Mount Murray Country Club Ltd v Department of Transport of the Isle of Man
| Jurisdiction | UK Non-devolved |
| Judge | Lord Carswell |
| Judgment Date | 16 December 2004 |
| Neutral Citation | [2004] UKPC 57 |
| Court | Privy Council |
| Docket Number | Appeal No. 5 of 2004 |
| Date | 16 December 2004 |
[2004] UKPC 57
Privy Council
Present at the hearing:-
Lord Hope of Craighead
Lord Millett
Baroness Hale of Richmond
Lord Carswell
Lord Brown of Eaton-under-Heywood
The first-named appellant Mount Murray Country Club Limited ("Mount Murray") is a development company which planned to develop an estate in the parishes of Santon and Braddan in the Isle of Man, consisting of an hotel and associated leisure facilities and 175 dwelling houses. In accordance with a requirement imposed as a condition of the planning permission granted to it, Mount Murray, before building the houses, constructed a system of drains and sewers, together with a sewage treatment plant, and the sewers and treatment plant subsequently vested in the respondent Department of Transport. A partial connection from the sewer in the street, known as a tail pipe, was made into each house plot. This pipe ran underground to a point within the plot, the end being stopped up. When a house was built on a plot by Mount Murray or its successor in title Conrad Hotels Limited, the tail pipe was opened up and the house drains wereconnected up to it by a pipe termed a lateral pipe, so that foul and surface water and sewage could then discharge into the sewer.
It was common case that the sewers in the streets vested in the Department on 31 March 1995, when a batch of house plots was sold by Mount Murray to Conrad Hotels Limited, and that the Department took over the running and control of the sewerage system on 8 August 1995. The issue in this appeal is whether the Department has been entitled since either of these dates to charge a connection fee under Isle of Man legislation when each house was so connected to a tail pipe. For the purpose of deciding upon the exemption from connecting fees claimed by the appellants it is not necessary to determine which of these dates is material for the commencement of the Department's entitlement to charge, since it is agreed that all of the sewers and tail pipes were laid before March 1995.
The appellants brought a petition to the Isle of Man High Court, seeking a declaration on an agreed statement of facts that on the true construction of the legislation they were exempt from payment of the connecting fees. The petition was dismissed by Acting Deemster Roger Kaye QC. The appellants appealed against this decision to the Staff of Government Division, but that court (Tattersall JA and Deemster King) dismissed the appeal. The appellants appealed with special leave to the Judicial Committee.
The legislation in question is contained in two Isle of Man statutes, which are to be construed together, the Local Government Consolidation Act 1916 and the Local Government (Special Drainage Districts) Act 1952. The question is one of pure construction of the statutory provisions and little assistance is to be obtained from any previous judicial decisions.
Most of the material provisions are contained in the 1952 Act. Section 1 empowers the Department to construct public sewers and sewage disposal works, all of which vest in the Department. Section 2 gives the Department power to constitute an area to be a special district for the purposes of charging thereon exclusively the expenses of works of sewerage, which under section 3 is effected by rate throughout the special district according to the valuation of the real estate. The estate was constituted a special drainage district by the Mount Murray District Drainage Order 1993, which came into force on 1 January 1994. By virtue of section 4 of the Act such an order transfers to the Department all functions exercisable by the Parish Commissioners. By section 5 the sewers and sewage works vested in the Department by virtue of theprovisions of the Act belong to and are to be kept in repair by the Department.
Section 6 of the 1952 Act makes provision for the connection of drains and private sewers in a special district to the public sewers and for the charging of connection fees. Section 6(1) provides, so far as material:
"Subject to the provisions of this section, the owner or occupier of any premises or the owner of any private sewer within a special district shall be entitled to have his drain or sewer connected to any building made to communicate with the public sewers in the special district and thereby to discharge foul water and surface water from those premises …"
Subsection (2) requires a person desirous of availing himself of the "foregoing" provisions,viz subsection (1), to give notice to the Department of the proposals and before commencing work, to give facilities for superintending its execution, to comply with the Department's requirements about "the mode in which the communications between such drain and sewer and the public sewer is [sic] to be made", to pay the connecting fee payable under subsection (3) and to reinstate and make good after completion of the work any roadway, footpath or bridge broken open. Connecting fees are provided for by subsection (3) in the following terms:
"The owner or occupier of any premises who causes any drain or sewer directly or indirectly to communicate with a public sewer shall in respect of each connection pay to the Department a connecting fee of such an amount as shall from time to time by order be fixed by the Department and approved by Tynwald and such order may fix different amounts for different purposes and in different cases but such order shall differentiate between existing buildings and buildings erected after the commencement of this Act."
Subsection (4) provides for the recovery by the Department of connecting fees and subsection (5) for payment to the Treasury, while subsection (6) makes it an offence to cause a drain or sewer to communicate with a public sewer without complying with or in contravention of any of the provisions of the section.
The word "drain" is defined by section 28 of the 1952 Act, the relevant part of which repeats verbatim the terms of the definition contained in section 3 of the 1916 Act:
"'Drain' means any drain of and used for the drainage of one building only, or...
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Mount Murray Country Club v. Isle of Man, [2004] N.R. Uned. 254 (PC)
...Conrad Hotels Limited (appellants) v. The Department of Transport of the Isle of Man (respondent) (Privy Council Appeal No. 5 of 2004) ([2004] UKPC 57) Indexed As: Mount Murray Country Club Ltd. et al. v. Isle of Man (Department of Transport) Cite As: [2004] N.R. Uned. 254 Judicial Committe......