About this case:

• Citation:
  [2023] IEHC 660
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Marguerite Bolger

Delivering judgment for the High Court, Ms Justice Marguerite Bolger found that “the definition focuses on the perception of the student occupier” and that the “ordinary and natural meaning of the words used in section is such that a student’s occupation of UL’s student accommodation during the academic year will be as their place of private residence”.

Background

The applicant’s main campus is supplied with water via the respondent’s meters, with a small amount being distributed by the applicant to its student accommodation. During the academic year, the accommodation is available for the applicant’s students only. Outside of the academic year, the accommodation is used mainly by non-students such as tourists.

In 2021, the respondent determined that the applicant’s student accommodation was liable to charges for the provision of water services both within and outside of the academic year.

The applicant challenged the decision in respect of the charges for provision of water services within the academic year, primarily seeking a declaration that the units comprising the student accommodation were exempted ‘dwellings’ within the meaning of s.21(6) of the Water Services (No. 2) Act 2013 (as amended). No challenge was made to the charges in respect of the provision of water services outside of the academic year.

The High Court

Ms Justice Bolger set out the relevant provisions of the 2013 Act, highlighting the obligation on part of the respondent to levy water charges to “customers” as defined in s.2, being “the occupier of the premises in respect of which the water services are provided” and noting the statutory presumption under s.21(5) that the owner of the premises is also the occupier.

The court outlined the exemption from water charges for the provision of water services to ‘dwellings’ under s.21(6) and the definitions of ‘dwelling’ under s.2 and s.23A(7), being a premises occupied by a person as his or her place of private residence (whether or not as his or her principal private residence).

Explaining the registration and notification requirements under s.23A(1), the court observed that s.23A(3) disapplies the registration and confirmation requirements under s.23A(1)(a) where the Residential Tenancies Act 2004 applies to the dwelling concerned.

Highlighting that under s.23A(1)(b), the owner of a dwelling who is not the occupier must notify the respondent of that fact, the occupier’s identity and when the occupation commenced, the court observed that the applicant never notified the respondent of the identities of the persons staying in the student accommodation, either inside or outside of the academic year.

The court proceeded to consider the principles of statutory interpretation having regard to Inspector of Taxes v Kiernan [1981] IR 117, Breathnach v McCann [1984] IR 340 and Goulding Chemicals Ltd v Bolger [1977] IR 211. Finding that the ‘literal rule’ guides interpretation where there is no ambiguity, the court considered the legislative history and context of the 2013 Act.

Comparing the definition of ‘dwelling house’ in s.2 of the Public Health (Ireland) Act 1878 (as amended) with the definition in the 2013 Act, Ms Justice Bolger found that the former definition “does not, in my view, confirm any legislative intent to exclude the type of student accommodation at issue here from the definition of ‘dwelling’ in the 2013 Act”.

The respondent’s submissions included that the applicant’s licencing agreement with the students rendered it the occupier of the accommodation and so the ‘dwellings’ were not private, and that the manner of distribution of the water supply by way of meters was determinative in line with decisions such as McDonough v Irish Water [2014] IEHC 646.

Ms Justice Bolger did not agree that “the terms of the licence agreement mean that UL has failed to rebut the presumption that it, as owner of the accommodation, is also the occupier. Nor should the manner of the distribution of water to the accommodation by way of meters affect the interpretation of the relevant statutory provisions. The Oireachtas could not have intended that the rights and obligations conferred on water suppliers and water users in the 2013 Act was to be determined by how the water supplier and/or the owner designed the system of water distribution.”

Considering the definition of “dwelling” in s.2, the court found that the definition requires the premises is required to be occupied by a person as their private residence, whether as their principal private residence or otherwise, and that “to give the words their ordinary and natural meaning, it is necessary to consider how the individual student availing of the accommodation would view their presence in the student accommodation during the academic year. I think they would view themselves firstly, as occupying the student accommodation and, secondly, as occupying it as their then current private residence.”

The court continued: “Neither do I think they would view their permitted use of the common kitchen and living areas as restricted or different to how they might use the kitchen and living room areas in a rented house or apartment off campus… I am satisfied that the student is the occupier of student accommodation during the academic year, despite the restrictions placed on their occupation by the terms of their licence…”

Emphasising that “the definition focuses on the perception of the student occupier”, Ms Justice Bolger determined that the “definition of ‘dwelling’ allows for a person to have dual residence… a student’s occupation of UL’s student accommodation during the academic year will be as their place of private residence”.

The court was also convinced that “the accommodation was built to provide accommodation for UL’s students and not to allow UL to run a commercial property business… The commercial use that UL makes of its student accommodation outside of the academic year is not the purpose for which the accommodation was built, but rather is a sensible and commercially prudent use of the resources available to UL during those times of the year when UL is not engaged in their primary purpose of educating their students.”

Conclusion

Concluding that the applicant’s accommodation satisfied the definition of ‘dwelling’ in s.2 of the 2013 Act and that the supply of water to the accommodation was the provision of water services to a ‘dwelling’ within the meaning of s.21(6) for which the respondent was not entitled to charge, the court granted a declaration that the units comprising the student accommodation constitute ‘dwellings’ within the meaning of s. 21(6)(a) of the 2013 Act.

University of Limerick & Anor v. Irish Water [2023] IEHC 660