AN BINSE LUACHÁLA
VALUATION TRIBUNAL
AN tACHT LUACHÁLA, 2001
VALUATION ACT, 2001

Pfizer Ireland Pharmaceuticals APPELLANT
and
Commissioner of Valuation RESPONDENT

RE: Factory at Lot No. 5Ca, Ringaskiddy, Carrigaline, Cork Lower, County Cork.
Preliminary issue

B E F O R E
John O'Donnell - Senior Counsel Chairperson
Michael McWey - Valuer Member
Brian Larkin - Barrister Member

JUDGMENT OF THE VALUATION TRIBUNAL
ISSUED ON THE 3RD DAY OF NOVEMBER, 2005

By Notice of Appeal dated the 21st day of July, 2005 the appellant appealed against the determination of the Commissioner of Valuation in fixing a rateable valuation of €12,590.00 on the above described relevant property.

The Grounds of Appeal are as set out in the Notice of Appeal a copy of which is contained at the Appendix to this judgment.

Introduction
Pfizer Ireland Pharmaceuticals ("Pfizer") appealed to the Tribunal against a valuation in respect of its property at Ringaskiddy, Cork Harbour, Cork. The Valuation Certificate issued on the 6th December 2004 set out a rateable valuation of €12,590. This was appealed by Pfizer which appeal was ultimately unsuccessful, the decision of the Appeal Officer on the 23rd June 2005 being that no change should be made to the valuation in question. The Valuation Certificate then issued on the 27th June 2005 and an appeal was lodged to this Tribunal

A preliminary issue arose in relation to the appeal in question. More particularly, it was contended on behalf of the Appellant that for the reasons set out below the process which culminated in the Appeal Officer issuing his assessment was so fundamentally flawed as to be a nullity and that therefore the original valuation from 2003 of €11,600 should be inserted as the valid assessment.

Written and oral submissions were supplied on behalf of the Appellant by Mr. Alan McMillan and on behalf of the Respondent by James Devlin BL.

The Appellant's Submissions
The Appellant contended that Part 6 of the Valuation Act, 2001 provided for the appointment of a Revision Officer and sets out the powers of that Revision Officer. It was submitted that the role of the Revision Officer was independent and was protected from any interference by or on behalf of the Commissioner. In this regard we were referred to the determination of the Tribunal in VA04/2/018 (Trabolgan Holiday Centre).

Part 7 on the other hand deals expressly with appeals. It does not provide any express role for the Revision Officer, nor does it provide any role for the Revision Officer in any implied way.

Mr. McMillan drew our attention to Section 33(5) which provides that the Commissioner may employ such procedures as may be considered appropriate for the purposes of the consideration of the appeal.

Mr. McMillan submitted that the Commissioner was entitled to appoint an Appeal Officer for the purpose of Part 7. However he argued that the Appeal Officer must be a valuer other than the Revision Officer who performed the revision under Part 6. The two parts of the Act are separate and distinct and should be kept that way.

In the instant case it is contended by Mr. McMillan that the Revision Officer participated to an extent in the conduct of the appeal. In this regard we were furnished with correspondence. The original Revision Officer was Mr. Terry Dineen. The Revision Officer having notified Pfizer of the fixing of the rate did not cease his involvement with the rating of the property. While a Mr. Patrick McMorrow was appointed as Appeal Officer it is clear that the Appeal Officer paid considerable attention to the views of the Revision Officer. Indeed the Revision Officer appears to have corresponded in writing with the Appeal Officer; we were also informed that there had been oral communications between the Revision Officer and the Appeal Officer.

As we understand it Mr. McMillan contends that the Appeal Officer should hear and determine the appeal without reference to the Revision Officer. In effect he contends that what happened in this case would be similar to an Appellate Judge consulting the Judge at first instance as to why his decision at first instance was correct.

Mr. McMillan also referred us to VA05/2/028 (Rathbeale Service Station Limited). In that case the division of the Valuation Tribunal were of the view that Section 29(3) of Part VI of the Valuation Act, 2001 had not been complied with by the Revision Officer. The Tribunal determined the valuation to be a nullity and as a consequence determined the rate at the foot of the valuation to be a nullity. It directed that the rate be struck out, in effect leaving the original valuation in place. We were informed that this decision is the subject matter of a case stated to the High Court. We were also referred to Appeal No. VA05/2/012 (Lidl Ireland GmbH) where again the Tribunal took the view that because the Respondent had not complied with what it called the mandatory provision of Section 49(1) (in only supplying one comparative property) the valuation was therefore deemed to be a nullity and the rate derived therefrom a nullity; the rate was therefore struck out. We were informed however that this Determination was likewise the subject of detailed examination by the legal representatives of the Commissioner of Valuation who are considering whether or not to commence a case stated in respect of this determination also.

The Respondent's Submissions
Mr. Devlin contended that if there was a suggestion that the proceedings before the Appeal Officer were fundamentally flawed as being a breach of constitutional and natural justice the appropriate remedy for the Appellant was by way of judicial review to the High Court. He contended that the Tribunal had no "declaratory jurisdiction". In his view the fact that the previous hearing before the Appeal Officer may have been flawed was irrelevant; it was up to the Valuation Tribunal to either adopt the view of the Commissioner on the issues raised or to substitute its own view instead.

Without prejudice to this contention Mr. Devlin contended that in any event the 2001 Act gave considerable autonomy to the Commissioner of Valuation as to how to conduct revisions and appeals. He referred to Section 33(5) in this regard. While it was conceded that the Appeal Officer had spoken to and corresponded with Mr. Dineen he had also considered submissions from the Appellant and had ultimately come to his own decision. In his view the Trabolgan decision was distinguishable in that Counsel for the Commissioner in that case expressly conceded the frailty of the original process. In that case it appears that a Revision Officer was given an explicit and unambiguous direction by the Commissioner of Valuation as to how he was to value the property in question. The facts in this case Mr. Devlin suggested were somewhat different.

The Law
In dealing with this issue it is apparent that there is an inherent tension in the Act. On the one hand Section 33(5) provides that the Commissioner may employ such procedures as he or she considers appropriate for the purposes of the consideration of the appeal. On the other hand the Act expressly separates Part 6 (which deals with revisions) from Part 7 (which deals with appeals). One might therefore be tempted to the view, looking at the separation between the two parts provided for in the Act, that no element of the revision procedure and that no member of the personnel participating in the revision procedure should participate in the appeals procedure. Section 33(5) obviously affords the Commissioner a very considerable dominion over his own procedures. However the issue here is whether or not those procedures can be operated in such a way as to allow an Appeal Officer to consult with a Revision Officer and if so whether such a process should lead to the result of that appeal being declared a nullity and the rate set aside.

In our view in the particular circumstances it is inappropriate to declare the previous decision by way of appeal by the Appeal Officer a nullity. We reach this view for the following reasons:

(i) It is as yet unclear as to whether or not the Tribunal has a declaratory jurisdiction of the sort contended for by Mr. McMillan which would allow us to set at nought a previous appeal process. On one view the decisions in Rathbeale Service Station and Lidl Ireland could be read as asserting such a jurisdiction. However they are only of limited assistance in that:

(a) They deal with different issues to the issue raised here.
(b) At least one of them is subject to an application to the High Court by way of case stated.

Therefore they are not of persuasive or compelling authority in our view to the circumstances of this case. While the Trabolgan decision is of interest it is clearly distinguishable on its facts and indeed is of less benefit as a precedent in that in the Trabologan case the remedy sought by way of appeal to the Tribunal was expressly conceded rather than fully argued; the issue of principle was reserved to a later day.

Therefore the previous decisions of the Tribunal do not indicate to us that the Tribunal has a declaratory jurisdiction to declare a previous process and resulting rate a nullity. Indeed we are impressed by the submission made by Mr. Devlin that the appropriate entity in which to seek declaratory relief is the High Court rather than the Valuation Tribunal.

(ii) We have very considerable concerns about the procedures adopted by the Commissioner of Valuation in this case. It may well be that due to staffing levels the Commissioner of Valuation has insufficient Appeal Officers to process all of the appeals without assistance from the relevant Revision Officers. The appearance of in-depth consultation between the Appeal Officer and the Revision Officer may however operate to convey an impression of unfairness. This is not to cast any aspersions on either the Appeal Officer or the Revision Officer both of whom are highly qualified and conscientious officers. Nevertheless it is in our view undesirable in the extreme that an impression of unfairness be created. We note that the involvement of the Revision Officer in an appeal was criticised before in the decision of the Valuation Tribunal in VA04/1/022 Appleyard Motors Limited. At page 12 of the Determination in that case the Tribunal notes:

"Whilst there is no express provision in the Act as to how the first appeal process should be managed it would in the Tribunal's opinion render the appeal process more transparent if the original Revision Officer was not involved."

We hope that these comments will be noted by the Commissioner of Valuation.

(iii) As indicated above we are of the view that the existence or otherwise of a declaratory jurisdiction in the Valuation Tribunal is a matter of considerable uncertainty. However even if the Tribunal did have such a declaratory jurisdiction it is in our view not a jurisdiction we would exercise in the instant case. It is not clear to us that there has been such a flagrant breach of the obligation to provide fair procedures that the entirety of the process culminating in the Appeal Officer's decision should be deemed to be a nullity. We note that there was a suggestion by Mr. McMillan that despite their offer to attend a meeting with the Appeal Officer no meeting in fact took place. However they were able to correspond with the Appeal Officer and there is no suggestion that the Appeal Officer did not consider the correspondence in question. It appears to us therefore in all the circumstances that it would be inappropriate to declare the process before the Appeal's Officer a nullity or to break down the rate.

Determination
The Tribunal determines that it is not obliged to strike down the process before the Appeal Officer herein or the rate struck as a result of that process. Accordingly the Tribunal determines that it has jurisdiction to hear the appeal on quantum.