Port of Cork Company v Commissioner of Valuation

JurisdictionIreland
JudgeMr. Justice Kearns
Judgment Date28 July 2003
Neutral Citation[2002] IEHC 106
CourtHigh Court
Docket Number[2002 No. 177 S.S.],[S.C. No. 136 of 2003],177SS/2002
Date28 July 2003

[2002] IEHC 106

THE HIGH COURT

177SS/2002
PORT OF CORK CO v. COMMISSIONER OF VALUATION
IN THE MATTER OF SECTION 5 OF THE VALUATION ACT 1988

BETWEEN

PORT OF CORK COMPANY
APPELLANT

AND

THE COMMISSIONER OF VALUATION
RESPONDENT

Citations:

HARBOURS ACT 1996 S7

POOR RELIEF (IRELAND) ACT 1838 S63

TRINITY COLLEGE V CMSR OF VALUATION 1919 IR 519

HARBOURS ACT 1996 S10

HARBOURS ACT 1996 S11

HARBOURS ACT 1996 S12

HARBOURS ACT 1996 S20

HARBOURS ACT 1996 S21

HARBOURS ACT 1996 S22

HARBOURS ACT 1996 S23

HARBOURS ACT 1996 S27

HARBOURS ACT 1996 S44

HARBOURS ACT 1996 S96

HARBOURS ACT 1996 S15

HARBOURS ACT 1996 S15(4)(A)

BELFAST HARBOUR CMRS V CMR OF VALUATION 1897 2 IR 516

CMR OF VALUATION V SLIGO HARBOUR CMRS 1899 2 IR 214

GUARDIANS OF THE LONDONDERRY UNION V LONDON BRIDGE COMMISSIONERS 1868 IR 2 CL 577

CORP OF CORK V CMR OF VALUATION 1916 2 IR 95

KERRY CO COUNCIL V CMR OF VALUATION 1934 IR 527

TRUSTEES OF MAYNOOTH COLLEGE V CMRS OF VALUATION 1956 IR 221

FORBAIRT V CMR OF VALUATION APPEAL NO VA97/4/030

PLASSEY TRUST CO LTD V CMR OF VALUATION APPEAL NO VA89/0/112 - VA89/0/127

ROYAL HOSPITAL KILMAINHAM CO V CMR OF VALUATION VA92/1/008

LOCAL GOVT (DUBLIN) ACT 1930 S69

DUBLIN CORP V DUBLIN PORT & DOCKS BOARD 1978 IR 241

AIR NAVIGATION & TRANSPORT ACT 1998

INSPECTOR OF TAXES V KIERNAN 1981 IR 117

TRUSTEES OF KINSALE YACHT CLUB V COMMISSIONER OF VALUATION 1994 1 ILRM 457

CMR OF VALUATION V INTERNATIONAL MUSHROOMS 1994 3 IR 472 1994 2 ILRM 121 1994 10 3108

MIN INDUSTRY & COMMERCE V HALES 1967 IR 50

DUNRAVEN ESTATES LTD V CMRS OF PUBLIC WORK 1974 IR 113

HUSSEY V IRISH LAND COMMISSION SUPREME 13.12.1984 1984/7/2325

VALUATION ACT 2001 S15(5)

HARBOURS ACT 1996 S1(D)

HARBOURS ACT 1996 S1(E)

HARBOURS ACT 1996 S12(1)(B)

HARBOURS ACT 1996 S44(1)

HARBOURS ACT 1996 S44(3)

KEANE LAW OF LOCAL GOVERNMENT IN THE REPUBLIC OF IRELAND 1982

HARBOURS ACT 1996 S87

HARBOURS ACT 1996 S88

HARBOURS ACT 1996 S88(3)

HARBOURS ACT 1996 S19(1)(B)

HARBOURS ACT 1996 S96

HARBOURS ACT 1996 S12(1)(A)(iii)

SALOMAN V SALOMAN 1897 AC 22

HARBOURS ACT 1996 S12(1)(A)

HARBOURS ACT 1996 S44(4)

DUBLIN CO COUNCIL V WEST LINK TOLL BRIDGE LTD 1996 2 ILRM 232

Synopsis:

RATES

Valuation Tribunal

Case stated - Taxation - Valuation - Property - Statutory interpretation - Administrative law - Whether port company exempt from rates - Whether activities of appellant carried out for benefit of public - Poor Relief (Ireland) Act, 1838 - Harbours Act, 1996 (2002/177SS - Kearns J - 30/10/02)

Port of Cork Company v Commissioner of Valuation - [2002] 4 IR 119 - [2003] 1 ILRM 389

Facts: The Valuation Tribunal had determined that the appellant was no longer exempt from rates under the Poor Relief (Ireland) Act, 1838. Formerly the port area had been vested in the Cork Harbour Commissioners and was exempt from rates. However under the Harbours Act, 1996 the port area became vested in the Port of Cork Company. It was the view of the Valuation Tribunal that the 1996 Act had effected a change by which the port area was to be run on a commercial basis and not for the benefit for the public at large. In the opinion of the Valuation Tribunal this meant that the appellant was not exempt from paying rates. The appellant stated a case for the opinion of the High Court.

Held by Kearns J in finding in favour of the appellant. The appellant was emphatically not a private profit making company. The sole shareholders of the appellant were the Minister for Communications, Marine and Natural Resources and the Minister for Finance and they were obliged to pay any dividends into the Exchequer in the public interest. The appellant had no beneficial interest in the charges it could levy and was bound to devote them to the maintenance of the public harbour.

1

Mr. Justice Kearnsdelivered the 30th day of October, 2002.

2

This matter comes before the court by way of case stated from the determination of the Valuation Tribunal made on the 24 th day of October 2001. On that date, the tribunal determined that the hereditaments consisting of the Port of Cork, formerly occupied by Cork Harbour Commissioners, but now owned by the appellant company, were, under and by virtue of the Harbours Act, 1996, no longer exempt from rates under the proviso contained in Section 63 of the Poor Relief (Ireland) Act, 1838. The case was in the nature of a test case, other ports having a similar interest in the eventual outcome, and the opinion of the High Court is sought on the question whether or not the tribunal's determination was correct in law.

3

The appellant company was incorporated under Section 7 of the Harbours Act 1996, which provides that private companies may be established under the Companies Acts in order to make better provision in relation to the management, control, operation and development of certain harbours within the State. The appellant company was incorporated on the28 th of February 1997 and the lands formerly vested in the Cork harbour authority became vested in the Port of Cork company. It is common case that prior to the introductionof the Harbours Act 1996, the hereditaments in question were included in the exempt valuationlists.

4

The issue which the tribunal had to determine therefore was whether the Harbours Act, 1996effected a change in the law such as would render the hereditaments in question rateable, or effected a change in the character, use and ownership of the hereditaments in such a way as to lose the benefit of the proviso contained in Section 63 of the 1838 Act.

5

At the outset, the tribunal held that the appeal to the tribunal could only be determined in the light of the existing Valuation Acts and no regard could be had to anything contained in the Valuation Act, 2001, which removed any doubts which may have existed by specifically providing that the hereditaments in question should be rateable.

6

Exemption from rates, unless specifically provided by other statues, is to be found in the proviso to Section 63 of the Poor Relief (Ireland) Act 1838 which states as follows:-

"provided also, that no church, chapel or other building exclusively dedicated to religious worship, or exclusively used for the education of the poor, nor any burial ground or cemetery, nor any infirmary, hospital, charity school or other building used exclusively for charitable purposes, nor any building, land or hereditament dedicated to or used for public purposes shall be rateable except where any private profit or use shall be directly derived therefrom, in which the case the person deriving such profit or use shall be liable to be rated as an occupier according to the annual value of such profit oruse."

7

Having cited the proviso, the tribunal found as follows at par 5 of itsdetermination:-

"It follows from the above that exemption from rates is a function of the status of the occupier and or the user of the property rather than the nature of the property itself Consequently a change of occupier and or user can have the immediateeffect of making a profit previously exempt from rates liable to rates with immediate effect and, in the opinion of this tribunal, this may happen seamlessly by the operation of the Valuation Acts. In the circumstance of this appeal the tribunal does not accept the contention of the appellant that it was necessary for the Harbours Act 1996to make express provision for the payment of rates by companies incorporated pursuant to Section 7 and that in the absence thereof the exemption previously enjoyed by the Cork Harbour Commissioners should automatically transfer to the Port of Cork company. Since the company was only incorporated in February 1997 it cannot be successfully argued that the lack of exemption will create a new liability totaxes."

8

The tribunal went on to consider the concept of "public purposes" citing the following extract from the judgment of Kenny J., in Trinity College -v- Commissioner of Valuation [1919] IR 519:-

"It is sufficient for me to say that in all the authorities where the question of the meaning and application of the words"use for public purposes" or "altogether of a publicnature" or "used exclusively for public purposes" has arisen, it has been uniformly determined that the "user"essential in order to establish the exemption must be available for all the subjects of the realm; the "purposes" must be purposes in which every member of the community has an interest; and the premises must be used for the public benefit of the whole community and not for the private or exclusive use of any members or any particular class or section of it."

9

The tribunal went on to consider the various provisions of the Harbours Act 1996, considering as relevant Sections 10, 11, 12, 20, 21, 22, 23, 27, 44, and 96 thereof. Havingconsidered those sections, the tribunal found that the Minister for the Marine had a continuing role in the operation of the company which could be exercised only after consultation with the company in relation to"policy decisions of a general kind". The tribunal also found from its review of the sections that the Minister intended to grant to a Section 7 company a large degree of autonomy in the day to day management arid operation of its affairs. The Minister for Finance and the Minister for the Marine were sole share holders and had the right to receive all dividends; the Minister for the Marine following consultation with the Minister for Finance, could stipulate the dividends to be paid in certain circumstances. It was further noted that under the memo and articles of association, the appellant company had the powers to sue and to be sued in its own name and "take all proper measures for the management, control, operation and development of its harbour and the approach channels thereto." The appellant company could also appropriate any part of its harbour to the exclusive use of any person for the purpose of any trade or profession in consideration for the payment to...

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