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Appeal No. VA01/1/015 & VA01/1/016 AN BINSE LUACHÁLA Esat Telecom APPELLANT RE: Cables at: VA01/1/015 - Carhoo, Whitechurch, Cork
Upper, Co. Cork B E F O R E JUDGMENT OF THE VALUATION TRIBUNAL By Notices of Appeal dated the 18th day of April, 2001, the appellant appealed against the determination of the Commissioner of Valuation in fixing rateable valuations of IR£720.00 (€914.21) (VA01/1/015) and IR£1,440.00 (€1828.42) (VA01/1/016) on the above described relevant properties. The Grounds of Appeal as set out in the Notices of Appeal are contained in the Second and Third Schedules hereto. By the two Notices of Appeal copies of which are set out in the Second and Third Schedules hereto the appellant appealed to this Tribunal in respect of decisions made by the Commissioner of Valuation. It has been agreed with the consent of the parties that these two appeals should be heard and dealt with simultaneously. 1. By the Judgment of a different Division of this Tribunal dated the 31st day of March 2003 the Tribunal determined that the appellant was entitled to pursue these appeals on the grounds set out in the said Notices of Appeal. 2. These Appeals proceeded by way of oral hearing which took place at the offices of the Valuation Tribunal, Dublin on the 4th day of July 2003. Mr Owen Hickey, Barrister-at-Law instructed by Mr Richard Breen of William Fry, Solicitors, Dublin appeared on behalf of the appellant. Mr Brendan Conway, Barrister-at-Law instructed by Mr Tom Sweeney of the Chief State Solicitors Office appeared on behalf of the respondent. In accordance with the Rules of the Tribunal the parties had prior to the commencement of the hearing exchanged their précis of evidence in both appeals and submitted the same to this Tribunal. Mr William Tuite of Messrs Jones Lang LaSalle prepared the appellant's précis on the question of Notice whilst Mr Desmond M. Killen FRICS, FSCS, IRRV of GVA Donal O Buachalla prepared the appellant's précis dealing with quantum only. Mr Terence Dineen a District Valuer in the Valuation Office was the Appeal Valuer. Mr John Murray the Data Planning and Design Manager of the appellant gave sworn evidence and was cross - examined. Mr Peter Conroy a Valuer with the Valuation Office who was the Revising Valuer gave evidence on oath. 3. ADJOURNMENT APPLICATION By letter dated 3rd July 2003 from Messrs William Fry, Solicitors for the appellant to the Tribunal it was indicated that the cost figures for the subject properties might need to be revised and that Counsel for the appellant would apply to the Tribunal for an adjournment of the hearing of the quantum issue and if the Tribunal were so disposed for a hearing only of the matters of law arising in these appeals and in particular the matter of notification pursuant to Section 3 of the Valuation Act, 1988. A copy of this letter is set out in the Fourth Schedule hereto. The Tribunal indicated that it would be unable to sit beyond 1 o'clock on the day of the hearing. Counsel on both sides made submissions in relation to the adjournment application. The Tribunal retired to consider the matter. The Tribunal decided to proceed that morning with the issues set out at Paragraphs 2(i), 2(ii), 2(iv), 2(vii) and 2(viii) of the Grounds of Appeal attached to the Notices of Appeal. From the evidence tendered to the Tribunal the following relevant facts either agreed or so found emerged as being material to this appeal. 4. LOCATION AND DESCRIPTION OF PROPERTY 5. OCCUPATION In the month of June 1998 the appellant was known to Cork County Council the rating authority as the occupier of the subject properties. 6. VALUATION HISTORY The Valuation Date is 10th August 1999. The subject properties were listed for revision in June 1998. See copy letter from Mr Val Cotter, Senior Staff Officer, Cork County Council to Mr Michael O'Brien, Valuation Office dated 16th February 2001 set out in the Fifth Schedule hereto. In the month of June 1998 Cork County Council sent by post to the appellant written notifications of listing for revision pursuant to Section 3 (4) (a) of the Valuation Act, 1988 in relation to the subject properties the same being addressed to the appellant at 8 Upper Mount Street, Dublin 2. It is against the decisions of the Commissioner on first appeal that these appeals lie to the Tribunal. 7. APPELLANT'S ADDRESS 8. ISSUE OF NOTIFICATION PURSUANT TO SECTION 3 (4) (a)
OF THE VALUATION ACT, 1988 "31. From these cases the following general principles
can be arrived at:- Mr Hickey stated that he had offered evidence to the Tribunal that the appellant was not in 8 Upper Mount Street from the end of 1995 and as the notification was dated June 1998 he contended that he had bona fide raised the question of notification and that the onus then moved to the respondent to prove compliance with Section 3 (4) (a) of the Valuation, Act 1988. This provides as follows:- "Where an application under subsection (1) of this section in relation to any property is made by any person other than the owner or occupier of that property, the owner and occupier, if known, shall be notified by the rating authority of the application." At this stage of the hearing the Tribunal held as follows:- 9. EVIDENCE OF MR PETER CONROY, ON BEHALF OF THE RESPONDENT Mr Conroy handed in to the Tribunal a bundle of copy correspondence
containing copies of the following letters:- A copy of the said correspondence is contained in the Sixth Schedule hereto. Mr Conroy stated that after he wrote to Ms O'Marcaigh on 1st July 1998 he got no reply and he then made numerous phone calls. He said the letter of 14th September 1998 to him from Ms O'Marcaigh did not answer his questions so he had to proceed as best he could. Mr Conroy stated that he then wrote a reminder of 28th January 1999 to Ms O'Marcaigh of the appellant. Mr Conroy said that he then proceeded with the Revision and he wrote the letter of 20th June 1999 to Ms O'Marcaigh. Mr Hickey intervened during Mr Conroy's evidence to state that the appellant was making no issue whatsoever that the appellant as a matter of fact engaged in the provision of information to Mr Conroy prior to the Revisions. Mr Hickey further said that the appellant was simply saying that the Section 3 (4) (a) notice was not served on it by the rating authority. 10. ISSUES AND SUBMISSIONS BY COUNSEL Mr Conway drew attention to Paragraphs 2 (i) and (ii) of the Grounds of Appeal attached to the Notices of Appeal to this Tribunal in both cases which are in the following words :- "2. The assessment is bad in law as it does not comply with the provisions of the Valuation Acts 1852 to 1988 in that, inter alia; (i) No notice pursuant to Section 3 (4) (a) of the Valuation
Act 1988 was served on the appellant Mr Conway said that the word that was used by the appellant in both Grounds of Appeal was that no notice pursuant to Section 3 (4) (a) and Section 3 (4) (b) of the Valuation Act, 1988 was "served" on the appellant. Mr Conway went on to submit that there was no requirement in the Act of 1988 to serve on the appellant and that the requirement under that Act was notification. He further submitted that Paragraphs 2 (i) and 2 (ii) of the Grounds of Appeal in both cases were invalid and should not be accepted by the Tribunal in that they mis-state the legislation and did not reflect the requirement in the legislation. The foregoing grounds of appeal he submitted had no validity and should be disregarded by the Tribunal. Mr Conway submitted that the appellant had got it wrong and that for that reason there was no basis for the argument that the appellant now made on notification which was a different issue which the appellant was now raising for the first time. Mr Conway stated that notification was not specified in the appellant's grounds of appeal. Mr Conway stated that the specific grounds which the appellant was attempting to adduce to the Tribunal were grounds which were not specified in the Notices of Appeal to the Tribunal in these cases and he continued that these grounds should be refused audience by the Tribunal. Mr Conway said that the Notices of Appeal at first appeal stage were both dated September 1999 and the same wording was used in them. Copies of the Notices of Appeal at first appeal Stage are set out in the Seventh Schedule and the Eighth Schedule hereto. In reply to Mr Conway's argument Mr Hickey submitted that the serving of a notice pursuant to Section 3 (4) (a) of the Valuation Act, 1988 and notification pursuant to the said Section 3 (4) (a) was the same thing. (b) Do the Notices of Appeal to this Tribunal in pleading
the issues hereinbefore referred to at 10 (a) contain a statement of the
specific grounds for these appeals as provided for in Section 3 (5) (b)
of the Valuation Act, 1988? "3. (5) (b) The notice shall contain the particulars of the valuation as entered in the Valuation Lists and a statement of the specific grounds for the appeal." Mr Conway submitted Paragraphs 2 (i) and (ii) of the Grounds of Appeal in both of these appeals were not pleaded correctly, were seriously incorrect and did not comply with subsection 3 (5) (b) aforesaid. These Paragraphs he submitted were not a statement of specific grounds for the appeals. (c) Did the appellant at first appeal raise the question
of the alleged failure of the rating authority to notify it of the listings
for revision? (d) Has the respondent complied with the onus on him to
prove compliance with Section 3 (4) (a) of the Valuation Act, 1988? Mr Hickey said it was manifest in the case law that compliance with Section 3 (4) (a) of the Valuation Act, 1988 was mandatory and that this was a clear non compliance issue and it was not enough to send off a notice to an address which the appellant had left three years previously. Mr Hickey referred to the Judgment of the Tribunal in the case of Dublin Corporation (Rates Office) v.Commissioner of Valuation VA99/3/042 & 043 and in particular Paragraph 9 of the Judgment which is at Page 11 thereof. Mr Hickey submitted that in dealing with the "if known" point the principle of a reasonable enquiry within the rating authority of where the appellant was with its profile in 1998 would have rendered the appellant's address as simple as possible to find. Mr Hickey applied for a direction given that there was no evidence from the rating authority and the evidence tendered by the appellant that it had left the building to which notice was addressed three years previously. Mr Hickey submitted that it was a simple case and that Section 3 (4) (a) of the Valuation Act, 1988 had not been complied with. Mr Conway said that Cork County Council complied with the requirements of Section 3 (4) (a) of the Valuation Act, 1988 by writing to the appellant at the address the County Council had on record for the appellant. It was Mr Conway's submission that that complied with the requirements of notification in that Cork County Council did what they reasonably could have done at the time. Mr Conway submitted that the appellant was not claiming that it hadn't received notification and that the appellant was not saying anything about notification other than that it had been sent to an address at Mount Street. (e) Did the participation of the appellant in the Revisions
excuse any failure of the respondent to comply with the onus on him to
prove compliance with Section 3(4)(a) of the Valuation Act, 1988? (f) Can any failure by the respondent to comply with the
onus on him to prove compliance with Section 3 (4) (a) of the Valuation
Act, 1988 be excused unless the appellant proves prejudice, injustice,
damage or disadvantage? Mr Conway submitted that there was no infringement of the appellant's constitutional rights in the circumstances where the appellant was involved in the process and where the appellant received notification via Mr Conroy and by letter from Cork County Council in June 1998 in the first instance. Mr Conway submitted that in the circumstances where no prejudice and no damage of any kind could be shown and where no evidence was being adduced as he understood it that there was any damage or any prejudice that any deficiency in the proceedings was a situation of de minimis and that the Tribunal should not seek to provide a remedy for any such deficiency which was so minor in nature as not to require a remedy. Mr Hickey said that he raised no issue whatsoever of prejudice and he submitted that it was clear from Pettitt's case that the issue of prejudice was not relevant. Mr Hickey conceded that there was a deal of correspondence prior to the actual Revisions and stated that there was no question of saying that as a matter of fact the appellant was not aware of the oncoming Revisions. FINDINGS 11. The appellant had adequately and properly pleaded in
the Notices of Appeal to this Tribunal and the Notices of Appeal in relation
to the first appeals the alleged failure of the rating authority to notify
it of the listings for revision the provisions for notification being
contained in Section 3 (4) (a) of the Valuation Act, 1988. 12. The Notices of Appeal to this Tribunal in pleading the
issue referred to at Paragraph 13 hereof contained a statement of the
specific grounds for these appeals as provided for in Section 3 (5) (b)
of the Valuation Act, 1988. 13. There was no evidence before the Tribunal as to what
transpired at first appeal and accordingly the respondent must fail on
the ground raised by him that the appellant did not raise at first appeal
the alleged failure of the rating authority to notify the appellant of
the listings for revision. Further the Notices of Appeal in relation to
the first appeals raised the issue of the alleged failure of the rating
authority to notify the appellant of the listings for revision and consequently
the appellant is not precluded from raising this issue before the Tribunal.
14. As admitted by Counsel for the respondent the appellant
was known to Cork County Council the rating authority as the occupier
of the subject properties in June 1998 and accordingly Section 3 (4) (a)
of the Valuation Act, 1988 applies. 15. There was a duty on the rating authority pursuant to
Section 3 (4) (a) of the Valuation Act, 1988 to notify the appellant of
the listings for revision of the subject properties. Compliance with this
duty is mandatory. These notifications were sent in writing by post by
Cork County Council in June 1998 to the appellant at 8 Upper Mount Street,
Dublin 2. 16. The respondent has failed to comply with the onus on
him to prove compliance with Section 3 (4) (a) of the Valuation Act, 1988.
No evidence was tendered to the Tribunal which proved or from which it
might be inferred that the appellant received the written notifications
of listing for revision posted to it in June 1998 at an address it had
left at the end of September 1995 or early October 1995. 17. The appellant participated in the revisions as outlined under Heading 9 of this Judgment. It is clear in these appeals that Section 3 (4) (a) of the Valuation Act, 1988 applies and that compliance therewith is mandatory. At Paragraph 33 of the Tribunal Judgment in Pettitt's case it is stated:- "33. We would reject any view that compliance with Section 3 (4) (b) and the subsequent involvement of the Owner/Occupier in the appeal process (whether at 1st appeal stage or before this Tribunal) can ever be sufficient so as to excuse non-compliance with Section 3 (4) (a) where this section applies. The requirement of notice under Section 3 (4) (b) is entirely different and entirely distinctive from the requirement under Section 3 (4) (a). The former deals with the notification of the results of revision whereas the latter deals with notification of the listing for Revision. To suggest that compliance with the former is adequate compliance with the latter is to misunderstand the true nature of the distinctive steps available in the valuation process. Such owner/occupier has in our opinion the same right of notification of listing as he has of notification of results. It is difficult in our view therefore to see how the principles of Estoppel, which are not based on any statutory provision, could be used to prevent an owner/occupier from raising the issue of non compliance. The circumstances in which and surrounding which this question arises, are in our view, quite different and quite distinct from those prevailing in cases like Corrigan v. Irish Land Commission (1977) I.R. 317." As can be seen this Paragraph of the Judgment of the Tribunal in Pettitt's case deals only with the question of involvement by the owner/occupier in the appeal process either at first appeal stage or before this Tribunal but the principle enunciated also applies to participation in revisions by appellants for the same reasons set out in the Judgment of the Tribunal in Pettitt's case and for the further reason that obligations imposed by statute must be complied with. The Tribunal therefore find that the participation of the
appellant in the revisions hereinbefore described does not excuse the
failure of the respondent to comply with the onus on him to prove compliance
with Section 3 (4) (a) of the Valuation Act, 1988 and accordingly there
are no adverse consequences for the appellant in the circumstances outlined. "34. The argument, that non-compliance can be excused unless the owner/occupier can prove prejudice or injustice is also one that we reject. Such an approach would in a great number of cases render the obligation contained in this section meaningless. It would have the effect of reversing the onus of proof and of doing so at an Appeal before this Tribunal where the first appeal procedure had already been pursued. In a great number of cases there is no doubt but that an Owner/Occupier will not make any representations at revision stage and therefore the argument goes that once his right to appeal to the Commissioner has been preserved then that is sufficient. In our view that is not the case. Furthermore, in many instances, where this notification issued remains alive, the actual rateable valuation of the subject hereditament is, without prejudice, agreed. In such circumstances an argument can be forcibly made that the occupier, as a reasonable person must know that his property is liable to be valued and that since he has agreed the rateable valuation, albeit without prejudice, he has suffered no injustice. We believe that such an ethos would be highly detrimental to the public confidence in the valuation system, where undoubtedly such public confidence so exists. We believe that obligations imposed by statute must be complied with." In view of this extract from the Judgment of the Tribunal in Pettitt's case which clearly states the law the Tribunal reject any argument that failure by the respondent to comply with the onus on him to prove compliance with Section 3 (4) (a) of the Valuation Act, 1988 can be excused unless the appellant proves prejudice, injustice, damage or disadvantage. 19. In view of the clear failure by the respondent to discharge the onus on him to prove compliance with Section 3 (4) (a) of the Valuation Act, 1988 the Revisions involved in these appeals are invalid. The appellant is entitled to the direction sought and the Tribunal grant that direction. 20. DETERMINATION |