Westlink Toll Bridge Ltd v Commissioner of Valuation and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Fennelly,Mr. Justice John MacMenamin, |
| Judgment Date | 23 October 2013 |
| Neutral Citation | [2013] IESC 42 |
| Court | Supreme Court |
| Date | 23 October 2013 |
[2013] IESC 42
THE SUPREME COURT
Fennelly J.
Clarke J.
MacMenamin J.
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VALUATION ACT 2001 S48(3)
VALUATION ACT 2001 S3
VALUATION ACT 2001 SCHED 3
ROADS ACT 1993 S57(1)
ROADS ACT 1993 S57(3)(D)
ROADS ACT 1993 S59
ROADS ACT 1993 S61
ROADS ACT 1993 S63
ROADS ACT 1993 S63(1)
DUBLIN CO COUNCIL v WESTLINK TOLL BRIDGE LTD 1996 1 IR 487 1996 2 ILRM 232 1996/4/944
POOR RELIEF (IRL) ACT 1838 S63
LOCAL GOVT (TOLL ROADS) ACT 1979 S9
VALUATION ACT 2001 S48(1)
ROADS ACT 1993 S63(5)
VALUATION ACT 2001 S39
ROADS ACT 1993 S63(2)
VALUATION ACT 2001 S48
NANGLES NURSERIES v CMRS OF VALUATION UNREP MACMENAMIN 14.3.2008 2008/46/9983 2008 IEHC 73
REVENUE CMRS v DOORLEY & MCDERMOTT 1933 IR 750
INSPECTOR OF TAXES v KIERNAN 1981 IR 117 1982 ILRM 13 1981/10/1728
UNITED STATES TOBACCO (IRL) LTD & UNITED STATES TOBACCO INTERNATIONAL INC v IRELAND & ORS 1993 1 IR 241 1991/6/1446
DERELICT SITES ACT 1990 S11(5)
ROADS ACT 1993 S70(10)
WASTE MANAGEMENT ACT 1996 S56(2)
HARTLEY v HUDSON 1879 4 CPD 367
LOCAL GOVT FINANCE ACT 1988 SCHED 6 PARA 2(1) (UK)
RYDE & ROOTS RYDE ON RATING & THE COUNCIL TAX 14ED 1990 PARA E.622
R (OVERSEERS OF ST MARY CARDIFF & ORS) v RHYMNEY RAILWAY CO 1868-69 4 LR QB 276
BRECON MARKETS CO v ST MARYS BRECON 36 LT 109
MERSEY DOCKS & HARBOUR BOARD v BIRKENHEAD ASSESSMENT COMMITTEE 1901 AC 175 1900-03 AER REP 27
ROADSTONE LTD v CMSR OF VALUATION 1961 IR 239 1962 96 ILTR 148
EASTLINK LTD v CMSR OF VALUATION UNREP 11.5.1998 (EX TEMPORE)
CMSR OF VALUATION v DUNDALK GAS CO 1929 IR 155
IRISH MANAGEMENT INSTITUTE v CMSR OF VALUATION 1990 2 IR 409 1990/3/870
ROSSES POINT HOTEL CO LTD v CMSR OF VALUATION 1987 IR 143 1987 ILRM 512 1987/4/1100
MOVIE NEWS LTD v GALWAY CO COUNCIL UNREP SUPREME 15.7.1977
LOCAL GOVT (IRL) ACT 1898 S10
D (K) (ORSE C) v C (M) 1985 IR 697 1987 ILRM 189 1985/7/1790
I (H) v MIN FOR JUSTICE 2003 3 IR 197 2004 1 ILRM 27 2003/27/6454
LOUGH SWILLY SHELLFISH GROWERS CO-OPERATIVE SOCIETY LTD & ATLANFISH LTD v BRADLEY & IVERS UNREP SUPREME 13.3.2013 2013 IESC 16
VALUATION ACT 2001 S39(5)
VALUATION ACT 2001 S39(7)
VALUATION ACT 2001 SCHED 3 PARA 2
VALUATION ACT 2001 SCHED 3 PARA 2(A)
DUBLIN CO COUNCIL v WESTLINK TOLL BRIDGE LTD 1996 1 IR 487 1996 2 ILRM 232 1996/4/944
VALUATION ACT 2001 SCHED 3 PARA 1
IMPERIAL TOBACCO CO (GB & IRL) LTD v PIERSON 1961 AC 463 1960 3 WLR 235 1960 2 AER 780
Administrative law- Appeal- Valuation Tribunal- Rates- Deductible-Payments- Roads- Charge- Private arrangements- interpretation- Toll Facility- Cross appeal- New issues- Compliance obligations- Rights and duties- Valuation Act 2001- Roads Act 1993
Facts: A number of issues were appealed to the Supreme Court on foot of a decision of the High Court in respect of two cases stated by the Valuation Tribunal pursuant to the Valuation Act 2001 and the rateable valuation of tolls. The first rateable property was the Westlink toll facility and the second toll derived from a section of the M1 motorway. The appellants were obliged to pass a proportion of their gross toll revenue to the Minister for the Environment/ National Roads Authority. The Tribunal found that royalty payments were deductible but that the appellants were not entitled to deduct these royalties. The issue of the length of the roadway arose in the Celtic appeal. The primary issue was whether royalties were a charge within the terms of s. 48 of the Act of 2001, considered in relation to s. 63 Roads Act 1993. The Court considered whether the royalty payments identified in contracts charges payable under the enactments or whether such payments were simply payable on foot of private contractual arrangements of the two companies and the NRA? The High Court had found that the royalties were payable under the contract and that they were private arrangements and not a tax and not therefore deductible.
Held by the Supreme Court per MacMenamin J. (Fennelly J. dissenting, Clarke J. concurring in part), that the Court would allow the appeal against the decision of the High Court on the primary issue and dismiss the appeal against his remaining decision. The High Court had misdirected himself in law on this primary point. The revenue share fell to be regarded as a charge payable within the meaning of s. 48 of the Act of 2001 and was deductible. It was not simply a restrictive covenant or a private arrangement. The entitlement to collect the toll was dependent upon compliance with the maintenance obligations. Per Fennelly J. dissenting on deductibility: a royalty payment was not a charge, it did violence to the provisions of s. 48 to say otherwise and the payments had been made under the agreement.
JUDGMENT of Mr. Justice Fennelly delivered the 23rd day of October 2013
Judgment of Mr. Justice John MacMenamin, delivered the 23rd day of October, 2013.
Judgments delivered by Fenelly J. & MacMenamin J.
1. I regret that I find myself unable to agree with the judgment which is about to be delivered by MacMenamin J and with which Clarke J agrees on one point only. That is on the question whether payments made by the appellants to the National Roads Authority pursuant to agreements with that body are deductible when calculating "net annual value" pursuant to s. 48(3) of the Valuation Act, 2001. This being a dissenting judgment on that point, I can express myself briefly.
2. I agree with the judgment of MacMenamin J on the other question, namely the appellant in the second case mentioned above (Celtic Road Group (Dundalk) Limited] is entitled to deduct the costs of repair and maintenance, incurred by it, of the entire length of road (54.7 kilometres), thus not limited to the cost of maintaining the tolled stretch of the M1 motorway from Gormanstown, Co. Meath to Monasterboice, Co. Louth (a distance of 21.74 km).
3. The first question at issue is whether the "royalty" payment made to the National Roads Authority by each of the appellants from the tolls collected by it falls within the scope of the expression "all rates and other taxes and charges (if any) payable by or under any enactment in respect of the property…"
4. In my view, the royalty payment is not a "charge" and is certainly not "payable by or under any enactment."
5. What used to be called a "rateable hereditament" has become since the passing of the Valuation Act, 2001"relevant property." (see s. 3 and Schedule 3 of the Act).
6. The Local Government (Toll Roads) Act, 1979 introduced the regime for charging tolls on new highways. The relevant legislation is now found in the Roads Act, 1993.
7. There are three relevant sets of provisions. Firstly, there is a power to make schemes. Section 57(1) of the Act of 1993 empowers a road authority to "make a scheme ("a toll scheme") for the establishment of a system of tolls in respect of the use of a public road." Section 57(1 )(d) provides that such a toll scheme shall "include an estimate of the amounts of the tolls that it is proposed to charge in respect of the use of the toll road by such vehicles and road users.."
8. Secondly, road authorities are given power to charge tolls and to make bye-laws. Section 59 of the Act provides "that a road authority may charge and collect tolls of such amounts as may be specified for the time being in bye-laws made by it under section 61 in respect of the use of a toll road." Section 61 empowers the road authority to make such bye-laws "as it considers expedient for the purposes of the operation and management of a toll road."
9. Thirdly, road authorities are given power to enter into agreements. Section 63 is the provision most relevant to the present appeal. It should be quoted in full:
(1) Where a toll scheme is approved by the Minister, a road authority may, with the consent of the Minister, enter into an agreement with another person under which, upon such terms and conditions as may be specified in the agreement (including the payment to, or retention by, the person of all or part of the proceeds of tolls in respect of the toll road the subject of the scheme), the person agrees to do all or one or more of the following:
(a) to pay some or all of the cost of the construction of the road,
(b) to pay some or all of the cost of the maintenance of the road,
(c) to construct or join or assist in the construction of the road for or with the authority,
(d) to maintain or join or assist in the maintenance of the road for or with the authority,
(e) to operate and manage (including provide, supervise and operate a system of tolls in respect of the use of the road) the road for or with the authority,
(f) such other things connected with or incidental or ancillary to or consequential upon the foregoing as may be specified in the agreement.
(2) Without prejudice to the generality of subsection (1), an agreement under this section may-
(a) provide for the application of the proceeds of tolls, systems of accounting for tolls collected and the methods and times of payment of proceeds of tolls to the persons to whom they are to be paid under the terms of the agreement,
(b) specify the period for which the agreement shall have effect and provide for its termination or suspension and for matters connected with or incidental or ancillary to or consequent upon the expiration of the agreement or such termination or suspension, and
(c) provide for the giving of such security as may be specified therein -
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