Appeal No. VA91/2/062
AN BINSE LUACHÁLA
S. Whelan & Associates APPELLANT
RE: Right to car parking at Lot No. 38.42,44.44C/2
at Clanwilliam Square,
B E F O R E
JUDGMENT OF THE VALUATION TRIBUNAL
By notice of appeal dated 24th day of July, 1991, the appellants appealed
against the determination of the Commissioner of Valuation in fixing a
rateable valuation of £12 on the above described hereditament.
A written precis was received from Mr. Terence Dineen, B.Agr.Sc., a District Valuer with 17 years experience in the Valuation Office on behalf of the Respondent. In his precis Mr. Dineen commented on the grounds of appeal, on the description and location of the carparks, on the tenure and on the valuation history of the properties. With regard to the incorrect listing Mr. Dineen said that as long as the correct lot reference number was listed for revision the referencing of the new lot is a matter for the discretion of the valuer. He said that the obvious intention of the revising valuer was to clarify for both the rate payer and the local authority the hereditament being valued. With regard to the second ground of appeal that there was no sole beneficial occupation of the relevant car spaces on the valuation date Mr. Dineen said that the right of car parking was purchased at a price per space and that the prices varied and increased over time. He said that some spaces have been resold and spaces have been leased and that service charges are paid for the maintenance of the carpark. He said that the allocation of marked spaces was awaiting the completion of the development. With regard to the amount of Rateable Valuation placed on the spaces Mr. Dineen said that the valuers task is to do a 1990 valuation as at the November 1988 base. He said that the key problem is what proportionate relationship do the car spaces rentals in the development have to the overall prime car space rentals. He said that the current relationship of the hereditaments Net Annual Value to that of the Net Annual Value of the average comparable properties is the determinant - rather than a historical investigation and application of the specific rental levels in operation in 1988.
The question of beneficial occupation is dealt with in Harper Stores Ltd. - V - The Commissioner of Valuation [1968 I.R.] P. 166. In this Henchy J. at P. 172 says that
"While the valuation is made on the particular premises, it is made for the purpose of affecting the occupier who will pay the rate, and occupier is defined in s. 124 of the Poor Relief (Ireland) Act, 1838, as including every person in the "immediate use or enjoyment" of the premises. Since the "actual state" of the premises cannot be determined unless someone is in its "immediate use or enjoyment," I accept that the valuation made in the present case cannot stand against the appellants unless they were in "immediate use or enjoyment" at the time it was made. It was held in the House of Lords in Byrne V City of Dublin Steam Packet Co. that the "immediate use or enjoyment which is rateable in Ireland" is similar, at least as far as its legal character is concerned, to the "occupation" which would be rateable in England. While the variety of circumstances prevents there being any universally accepted test of rateable occupation, both Wright, J., in London County Council V Hackney Borough Council and Lord Radcliffe in Arbuckle Smith & Co. Ltd. V Greenock Corporation approved of the following approach by Farwell, L.J. in Rex V Melladew:- "The test, in a case like the present, of business premises, appears to me to be: Has the person to be rated such use of the tenement as the nature of the tenement and of the business connected with it renders it reasonable to infer was fairly within his contemplation in taking or retaining it?"
The Tribunal finds that there was uncontradicted evidence of the fact that the area of the carpark was not surfaced and individual car spaces were not allocated until March 1991 and that the site of the carpark was considerably disorganised by ongoing construction of Bolands Building in fronting Grand Canal Street.
Clearly in this case it would not be reasonable to infer, given the conditions pertaining at the appropriate date that the "right of car parking" was what the appellant had fairly contemplated when purchasing it. Indeed this case is very akin the "new house" analogy referred to by Henchy J. in the above judgment.
In these circumstances, the Tribunal finds that the subject premises ought to be exempt from rates at the relevant date. The description of the subject premises may be amended when the subject is next listed for valuation.