Liam Slattery v Bernadette O'Flynn

• Jurisdiction: Ireland
• Judgment Date: 30 July 2001
• Date: 30 July 2001
• Court: High Court

THE HIGH COURT

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 PROVISION) ACT,1961

Between:

LIAM SLATTERY

Plaintiff

and

BERNADETTE FLYNN

Defendant

Abstract:

Statutory interpretation - Whether dwelling “mixed hereditament” - Local Government (Financial Provisions) Act 1978 (No 35), section 1.

Facts: the appellant rate collector claimed rates from the respondent in respect of a premises used by the respondent as a bed and breakfast and in which he also lived on the basis that the premises in question constituted a “mixed hereditament” which was therefore liable to rates. The district judge dismissed the appellant’s claim, holding that section 1 of the Act of 1978 exempted the premises in question from rates on the basis that it provided that: “a hereditament shall not be regarded as being other than a domestic hereditament, by reason only of the fact that…[it] is used to provide lodgings…”. Section 3 of the Act of 1978 provided relief to “domestic hereditaments” from the requirement to pay rates imposed by section 61 of the Poor Relief (Ireland) Act, 1838. The district judge stated, inter alia, the following question for the opinion of the High Court: was she correct in holding that the premises constituted a “domestic hereditament” as defined by section 1(1) of the Local Government (Financial Provisions) Act, 1978?

Held by Ó Caoimh J in answering the question stated in the affirmative that, the use of the word “only” in section 1(3) of the Act of 1978 means that the use of a hereditament for the provision of lodgings does not per se take it out of the category of a domestic hereditament. A partial use for the provision of lodgings will not change the character of the hereditament from being a domestic hereditament where there are a multiplicity of uses. The use of the word “only” must be seen in the context of a possible multiplicity of uses, all to a significant extent, such that one can disregard the use for the provision of lodgings.

1 Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 30th 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

4 defence raised by the respondent to the claim for rates was that the subject premises constituted a

5 ‘domestic hereditament’ as defined in s. 1 (1) of the Local Government (Financial Provisions)

6 Act, 1978 (the Act of 1978) and that accordingly it was relieved of rates. The facts as agreed, or as proved in evidence before the District Court are:

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

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

3. (c) The defendant is and was at all material times carrying on a ‘bed and breakfast’ business at the premises on a continuous basis;

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

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

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

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

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

7 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.

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

1. (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;

2. (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, 1939 to 1998.

3. (c) The Local Government (Financial Provisions) Act, 1978 contains 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;

4. (d) The only reason why the defendant was in court was because she was providing lodgings; (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, 1939 to 1998. If lodgings are so registered no reliance can be placed on the shield;

5. (f) As the premises are not registered under the Tourist Traffic Acts, 1939 to 1998 and 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’.

6. (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.

7. (h) When the Tourist Traffic Act, 1939 was 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.

   (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.

8. (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:

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

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

   (i) the hereditament is used to provide lodgings…”

2. (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.

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

   ‘Domestic hereditament’ means any hereditament which consists wholly or partly of premises used as a dwelling and which is not a mixed hereditament…”

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

11 ‘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…”

12 In applying the Act of 1978, the premises initially fell within the definition of a ‘mixed hereditament’,

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

14 ‘Lodgings’ shall not be construed as including accommodation provided in premises registered under the Tourist Traffic Acts, 1939-1975…”

15 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.

16 (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’.

17 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:

1. (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?

2. (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?

18 Submissions of the Parties:

19 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...