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Appeal No. VA91/1/002 AN BINSE LUACHÁLA Irish Rail APPELLANT RE: "Passenger Terminal" (pt of) and car
park, railway platform at B E F O R E JUDGMENT OF THE VALUATION TRIBUNAL By notice of appeal dated 28 February, 1991, the appellants appealed against the determination of the Commissioner of Valuation in fixing a rateable valuation of £635.00 on the above described hereditaments. The grounds of appeal as set out in the Notice of Appeal are that:- The Property Written Submissions 4 Ca Irish Rail Passenger Terminal pt.of R.V. £635 He said that with the exception of the subject and the area occupied by the State, all of the other hereditaments are under lease from C.I.E. and that the only access to each of these units which are located on the ground floor, is the concourse/common area. Mr Killen attached a map of the area indicating the hereditaments referred to above and the area in dispute on the ground floor and the access ramp/escalators to the first floor. Mr Killen said that it is accepted that Irish Rail/C.I.E. are in beneficial occupation of all of the 1st floor area, except that occupied by the State (Customs & Excise). Mr Killen said that C.I.E./Irish Rail are not in actual occupation of the area in question, they do not have exclusive occupation of it and the areas in question are similar to the common areas/concourse in a shopping centre, which are of benefit and value to all the occupiers and do not carry a separate rateable valuation assessment. Mr Killen submitted that the entry in the valuation list be deleted for seven years from 1978 and that the correct valuation for the hereditament when it is properly to be assessed is £286.00; £20.00 absolute. A written submission was received on the 29th May, 1991 from Mr Malachy Oakes a valuer in the Valuation Office on behalf of the respondent. In this submission Mr Oakes described the property and outlined the valuation history. In commenting on the grounds of appeal Mr Oakes said that the valuation on the subject has been fixed by agreement with the agents for Irish Rail. He said that agreement was also reached on the valuation of parts of the overall. He said that the agents for Irish Rail have claimed that the terminal building being erected on reclaimed land should not be rated for seven years as set out in Section 14 of the Valuation (Ireland) Act 1852. He said that the Commissioner contends that this relief applies only to agricultural land or agricultural buildings thereon and not to the subject. He said that Irish Rail have developed this facility as an intrinsic part of the port development and expansion. He said that this development has attracted other interests who also wish to offer services in this busy port. He said such other interests are allowed with this private port on specific agreements and an annual rent in such a way as not to interfere with the paramount occupation of Irish Rail. Mr Oakes said that the terminal at Rosslare Harbour is a very busy port with daily services to Wales all year round and a Continental Service. He said it is the premier port in Ireland for Continental Europe and has undergone substantial expansion in recent years. Mr Oakes said that the terminal is built on land (foreshore) leased from the State (Minister for Finance) by Coras Iompair Eireann for thirty five years from the 19th December, 1986 paying £2,000 per annum with reviews every five years. He said that the accommodation comprises:- Ground floor Basement First floor Roof Level Mr Oakes said that the valuation has been agreed between the Commissioner and the agent for Irish Rail at £635.00 total. He said that the agents for Irish Rail have submitted to the Commissioner that the passenger area to the ground floor and the ramps to the first floor should not be valued as they are common areas. It has been agreed between the parties that the valuation of £305 total would apply to these areas (passenger area to ground floor and ramp to first floor). This would comprise £285 buildings and £20 absolute. Mr Oakes said there is no dispute as to quantum and the issues to be
decided are as follows:- 2. If the terminal is rateable should allowances be made for "Public
areas" i.e. ground floor passenger area and ramp to first floor as
claimed by the agents for Irish Rail. Mr O'Donnell, opening, said that the hereditament was part of a two-storey terminal building which had been built on reclaimed land and was therefore not rateable by virtue of the provisions of S. 14 of the Valuation (Ireland) Act, 1852. Alternatively he argued that portion of the hereditament was not in the exclusive occupation of the appellants and that the appellants should therefore not be liable for rates on that portion. He said that if the Tribunal were to accept the appellants argument the parties had agreed a reduced valuation of £286 on buildings and £20 absolute. Captain Livingstone said that the terminal building was completed in February, 1989 and opened in September, 1989. He explained that there was a common entrance to the main concourse area on the ground floor and that the concourse was open plan, giving access to several individual units, most of which were held under licenses from Irish Rail. In reply to Mr O'Caoimh, Captain Livingstone said that passengers from trains also had access to the main concourse and that there was seating in the concourse and out on the railway platform. He said that the main front doors were locked at night and that the entire premises were locked by Irish Rail for two days in the year. Mr Henry gave evidence in relation to the licence agreement under which the nine licensees held the units in the main concourse. He explained that the licensees had none of the rights under Landlord and Tenant legislation. The licences were open-ended agreements with provision for licence fee reviews and for payment of service charges, but Mr Henry said, these latter charges had not as yet been levied. Under cross-examination by Mr O'Caoimh, Mr Henry agreed that the licensees had rights only of egress and access and that sightseers were not people authorised by the licensees to be on the premises. In reply to re-examination by Mr O'Donnell, Mr Henry said that the common area was similar to that in a shopping centre. Mr Killen, in evidence, said that there was agreement between the parties
as to quantum, either taking the entire hereditament as rateable or in
the event of the common areas being excluded. He stated that there was
no material distinction between a shopping centre where rateable valuations
were placed on each individual unit but not on the main concourse, and
the subject hereditament. Replying to cross-examination by Mr O'Donnell in relation to his written submission, Mr Oakes said that the rateability of the concourse area of Dublin Airport was currently under appeal, and that he did not know what the situation was in regard to the main concourse of railway stations. He agreed that the portion of the ground floor actually occupied by Irish Rail was proportionately small. He also agreed that in the treatment of shopping centres for rating purposes, common areas did not appear as items for rating, but that they were considered to enhance the values of the units and were reflected in the rateable valuations of the units. Submissions Judge Keane's paragraph on exclusivity of occupation is reproduced hereunder in full. "Occupation must be exclusive. Exclusive in this context means that the person using the hereditament can prevent any other person from using it in the same way. Questions have frequently arisen as to whether a person can be regarded as the rateable occupier where his occupation is subject to control and regulation by others. Thus, while a tenant of portion of a building is clearly the rateable occupier, because he is not subject to the landlord's control in his use of the demised portion licensees in various circumstances have been held not to be in rateable occupation. It is also quite clear, that a lodger, as distinct from a tenant, is not in rateable occupation. There is a presumption that the owner of lands is the person in beneficial occupation of them but it is a rebuttable presumption only. If there is more than one person in the 'immediate use or enjoyment' of the hereditament, the question becomes one of fact as to who is in 'paramount occupation' and it is immaterial whether the right to occupy is attributable to a lease, a licence or an easement. This principle was clearly laid down by the House of Lords in Westminster City Council v. Southern Railway Co. and Others and was applied by the High Court in Ireland in Carroll v. Mayo County Council. In the latter case, the plaintiff entered into an agreement with the defendant under which the defendant worked a quarry on the plaintiff's land for some seventeen years prior to the proceedings to the virtual exclusion of the plaintiff. Rejecting an argument that the plaintiff remained in rateable occupation of the premises, since the defendants were not entitled to exclude him from the use of it, Henchy, J., said 'the right to exclude the owner in such cases is not the test. It is sufficient if it be shown that there was such a withdrawal of the owner from the occupation as enables a court to hold that the licensee (or lessee, or tenant, or even trespasses) was in 'the immediate use or enjoyment' as the statute puts it, or in paramount occupation as some of the cases say." The appellants cannot exclude at least eight licensees together with all of the licensees' customers. The right of the appellants to use the common area is attended by the rights of others to so use it. Referring to the case of Carroll v. Mayo County Council Mr O'Donnell pointed out that, the licensee therein was the sole "de facto" occupier and the fact that the licensor could come on to the land did not mean that the occupier did not have the right to exclude others. Referring to P.53 of Ryde on Rating, Mr O'Donnell submitted that the use of the common areas by the appellants was not inconsistent with the simultaneous use of them by others for the same purpose. He said that there was no legal distinction between the common areas of a shopping centre and that of the subject hereditament. He pointed out that there was no question of the common areas being exempt from rating but, as Mr Oakes had accepted, the individual units were valued on a N.A.V. basis and that the rights over the central concourse would have been taken into account into arriving at the valuation for each unit. Mr O'Donnell further argued that the degree of control exercised by the appellants over the concourse did not render them liable to rating. If anything, that theory would suggest that they were liable for rates on all of the units. The appellants, he said, had the same relationship with their licensees as the managers of shopping centres had with their unit tenants. Mr O'Caoimh in his submission pointed out that S.14 of the 1852 Valuation (Ireland) Act had been amended by S.2 of the Local Government (Reduction of Valuation) Act, 1966, by the deletion of the words "within seven years next." He said that S.14 relates to the recovery of rates but does not preclude the placing of a valuation on a hereditament. He said that the 1858 Poor Law Relief Act refers only to rating and that S.11 of the Valuation (Ireland) Act, 1852 refers to what falls to be valued rather than rated. Mr O'Caoimh submitted that the aim of S.14 was to encourage land improvement and pointed out that the 1847 Land Improvement Act was referred to in the section. The section, he said, dealt only with agricultural entities and the subject hereditament was obviously not of this nature. The term "office buildings" was used in its historical sense. He argued that reclamation did not always give rise to a new hereditament but simply increased the value of an existing one e.g. enlarging fields by reclamation. In relation to the question of exclusive occupation of the appellants, Mr O'Caoimh submitted that the only rights other than those of the appellants over the concourse were those of the licensees and that those were merely rights of ingress and egress. He referred to the passage in Keane on 'Local Government' which states that a person using land under an exclusive title to possession will normally be the rateable occupier of it because he can by virtue of his title exclude all others from using the land in the same way. Mr O'Caoimh said that the use of the appellants was not shared by anyone else in the same way. The only right shared was that of ingress and egress. Any right beyond that was vested in the appellants. Mr O'Caoimh contended that shopping centres differed from the subject
hereditament in that the common area in shopping centres was often under
the control of all of the shop owners through a management company and
that while the use of the central area was common to all shopowners often
the landlord had no interest in the use of the common area or beneficial
occupation of the shopping centre. Mr O'Caoimh further submitted that when valuing the units the limited rights of ingress and egress would have been taken into account, but these limited rights were unlike those of the appellants. THE LAW " No Hereditament or Tenement shall be liable to be rated in respect of any Increase in the Value thereof arising from any Drainage, Reclamation, or Embankment from the Sea or any lake or River, or any Erection of Farm, Outhouse, or Office Buildings, or any permanent agricultural Improvement as specified under the Provisions of an Act passed in the Session of Parliament held in the Tenth and Eleventh Years of the Reign of Her present Majesty, Chapter Thirty-two, Section Four, made or executed thereon within Seven Years next before the making of such Valuation or Revision" S. 2 Local Govt (Reduction of Valuation) Act 1966 S.IV Landed Property (Ireland) Act 1847 " And be it enacted, That it shall be lawful for the said Commissioners of Public Works, upon Application made to them under the Provisions of this Act, and subject to such Rules and Regulations as may from Time to Time be made by the Commissioners of Her Majesty's Treasury, to make Loans under this Act for the following Purposes; (that is to say,) for the Drainage of any Lands by any such Means as the said Commissioners shall approve, for subsoiling, trenching, or otherwise deepening and improving the Soil, for Irrigation or warping of Land, for embanking Lands from the Sea or Tidal Waters or Rivers, for enclosing or fencing any Land, or improving the Fences, Drains, Streams, or Watercourses of any Land, for the Reclamation of Waste or other Land, for making Farm Roads, or for clearing Lands of Rocks and Stones." FINDINGS Mr O'Caoimh has contended that the provisions of S.14 relate only to
agricultural developments. The Tribunal notes his submission that the
term 'office building' referred to in the section, is used in the historical
sense, meaning farm offices. Mr O'Donnell has submitted that the several
phrases of the section should be read not conjunctively but disjunctively,
and that the reference to the Landed Property (Ireland) Act 1847 does
not limit the exemption to the type of land improvements specified therein.
Section IV of the Landed Property (Ireland) Act 1847 sets out the purposes
for which loans might be made by the Commissioners of Public Works in
the following way: The subject hereditament is clearly not an agricultural improvement and cannot therefore be judged exempt by virtue of S.14 of the Valuation (Ireland) Act 1852. In light of the above, it is not necessary for the Tribunal to decide whether or not the exemption specified in S.14 of the 1852 Act relates to valuation or merely to payment of rates. Mr O'Donnell has submitted that the appellants are not in exclusive occupation of certain areas of the hereditament, and therefore fail to meet one of the criteria of rateable occupation under Irish Law. While the appellants are the owners of the ground floor concourse and
the access ramps and escalators to the lst floor, their use of these areas
cannot and does not prevent any other person from using them in the same
way. All the licensees together with all of the licensees' customers are
entitled to use those areas. Mr O'Caoimh has submitted that the only rights
of the licensees and their customers are those of ingress and egress.
It seems to the Tribunal, however, that these are the most important advantages
of a central concourse and apply equally to the appellants and to the
licensees and indeed on a 'de facto' basis to the members of the public. The Tribunal is of the opinion that the central areas of the subject hereditament are similar to the common areas of shopping centres. As in shopping centres where the central areas are not separately rated, so too in the instant case, the advantages and benefits of the common areas would have been taken into account when valuing each separate unit. The Tribunal is satisfied that the concourse, ramps and escalators are facilities available to all those using the terminal building and should not have a separate valuation. Accordingly, the Tribunal determines that the correct valuation of the subject hereditament is £286.00 buildings and £20.00 absolute, a total of £306.00
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