Jubilation as water charge case is lost in Co Dublin

THERE was jubilation in Swords District Court in Co Dublin yesterday afternoon. A prosecution brought by Fingal County Council over non payment of water charges was dismissed, with costs awarded to the defendant.

Mr Stephen Foy of Swords Manor was before the court for non payment of £255, due for the supply of domestic water in 1994, 1995 and 1995. His case was the first of an expected 96, which, were due to be dealt with by the court yesterday.

Judge Murrough Connellan found that service of the council's water charges demands on Mr Foy were not in compliance with the 1983 Local Government (Financial Provisions) (No 2) Act.

The other cases were adjourned to next April, to allow the council to seek clarification of the judge's decision in the light of High Court and Supreme Court findings on the issue.

It is unclear whether the council will now go ahead with another 400 prosecutions, due for hearing every Wednesday up to December 11th. The council's finance office, Mr Pat Keane, said yesterday it was "possible" these cases might be adjourned.

The case began before a packed courtroom at 11.05 a.m. yesterday with Mr John Gallagher SC, for Fingal County Council, outlining the background to Mr Foy's prosecution. He said that despite demands from the council Mr Foy had not paid the £85 due for water charges in each of the past three years.

Mr Peter Caulfield, a council senior staff officer, told the court that demands had been made out to Mr Foy on June 1st and October 1st, 1994, on March 31st and June 30th, 1995, and on April 1st and July 1st, 1996. None of the council's demands had been responded to, nor had there been any request from Mr Foy for a waiver of the charges.

He told Mr Alistair Rutherdale, counsel for Mr Foy, he had been in his present position at the council since April, 1995.

"How can you give evidence for the period prior to that?" asked Mr Rutherdale. Mr Caulfield explained that he had referred to the council's records. "That's called hearsay," Mr Rutherdale pointed out.

Mr Caulfield said he had served six demands on Mr Foy since assuming his post with the authority. He said that according to the electoral register, Mr Foy was the occupier of the relevant house and therefore the consumer for the purposes of the Act. Later, Mr Desmond Bruton, an administrative officer with the council, told the court he had issued the demands to Mr Foy before Mr Caulfield's appointment.

Mr Robin Armstrong, a supervisory water inspector with the council, said he had inspected a stop cock outside Mr Foy's house on October 30th and was satisfied water was being supplied to the house.

Mr John Maher, a director off the printing company which prepares and sends out demands for the council as requested, produced an An Post receipt indicating he had delivered a batch of demands to the Dublin Mail Centre on April 29th, 1994. The batch numbers indicted a demand sent to Mr Foy was included.

"The Dublin Mail Centre, what is that?" asked Judge Connellan. Mr Maher explained it was where large volumes of mail were sent for delivery.

Mr Rutherdale submitted that there was no An Post receipt to say to whom the envelopes were sent, or what they contained.

He argued that the dates on which demands had been served on Mr Foy were in breach of the Local Government Act 1983, which specified those dates as April 1st and October 1st, of any given year. He said the proof that the demands had been served on Mr Foy and of the supply of water to him was "not good enough".

"It hadn't been established on any basis that Mr Foy is the consumer," he said.

Mr Gallagher, for the council, argued that under the 1983 Act a sanitary authority can issue demands "on such other dates as it may direct". He said evidence had shown the demands had been served in accordance with the requirements of the Act, and that Mr Foy's identity as consumer, occupier, and the person to whom the water was supplied had been satisfactorily established.

After an hour long adjournment the judge found that the county council had not complied with the specific date requirements of the 1983 Local Government Act, sub section seven of section seven. He said he believed that although the council had met the Act's requirements for issuing demands on one of the dates' specified in both 1994 and 1996, these demands too were "false", as they did not comply with the "equal half yearly instalments" element of the subsection.

He left the courtroom to applause and loud cheers.