Telecom Éireann v Commissioner of Valuation
| Jurisdiction | Ireland |
| Judge | Justice Barrington |
| Judgment Date | 01 January 1998 |
| Neutral Citation | 1998 WJSC-SC 12695 |
| Court | Supreme Court |
| Docket Number | 337/92,[S.C. No. 337 of 1992] |
| Date | 01 January 1998 |
1998 WJSC-SC 12695
THE SUPREME COURT
O'Flaherty J.
Barrington J.
Lynch J.
Between
and
Citations:
HOLYWELL UNION V HALKYN DISTRICT MINES DRAINAGE CO 1895 AC 117
VALUATION (IRL) ACT 1852 SCHED
VALUATION ACT 1986 S2
VALUATION ACT 1988
POOR RELIEF ACT 1601
POOR LAW (IRL) ACT 1838 S63
POOR LAW (IRL) ACT 1838 S71
POOR LAW (IRL) ACT 1838 S124
VALUATION (IRL) ACT 1852 S12
JOWITT DICTIONARY OF ENGLISH LAW (1959) "HEREDITAMENT"
LAW OF PROPERTY ACT 1925 (UK)
ROADSTONE LTD V COMMISSIONER OF VALUATION 1961 IR 239
GUARDIANS OF LONDONDERRY UNION V LONDONDERRY BRIDGE COMMISSIONERS IR 2 CL 577
MCGAHAN & RYAN V COMMISSIONER OF VALUATION 1934 IR 736
Synopsis:
Revenue
Valuation; occupation; case stated; plaintiff's right to install and operate payphones in a shopping centre; nature of right of plaintiff under its licence; whether plaintiff had any right or easement over the land as contemplated in rating legislation; whether this amounts to a rateable hereditament; meaning of "incorporeal hereditaments"; whether plaintiff in occupation of sites upon which telephones installed. Held: appeal granted; Valuation Tribunal not correct in finding that that the plaintiff was in rateable valuation Supreme Court; Barrington J., O'Flaherty J., Lynch J. 04/07/97
Telecom Eireann v Commissioner of Valuation
[1998] 1 ILRM 64
JUDGMENT of Justice Barringtondelivered the 4th day of july, 1997. [NEM]???
This is an appeal against the Judgment and Order of Mr.Justice O'Hanlon delivered and made herein on the 5th day of October, 1992.
The case is a case stated by the Valuation Tribunal dated the 25th day of November,1991 and raises questions of law in the followingterms:-
"The opinion of this honourable Court is requested as to whether the Tribunal was correct in law in its determination and in particular whether the Tribunal was correct in law and in fact in relation to the following:-"
(a) That the Appellant has exclusive occupation of this sites upon which the telephone apparatus has been installed.
(b) That there is any rateable occupation by the Appellant of any kind over the St. Stephen's Green Shopping Centre".
Mr. Justice O'Hanlon answered the question raised by the Valuation Tribunal in the following manner:-
"I find that the Valuation Tribunal was correct in law in its determination of the issues which arose for its consideration and in particular that it was correct in law and in fact in holding;-"
(a) That the Appellant (Telecom Eireann) had exclusive occupation of the sites upon which the telephone apparatushas been installed and that the Appellant is to be regarded as being in rateable occupation in respect of the rateable hereditament considering of the right to install and operate payphones in St. Stephen's Green Shopping Centre"
The real question at issue between the parties is whether the right described as " right to install and operate payphones at map refernce RI at St. Stephen's Green Shopping Centre, Royal Exchange B Word: CB Dublin" is a rateable hereditament and whether rates can be levied in respect of it.
The facts of the case are fully set out in the case stated and in the Judgment of the learned High Court Judge. Nevertheless as the point at issue is a difficult and subtle one it is necessary to repeat the salient facts to make this Judgment intelligible. I according set out below the history of this matter as it appears from the case stated. In doing so have underlined passages which appeared to me to beimportant.
" Telecom Eireann has erected twelve payphones on the internal walls of the St. Stephen's Green Shopping Centre (hereinafter reffered to as "The Centre") at siteschosen by the Architects engaged in the design ofthe Centreon behalf of the developer and owner of same. The telephones were placed at the several sites in The Centre in oy about November 1988 and have remained there since that time. The telephones were installed at location discussed with the Centre's Architects upon request made on the 20th July, 1988 by Ms. Ann Delaney, the then Manger of The Centre and an empolyee of Jones Lang Wooton who have engaged by Firmount Ltd., the developers of the Centre, as management agents for the Centre.
The owners and developers of the Centre can require Telecom Eireann to remove the telephones in question from the Centre. Telecom Eireann has no exclusive rights in respect of the provision of payphones in the Centre or at any location.
The Centre itself provided wooden booths for the twelve payphones installed by the Appellant. The necessary cabling was installed by Telecom Eireann to the Centre and the installation of the telephones in the Centre was completed in November, 1998 before The Centre was opened to the public and (they) have remained at the initial twelve sites since that time.
The Payphones are located in pedestrian passageways within the Shopping Centre. There is no reserved enclosure or floor space for those using the phones. The telephone instrument occupies no more than 35sq.ft. of wall space and protrudes no more than 6" from the wall at any point.
Telecom Eireann owns the telephone instruments and cash boxes at the end of the telephone instrument. Telecom Eireann personnel enter the Centre with the permission of the management of the Centre and empty the coin boxes three to four tomes per week.
In other Shopping Centres the owners of the Centres have installed their own phones and are charged 11.17 pence per local call by Telecom Eireann and take the profit in respect of the amount charged to the customer in making the call. In present case Telecom eireann owns the phones and collects all the money used by customers in making the calls.
The owners of The Centre had accorded to Telecom Eireann permission to install the phones in the St. Stephen's Green Shopping Centre. The owners/landlord were not paying any rental on the lines in theShoppingCentre while in other Shopping Centres the owners of the Centres paid a rental on the telephone lines.
The Appellants have been afforded a right to instal and operate payphones in the subject premises and they have the right to prevent other persons from unlawfully interfering with the apparatus or taking the income from the aparatus. The Appellants are licensees at will in respect of the occupation by their phone equipment of the walls of the Centre. The occupation is of benefit to the appellants and the occupation is not for too transitory a period"
Evidence was given before the Tribunal by Dan Curtin of Jones Lang Wooton, who had been empolyed since January 1998 as property manager of the St. Stephen's Green Shopping Centre by Firmount Ltd., the landlord of the Centre, and a summary of that evidence is included in the document annexed to the case stated. He said:-
"The Centre has in or about 95 units leased to a variety of tenants most of whom have taken a 35 year lease from Firmount Ltd........ I confirm that Telecom Eireann has no such lease or any similar agreement or arrangement with FirmountLtd........ nor has it any easement, or licence or any right to enter those premises. Entry to the Centre isalways made with permission and this permission can be revoked at anytime
On the 20th July, 1988 Ms. Ann Delaney (the then Manager of the Centre and empolyee of Jones Lang Wooton) requested Telecom Eireann to install twelve payphones in the St. Stephen's Green Shopping Centre at locations to be discussed with the Centre's Architects....... Neither Fiemount Ltd. nor its management agents, Jones Lang Wooton,...
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VA07.2.005 – The Minister for Communications, Marine and Natural Resources
...v Mayo County Council [1967] IR 364 at 367 and 368. The decision of the Supreme Court in Telecom Eireann v Commissioner of Valuation [1997] 2 IR 575 makes it clear that a person enjoying only a subordinate occupation which was subject at all times to the control and regulation of another co......