The High Court ruled that Wexford County Council could not rely on increased harbour rates set by the County Manager to charge for a fishing vessel laid up at Kilmore Quay. The court held that amending the rates in the harbour bye-laws was a reserved function of the elected councillors.
The judgment, delivered by Mr Justice Tony O’Connor on 5 February 2019, concerned the Council’s claim against Kevin Kielthy for charges relating to the M.F.V. Morgensome. The Council sought €106,339.85 for the period from July 2006 to November 2009, applying rates that rose from €0.70 per metre per day to €5 per day, according to its invoices.
The 2004 Kilmore Quay Harbour Bye-Laws set a rate of €0.63 per metre per day for laid-up vessels. Bye-law 84 said charges could be set at rates determined by the Council. The Council argued that this allowed the County Manager to change the rate without formally amending the bye-laws.
The court rejected that interpretation. It found that changing the rate in bye-law 51 amounted to amending the bye-law, a reserved function under the Local Government Act 2001. The bye-laws had not been amended by the Council, and the County Manager could not exercise that reserved power. The court said any recoverable charge would therefore have to use the 2004 rate of €0.63 per metre per day.
The court also considered whether the vessel was laid up and whether the charges had been imposed fairly. Captain Philip Murphy, the Council’s Marine Officer and Harbour Master at the relevant time, gave evidence that the vessel remained in the harbour from August 2006 until it was scrapped on 27 October 2009. Kielthy did not dispute that it was laid up during that period.
Kielthy argued that the circumstances surrounding a pending decommissioning grant left him unable to fish, dispose of the vessel or move it without further charges. The court found that Murphy had exercised his discretion in Kielthy’s favour, including by allowing time before charges began. The judgment did not finally determine the amount due: it invited counsel to address it, based on the €0.63 rate from 1 November 2006 to 29 October 2009.