Brendan v Commissioner of Valuation

• Jurisdiction: Ireland
• Judgment Date: 30 May 1969
• Date: 30 May 1969
• Docket Number: [1967. No. 127 SS.]
• Court: High Court

Brendan v. Commissioner of Valuation

Reverend Mother MARY BRENDAN

Appellant

and

THE COMMISSIONER OF VALUATION

Respondent.

[1967. No. 127 SS.]

Rates - Valuation - Exemption - Charitable purposes - Convent premises consisting of convent, oratory and school - School exempt from assessment for poor rate - Whether convent and oratory should also be exempt - Poor Relief (Ireland) Act, 1838 (1 & 2 Vict. c. 56), s. 63 - Valuation (Ireland) Act,1852 (15 & 16 Vict. c. 63), s. 16 - Valuation (Ireland) Act, 1854 (17 & 18Vict. c. 8), s. 2.

The work of a community of nuns was devoted to the primary and secondary education of poor girls. The community resided in certain convent premises and they also occupied an adjoining oratory and certain school premises. The community used part of the convent premises for the purposes of the school and its administration. The oratory was used primarily by the nuns of the community. The school premises were distinguished in the valuation lists as being exempt from assessment for the purposes of poor rate. On appeal by the community to the Circuit Court from a refusal of the Commissioner of Valuation to distinguish the convent and oratory in a similar manner, the Circuit Court judge disallowed the appeal but stated a Case seeking the opinion of the High Court.

Held by Henchy J., in affirming the decision of the Circuit Court, 1, that the questions raised must be determined in accordance with the provisions of s. 63 of the Poor Relief (Ireland) Act, 1838.

McGahan v. Commissioner of Valuation [1934] I.R. 736 applied.

2. That the convent premises, although used extensively for the purposes of education, remained the residence of the nuns and, therefore, those premises were not used exclusively for the purposes of education; and that in any event the community derived a direct private benefit from their use of the convent premises.

Heron v. Monaghen 22 L.R.Ir. 532 and

Commissioner of Valuation v. O'Connell [1906] 2 I.R. 479 considered.

3. That, as the advancement of religion was not a charitable purpose within the meaning of s. 63 of the Act of 1838, the convent did not qualify for exemption on that ground.

Elliott v. Commissioner of Valuation [1935] I.R. 607 applied.

4. That the oratory did not qualify for exemption as the community derived a direct private use from it.

Case Stated.

The appellant appealed to the Circuit Court from the refusal of the Commissioner of Valuation to distinguish her community's convent and oratory, at Castlerea in the County of Roscommon, in the valuation lists as being exempt from assessment for the purposes of poor rate. The Circuit Court judge disallowed the appeal but stated a Case for the opinion of the High Court entitled as follows:—"In the Matter of the Valuation (Ireland) Acts 1852-1872 and of the Annual Revision of Rateable Property (Ireland) Amendment Act, 1860—Reverend Mother Mary Brendan on behalf of The Sisters of Mercy, St. Anne's Convent, Castlerea, in the County of Roscommon, Appellant, and The Commissioner of Valuation, Respondent."

The Case was stated by His Honour Judge Michael J. Sweeney in the following terms:—

"This Case is stated by me, the undersigned Judge of the Circuit Court for the Midland Circuit and County of Roscommon, pursuant to s. 10 of the Annual Revision of Rateable Property (Ireland) Amendment Act, 1860.

1. By notice dated the 30th day of October, 1963, served on behalf of the above-named appellant by their solicitors, Maurice Staunton & Son, Castlerea, in the County of Roscommon, this matter came before me at the Circuit Court sittings in the town of Roscommon on the 12th day of January, 1965, as an appeal against (a) a valuation of £45 fixed by the Commissioner of Valuation on the convent buildings of the above-named Sisters of Mercy, Castlerea, Roscommon, and (b) against the refusal of the said Commissioner to distinguish the said hereditaments in the valuation lists as being exempt from rates.

2. On the hearing of the said appeal in the Circuit Court the appellant decided to prosecute the appeal only against the refusal of the respondent to distinguish the said hereditaments in the valuation lists as being exempt from rates, and abandoned so much of the appeal as challenged the amount of the said valuation.

3. Two witnesses were called on behalf of the appellant, namely, Mr. John P. Gavin B.E., of Roscommon, who produced and proved a map showing, inter alia, a plan of the said convent buildings marked thereon as 'Convent residence' and 'Oratory'; and Sister Mary Catherine Sweeney, a member of the appellant community. No evidence was called on behalf of the Commissioner.

4. The following facts were proved or admitted at the hearing:—

• (a) The hereditaments which are the subject matter of the appeal, comprising the premises described as 'Convent Residence' and 'Oratory' on the said map and hereinafter sometimes referred to as 'The Convent premises', are situate adjacent to a school premises maintained by the appellants, a plan of which is also shown on the said map and thereon marked and described as 'Convent Schools—Classrooms—Playgrounds—Shelters,' etc. The school premises are distinguished in the valuation lists by the Commissioner as being exempt from rates.

• (b) The Sisters of the said community, who had for many years prior to 1955 maintained and conducted a primary, or national, school on the site of the present school premises, decided in that year to undertake the provision of secondary, education facilities in addition to their primary-school work and accordingly, in the years 1959/60, an extensive reconstruction of the then existing school premises took place involving extensive enlargements and alteration of the said premises at a cost of over £25,000. The reconstructed school premises are now a large two-storey building containing several large classrooms with modern toilet and cloakroom accommodation.

• (c) Since 1955, in addition to the primary school maintained in the school premises, there are also provided secondary and post-primary courses leading to the Intermediate and Leaving Certificate examinations and also courses in commerce, cookery and other domestic-science subjects. There are more than 300 pupils ranging in age up to 16, 17 and 18 years attending the secondary, or post-primary classes, and, while no fees as such are charged for the education courses so provided, about 75% of the parents of the children contribute an annual sum of £4 10s. 0d. per child. All the moneys so received were said to be applied for the better equipment of the school and for the benefit of the pupils.

• (d) Up to the year 1961 the entire of the convent premises and the school premises was distinguished in the valuation lists as being exempt from rates.

• (e) In addition to the reconstruction work carried out on the school premises, and completed in 1960, an addition was built on to the convent residence, namely, a single-storey oratory which is shown on the said map as a cross-hatched area marked 'Oratory'. Prior to this, the community had their oratory upstairs in the convent residence. This oratory is a private one for the exclusive use of the community although it is available, by permission, at certain times to the schoolchildren attending the school.

• (f) Prior to the reconstruction of the school premises and the building of the oratory, all completed in 1960, there was a passageway giving access from the convent premises (as they then existed) to the school premises (as they then existed); which passageway is shown on the said map, proved before me on the hearing of the appeal, as an area marked 'Old Passage'. No evidence was submitted to show whether or not this 'old passage' has been in use since the said reconstruction or whether or not it is or can be used at all.

• (g) There are 15 members in the appellant community of whom 10 are engaged as full-time teachers in the school and the remaining 5 assist in various offices in the running, maintenance and supervision of the said convent premises and school premises, and in cooking and other duties in the convent residence. The said community run the school as their principal work.

• (h) All members of the said community reside in the convent residence, and the said convent premises are used exclusively by and for the use of the said community as living accommodation.

5. It was contended, on the hearing before me, on behalf of the appellant, that the said convent premises and school premises should be regarded as one educational establishment so that the convent premises should be entitled to be distinguished in the valuation lists as exempt from rates in like manner as the school premises are so distinguished. It was contended on behalf of the respondent that the convent premises, exclusively used as they are for the living accommodation of the said community, were in fact and solely the private residence and oratory of the community and should be regarded as a separate premises from the school premises and not entitled to be so distinguished.

6. I decided that the convent premises should be regarded and were in fact a separate premises from the school premises; comprising, as I find they do, the private residence and private oratory of the said appellant community only, and I find also that the said convent premises are not used exclusively for charitable purposes and that, accordingly, the said convent premises are not entitled to be, and should not be, distinguished in the valuation lists as being exempt from the liability for rates; and I dismissed the appeal.

7. The appellants have, by their solicitors, expressed dissatisfaction with my decision and, by Notice dated the 8th day of April, 1965, have required me to state a Case for the opinion of the High Court, and the opinion of the High Court is, therefore, hereby sought as to whether, upon the facts found as aforesaid, I was correct in law in deciding as...