Trustees of Kinsale Yacht Club v Commissioner of Valuation

• Jurisdiction: Ireland
• Judge: Finlay C.J.
• Judgment Date: 10 February 1994
• Neutral Citation: 1994 WJSC-SC 1855
• Court: Supreme Court
• Date: 10 February 1994

1994 WJSC-SC 1855

THE SUPREME COURT

FINLAY C.J.

O'FLAHERTY J.

BLAYNEY J.

339/92

TRUSTEES OF KINSALE YACHT CLUB v. COMMISSIONER OF 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

BETWEEN:

TRUSTEES OF KINSALE YACHT CLUB

Respondent

and

COMMISSIONER OF VALUATION

Appellant

Citations:

VALUATION ACT 1988 S5

VALUATION ACT 1986 S2

VALUATION (IRL) ACT 1852 S48

VALUATION (IRL) ACT 1852 S12

INSPECTOR OF TAXES V KIERNAN 1982 ILRM 13

VALUATION (IRL) ACT 1852 S14

Synopsis:

RATES

Hereditaments

Rateability - Harbour - Yachts - Moorings - Marina - Fixed moorings - Case Stated - Statute - Interpretation - Strictness - Necessity - Classification of rateable hereditaments - Valuation (Ireland) Act, 1852, ss. 11, 12 & schedule - Valuation Act, 1986, ss. 2, 3 - (339/92 - Supreme Court - 10/2/94) - [1994] 1 ILRM 457

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

STATUTORY INTERPRETATION

Strictness

Necessity - Rates - Hereditaments - Rateability - Classification - Enactment not imposing taxation or penalties - Enactment to be construed strictly - (339/92 - Supreme Court - 10/2/94) - [1994] 1 ILRM 457

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

WORDS AND PHRASES

"Fixed moorings"

Hereditaments - Rateability - Classification - Marina - Enactment not imposing taxation or penalties - Enactment to be construed strictly - (339/92 - Supreme Court - 10/2/94)

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

1 10th day of February 1994 by Finlay C.J. [NEM DISS]

2 This is an appeal brought by the Commissioner of Valuation against the judgment and order made by Barr J. in the High Court upon a case stated to the High Court by the Valuation Tribunal pursuant to Section 5 of the Valuation Act, 1988which judgment and order in effect decided the issue before the Court in favour of the Trustees of the Kinsale Yacht Club.

3 At the annual revision of rateable hereditaments in 1989 the Commissioner placed a valuation of £120 in the absolute column of the valuation list on the hereditament entered in that list and described as a marina.

4 Against that decision the Trustees of the Kinsale Yacht Club (the Club) appealed on the grounds

5 (1) that the valuation was excessive,

6 (2) that the hereditaments comprised no rateable category of fixed property, and

7 (3) that the valuation was bad in law.

8 In September 1990 the Commissioner issued a decision at first appeal upholding the validity of the valuation but reducing it to the sum of £60 leaving the description of hereditament unchanged.

9 The Club appealed against that decision to the valuation tribunal and after hearing, the Tribunal decided as follows -

10 1. That the marina did not "fall for exemption" under Reference No. 2 of the Schedule inserted by Section 2 of the Valuation Act, 1986 after s.48 of the Valuation (Ireland) Act, 1852. The grounds for this decision was that although there was an essential sporting element in the construction of the marina that it could not constitute a development of land.

11 2. It was held that the marina did not constitute a fixed mooring by reason of the fact that the piles to which it was attached by collars were capable of removal from the sea-bed and replacement in another area.

12 3. The parties having so agreed, it adjudicated that a rateable easement existed and valued it at £2.50.

13 At the request of the Commissioner, the Tribunal pursuant to the provisions of Section 5 of the 1988 Act stated a case to the High Court requesting the opinion of that Court on the following questions:

14 (1) Whether the Tribunal was correct in holding that the hereditament the subject of the appeal was not rateable as not constituting a fixed mooring, and

15 (2) Whether the Tribunal was correct in law in concluding that the correct valuation of the subject hereditament is £2.50 as an easement under Section 12 of the Valuation Act, 1852.

16 The matter then came on before Barr J. in the High Court and after hearing the submissions made by the parties he delivered a reserved judgment on the 12th October 1992.

17 In brief the effect of that judgment was to make the following findings.

18 1.He concluded on the facts as stated in the Case Stated before him that the finding by the Valuation Tribunal that the marina was not a fixed mooring was not a finding of fact which a reasonable tribunal could properly have arrived at and that accordingly it must be set aside.

19 2.He concluded that the words "all lands" contained in Reference No. 2 of the Schedule inserted in the Act of 1852 by Section 2 of the Act of 1986 included land comprising the sea-bed.

20 3.He concluded that the marina was accordingly a development of land for sport and that as such it was not a rateable hereditament by virtue of the provisions of Reference 2 of the said Schedule. He accepted the contention made by the Commissioner that the Tribunal was premature in fixing a rateable valuation of the subject hereditament as an easement under Section 12 of the Act of 1852 and noting agreement that a rateable hereditament of an easement existed he directed that the matter be sent back to the Commissioner for the purpose of a valuation of that.

21 Against that decision, the Commissioner has appealed to this Court. No notice to vary or cross appeal was filed on behalf of the Club.

22 The issues which arose on this appeal can be stated with significant brevity. It is the contention made on behalf of the Commissioner that once the learned High Court Judge concluded that the Valuation Tribunal had erred in finding that this was not a fixed mooring as a matter of law it inevitably became a rateable hereditament at Reference No. 4 of the Schedule inserted by the 1986 Act and that it was irrelevant as to whether it could also be described as a development of land for the purpose of sport within the meaning of those words contained in Reference No. 2 of that Schedule.

23 In the alternative, it was contended on behalf of the Commissioner that even if that submission were incorrect and if the true construction of the statutory provisions led to the conclusion that Reference No. 4 and No. 2 of the said Schedule must be read together so as to make exempt such items as fixed moorings referred to at Reference No. 4 which were also lands developed for the purposes of sport that the marina was not exempt on that basis either because being affixed to the sea-bed under the sea, it could not within the meaning of those words, contained in the valuation code be described as a development of lands.

24 On behalf of the Club, it was contended firstly that whilst the Valuation Act of 1986cannot properly be described as a taxing or charging Act, it can properly be described as an Act which brings within an area of taxation or...