Celtic Roads Group (Dundalk) Ltd v Commissioner of Valuation; Louth County Council and West-Link Toll Bridge Ltd v Commissioner of Valuation and another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Charleton |
| Judgment Date | 11 July 2008 |
| Neutral Citation | [2008] IEHC 255 |
| Court | High Court |
| Docket Number | [No. 565 SS/2006] |
| Date | 11 July 2008 |
[2008] IEHC 255
THE HIGH COURT
BETWEEN
AND
AND
AND
AND
VALUATION ACT 2001 S39
VALUATION ACT 2001 S48
VALUATION (IRELAND) ACT 1852
VALUATION (IRELAND) AMDT ACT 1854
VALUATION ACT 2001 S49 SCHED 6 S2(1) (UK)
PAROCHIAL ASSESSMENT ACT 1836
ROADS ACT 1993 S58(1)(a)
DUBLIN CO COUNCIL v WESTLINK TOLL BRIDGE LTD 1996 1 IR 487 1996 2 ILRM 232
POOR RELIEF (IRELAND) ACT 1838 S63
BUTLER KEANE ON LOCAL GOVERNMENT 2ED 2003 CHAP 1
LOCAL GOVERNMENT (TOLL ROADS) ACT 1979
PLANNING & DEVELOPMENT ACT 2000 S211
ROADS ACT 1993 S16
ROADS ACT 1993 S17
ROADS ACT 1993 S41
ROADS ACT 1993 S19
ROADS ACT 1993 S19(3)
ROADS ACT 1993 S24
ROADS ACT 1993 S25
ROADS ACT 1993 PART V
ROADS ACT 1993 S57
ROADS ACT 1993 S58
PLANNING & DEVELOPMENT ACT 2000 S272
ROADS ACT 1993 S59
ROADS ACT 1993 S60
ROADS ACT 1993 S63
ROADS ACT 1993 S63(5)
PLANNING & DEVELOPMENT ACT 2000 S275
ROADS ACT 1993 S42
ROADS ACT 1993 S63(1)
ROADS ACT 1993 S48(3)
ROADSTONE v COMMISSIONERS OF VALUATION 1961 IR 239
TALAROCH MINING CO v ST ASAPH UNION LR 9 QB 478
MERSEY DOCKS & HARBOUR BOARD v OVERSEERS OF THE POOR OF THE PARISH OF LIVERPOOL LR 9 QB 84
R v LONDON & NORTH WESTERN RAILWAY CO LR 9 QB 134
RYDE ON RATING & THE COUNCIL TAX ISSUE 44 2008 PARA E[621]
VALUATION ACT 2001 S19
VALUATION ACT 2001 S28(4)
VALUATION ACT 2001 S53
VALUATION ACT 2001 S58
VALUATION ACT 2001 S53(8)
VALUATION ACT 2001 S49
VALUATION ACT 2001 S49(2)(b)
TENNYSON v CORPORATION OF DUN LAOGHAIRE 1991 2 IR 527
RYDE ON RATING & THE COUNCIL TAX ISSUE 44 2008 PARA E[189]
RYDE ON RATING & THE COUNCIL TAX ISSUE 44 2008 PARA C[171]
RYDE ON RATING & THE COUNCIL TAX ISSUE 44 2008 PARA C[172]-C[182]
This single judgment is being given on two cases stated by the Valuation Tribunal pursuant to s. 39 of the Valuation Act2001. The case stated in respect of the Celtic Roads Group (Dundalk) Limited is dated 28th April, 2006, while the case stated in respect of the West-Link Toll Bridge Limited is dated 25th May, 2006. Both cases raise common legal issues. The hereditament in each case is also similar.
The central issue in this case is the proper approach that should be taken in valuing the rateable hereditament. The difficulty arises because of the complex nature of the scheme under which that hereditament operates. Celtic Roads Group (Dundalk) Limited built and now collect tolls on part of the M1 Dublin to Belfast motorway which is sometimes also called the Dundalk Western bypass. West-Link Toll Bridge Limited operates the toll bridge over the Liffey on the M50 motorway. In the case of Celtic Roads, the notice of appeal to the Valuation Tribunal was against an initial rating by the Commissioner of Valuation. In the West-Link case, the Commissioner of Valuation revalued the hereditament, following on the building of a second bridge beside the first one over the river Liffey, and it was against this valuation that an appeal was made to the Valuation Tribunal. As regards both of these appeals, there is a central issue in each case.
I will turn shortly to the contracts under which each appellant collects tolls. As traffic passes through each of the hereditaments, the appellants collect tolls, set at different rates by statute, in respect of various kinds of motor vehicle, both private and commercial. They keep only a percentage of these tolls, however. This revenue is to reimburse them in respect of the building of the Dundalk Western bypass, in the case of Celtic Roads, and the second bridge on the M50, in respect of West-Link. Both appellants argue that the valuation of the relevant property for rating purposes should take into account only that portion of the toll which they are entitled to keep. The rest, they say, is to be excluded from the net annual value of the property for rating purposes because it is statutorily excluded as a tax or charge borne by them which is payable under the Roads Act 1993. This case therefore hinges around the correct interpretation of s. 48 of the Valuation Act 2001. Whereas that section is cast in modern form, it derives from the Poor Relief (Ireland) Act 1838, the Valuation (Ireland) Act 1852, and the Valuation (Ireland) Amendment Act 1854. The section in its modern form in the Valuation Act 2001 reads:-
"The value of a relevant property shall be determined under this Act by estimating the net annual value of the property and the amount so estimated to be the net annual value of the property shall, accordingly, be its value.
(2)Subsection (1) is without prejudice to section 49.
(3) Subjectto section 50, 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."
Section 49 is quoted later in this judgment, when it becomes relevant to a different issue. A similar statutory mechanism for valuation in England is contained in schedule 6 para. 2(1) of the Local Government Finance Act 1988, which is, in turn, derived from the Parochial Assessments Act 1836, and this reads:-
"The rateable value of a non-domestic hereditament shall be taken to be an amount equal to the rent at which it is estimated the hereditament might reasonably be expected to let from year to year if the tenant undertook to pay all usual tenant's rates and taxes and to bear the cost of the repairs and insurance and the other expenses (if any) necessary to maintain the hereditament in a state to command that rent."
The English Act has a slightly different wording but it is not one that renders irrelevant the English authorities to which I will refer in the course of this judgment. In order to decide this issue it is necessary to have recourse to the complex web of public and private arrangements whereby tolls are collected at the West-Link Bridge, by West-Link, and on the M1 by Celtic Roads.
The supplemental agreement providing for the construction of the new bridge on the M50 motorway was made on 7th June, 2001, between the National Roads Authority and West-Link Toll Bridge Limited. I am told that this agreement is due to last for 30 years. That agreement recites the original agreement of 16th October, 1987, in which the predecessor of the National Roads Authority had been the County Council of the County of Dublin. Under the current agreement a gross toll revenue share is payable by way of a fee by West-Link to the Minister for the Environment. West-Link procured the design, construction, financing, maintenance and operation of the new bridge in accordance with ancillary contract documentation that was approved in advance by the National Roads Authority. The entire cost of designing, constructing, financing, operating and maintaining the new bridge was borne by West-Link and the Minister and the National Roads Authority were relieved of any liability in that regard save as provided for in the contract. Clause 4.1 provides that West-Link is to "occupy the Toll Road and shall be required to manage, supervise, operate and maintain a system of tolls in accordance with the New Toll Scheme for traffic using the Toll Road". On collection of the toll, West-Link is obliged under the contract to apply the proceeds of the toll towards meeting its financial obligations. These are set out in the contract as being the payment of the gross toll revenue share to the Minister for the Environment; the cost of operating the system of tolls and of maintaining the Toll Road; and the recovery of construction costs. Clause 4.3 sets out the portion of the tolls collected that are payable to the Minister. This is calculated on the basis of it being a percentage of the gross toll revenue that is collected in any year where the daily traffic volume exceeds 27,000 vehicles. Then the percentage of gross toll revenue is said to vary between a minimum of 30% and a maximum of 80% in accordance with the average annual daily traffic volume which is measured in accordance with spans set out in the contract. Where the vehicles using the roadway average between 8,000 and 27,000, the Minister gets 30% of the gross toll revenue. For the next 10,000 vehicles over 35,000 vehicles the percentage increases to 40%. Where there are 45,000 vehicles using the road on average annually the gross toll revenue paid to the Minister increases to 50%. Where that figure is exceeded, then the figure for the gross toll revenue payable under contract to the Minister is 80%. I am told, and I accept, that the reasons for these spans is to avoid the potential scandal of excess profit deriving from tolls on the public highway.
The tolls payable by each such vehicle using the bridge are set in accordance with by-laws that are made by the Minister for the Environment pursuant to s. 58(l)(a) of the Roads Act1993. In the contract, a new set of draft by-laws are appended. These provide, in article 3, that the toll company may demand, take and recover tolls from motorists using the facility, that no one may use the toll road without paying the appropriate toll and that...
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