Boland -v- Valuation Tribunal & anor,  IEHC 660 (2017)
|Docket Number:||2015 461 JR|
|Party Name:||Boland, Valuation Tribunal & anor|
THE HIGH COURT[2015 No. 461 JR]
MARIE BOLAND APPLICANTAND
COMMISSIONER OF VALUATIONNOTICE PARTY
JUDGMENT of Ms. Justice Murphy delivered on the 1st day of November, 2017.
This is an application for an order of certiorari quashing the determination of the respondent tribunal made 13th May, 2015 that the net asset value (hereinafter referred to as “NAV”) of the applicant’s commercial premises situate at 37 Clanbrassil Street Lower, Dublin 8 is €10,450. The applicant also seeks relief in the form of a declaration that the decision made on 13th May, 2015 is contrary to and in breach of the provisions of fair procedures and/or natural and constitutional justice and/or the respondent’s duty to give reasons. Further the applicant seeks a declaration that the respondent’s decision is irrational and of no legal effect, and an order remitting the issue of quantum back to the respondent for further consideration and determination in accordance with law and in accordance with the rules of natural and constitutional justice.
The grounds on which leave to seek judicial review was granted all revolve around an alleged failure by the respondent tribunal to give reasons for the decision. They are:-
“1. The Respondent’s decision fails to set out any or any adequate reasons as to its grounds for refusing the Applicant’s appeal […] in breach of the Respondent’s duty to give reasons.
By failing to give proper reasons for its decision, the Applicant has been denied the opportunity to properly assess the Respondent’s reasoning in refusing her appeal.
The purported reason given by the Respondent for refusing the Applicant’s appeal, i.e. ‘The Tribunal is persuaded by the Respondent’s arguments in relation to the interpretation of Section 48(3) of the Valuation Act 2011’ [sic] is not a proper reason and/or sufficient to discharge the Respondent’s duty to give reasons for the decision reached by it.
The Respondent’s decision is contrary to the principles of constitutional and/or natural justice in circumstances where the Respondent appears to have completely ignored the Applicant’s submissions in coming to its decision […] and/or failed to provide any reasons for rejecting same.
The Respondent’s decision flies in the face of reason and common sense and/or is irrational in circumstances where its decision to refuse the Applicant’s appeal appears to have completely ignored one of its previous decisions entitled Michael McGuirk v. Commissioner of Valuation (VA11/5/041). Had the Respondent followed the said decision, which the Applicant contends is binding on it, the Applicant’s appeal ought to have been upheld.
The Respondent’s decision flies in the face of reason and common sense and/or is irrational in circumstances where the reason given by the Respondent for refusing the Applicant’s appeal, namely that ‘The Tribunal is persuaded by the Respondent’s arguments in relation to the interpretation of Section 48(3) of the Valuation Act 2011’ [sic], in circumstances where the Notice Party never advanced any arguments in relation to the interpretation of Section 48(3) of the Valuation Act 2001 (not 2011 as referred to in the decision).
The notice party who was the successful party before the respondent tribunal, purporting to act as legitimus contradictor, filed a statement of opposition. Having denied the applicant’s entitlement to the relief claimed, he asserts that the appeal was conducted properly in accordance with the tribunal’s rules and in accordance with law. He sets out extensive extracts from the transcript of the hearing before the tribunal, and seeks thereby to justify the decision of the tribunal.
Sometime prior to 2011, a decision was taken to revalue all commercial properties throughout the State. In pursuance of that task and in accordance with part 5 of the Valuation Act 2001, the notice party appointed a valuation manager to carry out a valuation of every relevant property situate in the same rating area as the applicant’s property. The date fixed as the valuation date was 7th April, 2011.
The applicant is the freehold owner of a property situate at 37 Clanbrassil Street Lower, Dublin 8. The property is situate in the middle of a block of commercial properties built in the 1870s. It has approximately eight units.
The applicant bought the premises in 2004. It has been vacant and “to let” with estate agents since 2008, and remained vacant and “to let” throughout the valuation process and appeals process. Because it was unoccupied since 2008, the property, according to the applicant, had fallen into significant disrepair and remained in such a state at the valuation date.
Prior to the revaluation of the property in 2013 the rates on the property were €1,777.70. The revaluation has resulted in an increase of in excess of 50% in the rates payable on her property. The applicant does not dispute that her property is a relevant property for rating purposes, but she has consistently challenged the NAV attributed to the property as a result of the revaluation. There are two main elements to her challenge to the correctness of the NAV. First, she maintains that the valuation manager failed to apply s. 48(3) of the Valuation Act 2001 properly. That section provides:-
“… for the purposes of this Act, ‘net annual value’ means, in relation to a property, the rent for which, one year with another, the property might, in its actual state, be reasonably expected to let from year to year, on the assumption that the probable average annual cost of repairs, insurance and other expenses (if any) that would be necessary to maintain the property in that state, and all rates and other taxes and charges (if any) payable by or under any enactment in respect of the property, are borne by the tenant.”
Relying on that section as interpreted by the respondent in its decision in Michael McGuirk v. Commissioner of Valuation (VA11/5/041) given in 2011, the applicant has consistently maintained that her property “in its actual state” has a NAV far lower than that assessed by the notice party. The second limb of her challenge to the correctness of the NAV is that the valuation office used inappropriate comparators in assessing the NAV of her premises.
The Valuation Act 2001, which both parties accept is the legislation relevant to this application, provides quite an extensive process for an aggrieved ratepayer to challenge decisions of the valuation commissioner, including his decisions as to the valuation of a property. The applicant availed of all of these remedies which are set out at part 7 of the Valuation Act 2001. She made representations as to the incorrectness of the valuation to the revision officer and invited the revision officer to inspect her property to satisfy himself that the NAV was incorrect. Without inspection of the applicant’s property, a valuation certificate issued on 16th December, 2013 which contained a NAV of €10,130. She then launched an appeal, referred to as an internal appeal, to the notice party, the commissioner of valuation. She again invited an inspection of her property so as to show that in “its actual state” it had a NAV less than that certified. Her appeal was refused by the notice party. He did so without having inspected her property. The decision of the commissioner was given on 8th August, 2014. The applicant appealed that decision to the respondent tribunal on 29th August, 2014. As required by the Act, the applicant set out the grounds of her appeal as follows:-
PROPERTY 37, Lower Clanbrassil St., Dublin 8 (The Property)
Appellant Marie Boland
6 (a) The valuation is incorrect
(i) According to the website of the Valuation Office, valoff.ie, the revaluation is supposed to reflect ‘the Net Annual Value (rental value) of a property. The most common method used is direct comparison with annual rental values of similar properties in the area.’. I am appealing on the grounds that The Property does not have a rental value of €10,130. My appeal is based on
(a) the fact that The Property has been vacant for over 6 years. During all that time The Property has been reputable estate agents for letting, but no tenant has been found; Therefore, how can it be stated that it has a rental value of €10,130 when it has proved impossible to let?
(b) The current...
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