Dublin Corporation v Dublin Cemeteries Committee

• Jurisdiction: Ireland
• Judge: Henchy J.,Walsh J.
• Judgment Date: 11 November 1975
• Neutral Citation: 1965 WJSC-SC 3191
• Docket Number: (153-1974)
• Court: Supreme Court
• Date: 11 November 1975

1965 WJSC-SC 3191

THE SUPREME COURT

Walsh J.

Henchy J.

Griffin J.

(153-1974)

Dublin Corporation v. Dublin Cemeteries Committee

DUBLIN CORPORATION

v.

DUBLIN CEMETERIES COMMITTEE

1 Judgments by Walsh J. and Henchy J.12th November 1975 Allow appeal. (Griffin J. concurred with Walsh J.)

2 Appeal by Defendants from order of High Court (O'Keeffe P.) holding Plaintiffs entitled to recover rates in respect of Glasnevin Cemetery and awarding a total of £18,299 rates arrears - claim resisted on ground that by sec. 63 Poor Relief (Ireland) Act, 1838, cemeteries are expressly excluded from rateability except in case in which private profit is derived there from and that in such case person deriving profit is liable to be rated as an occupier according to annual value of such profit or use - submitted by plaintiffs that as no objection or appeal was taken against entries in valuation list or against rates charged in respect of them defendants are debarred from relying on ground of exemption as a defence to claim for the unpaid rates.

3 JUDGMENT delivered on the 11th day of November, 1975, by Walsh J.

4 The cemetery which is generally known as ???query??????, in Dublin, is the property of the defendants. By the Dublin Cemeteries Act of 1846 a body known as the Dublin Cemeteries Committee was constituted for the purpose of maintaining the public cemeteries and burial grounds which had been established at Glasnovin in addition to other burial grounds in the City and County of Dublin. From time to time thereafter that Committee acquired further lands for use for the same purposes and by the Dublin Cemeteries Committee ???query?????? of 1970 the body set up under the 1846 Act was dissolved and all the property in the burial grounds and cemetery at Glasnovin were transforred to the defendants. The new Dublin Cemeteries Committee was by the Act established as a body corporats with perpotual successes and anofficial seal and every debt and other liability which immediately before the coming into operation of the 1970 Act which was owing and unpaid or had been incurred and was undischarged by the Committee set up under the 1846 Act became the debt or liability of the new Committee and the Act provided that it should be paid and discharged by, or might be recovered from or enforced against, the new Committee, namely the present defendants. Section 19 of the 1970 Act provided that the income and property of the Committee, whence soever derived, should be applied solely towards the promotion of the objects of the Committee and that no portion of it should be paid or transferred either directly or indirectly by way of dividend bonus or otherwise howsoever by way of profit to the members of the Committee. Power was given to the Committee, however, to pay remmeration out of the income and property to employees of the Committee or to any member of the Committee in return for service actually rendered to the Committee.

5 On the 29th September, 1970, the plaintiffs issued proceedings against the defendants for the recovery of a sum of £18,299. 13. 7d (old money) which they claimed was due to the plaintiffs for rates which they said had been duly levied and assessed in respect of the said premises of the defendants in the City of Dublin. The action was really concerned with recovery of rates in respect of so much of the premises and hereditaments of the defendants as were describedas "cemetery" or part of a cemetery. The case is not concerned with anything described as a house or a chapel. The defendants were rated as occupiers of these premises which were described as "cemetery" or "cemetery part of" or "land cemetery part of". The defendants resisted the claim on the grounds that by section 63 of the Poor Relief (Ireland) Act, 1838, cemeteries are expressly excluded from rateability except in a case in which privates profit is derived therefrom and that in such case the person deriving the profit is liable to be rated as an occupier according to the annual value of such profit or use. They demonstrated in evidence that in fact they derived no profit and that they therefore cannot be rated as occupiers. The then President of the High Court, O'Keoffe P., who was the trial judge, concluded that the plaintiffs were entitled to recover the amount claimed on the grounds that the Commissioner of Valuation had rated the defendants in respect of the premises as the occupiers on the ground that he had in effect found that they were the occupiers of an annual profit, the ???query?????? of which he set out, and that even though this might be incorrect the defendants remained ???query?????? until such time as the Commissioner of Valuation, on appeal being made to him, revised the valuation certificate. Against this decision the defendants have appealed to thisCourt.

6 In the case The Dublin Cemeteries Committee v. The Commissioner ofValuation 1897 2 I.R. 157, the liability of the then DublinCemeteriesCommittee to be rated as occupiers of the cemetery was litigated. The point which arose in that case, however, was not the point which arises in the present case. In that case the Commissioner of Valuation had entered the lands on the valuation lists as rateable and the Dublin Cemeteries Committee had appealed that. On that occasion, the Dublin Cemeteries Committee rested their case upon the basis that they were entitled to have the premises exempted on the grounds that they were used exclusively for charitable purposes within the meaning of section 2 of the Valuation Act, 1854. That claim to exemption was rejected on the grounds that the premises were not used exclusively for charitable purposes within the meaning of that section and that under the Private Act of 1846 there was no trust binding the Committee to apply the surplus profits of the undertaking in charity.

7 It is accepted and well established that the true basis for exemption from rateability is to be found in the proviso to section 63 of the Poor Relief (Ireland) Act, 1838, upon which the defendants rely in the present case. It is abundantly clear from the provisions of that section that a cemetery, even though it may constitute either land or a building or both, is not to be rated as either or as a cemetery, whether or not the cemetery is used, either partly, exclusively or at all, for charitable purposes. Accordingly the occupier of a cemetery as such cannot be made liable to be rated or to pay rates inrespect of the cemetery. The section provides as an exception that "where any private profit or use shall be directly derived therefrom ..... the person deriving such profit or use shall be liable to be rated as an occupier according to the annual value of such profit or use." It follows that if there is no profit then no person can be liable to be rated as an occupier according to the annual value of "such profit or use."

8 It is to be noted that according to the certificate of valuation the Commissioner of Valuation made no entry of rateable annual valuation under the heading of either land or buildings in respect of any of the premises the subject matter of this appeal. However, in the column headed "Railways, fisheries, tolls, half-rents etc." certain figures representing sums of money were entered opposite each of the premises in question. Section 12 of the Valuation (Ireland) Act of 1852, in addition to all lands and buildings and open mines, expressly provided rights of fishery, railways, rights of navigation, rights of way and tolls (to mention some) should be deemed to be ???query?????? hereditaments. In the specimen form of list of valuation scheduled to the Rateable Property (Ireland) (Amendment) Act, 1860, pursuant to the provisions of section 6 of that Act there is in fact no special column headed railways, fisheries, tolls etc., though there are columns headed lands and buildings. In the specimen, in so far as it dealswith railways, rights of way, fisheries, etc., no figure is entered under the column dealing with total annual valuation under the heading of either lands or buildings but the figure appears only in the general total. In the present case the figure appearing in the general total in the same as that which appears under the heading of railways, fisheries, tolls, half-rents, etc. The learned President of the High Court took the view that the figures entered by the Commissioner of Valuation represented his finding of the private profit deriving from the cemetery to the occupiers and that that was a rateable hereditament and that the figure was one upon which rates would be levied by the rating authority unless and until that figure was changed or omitted altogether. During the course of the submissions in this Court the plaintiffs made the case that in effect the cemeteries are land or buildings, as the case may be, or both, and have been valued as such and that unless and until the defendants persuade the Commissioner of Valuation to exempt it on the grounds that it is a cemetery and that they do not derive any private profit from the same that they, the plaintiffs, are entitled to levy the rate. The defendants submit that a cemetery is exempt as such and that the occupier of a cemetery can only be rated if he derives a private profit or use from the cemetery and then he is rated on the basis set out in the Act of 1838 already referred to. Fundamentally thecontention of the defendants is that they cannot be rated as occupiers unless they are in receipt of profit and that if they are not in receipt of profit they are not occupiers. The President of the High Court took the view that the private profit was the notional hereditament but neither side in this appeal appears to be willing to take the same view. For myself, I am inclined to sympathise with the view expressed by the President that the reality of the matter is that it is the private profit which is the rateable hereditament and that whoever...