Neutral Citation no.[2001] NICh 3
Ref:  
GIRE3320

 
Judgment: approved by the Court for handing down
Delivered:
05.02.2001
(subject to editorial corrections)

 

 
 
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
CHANCERY DIVISION
 
-------- 
 
IN THE MATTER OF THE RIVER BANN NAVIGATION ACT 1879
 
AND
 
IN THE MATTER OF THE RIVER BANN NAVIGATION ACT
AMENDMENT (NORTHERN IRELAND) ORDER 1976
 
AND
 
IN THE MATTER OF THE LOCAL GOVERNMENT ACT 
(NORTHERN IRELAND) 1972
 
AND 
 
IN THE MATTER OF THE LOCAL GOVERNMENT (MODIFICATION AND REPEAL OF TRANSFERRED PROVISIONS RELATING TO HARBOURS) ORDER (NORTHERN IRELAND) 1973
 
-------- 
 
BETWEEN
 
COLERAINE BOROUGH COUNCIL
Plaintiff
 
And
 
COLERAINE HARBOUR COMMISSIONERS
Defendant
 
-------- 

 
 
GIRVAN J
 
            These proceedings raise a number of questions relating to the proper construction of the provisions of the River Bann Navigation Act 1879 (“the 1879 Act”) as amended.  In particular questions arise as to the correct manner in which the plaintiff, Coleraine Borough Council (“the Council”) may exercise the statutory power and duty to nominate persons to be Coleraine Harbour Commissioners (“the Harbour Commissioners”).
            
The Original Statutory Background
            Portrush Harbour Company was incorporated in 1827 by a private Act of Parliament with the purpose of improving the town and harbour of Portrush for the benefit of shipping resorting thereto.  The company was subsequently empowered to execute works for the improvement of the navigation of the River Bann from the Salmon Leap above the town of Coleraine to the sea.  The company failed to adequately do so and in 1863 the Town Commissioners of Coleraine were authorised to acquire the rights and privileges of the company and were given powers with respect to the navigation on and over the River Bann, the Portrush Harbour Company’s powers and privileges being revoked.  The Town Commissioners of Coleraine proceeded to acquire the rights and privileges of the company.  It would appear that the Town Commissioners failed to adequately develop the harbour as envisaged by the River Bann Navigation Act 1863 and it was decided that a new body should be established to operate the harbour.  The Honourable the Irish Society, the party entitled to the relevant stretch of the river and river bed and fishing rights thereon, agreed to contribute a substantial sum to assist in the improvement of the navigation of the River Bann.  The recitals to the 1879 Act indicate that it was envisaged that the execution of the works envisaged by that Act would greatly benefit the town of Coleraine, the Half Barony of Coleraine and the Barony of the North East Liberties of Coleraine and for that reason they were charged with the payment of any insufficiency of funds in the repayment of mortgages secured in the River Bann fund to the extent set out in the Act.
            Under section 8 of the 1879 Act there were to be nineteen Commissioners, seventeen of whom would be nominated and two of whom would be elected in accordance with the terms of the Act.  In its original form it was provided that the nominated Commissioners should be (a) twelve persons qualified as by the Act provided to be nominated from time to time by the Town Commissioners as representatives of the town of Coleraine provided always that no more than six of such persons should also be Town Commissioners, (b) three persons qualified as by the Act provided to be nominated from time to time by the Coleraine Guardians as representatives of the Half Barony of Coleraine and (c) two persons qualified as by the Act provided to be nominated by the Coleraine Guardians as representatives of the Barony of the North East Liberties of Coleraine.
            The Commissioners constitute a single body corporate with all the powers and privileges of a statutory corporation but subject to the restrictions of the Act.  
            Section 5 of the Act as originally enacted contained definitions of terms used in the Act and those definitions were to apply unless excluded by the subject or context.  The Town Commissioners were defined as meaning the Town Commissioners of Coleraine acting in execution of the Towns Improvement (Ireland) Act 1854.  The town of Coleraine was defined as “all the area within the boundary of the town for the time being subject to the jurisdiction of the Town Commissioners”.  The Coleraine Guardians were defined as referring to the Guardians of the Poor of the Coleraine Union.
            When the 1879 Act was passed the organisation of local government in Ireland was radically different from the current system and indeed subsequent to the 1879 Act and even prior to the Local Government Act (Northern Ireland) 1972 there were many changes in local government structures which had an impact on the working of the 1879 Act.
            Under the Towns Improvement (Ireland) Act 1854 powers of town management were conferred on Town Commissioners.  Towns were empowered to adopt the Act at a public meeting of rate payers.  Town Commissioners were elected and given powers to carry out various functions for the property, running and improvement of their town such as supplying street cleaning and lighting, water and sewerage.  Within any town there could be a number of separate local authority bodies including the Town Commissioners, the Grand Jury and a Board of Guardians under the Poor Law legislation.
            Poor Law Boards were established by the Poor Relief (Ireland) Act 1838 to administer the newly introduced poor law.  Initially three-quarters of the guardians were elected and one-quarter were ex officio (often local Magistrates).  The albeit limited poor law introduced by the 1838 Act, as subsequently amended, remained the primary basis of poor relief until well into the twentieth century creating a basic structure on which a social services system was gradually established providing not only poor relief but also medical care and health services generally.  Ireland was originally divided into 130 unions containing 249 electoral divisions, each of which returned at least one representative.  As pointed out in Virginia Crossman’s “Local Government in 19th Century Ireland” published by the Institute of Irish Studies at Queen’s University of Belfast, membership of a Poor Law Board provided access to an important decision making process as well as to a significant source of patronage.  Poor Law Boards were no longer involved simply in the distribution of relief but became an increasingly important branch of local government.
            As originally enacted the 1879 Act envisaged separate nominations to be made by the Town Commissioners and by the Coleraine Guardians of the Poor which together represented the primary two local government authorities at the time in the geographical area to be served by the harbour. 
            As originally enacted, sections 12 and 13 set out the qualifications of Harbour Commissioners nominated by the Town Commissioners and the Board of Guardians of Coleraine Union.  In the case of the former the nominated Commissioners in the twelve months preceding 1 January in the year of nomination had to be lessors of property of a specified valuation within the town of Coleraine and reside within five miles of the boundary of the town or be the occupiers of premises within the town of a specified valuation.  In the case of the latter the nominated commissioners in the twelve months preceding 1 January in the year of nomination had to be the lessors of property in the relevant Half Barony or Barony of a specified valuation or the occupier of lands there of a specified valuation.
            In the case of the powers of nomination of the Town Commissioners the Act envisaged that they should nominate the majority of the Harbour Commissioners though the power of nomination was qualified so that not more than half should be Town Commissioners.  It can reasonably be assumed that this restriction was intended to prevent the Town Commissioners dominating the Harbour Commissioners.  The recital of the 1879 Act suggests that the motivation behind this may have lain in the view that the Town Commissioners when in charge of the harbour had not been adequate stewards of the harbour, its business and assets.  In the case of the nomination of Commissioners by the Coleraine Guardians of the Poor the Guardians had a power and a duty to nominate Commissioners to represent the Half Barony of Coleraine and the Barony of the North East Liberties of Coleraine.  At the time of the enactment a significant number of the Guardians were elected and nothing in the Act precluded the nomination by the Guardians of elected Guardians of Harbour Commissioners.   Thus in its original form the Act authorised the appointment of up to a maximum of eleven Commissioners who were elected to office in bodies fulfilling local government functions in the area comprising the town, Half Barony of Coleraine and Barony of the North East Liberties of Coleraine.  
            Section 15 of the 1879 Act provided that the Town Commissioners and the Coleraine Guardians: 
“shall between (25th) day of October and (3rd) day of November in the year (1879) and in every subsequent year respectively hold at the Town Hall Coleraine and at the Poor House of the Coleraine Union special meetings for nominating the nominated Commissioners by this Act required to be nominated by them respectively and at respective special meetings held in the year (1879) the Town Commissioners shall nominate twelve persons to be nominated Commissioners as representatives of the town of Coleraine and the Coleraine Guardians shall nominate five persons to be nominated Commissioners as representatives of the Half Barony of Coleraine and Barony of the North East Liberties of Coleraine that is to say three as representatives of the said Half Barony and two as representatives of the said Barony”.
 
            Provision was made in relation to the publication of notice of the intended meeting and for the way in which the choice of nominations should be made.
            Section 16 of the Act made provision for the rotational periodic retirement of nominated Commissioners.  Effectively one-third of the Commissioners retire annually and are replaced, each Commissioner holding office for a period of three years.  
 
Alterations in the Legislation 
            Subsequent to the 1879 Act there were radical changes in the form of local government.  In the case of the Poor Law Boards their nature and statutory remit changed over the years with many of the poor law functions passing to other local government bodies.  Eventually by the Welfare Services Act (Northern Ireland) 1949 the remaining provisions of the Poor Relief Acts still in force were repealed and the powers of the Guardians of the Poor Law passed to the welfare authorities provided for in that Act.  Section 34 of that Act empowered the making of regulations within five years of the Act making consequential adaptations of any enactment passed before the passing of that Act which referred to or was dependent on any provision of the existing poor law.  Counsel did not refer the court to any regulations made under the 1949 Act adapting the provisions of the 1879 Act and my own researches have not revealed any.  I am unclear as to what happened in practice following the disappearance of the Coleraine Guardians prior to the provisions of the Local Government (Modification and Repeal of Transfer Provisions Relating to Harbours) Order (Northern Ireland) 1973 (“the 1973 Order”).  Nor is it clear when the Town Commissioners disappeared.  It is not necessary, however, to go further into the historical background since the 1973 Order now governs the position.
Article 5(1) of that Order made under section 134 of the Local Government Act (Northern Ireland) 1972 provides:
“In section 5 of the River Bann Navigation Act 1879 (hereinafter referred to as `the Act of 1879’) `the district councillors of the Coleraine District Council’ shall be substituted for the meanings given in the said section for `the Town Commissioners’, `the Coleraine Town Commissioners’ `the Coleraine Guardians’ and `the Ballymoney Guardians’ and `all the area within the borough of Coleraine as it existed immediately before 1 October 1973’ shall be substituted for the meaning given in that section for `the town of Coleraine’.”
 
Subsequently under the River Bann Navigation Act 1879 (Amendment) Order (Northern Ireland) 1976 (`the 1976 Order’) sections 12 and 13 of the 1879 Act were replaced by a new section 12 which now provides: 
“(1)      Subject to sub-section (2) every person aged 18 years or over shall be qualified to be nominated a nominated Commissioner by the Coleraine Borough Council who for twelve months preceding the 1 January in the year in which he is nominated has been charged to rates under the Rates (Northern Ireland) Order 1972 as the occupier of a hereditament  in the Borough of  a net annual value or as the occupier of hereditaments in the borough of an aggregate net annual value, of at least £250 and who is not at the time of such nomination an elective Commissioner.  
 
(2)        A person who immediately before 1 April 1976 held, or is qualified to hold, office as a nominated Commissioner shall not cease to hold, or be disqualified from holding, such office by reason only of sub-section (1) so long as he remains in occupation of the property in respect of which he held or was qualified to hold office at that time.”
 
Although when the 1973 Order was enacted the relevant local government unit was called “Coleraine District Council” that area was subsequently accorded borough status.
The effect of article 5(1) of the 1973 Order when read into section 8 of the 1879 Order requires section 8 to be read thus
“For the purposes of carrying the Act into execution there shall be nineteen Commissioners who shall be nominated and elected in manner by this Act provided;
 
The nominated Commissioners shall be:
 
twelve persons qualified by this Act provided to be nominated from time to time by the District Councillors of Coleraine District Council as representatives of all the area within the Borough of Coleraine as it existed immediately before 1 October 1973 provided always that no more than six of such persons shall also be councillors of Coleraine District Council
 
three persons qualified as by this Act provided to be nominated from time to time by the Councillors of Coleraine District Council as representative of the Half Barony of Coleraine and
 
two persons qualified as by this Act provided to be nominated by the Councillors of Coleraine District Council as representatives of the Barony of the North East Liberties of Coleraine.”
 
            It appears that immediately prior to 1 October 1973 the then Borough of Coleraine comprised an area consisting of the town itself and its immediate environs though not the whole area now within the modern Borough.

The Present Dispute
            As a result of social and commercial changes Coleraine Harbour as a port is now a moribund.  The Harbour Commissioners retain extensive and valuable land interests in the town of Coleraine.  As already noted there had been many legislative and de facto changes in the organisation of local government in the area originally intended to be served by the harbour.
            The present dispute arises out of the Council’s nomination of Commissioners in the appointment of new Commissioners in 1999 following the rotational retirement of a number of Commissioners.  At a meeting of the Council held in the Council offices at Cloonavin, Coleraine on 28 September 1999 the Council resolved to nominate a total of six persons to be Harbour Commissioners of whom three were elected Councillors.  The nominees were Alderman McClure, Alderman Watt, Councillor Bradley, Mr C Diamond, Mr I Wilson and Mr R White.  The Council wrote to the Harbour Manager by a letter dated 26 October 1999 received on 27 October 1999 informing the Harbour Commissioners of the nominations.  The Commissioners’ solicitors on 19 November 1999 wrote to the Council taking the point that the nominations had been made on 28 September 1999 outside the statutorily prescribed period from 25 October to 3 November and further contending that Coleraine Borough Council could not nominate in excess of a total of six Councillors to be Harbour Commissioners.  The Harbour Commissioners rejected the Council’s nominations and said that they proposed to put forward for nomination under section 38 of the Act two of the Councillors invalidly nominated, the three invalidly nominated non-Councillors and one additional non-Councillor.  Subsequently by letter dated 20 January 2000 the Commissioner stated that it had co-opted to the Board six persons namely Alderman Watt, Alderman McClure, Mr C Kane, Mr C Diamond, Mr I Wilson and Mr R White.  Thus the Commissioners in effect rejected the nomination of Councillor Bradley replacing him by Mr Kane.  In purporting to co-opt Mr Kane the Commissioners purported to act under section 38 of the Act which provides:
“Any casual vacancy in the office of a nominated or elective Commissioner shall be filled up by the Commissioners at their next meeting after they have notice of such vacancy but the Commissioners that are chosen must have the qualification by this Act required to have entitled the Commissioner whose place he is to supply to be nominated or elected and he shall retain his office so long only as the vacating member would have retained the same if such vacancy had not occurred.
 
A nominated or elective Commissioner dying, resigning or vacating his office or becoming disqualified after the time of his being nominated or elected shall be deemed to create a casual vacancy.
 
Any nominated or elective Commissioner shall resign his office by notifying his intention so to do in writing to the clerk of the Commissioners.”
 
            Mr Horner QC who appeared with Mr Brangam on behalf of the Council argued that on the proper construction of the 1879 Act as amended the Council had made valid nominations and that while as successor of the Town Commissioners the Council could not appoint more than six Councillors in respect of the twelve to be nominated by the Council as successors to the Town Commissioners, when acting as successors to the Guardians of the Poor for the Barony and Half Barony the Councillors thus were free to nominate Councillors to represent those areas formerly comprising the former Barony and Half Barony.  He argued that the Commissioners did not have power under section 38 to co-opt persons as Commissioners to replace retiring Commissioners since a co-opted Commissioner under Section 38 could only replace a vacating person for the period the vacating member would have retained the commissionership if the vacancy had not occurred.  In relation to the timing of the nominations and in respect of the place at which the nominations were made Mr Horner argued that the provisions of section 15 of the 1879 Act were directory only and that the nominations were valid in that regard.  As far as the place of the nominations was concerned the nominations were made in the Council’s offices.  The Poor House no longer existed and the Town Hall was not currently in use for such meetings.  He contended that it was not explicitly clear from section 15 that nominations had to be made between 25 October and 3 November in any year.  Even if section 15 so provided the requirement was directory and the Commissioners had made the nomination and informed the Commissioners on 27 October 1995 within the statutory period.
            Mr Drennan who appeared with Mr Thompson QC for the Commissioners contended that the nominations were invalid both in time and place and that the nomination of more than six Councillors infringed the effect of section 15 of the 1879 Act as amended.  Mr Drennan pointed out that between 1982 and 1988 during the period of non co-operation between local government and central government as a result of the Government’s Northern Ireland policy the Commissioners had exercised powers of co-option under section 38 to co-opt Commissioners who retired under the rotational retirement system.  This, he said, was in line with the view that if invalid appointments were made the Commissioners could co-opt Commissioners under section 38.  
 
The Effect of Section 39 of the 1879 Act 
            Section 39 of the 1879 Act provides that on the application of any aggrieved person complaining about the nomination or election of any nominated or elected Commissioner or any proceedings, act or matter touching the same the High Court shall proceed in a summary way to inquire into the matter and order a new nomination or election or make such order as justice may require but no such application shall be entertained unless it is made within one month after the nomination or election.
            The present proceedings are brought not by an aggrieved party but by the Council seeking to establish the validity of the nominations.  The proceedings therefore do not constitute an application by an aggrieved party challenging a nomination.  In addition to raising specific questions relating to validity of nominations made in 1999 the proceedings raise questions of construction of the 1879 Act of more general application.  Moreover, the Commissioners’ case is based on the proposition that the Council had no power to make the nominations, a contention that does not aptly fall within the purport of section 39.  In these circumstances nothing in section 39 precludes the court from determining the proceedings as presently constituted.
 
The Rights of Councillor Bradley and Mr Kane
            It became apparent from the course of the submissions that the consequence of the relief sought by the Council would effectively be to hold that Councillor Bradley’s nomination was valid and the appointment by the Commissioners of Mr Kane under section 38 was invalid.  In the circumstances I directed that the originating summons should be amended to add a specific question as to the validity of the appointment of Councillor Bradley.
            Since that claim for relief affects the personal rights of Councillor Bradley and Mr Kane the court directed that they should be joined as parties to the proceedings and that notice of the proceedings should be served on them.  They were thus given an opportunity to intervene and make submissions as they saw fit.  Councillor Bradley and Mr Kane indicated that they did not wish to make representations or intervene in the proceedings.
The Validity of the Council’s Nomination
            The provisions of section 15 of the 1879 Act were entirely and sensibly workable in the context of local government arrangements in force in 1879.  The changes since 1879 and in particular since the Local Government Act (Northern Ireland) 1972 have resulted in wholly different arrangements in local government both in terms of the relevant local government unit and in the structure of the relevant local government body.  Three separate geographical units have been brought into one separate local government unit and two separate local government bodies have disappeared and been replaced by one body of councillors who constitute the local government for the single unit.  The amendments of the 1879 Act to take account of the changes do not reveal the hallmarks of a fully considered and coherent response to the new situation.  Nevertheless the court must seek to construe the 1879 Act as amended as best it can bearing in mind that the statutory provisions as amended remain in force.  It would have been perfectly possible for the provisions of section 8 to have been amended by order made under the Local Government Act (Northern Ireland) 1972 or under the Harbour Act so as to provide that seventeen Commissioners were to be appointed by the Councillors of Coleraine Borough Council subject to a specified numerical limit on the total number of councillors who could be appointed as Commissioners.  The structure of the amended section 8, however, remains, requiring the Councillors to carry out three separate nominations, firstly of twelve Commissioners, then of three and then of two.  Of the twelve to be appointed by the Councillors as successors to the Town Commissioners the statutory maximum of Councillors in that grouping is six.  In relation to the nominations of the three and the two to represent the Barony and Half Barony the statute does not expressly preclude the Council from nominating Councillors.  Nor is there anything to suggest that they are impliedly precluded from doing so.  The express limitation in the nomination within the group of twelve is not repeated in respect of the three or the two.  Expressus facit cessare tacitum.
            When section 8 was enacted the draftsman limited the number of Town Commissioners who could be appointed as Harbour Commissioners as representatives of the town of Coleraine but did not preclude the nomination of elected Guardians.  Therefore it was not the policy of the Act to restrict the number of persons holding elective offices in the local government units other than in respect of those who constituted Town Commissioners.  Councillors elected to Coleraine Borough Council represent areas which are located in the geographical areas represented by what constituted the Half Barony of Coleraine and the Barony of the North East Liberties of Coleraine.  Since there was no restriction in the nomination of the Commissioners to represent those areas precluding the nomination of elected members of the Board of Guardians there is no logical reason why the Council cannot nominate elected Councillors to represent the areas in respect of the former Barony and Half Barony.  
            The Commissioners’ argument that the nomination of Councillor Bradley was invalid on the ground that the total number of Councillors nominated exceeded six thus fails.
            On the question whether the nominations were bad because the timing and place of nomination infringed the statutory requirements of section 15 I hold on the proper construction of section 15 that the time of the meeting referred to in 1999 was envisaged as taking place between 25 October and 3 November in that year.
            The draftsman of the amending provisions overlooked the fact that the Poor House no longer existed.  The Councillors as successors to the Guardians could not hold a meeting at a non-existent place.  Lex non cogit ad impossibila.  Even if the building survived it was not in the nature of the Workhouse.  Once the Guardians and the Town Commissioners ceased to exist there was no question of a need for two meetings at different places.  Nothing in the Act required the Councillors as successors of the Guardians to meet in the Town Hall.  In any event I hold that the nomination made in the offices of the Council at Cloonavin, Coleraine did not infringe section 15 since the provision relating to the places of the meeting was in my view directory only (infra). Thus, so far as the place of nomination is concerned I reject the Commissioners’ contention that the nominations were bad in that regard.
            As far as the timing of the nominations was concerned it must be said that the Commissioners’ contentions are somewhat artificial.  The nominations were made before the specified date but the Commissioners were informed by the Council of the nominations within the dates referred to in section 15.  It is clear that the Council were standing over the nominations which it had made at the earlier meeting.  
            In considering the dichotomy between whether a provision is mandatory or directory it is necessary to bear in mind Lord Hailsham’s warning in London and Clydesdale Estate Limited v Aberdeen DC [1980] 1 WLR 182 at 188-190 against the approach of “fitting a particular case into one or other of mutually exclusive and starkly contrasted compartments”.  As Lord Woolf points out in R v Immigration Appeal Tribunal ex parte Jeyeantham (1999) 2 All ER 231 at 237a-b it is “much more important to focus on the consequences of non-compliance”.  
            The 1879 Act clearly required the nominating bodies to meet to nominate replacement Commissioners.  If it failed to do so the body was subject to mandamus to compel it to fulfil its duty.  A timescale was necessary for compliance so the date of default could be established after which mandamus could be sought to compel performance.  Where nominators have nominated the Commissioners and informed the Commissioners of their choice before the end of the statutory period no question of ordering mandamus would arise.  The Act itself in section 39 envisages that the court may, in appropriate circumstances, order a new nomination outside the statutory framework of section 15 which points to the conclusion that time was not to be of the essence in this regard.  
Section 38 relating to casual vacancies is not apt to empower the Commissioners to appoint Commissioners who fall to be nominated by the Council under section 15 having regard to the fact that replacement Commissioners appointed to fill a casual vacancy only hold office for the remaining period during which they would validly hold office.  The Act, therefore, does not contain  an internal mechanism to cater for the failure to nominate within the time period referred to in section 15.  This is another factor which points to the time directions being directory rather than mandatory.
            In the result I reject the Commissioners’ argument that the nominations were bad because they were not made strictly within the period 25 October to 3 November.
            In view of the rulings which I have made in relation to the matter I shall hear counsel on the form of the relief sought in the originating summons and on the issue of costs.

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 
CHANCERY DIVISION
 
-------- 
 
IN THE MATTER OF THE RIVER BANN NAVIGATION ACT 1879
 
AND
 
IN THE MATTER OF THE RIVER BANN NAVIGATION ACT
AMENDMENT (NORTHERN IRELAND) ORDER 1976
 
AND
 
IN THE MATTER OF THE LOCAL GOVERNMENT ACT 
(NORTHERN IRELAND) 1972
 
AND 
 
IN THE MATTER OF THE LOCAL GOVERNMENT (MODIFICATION AND REPEAL OF TRANSFERRED PROVISIONS RELATING TO HARBOURS) ORDER (NORTHERN IRELAND) 1973
 
-------- 
 
BETWEEN
 
COLERAINE BOROUGH COUNCIL
Plaintiff
 
And
 
COLERAINE HARBOUR COMMISSIONERS
Defendant
 
-------- 
 
JUDGMENT
 
OF
 
GIRVAN J
 
--------