Slatterys Ltd v Commissioner of Valuation

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 13 July 2001
• Neutral Citation: [2001] IESC 66
• Court: Supreme Court
• Docket Number: [S.C. No. 128 of 1999]
• Date: 13 July 2001

[2001] IESC 66

The Supreme Court

Keane C.J.

McGuinness J.

Hardiman J.

128/99

SLATTERYS LTD v. COMMISSIONER OF VALUATION & DEVALLY

Between:

Slattery's Limited

Applicant/Respondent

and

The Commissioner of Valuation and His Honour Judge Liam Devally

Respondents/Appellants

and

The Right Honorable the Lord Mayor Alderman And Burgesses of Dublin

Notice Parties

Citations:

URBAN RENEWAL ACT 1986 S7

URBAN RENEWAL ACT 1986 (REMISSION OF RATES) SCHEME 1991 SI 157/1991 ART 5

URBAN RENEWAL ACT 1986 (REMISSION OF RATES) SCHEME 1991 SI 157/1991 ART 5(a)

RSC O.84 r21(1)

O'FLOINN V MIDWEST HEALTH BOARD 1991 2 IR 23

O'DONNELL V DUN LAOGHAIRE CORPORATION 1991 ILRM 301

CUSSEN, STATE V BRENNAN 1981 IR 181

URBAN RENEWAL ACT 1986 (REMISSION OF RATES) SCHEME 1991 SI 157/1991 ART 5(b)

LISTOWEL URBAN DISTRICT COUNCIL (UDC) V MCDONAGH 1968 IR 312

WANDSWORTH LONDON BOROUGH COUNCIL V WINDER 1985 AC 461

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

HARPER STORES LTD V COMMISSIONER OF VALUATION 1968 IR 167

Synopsis

RATING

Remission of rates

Judicial review - Delay - Whether applicants entitled to avail of total remission - Whether applicants entitled to extension of time - Urban Renewal Act, 1986 (Remission of Rates) Scheme, 1991 SI 157/1991 - Rules of the Superior Courts, 1986 Order 84, rule 21 (128/1999 - Supreme Court - 13/7/01)

Slattery's Ltd v Commissioner of Valuation and Devally - [2001] 4 IR 91

The applicants were the owners of a public house in the Temple Bar area of Dublin. The applicants applied for a remission of rates to the Commissioner of Valuation who granted a partial remission. The applicants sought to challenge the decision eventually taking judicial review proceedings. In the High Court Geoghegan J granted the applicants an extension of time to bring proceedings and the declaration sought. The Commissioner of Valuation appealed. The Chief Justice, Mr. Justice Keane was satisfied that the extension of time granted should not have been allowed. The Commissioner had been within jurisdiction to reach his determination. The appeal would be allowed.

1 Judgment delivered the 13th day of July 2001 by Keane C.J. [nem diss]

2 This case arises out of a remission of rates scheme which came into force in the Temple Bar area of Dublin some years ago. The applicants are the owners and occupiers of a licensed premises known as The Oliver St. John Gogarty, a four storey over-basement corner building at 57/58 Fleet Street in that area. Between January and December 1992, having obtained the necessary planning permissions, they carried out extensive works on the premises which included the demolition of all the internal walls, the removal of the roof and all the floors, including suspended floors, to basement level. Substantial works were then carried out which resulted in the premises being reopened in a significantly renovated state. The issue which arose was as to whether the applicants in respect of the relevant period were entitled to an entire or a partial remission of the rates under the statutory scheme.

3 It is, accordingly, helpful at the outset to set out the details of the statutory scheme. Section 7 of the 1986 Act provides that:

"(1) The Minister [for the Environment], with the consent of the Minister for Finance, may make a scheme providing for the remission in whole or part of rates leviable in respect of premises-"

(a) which are situate in the Custom House Docks Area and are certified by the [Custom House Docks Development] Authority to have been erected, enlarged or improved after the approval of a planning scheme under section 12, or

(b) which are situate in any other designated area and which the relevant local authority are satisfied were erected, enlarged or improved after the designation of such area.

4 (2) A scheme under this section shall specify-

5 (a) the classes or descriptions of premises to which the scheme applies,

6 (b) the local financial years in relation to which the remission of rates is to have effect,

7 (c) the terms or conditions (if any) subject to which the remission of rates is to have effect in any local financial year, and

8 (d) the period during which the scheme is to operate.

9 ....

10 (4) Where a scheme is made under this section a local authority shall, in relation to a rate leviable by them, give effect to any remission provided for in the scheme.

11 (5) A remission provided for in a scheme under this section shall not be granted more than once in respect of the same erection, enlargement or improvement of premises."

12 Under the powers vested in him by this section, the Minister for the Environment made a scheme in respect of the designated area, i.e. the Temple Bar area, in which the premises in question are situated. The scheme is contained in the Urban Renewal Act 1986(Remission of Rates) Scheme, 1991 (S.I. No. 157 of 1991) (hereafter "the Scheme"), Article 5 of which provides that

"Rates leviable in respect of premises to which this scheme applies shall be remitted as follows:"

(a) Where it is determined by the Commissioner of Valuation that the entire valuation of the hereditament which consist of or includes the premises is attributable to the erection, enlargement or improvement of the premises, the remission shall have effect in relation to the rates leviable on that valuation;

(b) where the valuation of the hereditament which consists of or includes the premises is increased and it is determined by the Commissioner of Valuation that the increase or part of the increase is attributable to the erection, enlargement or improvement of the premises, the remission shall have effect in relation to the rates leviable on that increase, or that part of the increase;

(c) every remission shall have effect in respect of the ten local financial years next following that in which the valuation or increased valuation comes into force."

13 In the present case, the notice party (hereafter "the Corporation") were notified when the demolition works had been concluded that the premises was ready for inspection to enable the first named respondent (hereafter "the Commissioner") to make a determination under the provisions of the scheme. It does not appear that, at that point, the premises were inspected on behalf of the Commissioner: the rate collector for the Corporation, however, Mr. Patrick Lawlor, did inspect the premises and on the 19th May 1992 reported that:

"(The) premises [were] incapable of beneficial occupation at the making of the rate - roof removed, interior floors removed. Please find copy of engineer's report attached."

14 No rates were levied by the Corporation against the premises in respect of the year 1992. On the 21st May 1993 the applicants were advised by the Corporation that, if they wished to make an application for a remission of the rates pursuant to the statutory scheme, they should make an application to that effect to the Commissioner. Such an application was forwarded by the applicants to the Corporation and, in turn, transmitted by the latter to the Commissioner. On the 20th June 1994, the Corporation were informed by the Valuation Office of the Commissioner that the existing rateable valuation of £630 would be subject to a remission of £295. On the 13th March 1995, the solicitors for the applicants wrote to the Corporation claiming that the entire valuation of the premises was attributable to the improvements effected by their clients and that, in the result, pursuant to Article 5(a), they were entitled to a remission of the entire of the rates for the relevant period. That communication was transmitted by the Corporation to the Commissioner but on the 25th July 1995 the valuation office wrote again to the Corporation confirming that the remission applicable was £295. The applicant's solicitors were so informed on the 25th August 1995.

15 The applicant's solicitors then wrote on the 15th August 1996 directly to the Commissioner of Valuation calling on him to make a determination in the case pursuant to the provisions of the scheme and again saying that the matter should be determined pursuant to Article 5(a). They also said that their clients had been advised by their rating consultants of several comparable premises in the Temple Bar area the rateable valuations of which were "struck out" by the Valuation Office in the course of redevelopment works. It was said that such premises were not in anything like the comparable condition of the premises in question at the time the valuation were struck out. On the 16th October 1996, the Valuation Office responded stating that the approach of the Commissioner was as follows:

"(1) Where the Commissioner is satisfied of the following:"

(a) that a new building has been erected.

(b) that the rateable value of the pre-existing premises (including any developed land) would have been nil, had the premises been revised immediately prior to the commencement of enlargement or improvement ... full remission applies.

16 (2) In circumstances where erection, enlargement or improvement of the premises leads to an increase in RV ... the remission applies in respect of rates levied on the increased rateable value."

17 That passage summarised what was contained in a circular which was issued by the Commissioner's office dealing with applications being made to him under the scheme.

18 From documents furnished by the Valuation Office, it appears that the valuer concerned was initially of the view that the premises should be regarded as a new building as a result of the works carried out by the applicants. His notes summarised the position as follows:-

"Property gutted – roof removed – prior to major redevelopment – now...