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Appeal No. VA01/2/033 AN BINSE LUACHÁLA Busy Bee Childcare Ltd. APPELLANT RE: Creche at Map Reference 205 Kilmacud
Road Lower, B E F O R E
By Notice of Appeal dated the 30th day of July 2001, the appellant appealed against the determination of the Commissioner of Valuation in fixing a rateable valuation of € 90.77 (£77) on the above described hereditament. The grounds of appeal as set out in the said Notice are that: "The valuation is excessive, inequitable and bad in law." 1. The Appeal proceeded by way of an oral hearing which took place on the 5th December 2001 at the offices of the Valuation Tribunal, Dublin. Mr Eamonn Halpin B.Sc. (Surveying), A.S.C.S., M.R.I.C.S., M.I.A.V.I. of Eamonn Halpin & Co appeared on behalf of the Appellant whilst Mr Damien Curran M.R.I.C.S., A.S.C.S., B.Sc (Surv) a District Valuer with 21 years experience in the Valuation Office was the Appeal Valuer. In accordance with the Rules of the Tribunal the parties had prior to the commencement of the hearing exchanged their précis of evidence and submitted the same to this Tribunal. At the oral hearing both valuers having taken the oath adopted their said précis as being and as constituting their evidence in chief. This evidence was supplemented by additional evidence obtained either directly or via the cross-examination process. Mr Halpin made a closing submission. From the evidence so tendered the following relevant facts either agreed or so found emerged as being material to this appeal. 2. LOCATION AND DESCRIPTION OF PROPERTY The subject property comprises a detached former residential property located on the northern side of Lower Kilmacud Road about 1.5 miles from Stillorgan almost directly opposite the junction with Sweet Briar Lane. This is a predominantly residential area. The main block is 2 storey with a small attic without windows and additionally there are two small single storey areas to the front and rear of the building. The property is currently used as a crèche and Montessori school. All main services are connected. There is good access and parking in the vicinity. 3. TENURE 4. ACCOMMODATION 5. PURCHASE AND SUBSEQUENT 6. AGREED AREAS 7. VALUATION HISTORY 8. PRELIMINARY ISSUES Mr Curran referred to Section 3(5)(b) of the Valuation Act, 1988 which states the Notice of Appeal to the Tribunal shall contain "a statement of the specific grounds for the appeal.". Mr Curran submitted that the grounds of appeal set out in the Notice of Appeal to the Tribunal were not specific enough to cover issues other than quantum, that the said grounds were too vague to cover issues other than quantum and that the grounds of appeal specified in the notice related only to the quantum issue. It was common case that at First Appeal besides quantum there were two other issues. At First Appeal the Appellant relied on Section 3(3) of the Valuation Act, 1988 which states that the Commissioner of Valuation shall cause every application for revision "to be determined within six months after receiving the application or as soon as may be thereafter". At First Appeal the Appellant argued that there was a three-year delay in making the determination by the Commissioner, that this delay was too long and that accordingly the revision was invalid. The Appellant further argued at First Appeal that the necessary pre revision notice was not served on it pursuant to Section 3(4)(a) of the Valuation Act, 1988. Mr Curran stated that he discussed the grounds of appeal under Sections 3(3) and 3(4)(a) of the Valuation Act, 1988 with Mr Halpin in detail. He said that he took instructions within the Valuation Office on these grounds of appeal and in a conversation with Mr Halpin communicated to him the Valuation Office opinion that there was no case to be answered under these grounds and Mr Halpin replied "Fair enough". Mr Curran said that as far as he was concerned that was the end of the matter and that the conclusion of his discussions with Mr Halpin on these two grounds of appeal at First Appeal was in his opinion that Mr Halpin accepted that there was no case to be answered in relation to the said grounds. Mr Curran said the only indication after that that Sections 3(3) and 3(4)(a) of the Act of 1988 were being relied on was when he looked at Mr Halpin's précis for this appeal before the Tribunal. Mr Halpin's letter of 3rd December 2001 to the Tribunal was before us and a copy of this is set out at Appendix 2 to this Judgment. Mr Halpin stated that Mr Curran had summarised the situation with regard to Sections 3(3) and 3(4)(a) fairly. He said the only real difference of opinion he had with Mr Curran was that he may have used the words "Fair enough" but in the context he used them it was to say fair enough he understood the Commissioner's position but did not accept it. Mr Halpin stated that he discussed a number of cases with Mr Curran in the last few weeks before the Tribunal hearing and in relation to this appeal he told Mr Curran there was no point in discussing the matter as the appeal was exactly as it had been to the Commissioner at First Appeal. Mr Halpin further said that if he was doing it over again he would not like to see Mr Curran at any disadvantage and he felt that Mr Curran felt that he Mr Curran was at a disadvantage in that Mr Curran felt that he Mr Curran had disposed of the matter at First Appeal. The Tribunal notes that the date of the decision of the Commissioner of Valuation is stated in the Notice of Appeal to the Tribunal as July 2001. Both Valuers were asked by the Tribunal when the conversation involving the use of the words "Fair enough" took place. Mr Halpin stated that would have taken place possibly in May or June 2001 and Mr Curran stated the date as being at the conclusion of the First Appeal outcome. Mr Curran said he probably spoke a number of times to Mr Halpin and the last occasion was when Mr Halpin said "Fair enough". In reply to a further question from the Tribunal as to whether he referred to this conversation in his report to the Commissioner, Mr Curran stated that he did not and that his report to the Commissioner basically just dealt with the quantum issue. In reply to questions from the Tribunal Mr Halpin stated that the necessary pre- revision notice had been served on the Appellant pursuant to Section 3(4)(a) of the Valuation Act, 1988. The Tribunal retired to consider Mr Curran's preliminary
application. The Tribunal decided as follows:-
He stated that at some time the occupiers sought and were
granted planning permission for the crèche. Mr Halpin's comparisons
are set out at Appendix 3 to this Judgment. Mr Halpin said his comparison No 2., namely Lot 19 20 Rathfarnham was an older style property and was valued on Revision in 1994 @ £3/sq.ft. gross external. In answer to a question from the Tribunal Mr Halpin produced two photographs of his comparison A namely Orlagh Park, Montessori to which Mr Curran had no objection. This comparison consisted of the first floor of a parade of shops. Mr Halpin submitted that a figure in or around £3 a sq.ft. gross external was appropriate for the subject property. In his précis Mr Halpin set out his Valuation as follows :- "VALUATION In answer to a question from the Tribunal as to where he got the figure in his Valuation of £16.41 per sq. m. for the attic, Mr Halpin stated this was a proportion of whatever the rate per sq. m. was on the rest of the property. In answer to a question from the Tribunal Mr Halpin stated that a number of crèche owners had been forced into commercial locations because it was becoming increasingly difficult to get planning permission in residential areas mainly because of the traffic created. The Tribunal asked Mr Halpin if there was a premium for crèche use in 1994 in a residential area and if there would be a larger premium now due to the difficulty of obtaining planning permission and Mr Halpin replied that there could be. 10. RESPONDENT'S CASE Mr Curran's comparisons are set out at Appendix 4 to this Judgment. He said he had confined himself in his comparisons exclusively to comparisons which were similar to the subject property in that they were exclusively in residential areas and they were converted residences or portions of converted residences. Mr Curran said his three comparisons were in very close proximity physically to the subject property. He said he was using comparisons which were as close as possible to the subject property. Mr Curran stated that the change in the planning situation with regard to crèches in residential areas had made existing crèches in residential areas of more value in recent years. In his précis Mr Curran set out his Valuation as follows :- "Valuation Crèche. 201.78 sq.m. gross @ £60.00 per sq.m. Attic : 23.32 sq.m. gross included. Crèche. 136.84 sq.m. (nett) @ £81.80 per sq.m. Attic : 21.36 sq.m. (nett) @ £40.90 per sq.m.
In cross-examination Mr Halpin asked Mr Curran if properties within hundreds of yards of the subject property situate in Dublin City and South Dublin would not be comparable to the subject property because they were in a different administrative area. Mr Curran in reply stated you would have to look at the other administrative area in general. He had not done a detailed examination of crèches within the South Dublin administrative area and that it might well be that Mr Halpin picked one or two in South Dublin but he could not agree with them without actually looking at all of the evidence in that area. Mr Curran further stated in reply that he thought it appropriate to confine himself primarily, if there were sufficient evidence available, to the local authority area of the subject property. 11. FINDINGS (i.) General. (ii) Particular. In relation to Comparison 4 the 1991 First Appeal dealt with an application for exemption only which was not granted. When the property was listed for revision in 1991 the valuation remained the same as was struck in the 1963 Revision so that the comparison is unsafe. Comparisons 8 and 9 were under appeal to the Tribunal at the hearing date. Comparisons A and B are situated in commercial environments whereas the subject property is located in a predominantly residential area. (b)Respondent's Comparisons. 12. DETERMINATION In view of the foregoing and having taken all the evidence in to consideration the Tribunal determines the Net Annual Value and the R.V. of the subject property as follows :- Crèche & Montessori 201.78 sq. m. gross @ £52.50 per sq. m. = £10,593.45 Attic 23.31 sq. m. gross @ £26.25 per sq. m. = £611.89 £11,205.34 x 0.63% = RV £70.59 Convert £70.59 to Euro = €89.63 Say €90 R.V.
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