Liam Slattery v Bernadette Flynn

• Jurisdiction: Ireland
• Judge: Justice Aindrias Ó Caoimh
• Judgment Date: 30 July 2002
• Neutral Citation: 2002 WJSC-HC 6727
• Date: 30 July 2002
• Docket Number: Record No. 1990 S.S./2001
• Court: High Court

2002 WJSC-HC 6727

THE HIGH COURT

Record No. 1990 S.S./2001

SLATTERY v. FLYNN

IN THE MATTER OF AN APPEAL BY WAY OF CASE STATED PURSUANT TO S. 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY S. 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961.

Between:

LIAM SLATTERY

Plaintiff

and

BERNADETTE FLYNN

Defendant

Citations:

LOCAL GOVT (FINANCIAL PROVISIONS) ACT 1978 s1(1)

TOURIST TRAFFIC ACT 1939

TOURIST TRAFFIC ACT 1952

TOURIST TRAFFIC ACT 1957

TOURIST TRAFFIC ACT 1959

TOURIST TRAFFIC ACT 1961

TOURIST TRAFFIC ACT 1963

TOURIST TRAFFIC ACT 1966

TOURIST TRAFFIC ACT 1968

TOURIST TRAFFIC ACT 1970

TOURIST TRAFFIC ACT 1972

TOURIST TRAFFIC ACT 1975

TOURIST TRAFFIC ACT 1979

TOURIST TRAFFIC ACT 1983

TOURIST TRAFFIC ACT1987

TOURIST TRAFFIC ACT 1995

TOURIST TRAFFIC ACT 1998

LOCAL GOVT (FINANCIAL PROVISIONS) ACT 1978 s1(3)

POOR RELIEF (IRL) ACT 1838 s61

LOCAL GOVNT (FINANCIAL PROVISIONS) ACT 1978 s3

KERRY CO COUNCIL V KERINS 1996 3 IR 493

LOCAL GOVT (FINANCIAL PROVISIONS) ACT s1(3)(a)(i)

INSPECTOR OF TAXES V KIERNAN 1981 IR 117

MCGRATH V MCDERMOTT 1988 IR 258

REVENUE CMMRS V DOORLEY 1933 IR 750

SAATCHI & SAATCHI ADVERTISING V MCGARRY 1998 2 IR 562

EAST DONEGAL COOPERATIVE LIVESTOCK MART LTD V AG 1970 IR 317

FOREST HILLS TROSSACHS CLUB V ASSESSOR FOR CENTRAL REGION 1992 SLT 295

Synopsis:

RATES

Case stated

Statutory interpretation - Whether dwelling "mixed hereditament" - Local Government (Financial Provisions) Act, 1978 section 1 (2001/1990SS - O Caoimh J - 30/7/01)

Slattery v O'Flynn - [2003] 1 ILRM 450

1 Justice Aindrias Ó Caoimh delivered the30th day of July 2002.

2 This is an appeal by way of case stated from a decision of Judge Mary Devins, a judge of the District Court sitting as a judge of the Dublin Metropolitan District, made on the 2nd October, 2000 in a claim for £1,823.60 rates made by the appellant, a rate collector of Dublin Corporation (now Dublin City Council) in respect of the occupation by the respondent of the premises of 130 Drumcondra Road Upper, Dublin 9 known as "Willow House."

3 The case as stated by the learned judge of the District Court records that the essential defence raised by the respondent to the claim for rates was that the subject premises constituted a "domestic hereditament" as defined in s. 1 (1) of the Local Government (Financial Provisions) Act, 1978(the Act of 1978) and that accordingly it was relieved of rates.

4 The facts as agreed or as proved in evidence before the District Court are:

5 a (a)The premises, which are known as "Willow House" consist of a terraced dwelling house which contains 10 bedrooms along with other rooms;

6 (b) The defendant and members of her family permanently reside at the premises;

7 (c) The defendant is and was at all material times carrying on a "bed and breakfast" business at the premises on a continuous basis;

8 (d) Six of the bedrooms in the premises are set aside for occupation of paying guests. Three of those bedrooms have en suitebathrooms and the remaining three are close to a toilet and shower room;

9 (e) The premises contain a separate dining room and a separate sitting room for the use of paying guests;

10 (f) At the front of the premises there is a cobble-locked area where paying guests can park their cars;

11 (g) The premises are approved of by Bord Fáilte and have been advertised in Bord Fáilte brochures.

12 (h) The premises are not registered under the Tourist Traffic Acts, 1939to 1998.

13 The case stated indicates that it was contended on behalf of the complainant that the premises in question are not a "domestic hereditament" within the meaning of s. 1(1) Act of 1978 and instead constitutes a "mixed hereditament" as defined by s. 1 (1) aforesaid as it is used partly as a dwelling to a significant extent and partly for another or other purposes to such an extent, namely for the purpose of a "bed and breakfast" business. Accordingly it was submitted that municipal rates were payable by the defendant in respect of the premises.

14 The learned judge indicates that having heard the evidence and the submissions of the parties she held:

15 (a) The complainant was attempting to enforce a taxation statute and consequently was under a heavier onus that would apply in other cases. A benefit was given to the tax payable and for the complainant to be successful he must have a watertight case otherwise the benefit would have to go to the defendant;

16 (b) There was a practical distinction to be applied in respect of lodgings that offered accommodation in that larger premises should be registered under the Tourist Traffic Acts, 1939to 1998.

17 (c) The Local Government (Financial Provisions) Act, 1978contains a negative provision, namely s. 1 (3) which can provide some protection where lodgings are provided. The Oireachtas inserted s. 1 (3) because it wanted to exclude a certain category of hereditaments that provided lodgings;

18 (d) The only reason why the defendant was in court was because she was providing lodgings;

19 (e) The clear and unambiguous meaning of the Act of 1978 is that the shield against liability for rates is not lost unless the lodgings are registered under the Tourist Traffic Acts, 1939to 1998. If lodgings are so registered no reliance can be placed on the shield;

20 (f) As the premises are not registered under the Tourist Traffic Acts, 1939to 1998and the premises is a "bed and breakfast" rather than a guesthouse, the defendant is clearly entitled to the relief and the premises could not fall within the definition of "mixed hereditament"

21 (g) The concept of a "mixed hereditament" applies to many cases where there is a workshop/office and a home. But the notion of a "mixed hereditament" is not used solely for the purpose of drawing a distinction.

22 (h) When the Tourist Traffic Act, 1939was enacted the only basis upon which premises could be put forward was if that premises was registered as a guesthouse. Considerable benefits attached to registration as a guesthouse, for instance there is an entitlement to display a sign to that effect,

23 (i) The ability to have premises approved rather than registered is of significance. In this case, in terms of the accommodation provided, the premises are at the higher level of unregistered premises, but the entitlement to benefit from the exception in the 1978 Act remains.

24 (j) In applying the Act of 1978, the premises initially fell within the definition of a "mixed hereditament" as it is clearly a dwelling to a significant extent and it is used partly for another purpose. But this must be read in tandem with s. 1 (3) of the Act of 1978 which provides that:

"For the purposes of this Act a hereditament shall not be regarded as being other than:-"

(a) a domestic hereditament, by reason only of the fact that:-

(i) the hereditament is used to provide lodgings..."

25 (k) The only reason why the defendant was before the court was because the premises is used as a "bed and breakfast" to provide accommodation for people.

26 (l) Section 1 (1) of the Act of 1978 provides that:

27 "Domestic hereditament" means any hereditament which consists wholly or partly of premises used as a dwelling and which is not a mixed hereditament...".

28 Section 1 (1) of the Act of 1978 provides that:

29 "Mixed hereditament" means a hereditament which consists wholly or partly of a building which is used partly as a dwelling to a significant extent and partly for another or other purposes to such an extent..."

30 In applying the Act of 1978, the premises initially fell within the definition of a "mixed hereditament",

31 Section 1(1) of the Act of 1978 provides that:

32 "Lodgings" shall not be construed as including accommodation provided in premises registered under the Tourist Traffic Acts, 1939– 1975..."

33 It is common case that Willow House was not registered under the Tourist Traffic Acts 1939– 1998. The only reason why the defendant was before the court was because the premises is used to provide lodgings for people.

34 (m) While there may be a lacuna in the Act of 1978, the benefit of any doubt as to interpretation had to be given to the defendant. The premises fell within the definition of a "domestic hereditament".

35 The learned judge records that she dismissed the appellant's claim before her and she has now stated the following questions for the opinion of this court:

36 (a) Was I correct in law in holding that the premises hereinbefore described, having regard to the facts hereinbefore admitted or proved, constitutes a "domestic hereditament" as defined by s. 1 (1) of the Local Government (Financial Provisions) Act, 1978?

37 (b) If the answer to (a) is in the negative, does the premises hereinbefore admitted or proved constitute a "mixed hereditament; as defined by s. 1 (1) of the Local Government (Financial Provisions) Act, 1978?

Submissions of the Parties:

38 Before this court it was submitted by Mr. Anthony Aston S.C. on behalf of the appellant that by s.61 of the Poor Relief (Ireland) Act, 1838 rates are to be charged on every occupier of rateable hereditaments. In the instant case it is not in dispute that the respondent is the occupier of the subject premises and it is not disputed that the premises come within the meaning of a "rateable hereditament" for the purposes of the Act of 1838. The sole question is whether the premises constitute a "domestic hereditament" in which case the defendant is entitled to full relief from rates by way of an allowance pursuant to s. 3 of the Act of 1978, or a "mixed hereditament" in which case there is partial relief under the same section.

39 Counsel refers to the definitions of "domestic hereditament" and "mixed hereditament" in s. 1(1) of the Act of 1978 and refers to s. 1(3) insofar as it provides that

"For the purposes of this Act a hereditament shall not be regarded as being other...