal statutes which, by their very nature,

create exceptions to the general law of the realm. The court is entitled to notice that such Acts are framed by

those who benefit under them and to treat them as contracts between their promoters (or that portion of the

public which might be directly interested in them) and the legislature. It follows that the maxim verba

cartarum fortius accipiuntur contra proferentem (which is ordinarily inapplicable to statutory construction) is

relevant in the context of this class of statute.”

The synopsis of the law in this regard as contained in Bennion (Statutory Interpretation, 4th Ed. at 919) was that adopted

by the trial judge in this case and is as follows:-

“There are special criteria for the construction of private Acts. These arise because a private Act is

essentially a derogation, for the benefit of a few, from the law generally applying. Some private Acts, notably

estate Acts, are little more than conveyances of land. The ‘little more’ amounts to something which the law

precluded the parties from doing for themselves, hence the resort to private Bill procedure … It follows that

estate Acts, which are still passed today, are to be construed more as private conveyances than statutes …

It has been said of private Acts generally that their wording ‘is to be treated as the language of the promoters

of them’. The Act is framed by the very persons who desire that the general law shall be eased in their private

favour. So where there is any doubt its language is to be construed against them.”

Against that legal background, I believe the appellant in this case is well justified in arguing that it is vital that entities created

and authorised by Private Acts stay within the bounds of the Act and the process which created them and not stray into

ventures neither contemplated nor discussed in the enactment process. The intentions of a Private Act must be obvious to

those who will or may be affected. Otherwise not only a legal infirmity but a democratic deficit arises. A constituency of

persons and interests will be disenfranchised because they did not oppose a Bill, not out of lethargy but because it was

oblique and/or did not on its face concern them. A later construction of the Act which implies an extension to its scope,

thereby encroaching upon the rights of that constituency, does violence to the words of the Act and undermines the process

of the enactment itself.

In the instant case, the content of the Parliamentary Notice published prior to the enactment of the Act of 1970 was

adduced in evidence. It is instructive as to what was put to the public prior to the enactment becoming law:-

“… take notice that pursuant to the Standing Orders of the Dail and the Seanad … private business, the

Dublin Cemeteries Committee intend to apply for leave to bring a Private Bill entitled as above and that the

objects and purposes of the said Bill are to repeal the Dublin Cemeteries Committee Act 1846 and to

undertake and carry out the functions at present undertaken and carried out by the Dublin Cemeteries

Committee and to enlarge and extend such functions and in particular to:

(1) Regulate the Constitutional Committee.

(2) To provide for the transfer of the property vested in the present Committee to the newly

established body corporate.

(3) To enable the Committee:

(a) To maintain, improve and extend the existing cemeteries of Golden Bridge and

Glasnevin.

(b) To acquire, maintain, improve, lay-out, construct and operate in the City of the

County of Dublin cemeteries and burial grounds and other places or areas for the burial,

internment, preservation and disposal of human remains.

(4) To provide for other matters incidental to the aforesaid.”

It is plain and apparent from the terms of this advertisement that the promoters under the terms of the notice did not

elaborate any intention to engage in the commercial selling or exploitation of headstones. An admission to this effect was

made during the course of evidence given by Mr. Dillon, the Chairman of the Committee, during the trial.

THE RELEVANT STATUTORY PROVISIONS

Section 16 of the Act of 1970 provides as follows:

“The objects for which the Committee is established are as follows:

(a) To maintain, improve and extend the existing Cemeteries and to preserve the bodies interred in

them from disturbance and desecration.

(b) To acquire, provide, maintain, improve, lay-out, construct and operate in the County and

County Borough of Dublin cemeteries, burial grounds and other places and means for the burial,

interment, preservation or disposal of human remains in accordance with the rites, services and

beliefs of any of the religious denominations specified in Article 44 of Bunreacht na hÉireann or of

any other religious denomination existing in the Republic of Ireland on the establishment date.”

Section 17, insofar as it is relevant for present purposes, provides as follows:-

“Subject to the provisions of this Act, the Committee shall have, in addition to any other powers vested in or

conferred on it by any other provision of this Act power:-

(a) to purchase, take on lease or otherwise acquire any lands

(b) to sell, improve, manage, develop, exchange, lease, hire, mortgage, dispose, turn into account

or otherwise deal with all or any part of the undertaking property and rights of the Committee.

(c) to borrow …

(d) to invest …

(e) to employ …

(f) to accept … grants, subscriptions, donations, devises, and bequests for all or any of the purposes

of the Committee and generally to manage, invest and expend all moneys or property belonging to

the Committee.

(g) …

(h) …

(i) to build, construct, erect, improve and maintain buildings, chapels, monuments, headstones and

structures for use or decoration in or in connection with cemeteries or burial grounds.

(j) to bury …

(k) to do all such other things as the Committee may consider incidental or conducive to the

attainment or advancement of any of the objects of the Committee.”

Section 19 of the Act further provides:-

“(1) Subject to subsection (2) of this section the income and property of the Committee whencesoever derived

shall be applied solely towards the promotion of the objects of the Committee and no portion thereof shall be

paid or transferred, directly or indirectly by way of dividend, bonus or otherwise howsoever by way of profit

to the members of the Committee.”

There is no provision in the Act specifically authorising the Committee to engage in commercial enterprises and it is

appropriate to note that, prior to the introduction of the Act of 1970, the Committee did not engage in the business of

manufacturing and selling headstones. Nor was such a power available to the Committee under the antecedent statutory

provisions of the Act of 1846.

The preamble to that Act describes the Act as being one “for the maintenance of the cemeteries at Golden Bridge and

Prospect in the County of Dublin and (1) “To create a perpetual succession in the Governing Body or Committee from

managing the same.”

Section 14 of that Act provided that the Governing Body “shall, by and out of monies to be received by virtue of this Act,

keep all and singular the burial grounds and cemeteries, chapel and chapels, and the several buildings thereon and

therein, and the external walls and fences thereof, and all other parts of the same which by this Act they are authorised to

erect and maintain, in thorough and complete repair.”

Section 18 of the Act provided that “it shall be lawful for the said Governing Body, under such regulations and

restrictions and subject to such conditions as they shall think proper, to sell the exclusive right of burial, either in

perpetuity or for a limited period, in any vault, catacomb, or place of burial constructed by them within any such burial

ground or cemetery, and also the right of constructing any vault, catacomb, or place of burial within any such cemetery,

with the exclusive right of burial therein and perpetuity or for a limited period, and also the right of single internment in

any vault, catacomb or other place of burial constructed within any such burial ground, cemetery, or in the open ground

of any burial ground, and also the right of erecting and placing any monument, tombstone, or gravestone in any burial

ground, or any monument or monumental inscription on the walls of the chapels or other place within such burial

ground.”

Section 20 of the Act provided “that all the monies which shall arise by any such sale of any right or place of burial, or

any vault, catacomb or monument, shall be applied in the first place in paying the head rents, fees, salaries, stipends,

and other charges and expenses which by virtue of this Act shall from time to time be due or payable or otherwise

incurred in carrying the same into execution; and the surplus of such monies (if any) shall from time to time be applied

in such manner as to the majority of the said Governing Body shall seem fit.”

It will be apparent from the foregoing that the Act of 1846 did not in express terms create or confer any right to sell

tombstones or headstones, it was a right to “erect” and “place” any monument, tombstone or gravestone in any burial

ground.

The language of the Act of 1970 is different insofar as Section 17 confers an express power on the Committee to build,

construct, improve and maintain headstones. Section 17(b) further provides a power to the Committee to “sell” “all or any

part of the undertaking property and rights of the Committee.”

The critical question arising in the case is whether those two express powers are so limited by the objects for which the

Committee is established - as detailed in Section 16 of the Act of 1970 - so as to preclude the Committee from developing a

business for the sale of headstones, either generally or limited to cemeteries which the Committee itself owns. To determine

that issue, it is necessary to consider at this point the interrelationship between the powers conferred by the Act of 1970 and

the objects set out therein.

OBJECTS AND POWERS

That the Committee has clearly restricted objects is apparent from the terms of s. 16 of the Act of 1970. Those restricted

objects include the maintenance of its existing cemeteries and the acquisition and development of new ones. For these

purposes it has powers conferred in s.17 “subject to the provisions of this Act” and at s. 17(k) a general power to do such

things as are incidental to the “attainment or advancement of any of the objects of the Committee.” It will be noted that the

general “incidental” power is wholly tied to the more limited “objects”. It will be recalled that when the intention to apply

for the Act of 1970 was published it was done expressly on the basis that matters not specifically referred to therein were

“incidental to the aforesaid”, being the powers elaborated at s. 17.

In my view it is impossible to approach the construction of the Act of 1970 on any basis which divorces the powers from

the objects set out in the Private Act. If it were possible to do so, then as instanced by Mr. Gerard Hogan, senior counsel for

the appellant, it would be possible for the Committee to become, for example, a property developer. S. 17(a) confers a

power to “purchase … lease … any lands, buildings or other property whatsoever …”. Section 17(b) permits them to

“sell, develop, or otherwise deal with the undertaking property”. Section 20 permits it to dispose of lands not required for

burial grounds. Mr Hogan furnished a number of colourful illustrations of what could happen if the powers clause was

divorced from the objects clause. He instanced by way of extreme example how the Committee could, by adopting such an

approach, buy a bare site outside Tullamore or an abandoned office block on Achill Island. Once acquired, those assets

would then become part of the “undertaking property”. The Committee could then “employ professional persons” (as

authorised by s. 17(e)) to apply for planning permission on the Tullamore site, including lobbying for re-zoning, then sell it

as development land pursuant to s. 20. It could also renovate or develop the office block in Achill and then either sell or rent

it. The only potential restriction would be that it could not build houses on the Tullamore site itself because that construction

would not be connected with burial grounds. Other examples included the possibility of the Committee becoming a

commercial landlord, buying a commercial lease (under s. 17(a)) and leasing the premises for a commercial rent (s. 17(b)).

Nothing in the Parliamentary Notice adduced in evidence gave any indication that the powers elaborated in the Act might be

exploited in some such fashion or in a manner unconnected to the objects. If the powers contained in s. 17 are ‘stand alone’

entitlements, none of the activities mentioned by way of example would be ultra vires.

The respondents in this case have argued that the insertion in the Act of 1970 of a power to sell headstones must necessarily

imply the receipt of money for same, and by implication the development of a business arising therefrom. However, I

believe there is a world of difference between a power to sell what one owns and an entitlement to go into the business of

selling a particular item. As the House of Lords pointed out in McCarthy & Stone (Developments) Limited v. LB Richmond

[1992] 2 A.C. 48, a case in which the council’s power to charge for consultations between planning officers and applicants

for planning (prior to the formal application) was held to be ultra vires:-

“… In support of its case the council instanced situations in which, without any express authority, it seemed

obvious that a charge would properly be made, but to say that the council can receive payment for the sale of

redundant and worn-out equipment does not, to my mind, advance the argument that a council can without

statutory authority charge for a service. The power to sell, for example, old motor cars for which the council

no longer has a use necessarily implies that, in the interests of the ratepayers, the council will recover from a

commercial transaction the return which any seller would expect to receive, as a normal incident of local

government administration. The provision for a financial consideration of facilities to hold a conference was

also discussed. This, on the assumption that it is a legitimate activity, has the character of conducting a

business, and it would be a strange and unjust result if those who enjoyed the use of the facilities provided

were to do so at the expense of the ratepayers or their modern equivalent. I would not be prepared to say (and

it is for present purposes unnecessary to say) that, in the absence of express statutory power, there can never

be a case in which the power to charge arises by necessary implication, but I have heard no convincing

argument to show how the present facts could support such an implication.” (per Lord Lowry at 71)

In R (on the application of Looe Fuels Limited) v. Looe Harbour Commissioners [2007] E.W.H.C. 1147, Stanley Burnton

J. held that a section of the Harbours Act 1848 (which was a public general Act and thus not one to be restrictively

interpreted) which permitted the Harbour Commissioners to “… demand and recover such rates or other consideration as

they may think reasonable for the use of any warehouses … or in respect of any services rendered by them in connection

with the lending, shipping, storage, removal, transport, sale and disposal of goods, animals, fish and things” did not

permit the respondent to purchase fuel for resale to vessels landing in the harbour. This was notwithstanding modern reality

that such vessels plainly require fuel.

I think these cases can be distinguished from the decision of the Court of Appeal in Hazell v. Hammersmith & Fulham LBC

[1992] 2 A.C. 1 upon which considerable reliance was placed by the trial judge. At issue in that case were the powers of

Hammersmith and Fulham LBC, which were governed by the Local Government Act 1972, s.111 of which provided that,

subject to the provisions of that Act, a local authority should have power “to do any thing (whether or not involving

expenditure, borrowing or lending of money …) which is calculated to facilitate, or is conducive or incidental to, the

discharge of any of their functions”. A wide and generous latitude by way of interpretation was afforded to the statutory

terminology in that case which is hardly surprising having regard to the express language of the enabling statute. However, I

do not think the word “functions” can be seen as embracing both “objects” and “powers” where the Act is a private one

with the restricted objects of maintaining existing cemeteries and acquiring and developing new ones.

I am satisfied the Act of 1970 does not permit the Committee to carry on business at all. If, instead of being established by

Private Act, the Committee was a company whose memorandum adopted the wording of the Act of 1970, I believe it would

still not be legally entitled to sell headstones commercially. The legislation contains none of the boilerplate clauses or “belt

and braces” clauses typical of modern company memoranda of association. It has only two objects. It has no “independent

objects” clause and no “Bell House” clause. Entering the business of selling headstones and the incorporation of

subsidiaries for that purpose is to embark on ventures which are plainly outside the objects delineated in the Act of 1970.

Were the Act of 1970 a Memorandum of Association, the powers in s. 17 could only be used to further the objects in s. 16

and any contracts outside the scope of the objects would be ultra vires the Committee and void.

In general, bodies established under Private Acts are rarely authorised to be businesses in the ordinary sense and usually

follow charitable purposes. A similar situation pertains in relation to the Committee in this case. It is a charity and s. 19 of

the Act requires that the income from its activities be “applied solely towards” the objects of the Committee. If the

Committee had opted to conduct the sale of headstones as a self-sustaining commercial enterprise it would be in breach of

its charitable status and its obligations in relation to income.

CONCLUSION

I therefore conclude that the commercial manufacture and retail of headstones is ultra vires the power of the Committee

under the Act of 1970. It follows that I would therefore allow the appeal.