Fingal County Council v Commissioner of Valuation & NSCDA (Operations) Ltd
| Jurisdiction | Ireland |
| Judge | Mr Justice Michael Peart |
| Judgment Date | 21 December 2011 |
| Neutral Citation | [2011] IEHC 506 |
| Court | High Court |
| Date | 21 December 2011 |
[2011] IEHC 506
THE HIGH COURT
Between:
And
And
VALUATION ACT 2001 S15
VALUATION ACT 2001 SCHED 3
VALUATION ACT 2001 S15(3)
VALUATION ACT 2001 SCHED 4
VALUATION ACT 2001 SCHED 4 PARA 4
VALUATION ACT 2001 S3
VALUATION ACT 2001 SCHED 4 PARA 12
HEALTH SERVICE EXECUTIVE (HSE) v COMMISSIONER FOR VALUATION 2010 4 IR 23
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 PART II
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S28
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S4
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S7
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S7(1)(D)
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S7(2)
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S7(3)
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S7(4)
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S7(5)
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S9(2)
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S9(9)
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S9(12)
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S9(13)
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S19
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S20(4)
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S20(5)
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S24
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S27
NATIONAL SPORTS CAMPUS DEVELOPMENT AUTHORITY ACT 2006 S29
STATE AUTHORITIES (PUBLIC PRIVATE PARTNERSHIP ARRANGEMENTS) ACT 2002
RATING LAW
Valuation
Relevant property - Level of control exercised by Minister - Sport - Government policy - Whether relevant property - Whether property occupied by State - Whether rateable - Whether notice party liable to pay rates - Whether sport at core of government policy - Health Services v Commissioner for Valuation, [2008] IEHC 178, (Unrep, MacMenamin J, 13/6/2008) considered - Valuation Act 2001 (No 13), s 15 - National Sports Campus Development Authority Act 2006 (No 19), ss 4, 7, 8, 9, 12, 19, 20, 24, 27 and 28 - State Authorities (Public Private Partnership Arrangements) Act 2002 (No 1) - Questions answered in affirmative (2011/1077SS - Peart J - 21/12/2011) [2011] IEHC 506
Fingal County Council v Commissioner of Valuation
Facts The appellant (Fingal County Council) sought a case stated in respect of a decision by the Commissioner of Valuation (the respondent) that the National Aquatic Centre ("the NAC") was occupied by the State for the purposes of Section 15 of the Valuation Act, 2001 and was therefore not rateable. The National Sports Campus Development Authority (NSCDA), had been established to develop a sports campus on the premises and had granted a subsidiary, NSCDA (Operations) Limited, a lease to run the NAC. The NSCDA was a statutory corporation and its members were appointed by the Minister for Tourism. On behalf of the respondent it was submitted that the NAC was wholly owned by the State, operated under Ministerial control, and, consequently, was not an entity with independent limited liability. Consequently, it was an emanation of the State within the meaning of Section 15 (3) of the 2001 Act. The fact that a charge was levied for certain services did not mean that NSCDA (Operations) Limited lost its status under the 2001 Act. On behalf of the appellant it was contended the NAC was operated by and occupied by a limited liability company, NSCDA (Operations) Limited, which was in commercial competition with other similar entities operating fitness centres within the functional area of the appellant, and which were rateable. The NAC was established to operate on a commercial basis and was to be differentiated from many of the bodies referred to in Schedule 4 of the Act of 2001, and the exemption applying to certain kinds of bodies which were not established for the purpose of making a private profit.
Held by Peart J in answering the case stated in the affirmative. There was nothing about sport as such which mandated that it should be at the core of government policies, unlike other areas, such as finance and the administration of justice. Each government was free to attach a particular importance to an area to treat as important for the welfare of the nation. For many years now there had been a Minister with specific responsibility for sport. The importance of the NAC as part of government policy could be seen by the manner in which the Act of 2006 had ensured that the responsible Minister had significant control over the level of funding provided. Such was the level of control and involvement of the relevant Minister and the Government in relation to the NSCDA that it must be concluded that it was "the State" which was the occupier of the property in question and therefore not rateable.
Reporter: R.F.
Mr Justice Michael Peart delivered on the 21st day of December 2011:
This matter comes before the Court by way of Case Stated dated 31 st May 2011 filed on the 2 nd June 2011, following a decision by the Respondent dated 14 th March 2011 with which the Appellant is dissatisfied. That decision was that the property in question herein, namely the National Aquatic Centre (hereinafter referred to as "the NAC"), was occupied by "the State" for the purposes of Section 15 of the Valuation Act, 2001 and was therefore not rateable.
The issues raised in the Case Stated for the opinion of the Court are:
The issues raised in the Case Stated for the opinion of the Court are:
"whether:"
(1) the Tribunal was correct in law in its determination that the Notice Party, as occupier of the National Aquatic Centre, falls within the ambit of Section 15 (3) of the valuation Act, 2001 as being "the State" or "office of State";
(2) the Tribunal was correct in law in finding that the Notice Party was not liable to pay rates on the relevant property."
The agreed facts are set forth as follows:
2 "3.1 Prior to November 2006, the National Aquatic Centre had been operated and occupied by a private company, Dublin Waterworld Limited, which held the premises under a Lease. Following the conclusion of litigation against Dublin Waterworld Limited for breaches of that Lease, a State-owned company, namely Campus and Stadium Ireland Development Limited (CSID) went into occupation of the National Aquatic Centre. In the same year, the National Sports Campus Development Act was enacted. Section 32 of that Act provided for the dissolution of CSID, and that dissolution took place on the 1 st January 2007, when CSID was replaced by the National Sports Campus Development Authority (NSCDA), which was established pursuant to Part II of the 2006 Act, for the purposes of developing a sports campus on the premises and for the purposes of encouraging and promoting the use of the sports campus by persons participating in sport at professional amateur levels and by members of the public generally.
3 3.2 The NSCDA is a statutory corporation and the powers and functions of the NSCDA are set out in the 2006 Act. Each of the members of the NSCDA is appointed by the Minister for Tourism, Culture and Sport.
4 3.3 The NSCDA granted a Lease of the NAC to a subsidiary, namely NSCDA (Operations) Limited. This company was formerly called CSID (Operations) Limited. NSCDA (Operations) Limited is a wholly-owned subsidiary of the NSCDA.
5 3.4 NSCDA (Operations) Limited under its former name, CSID (Operations) Limited, was incorporated prior to the enactment of the 2006 Act and the formation of the NSCDA. Pursuant to Section 28 (7) of the 2006 Act, however, this company is deemed to be a subsidiary formed and established by the NSCDA under the 2006 Act Section 28 (1) of the 2006 Act permits the NSCD, with the approval of the Minister, and with the consent of the Minister for Finance, to establish a subsidiary for the purpose of performing such functions of the NSCDA as it may determine. Although NSCDA (Operations) Limited is a subsidiary company, it is performing the functions of the NSCDA.
6 3.5 Further factual findings relevant to the decision of the Tribunal are set out in paragraphs 1-9 of the findings on pages 12-13 of the judgment of the Tribunal".
In so far as the facts in those paragraphs of the Tribunal's judgment are referred to under "Agreed Facts" in the Case Stated I should set them out also:
2 "1. The National Aquatic Centre (the NAC) was completed in March 2003 at a cost of €62.5 million wholly funded by the State and on lands owned by the Department of Agriculture, Fisheries and Food.
2. The NAC was constructed to the highest modern standards with a view to being a centre of excellence for athletes to train in and including state of the art facilities such as:
a) 50m FINA competition pool with 2500 spectator seating and
b) FINA standard diving pool.
3. The NAC hosts, on an annual basis, the National Swimming Championships and the National Diving Championships and also hosted the European Short Course Championships in 2003.
4. The NAC is operated by NSCDA (Operations) Limited, the occupier of the subject property in this Appeal.
5. NSCDA (Operations) Limited is a wholly-owned subsidiary of the NSCD … set up under the 2006 Act. It is wholly owned by the State, operates under Ministerial control, and, consequently, it is not an entity with independent limited liability. Consequently, it is an emanation of the State within the meaning of Section 15 (3) of the Valuation Act, 2001.
6. Object 2(a) of the Memorandum of Association of NSCDA (Operations)...
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