Carlisle Trust Ltd v Dublin Corporation

Judgment Date08 February 1965
Date08 February 1965
CourtSupreme Court
Carlisle Trust Ltd. v. Dublin Corporation.

Supreme Court.

Rating - Municipal rate - Rateable hereditament unoccupied at date of making of rate - Demolition and reconstruction - Whether "additions, alterations, or repairs" - Rate made on, and paid by, owner - Right to refund - Amount of refund - Local Government (Dublin) Act, 1930 (No. 27 of 1930), ss. 63and 71.

Where the Dublin Corporation, pursuant to the provisions of s. 73, sub-s. 1, of the Local Government (Dublin) Act, 1930 make the municipal rate on the owner of a hereditament consisting of a building, because, at the date of the making of the rate it is unoccupied for the execution by the owner of a scheme of demolition and erection on the site of another building, the owner, having paid to the Dublin Corporation the amount demanded for such rate, is entitled to a refund of one twenty-fourth of the amount so paid in respect of each completed month during which the hereditament is so unoccupied.

So held by the Supreme Court (Lavery, Kingsmill Moore and Walsh JJ.), affirming Davitt P. on this point.

Held further by the Supreme Court, reversing Davitt P., that such refund must be restricted to months of the year for which the rate has been struck and paid.

Meaning of the words, "alteration" and "additions," considered.

Summary Summons

The plaintiffs, Carlisle Trust Ltd., were at all material times the owners of a plot of ground, situate at the junction of Burgh Quay and D'Olier Street, in the City of Dublin, and of the building thereon known as Carlisle Building which was divided into four separate hereditaments in different occupations and accordingly separately rated.

The plaintiffs, who intended to demolish the building and to build a modern structure of different dimensions on the site, terminated the several tenancies and all the hereditaments were unoccupied for some time prior to the 1st April, 1961, and remained unoccupied for a period from that date in excess of twenty-four months. None of the hereditaments was a "small dwelling" within the meaning of the provisions of the Local Government (Rates on Small Dwellings) Act, 1928, as amended by the Local Government (Dublin) Act, 1930, nor did the Rent Restrictions Act, 1960, apply to any of them.

On the 8th May, 1961, the defendants, the Dublin Corporation, pursuant to the powers conferred on them by s. 71, sub-s. 1, of the Local Government (Dublin) Act, 1930, made the Municipal Rate for the financial year 1961-62 on the plaintiffs as the persons for the time being entitled to occupy Carlisle Building and the plaintiffs paid the sum of £1,117 13s. 11d., the full amount of the rate so made and demanded.

Demolition of Carlisle Building commenced on the 26th July, 1961, and was completed on the 14th February, 1962. Erection of the new structure then commenced, but was not completed in the financial year 1962-63. No rate was made on, or demanded of, the plaintiffs in respect of that year, as in place of the hereditaments theretofore described in the valuation lists there appeared under the heading, "Description of hereditaments," "building ground," to which no value was ascribed.

The plaintiffs claimed a refund from the defendants of the sum of £1,117 13s. 11d., being twenty-four twenty-fourths of the amount so paid by them, on the ground that the hereditaments comprising Carlisle Building had been unoccupied for a period in excess of twenty-four completed months from the 1st April, 1961, "for the purpose of the execution of additions alterations or repairs thereto or because the owner was bona fide unable to obtain a suitable tenant therefor."

The defendants denied the right of the plaintiffs to any refund and the plaintiffs instituted proceedings by way of summary summons in the High Court, claiming payment of the said sum of £1,117 13s. 11d..

From the above judgment the defendants appealed to the Supreme Court (1).

Cur. adv. vult.

Davitt P. :—

In this case the plaintiffs seek by summary summons to recover from the Dublin Corporation a refund of rates amounting to £1,117 13s. 11d. They base their claim upon the provisions of s. 71, sub-s. 1, of the Local Government (Dublin) Act, 1930, which, so far as it is material in this case, provides as follows:—"(1) Where a hereditament or tenement . . . is unoccupied at the making of the municipal rate, that rate shall be made upon the . . . owner . . . and upon such rate being paid by such owner, such owner shall be entitled to claim and receive from the Corporation a refund of one-twenty-fourth of such rate in respect of every completed month . . . during which such hereditament or tenement is unoccupied either for the purpose of the execution of additions, alterations, or repairs thereto or because such owner is bona fide unable to obtain a suitable tenant therefor . . . at a reasonable rent." The facts are not in controversy and are as follows: the plaintiffs are the owners of a plot of ground situate at the junction of Burgh Quay and D'Olier Street on which the building well known as the Carlisle Building formerly stood. They acquired the premises, including the Carlisle Building, in 1958. It was an old building and in bad repair. It was let in four tenements which were described as follows, in the Valuation Lists:—

(a) Ground floor offices and stores (basement), valuation £475;

(b) Rooms (3rd floor), valuation £18;

(c) Offices (ground floor) rear, valuation £55;

(d) Offices and caretaker's rooms (1st, 2nd and 3rd floors), valuation £310.

The owners proposed to demolish the old building and to erect a new modern building on the site; and, with this end in view, obtained clear possession from all the tenants.

For some time prior to the 31st March, 1961, the entire premises were unoccupied. The municipal rate for the year 1961-62 was made on the 8th May, 1961. At that date the building was still in existence and the premises were shown in the valuation lists as above. All the tenements shown were then unoccupied. The municipal rate for 1961-62 in respect of each of the tenements (save those described at (d)above, which were exempt from rates) was, in pursuance of the provisions of s. 71, sub-s. 1, made upon, demanded from and paid by, the plaintiffs. The total amount so paid was £1,117 13s. 11d., the amount claimed. All the tenements remained unoccupied during a period commencing some time before the 31st March, 1961, and continuing until the building was completely demolished. Demolition commenced upon the 26th July, 1961, and was completed by the 14th February, 1962. A new building is in course of erection, at an estimated cost of over £250,000, which will occupy all the space formerly occupied by the old building and a good deal more as it will be a much higher edifice. In view of the approaching and actual demolition it was not possible at any time since the 1st April, 1961, to make a letting of any of the tenements. The plaintiffs have claimed a refund of twenty-four twenty-fourths of the rates paid on the basis that twenty-four completed months have elapsed during which the tenements have remained unoccupied. Their claim has been refused by the defendants and hence the present proceedings.

The decision in this case depends upon the interpretation to be given to s. 71, sub-s. 1, of the Act in question and in particular to the word, "alterations," occurring in the phrase, "for the purpose of the execution of additions,alterations or repairs, thereto." Prima facie the word,"alterations," as used in the phrase would appear to refer only to such as can be made, in the same way as additions and repairs, to something which survives in the altered condition and does not, in the result, disappear or completely lose its identity. The defendants have adopted this meaning of the word in refusing the plaintiff's claim; and their counsel have submitted that in doing so they have correctly construed the sub-section. The construction appears to me, however, unduly to narrow the application of the subsection; and, if accepted, would, in my opinion, tend towards injustice as well as partially to defeat what I conceive to be the purpose of the enactment. The sub-section provides an exception to the general rule that a rate is to be made only upon the occupier of a tenement. Its purpose would appear to be to enable the Corporation to prevent a loss of revenue by reason of property owners unnecessarily leaving their property unoccupied. That purpose can hardly be served by penalising owners who replace old and decaying structures by new and modern ones which will yield a better return to the Corporation by way of rates as well as to the owners in the way of rent.

The word, "alterations," is not in meaning restricted to changes which allow to survive the identity of the thing altered. A dictionary definition of "alter" is "to change in character or position, etc." One readily speaks of a complete change of identity and can as readily refer to an identity as being completely altered. Etymologically the word,"alter," means making something other than it was; and one can do this by changing it partially or by changing it wholly.

In the present case counsel for the plaintiffs have submitted that nothing has been wholly changed. The old Carlisle Building, considered as one hereditament, consisted of the very valuable site at the junction of Burgh Quay and D'Olier Street plus the...

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