Kilsaran Concrete v Commissioner of Valuation

JurisdictionIreland
JudgeMr. Justice Hedigan
Judgment Date07 December 2010
Neutral Citation[2010] IEHC 434
CourtHigh Court
Date07 December 2010

[2010] IEHC 434

THE HIGH COURT

Record Number 264 SS/2010
Record Number 267 SS/2010
Kilsaran Concrete v Commissioner of Valuation
IN THE MATTER OF THE VALUATION ACT, 2001, AND IN THE MATTER OF A VALUATION OF THE FOLLOWING PREMISES:
Property No. 451450, Quarry at Ballinascorney Upper, Brittas, County Dublin; Appeal No: VA08/5/188
Property No. 464562, Concrete Works at Tallaght By-Pass, Oldbawn, Tallaght, County Dublin; Appeal No: VA08/5/188

BETWEEN

KILSARAN CONCRETE
APPELLANT

and

COMMISSIONER OF VALUATION
RESPONDENT

VALUATION ACT 2001 S39

VALUATION ACT 2001 S39(1)

VALUATION ACT 2001 S39(2)

VALUATION ACT 2001 S30

VALUATION ACT 2001 S34

VALUATION ACT 2001 SCHED 5 PARA 1

VALUATION ACT 2001 S51

VALUATION ACT 2001 SCHED 5

CARIBMOLASSES CO LTD v CMRS OF VALUATION 1994 3 IR 189 1993/6/1693

CARBERRY MILK PRODUCTS LTD v CMSR OF VALUATION UNREP 14.3.1997 VA95/4/26

PFIZER v CMSR OF VALUATION UNREP LAVAN 28.7.1994 1994/13/3918 1994/13/3932

BEAMISH & CRAWFORD LTD v CMSR OF VALUATION 1980 ILRM 149 1980/11/2138

MARA (INSPECTOR OF TAXES) v HUMMINGBIRD LTD 1982 ILRM 421

HENRY DENNY & SONS (IRL) LTD T/A KERRY FOODS v MIN FOR SOCIAL WELFARE 1998 1 IR 34 2000/5/1750

PREMIER PERICLASE LTD v CMSR OF VALUATION UNREP KELLY 24.6.1999 2000/15/5860

NANGLES NURSERIES v CMRS OF VALUATION UNREP MACMENAMIN 14.3.2008 2008/46/9983 2008 IEHC 73

RATING

Valuation

Valuation tribunal - Liability to rates - Exemption - Rateable valuation of concrete and asphalt manufacturing plant - Whether concrete manufacturing plant a single construction for purposes of rateability - Inducing process of change - Whether installation designed or used primarily to induce process of change in substances contained in it or transmitted through it - Whether installation deemed to be non-rateable plant - Whether determination of respondent erroneous in point of law - Whether identifiable error of law or unsustainable finding of fact - Caribmolasses Co Ltd v Commissioner of Valuation [1994] 3 IR 189; Pfizer Chemical Corporation v Commissioner of Valuation (Unrep, SC, 7/4/1992); Mara v Hummingbird Ltd [1982] ILRM 421; Henry Denny & Sons (Ireland) v Minister for Social Welfare [1988] 1 IR 34; Premier Periclase v Commissioner of Valuation (Unrep, Kelly J, 24/6/1999) and Nangles Nurseries Ltd v Commissioner of Valuation [2008] IEHC 73 (Unrep, MacMenamin J, 24/3/2008) considered - Beamish and Crawford v Commissioner of Valuation [1980] ILRM 149 distinguished - Valuation Act 2001 (No 13), s 39, sch 5 - Appeal allowed (2010/264SS & 267SS - Hedigan J - 7/12/2010) [2010] IEHC 434

Kilsaran Concrete v Commissioner of Valuation

Facts: The first appellant owned and operated a large stone quarry and the second appellant owned and operated a manufacturing plant and the Valuation Office had made determinations pursuant to the Valuation Act 2001 in respect thereof. The parties to the proceedings sought a case stated for the opinion of the High Court on whether the Tribunal was correct in law in finding that the asphalt manufacturing plant was not exempt from rateability by virtue of the exclusion contained in paragraph 1 of Schedule 5, Valuation Act, 2001. The Tribunal had found that there was no blanket exemption for installations under appeal. The Tribunal found that the installation had to be seen as the totality of individual items of plants. The question arose as to the interpretation of the "process of change."

Held by Hedigan J. that the questions related to a mixture of fact and law and the Tribunal had misdirected itself in law in its interpretation of Schedule 5(1) to the Valuation Act 2001. A logical interpretation of the Schedule was that the constructions excluded from rateability all parts of the plant immediately involved in the process leading to the change that occurred in the mixing pan. The use of the phrase "process of change" meant the legislature to include in exemption from rateability all parts of the plant directly and immediately involved in that process. The answer to the question posed was therefore "no". The Tribunal was not correct in law in finding that both the asphalt and the concrete manufacturing plants were not exempt from ratability by virtue of the exclusion contained in paragraph 1 of Schedule 5, Valuation Act 2001.

Reporter: E.F.

1

Judgment of Mr. Justice Hedigan delivered on the 7th day of December, 2010

Property No. 451450, Quarry at Ballinascorney Upper, Brittas, County Dublin
2

1. This is a case stated, by the Valuation Tribunal pursuant to the provisions of Section 39 of the Valuation Act, 2001, upon a request in writing addressed to the Chairperson of the Valuation Tribunal and dated the 29 th September, 2009 by the above-named appellant, it being dissatisfied with the determination of the Tribunal herein in point of law and having expressed dissatisfaction to the Tribunal in writing after the determination of the above appeal by the Tribunal on the 2 nd September, 2009 in accordance with the provisions of section 39 (1) of the Valuation Act, 2001, and having required the Tribunal to state and sign a case for the opinion of the High Court in accordance with the provisions of section 39 (2) of the Act of 2001.

The Facts
3

2. The agreed facts as between the parties are as follows:-

4

The Appellant owns and operates a large stone quarry at the subject premises Property No. 451 450, Quarry at Ballinascorney Upper, Brittas, County Dublin (hereinafter referred to as "the Premises").

5

3. In 2005, the Valuation Office determined the NAV of the Premises at €450,000, which was reduced to €436,000 by the Commissioner of Valuation on appeal pursuant to Section 30 of the Valuation Act (hereinafter referred to as "the Act").

6

4. The appellant appealed the latter valuation to the Valuation Tribunal pursuant to Section 34 of the Act, and following the hearing, which was held on 5 days between December, 2008, and February, 2009, the Valuation Tribunal delivered its Judgment on the 2 nd day of September, 2009, and determined that the rateable valuation for the Premises is €332,500, of which €63,000 was the agreed net annual valuation in respect of the asphalt plant, the subject of the within case.

7

5. Pursuant to Section 39(1) of the Act, the appellant stated its dissatisfaction with the Valuation Tribunal's Judgment, and sought a case stated for the opinion of the Court, which case was signed on the 4 th day of February, 2010, and sought the Court's Opinion as follows:-

8

Was the Tribunal correct in law in finding that the asphalt manufacturing plant was not exempt from rateability by virtue of the exclusion contained in paragraph 1 of Schedule 5 to the Valuation Act, 2001?

9

6. The relevant evidence upon which the Valuation Tribunal relied in relation to the Premises and the process of asphalt manufacturing was given by Mr Chris Lycett, Technical Manager of Irish Tar and Bitumen Suppliers retained by the appellant; and Mr John J Lauder, Consulting Engineer retained by the respondent, who provided a written report only.

10

7. The appellant produces asphalt using four distinct ingredients. These are; bitumen, coarse aggregates (crushed stone and gravel), fine aggregate (sand) and filler (fine calcium carbonate or cement).

11

8. The ingredients are heated and when mixed, the hot bitumen coats the mineral matter to produce a hot mixture, during which process the bitumen undergoes an irreversible change, oxidises and hardens. The process of change once initiated, is irreversible and continues for some time after the bitumen, in its still molten state, is laid in its final position in the roadway. The product, while still in its hot liquid state, can then be spread for use mainly in road construction.

12

9. The aggregates are heated to the required temperature without which, coating of all the sand and aggregate particles cannot occur. Likewise the heating of the bitumen facilitates this coating process. Bitumen storage silos have to be heat controlled to the required temperature.

13

10. Once the ingredients are mixed, this product is either directly transferred to waiting trucks for rapid dispatch to destination, or is carried by track mounted skip to hot storage bins for later collection by truck.

14

11. The actual combining of the ingredients takes place in a "mixing pan". Before arrival at the mixing pan the ingredients are dealt with as follows:

15

a) Aggregates are stored on site and, as needed, are fed by front-end loaders into intake hoppers, where the required quantities are weighed and then dispatched by conveyor to a rotary dryer. The aggregates are heated and water driven off as steam. The dried stone is lifted by bucket elevator to the top of the mixing tower.

16

b) Hot bitumen is stored on site in insulated silos, and, when required for asphalt manufacture, is pumped from the silos to the bitumen weigh vessel, from where the required quantity is discharged into the mixing pan.

17

12. The ingredients are combined in the mixing pan and the liquid asphalt is then loaded directly onto waiting trucks or carried by track mounted skip to hot storage bins for later load out.

18

13. The operation of the silos and the mixing pan is effected by various mechanical, electrical, hydraulic and pneumatic systems, including inter alia: electric motors; gear boxes; pulleys; feed belts; head drums; tail drums; head bearings; tail bearings; scrapper crossing rollers; troughing return rollers; conveyor belts; electric monitoring devices; filters; weighing devices; electrically powered screw mechanisms; aeration pads; vibrators; pumps; feeds; pneumatic doors; hydraulic discharge doors; electric paddles and gravity chutes.

19

14. The appellant contends that the silos, mixing pan and associated systems comprise one installation of...

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1 cases
  • Kilsaran Concrete v Commissioner of Valuation
    • Ireland
    • Supreme Court
    • 26 Octubre 2016
    ...of Valuation [1994] 3 I.R. 189. Cement Ltd. v. Commissioner of Valuation [1960] I.R. 283. Kilsaran Concrete v. Commissioner of Valuation [2010] IEHC 434, (Unreported, High Court, Hedigan J., 7 December 2010). Rating and valuation — Liability to rates — Exemption — Plant — Process of change ......

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