Trustees of Kinsale Yacht Club v Commissioner of Valuation

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Barr.
• Judgment Date: 01 January 1993
• Neutral Citation: 1992 WJSC-HC 3773
• Date: 01 January 1993
• Docket Number: Record No. 721 SS/1991

1992 WJSC-HC 3773

THE HIGH COURT

Record No. 721 SS/1991

KINSALE YACHT CLUB v. COMMISSIONER VALUATION

IN THE MATTER OF THE VALUATION ACTS 1852 TO 1988

AND IN THE MATTER OF THE VALUATION OF THE MARINA ADJOINING

THE TOWN PIER IN THE URBAN DISTRICT OF KINSALE AND IN THE

COUNTY OF CORK APPEAL NO. VA/90/3/14

BETWEEN

THE TRUSTEES OF KINSALE YACHT CLUB

APPLICANTS

AND

THE COMMISSIONER OF VALUATION

RESPONDENT

Citations:

VALUATION ACT 1988 S5

VALUATION (IRL) ACT 1852 S48 REF 2

VALUATION (IRL) ACT 1852 REF 4

VALUATION (IRL) ACT 1852 S12

MARA V HUMMINGBIRD LTD 1982 ILRM 421

BROWNE (INSPECTOR OF TAXES) V BANK OF IRELAND FINANCE LTD 1991 ILRM 421

Synopsis:

RATES

Hereditaments

Rateability - Harbour - Yachts - Moorings - Marina - Fixed moorings - Development of land - Exceptions - Whether marina exempt as land developed for sport - Valuation (Ireland) Act, 1852, ss. 11, 12 & schedule - Valuation Act, 1986, ss. 2–4 - Valuation Act, 1988, s. 5 - (1991/721 SS - Barr J. - 12/10/92) - [1993] ILRM 393

|Trustees of Kinsale Yacht Club v. Commissioner of Valuation|

WORDS AND PHRASES

"Fixed moorings"

Harbour - Yachts - Moorings - Marina - Rateability - Development of land - Exceptions - Whether marina exempt as land developed for sport - (1991/721 SS - Barr J. - 12/10/92) - [1993] ILRM 393

|Trustees of Kinsale Yacht Club v. Commissioner of Valuation|

F7F7

WORDS AND PHRASES

"Lands developed for...sport"

Harbour - Yachts - Moorings - Marina - Rateability - fixed moorings - Development of land - Exceptions - Whether marina exempt as land developed for sport - (1991/721 SS - Barr J. - 12/10/92)

|Trustees of Kinsale Yacht Club v. Commissioner of Valuation|

1 Judgment delivered the 12th day of October, 1992 by Mr. Justice Barr.

2 These proceedings relate to a Case Stated by the Valuation Tribunal pursuant to the provisions of Section 5 of the Valuation Act, 1988upon a request by the respondent to put certain questions on points of law to the High Court for its consideration arising out of the determination of the Tribunal on an appeal brought by the applicants against the determination of the respondent in fixing a rateable valuation of £60 on part of its marina in Kinsale Harbour.

3 The background facts are not in dispute and are as follows:-

4 The Kinsale Yacht Club is a long established sporting association having as its primary objective the advancement of the sport of yachting and the provision of facilities in that regard for its members. Up to 1977 the club provided swinging moorings for members having keel-boats or other such craft which required to be moored in deep water. The swinging moorings provided by the club comprised heavy weights on the sea-bed to which were attached chains and identification buoys.

5 In 1977 the club decided to replace the swinging moorings by a 117 berth marina for the use of its members and cruising yachtsmen and women who visit Kinsale. The structure was built at a cost of £150,000 and has been in operation since 1978. Since then there has been a further expenditure of about £30,000 including cost of re-aligning part of the marina in 1988.

6 The form which the marina takes is broadly similar to others which have been built in Ireland and elsewhere. The floating part, which is over 90% of the entire structure, comprises a series of interlinked wooden walkways most of which have narrow wooden spines on either side. Each spine provides a berth for two yachts. There is a channel between each set of spines to enable boats to enter and leave the marina. Boats which are moored at spines do not exceed about 40 ft. LOA. Larger boats and most visiting yachts are berthed at the outer perimeter walkways. Hoses are supplied and fresh water is laid on at various points throughout the marina and electricity is also supplied for recharging batteries and providing power for tools used for repairing boats.

7 The floating marina platform is attached by collars to 18 piles, 11 of which are of steel construction and 7 are greenheart timbers. All are driven into the sea-bed. Entry to the marina from the landword side is by way of a fixed jetty which extends from a quay wall into the harbour to a point where a hinged ramp extends to the nearest wooden walkway. The floating part of the marina is not capable of horizontal or lateral movement but only perpendicular movement up and down the piles. It rises and falls on the tide and the collars around the piles move up and down in turn with the tidal movements. In short, the marina is in three inter-related parts. First, the fixed jetty from the quay and the ramp attached to it by which entry is gained to the marina proper. Secondly, the floating wooden structure which provides berthing and attendant facilities for 117 yachts or other pleasure craft. Thirdly, the piles which are driven into the sea-bed and to which the wooden structure is itself secured. It is not in dispute that the wooden structure may be disconnected and floated off to another location or brought ashore. In 1988, due to a dust problem elsewhere in the harbour, the marina was re-aligned by moving part of it to a new location on the side away from the dust-making area. This entailed disconnecting part of the wooden structure and the removal of two piles which were then driven into the ground again at the new location. However, it is not suggested that the piles should be regarded as other than permanent structures attached to the sea-bed.

8 On these facts the respondent takes the view that the part of the marina which is within the boundary of Kinsale UDC is a reteable hereditament and he has fixed a rateable valuation of £60 in respect thereof. The appellants appealed that decision to the Valuation Tribunal which, having heard oral evidence and also submissions by counsel for each party delivered a written judgment on 31st May, 1991 which includes the following findings:-

9 "It is agreed by the parties that only approximately one-third of the hereditament lies within the U.D. boundary. It is also agreed that a rateable easement exists, regardless of the rateability of the floating marina section of the hereditament.

10 What remains to be determined by the Tribunal is whether the marina is rateable or whether it falls for exemption under Reference No. 2 of the Schedule inserted after S.48 of the Valuation Ireland Act, 1852 or under Reference No. 4 of the said Schedule.

11 The Tribunal is of the opinion that regardless of the essential sporting element of the marina, it cannot be said to be land, in view of the greater Oxford dictionary definition of land as -

"the solid portion of the earths surface, as opposed to seawater."

12 The inherent nature of this marina, it would seem, is that it floats on water. It cannot, therefore, be said to be a development of land. The marina itself is a floating object which is attached by collars to piles sunk into the sea-bed. As was so comprehensively described by Mr. Kingston (Vice Commodore of the Kinsale Yacht Club) the collars can be slipped and the marina floated off to another location.

13 Accepting the dictionary definition of the term "mooring" as put forward by Mr. O'Caoimh, the marina platform itself is not the mooring. The piles and the collars of the "mooring" portion of the marina, being respectively the objects to which something, i.e. the marina is moored and the something by which a floating object i.e. the marina is made fast.

14 The Tribunal is satisfied that the collars, while obviously moorings, are equally obviously not fixed since evidence has been given that they can be easily removed.

15 The piles, on the other hand, while it might be argued that they are fixed in the lay persons use of the term, they are not "fixed" in the nautical sense, in that they can be removed if necessary, and are not fixed...