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Appeal No. VA07/1/001
AN BINSE LUACHÁLA Model Investment Partnership APPELLANT RE: Carpark at Lot No. Unit 3, Cúirt na Coiribe,
Terryland, Menlough, North County Galway. B E F O R E JUDGMENT OF THE VALUATION TRIBUNAL By Notice of Appeal dated the 4th day of January, 2007 the appellant appealed against the determination of the Commissioner of Valuation in fixing a rateable valuation of €130.00 on the above described relevant property. The grounds of Appeal are set out in a letter attached to the Notice of Appeal, a copy of which is attached at the Appendix to this Judgment. This appeal proceeded by way of an oral hearing held in the offices of the Tribunal, Ormond House, Ormond Quay Upper, Dublin 7 on the 16th day of April, 2007. The Appellant was represented by Ms. Fiona Forde, B.L., instructed by Mr. John Fitzgerald of Messrs Kennedy Fitzgerald Solicitors, The Waterfront, Bridge Street, Galway and by Mr. Michael Gormally of Gormally Auctioneers, Merchants Road, Galway. Mr. Michael Pender, a Partner in the Model Investment Partnership and Ms. Fionnuala Hanlon, Manager of the Cúirt na Coiribe Car Park gave evidence on behalf of the Appellants. The Respondent was represented by Mr. James Devlin, B.L., instructed by the Chief State Solicitor's Office with Mr. Frank O'Connor, ASCS, MIAVI, a District Valuer in the Valuation Office. The Property Concerned Valuation History Tenure The Issue In the alternative it was submitted that the rateable valuation applied was excessive bearing in mind the location and nature of the car park and by reference to comparator car parks in Galway. The Appellant's Case In his evidence Mr. Pender provided the Tribunal with background information on the subject property. It is a basement car park in an NUI Galway Student Village consisting of accommodation for 386 3rd level students in 86 self-contained apartments leased from the Kenny Group and was developed in compliance with Section 50 of the Finance Act, 1999 which offered investment tax shelters for such developments. Copies of the Cúirt Na Coiribe brochure and planning permission dated the 2nd November, 2000 were handed into the Tribunal for reference purposes. Mr. Pender, referring to the brochure, pinpointed the location of the subject property as being situated on a very congested route between the Bodkin and Kirwan roundabouts on the Headford Road, Galway. The Bodkin roundabout which was fitted with traffic lights was an area to be avoided by both morning and evening rush hour commuters. Furthermore, the Dublin road was extremely busy and very difficult to cross. Mr. Pender advised the Tribunal that the student accommodation within the complex was approved by the Department of Education and Science and handed in a Certificate of Compliance to that effect. Dealing with the car park itself, Mr. Pender indicated that it wasn't
attractive to non-residents for the following reasons: Asked by Ms. Forde if the public would make use of the commercial units within the complex, Mr. Pender stated that residents of the adjacent complexes would from time to time use the shop unit, in particular as a convenience store. Moving on to issues arising out of the Valuation Office response as set
out at Paragraph 3 of the Respondent's précis, Mr. Pender stated
as follows: Asked regarding signage and when the "RESIDENTS PARKING ONLY" sign featuring in the report of Mr. Michael Gormally dated 11th April, 2007 was erected, Mr. Pender replied that it was put up in the previous three months but not before the First Appeal stage. Mr. Pender added that the other two signs featuring in the same report on the left hand side of the entrance to the subject car park referred to surface car parking for customers of the commercial facilities. Arising out of cross-examination by Mr. Devlin, Mr. Pender confirmed that certain services such as the shop unit and launderette were used by both the pubic and students. He also stated that tourists/visitors would use both the surface and basement car parks but was not fully sure if they paid for use of the latter. Mr. Pender, however, disagreed with Mr. Devlin that there was any sort of policy in place to charge visitors or tourists. Simply because there was no reference in the Brochure at reception to availability of free parking was not indicative of a conscious practice to impose a tariff on visitors or tourists. On the contrary, Mr. Pender argued that there was a buzzer facility in place for visitors/family members and it was only on the rarest of occasions when the reception at the complex was unmanned that visitors might be required to pay. Mr. Pender re-iterated that the existence of the barriers was all part of the futuristic services profile, which incorporated inter alia nightlighting, maintenance, leaves collection, security etc. all of which fell within the concept of future proofing. Mr. Pender further added that he understood that the long term plan was to levy students for the use of the car park but that there was no intention of opening it up to members of the public at any stage. Apart from anything else, there simply would not be car spaces for the public due to student demand. Pressed by Mr. Devlin on the contents of the Kennedy Fitzgerald letter dated the 8th December, 2006, Mr. Pender, concluding his cross-examination, assured him that the car park was not used by members of the general public. He accepted that the said letter was not explicit to the extent of differentiating permitted usage under condition 3 of the planning permission and actual usage on the ground. Mr. Pender emphasised that the car park was used by residents and visitors only. Ms. Fionnuala Hanlon, Manager of the Cúirt na Coiribe Car Park informed the Tribunal that the automatic pay station became operative in December, 2005. She advised that student access/exit was arranged via buzzers issued from reception. Visitors/friends of the students were 'buzzed out' by the car park office and in the event of the office not being staffed assistance was possible from the security office. Ms. Hanlon advised the Tribunal that there was no public interest in the car park other than occasional use by friends of the students, most of whom used the surface car park, adding that only one member of the general public paid to use it at Christmas, 2006. Referred by Ms. Forde, to Paragraph 2, Page 3 of the Respondent's précis (the Valuation Office response) in which Mr. O'Connor of the Valuation Office stated that on his inspection he was told by her that 20 car spaces were reserved for residents and that the remaining spaces were open to the public, she flatly rejected making such a statement, adding further that there were no spaces reserved for students. 71 students were registered in 2006/7 as users of the car park, Ms. Hanlon stated, and were provided with buzzers for access to and egress from the car park. A copy of the register broken down over student name, car registration and buzzer ID was referred to. Cross examined by Mr. Devlin on the crux issue that 20 spaces were allegedly reserved for students/residents, Ms. Hanlon, as car park Manager on site, again rejected ever making such a statement to Mr. O'Connor or alternatively that he misunderstood her and confused the basement with surface car parking spaces. Pressed by Mr. Devlin as to the necessity of a €3 sign at the entrance
if the car park was for exclusive student usage, Ms. Hanlon stated that
it was to cater for friends of the students on occasions when there was
no staff on hand to release them. The total parking fees taken on this
basis was insignificant, she said, with some €130 in total collected
between December, 2005 and March, 2007, measured on a float system. In
response to questions put by the Tribunal Ms. Hanlon stated: Mr. Michael Gormally of Gormally Auctioneers stated that: (3) the Cúirt na Coiribe car park was no draw for those working or shopping in Eyre Square either. The distance was a factor and there was no Luas or bus service in place. Overall, Mr. Gormally said that Cúirt na Coiribe car park suffered from poor visibility from the public road due to its location in the middle of a private development. Furthermore he added that the subject car park was viewed by most as a Section 50 student only residential complex. Moving on to the comparisons, Mr. Gormally told his counsel, Ms. Forde, that J.J. Rhatigan's was the most suitable comparison and confirmed that the number of car spaces in that premises was 61 and not 106 as set out in his précis of the 28th March, 2007 (in line with Mr. O'Connor's précis). This car park was on the main route from Galway city centre to Salthill and was closer to the city centre than the subject. It was constructed beneath a supermarket, shops and private apartments. The first hour's parking was free with a Euro per hour charge being imposed thereafter. J.J. Rhatigan's benefited also from the fact that people were forced into that car park since there was very little surface car parking around. On that basis Mr. Gormally said he rated the subject at 70% pro rata the RV of J.J. Rhatigan's. Mr. Gormally stated that Roches Stores and Woodquay Investments car parks (in Respondents précis) were inappropriate comparisons for reasons of the former's city centre pivotal location and the latter offering private parking. Asked finally by Ms. Forde if he noticed 20 car park spaces had been reserved in the subject car park, Mr. Gormally said he had not. Cross examined by Mr. Devlin, if he had any idea why Messrs Bagnall & Company, who had acted as agents for the Appellants up to March, 2007, described the RV as fair, he replied that he could not account for assessments of other agents other than that it was likely to have been their view based on comparisons. Ms. Forde interjected at this point by referring to the attachment to Messrs Kennedy Fitzgerald Solicitors letter of the 8th December, 2006 Paragraph 3 which stated "Not withstanding the points above we also feel that the level attaching is high bearing in mind the location, etc. of the relevant property and that an excessive amount of spaces have been valued." Mr. Devlin put it to Mr. Gormally that there was a discrepancy between times quoted for the walking distance of the subject car park from the city centre on the Cúirt Na Coiribe brochure i.e. 10 minutes, and the advertisement on its website i.e. 7 minutes. This Mr. Gormally put down as a function of a number of factors including route taken, time, etc. Mr. Devlin also put it to Mr. Gormally that he wanted to distance himself from J.J. Rhatigan given that his devaluation methodology which produced a rate of 72 cent instead of €201.60 was flawed. The 72 cents resulted from a division of the J.J Rhatigan RV (€77) by 106 car spaces instead of 61 and at all events should have been NAV-based. Mr. Gormally stated that that particular calculation was complicated on a number of grounds, adding however that J.J Rhatigan remained the nearest comparator. Mr. Devlin further put it to Mr. Gormally, a propos the inclusion of Roches Stores as a comparator, that because Roches Stores was approximately 5 times larger than the relevant property there was a substantial element of discount included in its RV. This point was accepted by Mr. Gormally. Mr. Gormally agreed with Mr. Devlin that the reason why the car park was "virtually empty" at the time of his inspection may have been due to the Easter holidays while at the same time reserving his position that it was predominately for the use of students. Finally Mr. Devlin put it to Mr. Gormally that if he felt that the RV was incorrect he should have inserted an alternative RV at Paragraph 6(a)(ii) of the Notice of Appeal to the Valuation Tribunal. The Respondent's Case Mr. O'Connor stated that he deducted the 20 spaces reserved for residents from the 123 car spaces marked and calculated the NAV on that basis at €201.60 per space, arriving at an RV of €130. Asked where he got this figure of €201.60, he replied that this was the rate per space applied in J.J. Rhatigan's in arriving at the NAV. J.J. Rhatigan's was an appropriate comparator he said and while it was quieter than the subject property it had a lot in common with it viz shops, supermarket, apartments, etc. Cross examined by Ms. Forde, he agreed that the apartments were Section 50 student accommodation, that there were 86 apartments and that there were 386 students resident there. Mr. O'Connor disagreed however that all the spaces were used by students. He contended that the car park was a viable option for the overspill of shoppers from the adjacent Retail Parks plus visitors to N.U.I.G. Put to him if Dyke Road car park wasn't a better option than the subject car park Mr. O'Connor felt that there was very little in the difference timewise. Mr. O'Connor agreed with Ms. Forde that the public were unlikely to park in Cúirt Na Coiribe. He reiterated however that he was in no doubt that Ms. Hanlon said 20 spaces only were reserved for students. However Ms. Forde put it to him that this clearly could not have been the case and that it was a misunderstanding on someone's part. She put it to him that it was not viable to reserve 20 spaces only for the use of 71 students of which evidence had been presented to the Valuation Tribunal were registered to use the car park. When put to Mr. O'Connor that Mr. Gormally had given evidence to the effect that the automatic pay station was installed for future proofing and should not have been rated, Mr O'Connor stated that "he had to take things as they stand on the day". On the subject of comparisons Mr. O'Connor agreed that J.J. Rhatigan's was more apt than Roche's Stores and Woodquay Investments car parks. When attempting to value the subject car park Mr. O'Connor said that he tried to balance J.J. Rhatigan's superior tenant mix and its quieter location relative to Cúirt Na Coiribe. When put to him that there was no comparison between the anchor tenants in J.J. Rhatigan's and the location of J.J. Rhatigan's vis-à-vis subject premises, Mr. O'Connor disagreed, adding further that Cúirt Na Coiribe was well located quoting distance relative to J.J. Rhatigan's from Jury's as a yard stick. Appellant's Submissions Ms. Forde submitted that against that background it was clear that the car spaces should be deemed as being appurtenant to and usually enjoyed with the apartments of the complex and as such fell within the remit of Section 3(4) of the Valuation Act, 2001 as "domestic premises". She added that the evidence before the Tribunal demonstrated clearly that the use by the public of the relevant property was so insignificant as to rule out any suggestion that it was a "mixed premises" and thus not qualify as a "domestic premises". Alternatively Ms. Forde submitted that if the Tribunal was not satisfied that the subject car park qualified for exempt status that the RV of €130.00 was excessive in comparison with J.J. Rhatigan's which was more attractive and should be reduced pro rata. Respondent's Submissions While accepting that a domestic hereditament was not rateable, Mr. Devlin contended that a car park was not per se "domestic" and a fortiori the presence of an automatic pay station fuelled the "non-domestic" argument if seeking exemption under Schedule 4, Section 6 of the 2001 Act. Mr. Devlin further contended that such a scenario coupled with the conflicting evidence of Mr. Frank O'Connor and Ms. Hanlon regarding the 20 'allegedly' reserved spaces presented a difficulty for the Tribunal. Mr. Devlin concluded by arguing that if the Tribunal found on the facts that over a hundred car spaces were not used in conjunction with any of the apartments and there was provision for a charge to be made, it was submitted that this property fell outside the exemption available under Section 3(4)(b) of the Act and/or did not qualify for exemption on the basis that it was a mixed premises. The Law Section 3 of the Valuation Act, 2001 defines a "domestic premises"
as - Section 3(4) of the 2001 Act provides that - Section 3 further defines a "mixed premises" as - Case Law (advanced by the Appellants) Findings (1) The subject car park is located in the basement of an apartment complex
known as Cúirt Na Coiribe, off the Headford Road, Galway and is
also described as an N.U.I.G Student Village, within the ambit of Section
50 of the Finance Act, 1999. Determination And the Tribunal so determines. |