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Appeal No. VA90/3/014 AN BINSE LUACHÁLA Trustees of Kinsale Yacht Club APPELLANT RE: Marina adj Town Pier, U.D. Kinsale, Co. Cork B E F O R E JUDGMENT OF THE VALUATION TRIBUNAL By notice of appeal dated the 18th day of September, 1990, the appellants
appealed against the determination of the Commissioner of Valuation in
fixing a rateable valuation of £60 on the above described hereditament. Valuation History Written Submissions Mr Killen outlined what the rateable valuation might be if the Tribunal accepted the respondent's submission that a rateable hereditament is to be valued. Using the Contractor's basis for calculation for rateable valuation Mr Killen outlined as follows:- (a) On the assumption that the complete Marina is rateable. Construction cost 1979 £150,873 Estimated Capital Value 1988 £241,397 @ 7.5% (b) On the assumption that the only 'fixed' portion of the Marina to be valued is the piling. Cost 1979 £ 39,415 £ 63,064 Mr Killen submitted that he was not aware of any other Marina having been assessed for rateable valuation. He said that the Marina was not a commercial enterprise but a sporting development for club members and their guests. Mr Killen said that it was the "easement" not the Marina which was rateable and the correct rateable valuation for the easement was £2.50. In the alternative, Mr Killen said valuations as calculated above, viz: R.V. £30 and R.V. £8 were submitted. A written submission was received on the 24th April, 1991 from Mr Terence Dineen B.Agr.Sc., a valuer with 17 years experience in the Valuation Office. Mr Dineen outlined the valuation history of the property and said that by 1988 the 1986 Valuation Act was in place and under description "Marina" a valuation of £120 was entered in the absolute column. Mr Dineen said that Kinsale is a highly desirable location for a Marina. He said that access to the Marina is excellent, off a quay wall quite close to the town centre. He said that the property is portion of a 117 berth marina in Kinsale harbour and provided a sketch of its structure. He said the number of allocated berths at inspection was 109 plus 8 for visitors and lengths varied from 10 foot boats to 40 foot yachts. He said that there were 19 finger berths and 68 double berths and the balance (including visitors) tied directly onto pathways. A berth holder may lease to a visitor during the season and visitor berthing is restricted to members of yacht clubs. Mr Dineen said that the entire marina was designed by Walcon Marine Ltd of Hampshire, a specialist in these marinas. The structure, he said, is floated on blocks of polystyrene of varying sizes encased in concrete. Bolts projecting from the top of the blocks are secured to underside of space - boarded pathways. He said that a collar around each pile and attached to a pathway enables the marina to float up and down with the tides. There is no horizontal or lateral movement. He said that there are individual electricity plug points for 75% of the boats and water is on tap at five points. He said that the marina is split by the UD boundary and that the portion outside the boundary is outside the jurisdiction of any local authority and is not subject to valuation. He said that about 42 berths of the 117 are inside the UD boundary and about 323 sq. m. of pathways are also inside the boundary. He said that evidence given in the Circuit Court appeal in 1987 was that the original costs were £160,000 in 1979. He said that in 1988 costs inflated from this would be about £375,000 or £3,200 per boat. Mr Dineen said that the fees set in 1989 were £17 per foot length in respect of year 1, £18 per foot length, year 2 and £19 per foot length, year 3. He said that additionally each berth holder must be a member of the Yacht Club at £150 per annum and that there were no free spaces in March 1990. Mr Dineen produced an analysis of rents paid in various yacht clubs and on this basis he estimated that a net rent in Kinsale was in the order of £250. He said that in his opinion the foreshore rent of £12.30 per space was too low. Mr Dineen submitted that a valuation of £1.50 per berth was not unreasonable on the basis of it being .63% of £250. Regarding rateability Mr Dineen said that the marina was valued primarily on the basis of section 3(1) of the 1986 Valuation Act under the category of fixed property ref. 4 viz. "fixed moorings". He said that apart from section 3(1)4 of the 1986 Act the marina is rateable under section 3(1)1 as a construction affixed to land - other than a building, in the nature of a building. Mr Dineen said that the servicing and preparation of the yachts is done on board which is what happened prior to the marina being built. He said non rateability on sports grounds should be confined to the sporting surface with its essential fitments. Oral Hearing Also present were Mr Clifford O'Donnell, Solicitor of Messrs Guest Lane Williams, Mr Desmond Killen of Messrs Donal O'Buachalla & Co Ltd, Mr Paul Kingston, Vice-Commodore of Kinsale Yacht Club and Mr Terence Dineen of the Valuation Office. Mr Sreenan, in his opening submissions, said that only approximately 1/3rd of the subject hereditament lay within the jurisdiction of the U.D.C. and that this appeal referred only to that portion. He stated that the marina, being a floating entity, was not a fixed mooring within the meaning of Category 4 of the Schedule to the Valuation (Ireland) Act, 1852. He further stated that even if the marina were a fixed mooring, it was developed for sport and must therefore be exempt as coming within the terms of Category 2 of the above Schedule. In his view, any other interpretation of the legislation might be considered unconstitutional. Mr Sreenan pointed out that although marinas were introduced into Ireland in the 1970's, the Valuation Act, 1986 did not refer specifically to marinas, and, in his view, this indicated that all marinas were used for sporting purposes only.
Mr Kingston stated that Kinsale Yacht Club found it necessary to establish a marina to facilitate safer, all-season sailing. The marina was completed in 1978 at a cost of approximately £150,000. At one stage there were more berths on the south side of the marina but, because of dust problems from nearby discharging boats, portion of the marina had to be re-aligned and two of the piles removed and replaced on the northern side. Mr Kingston enumerated the many sailing events which took place in Kinsale Yacht Club, most of which, he said, would not have chosen Kinsale as a venue, were it not for the marina facilities there. He said that apart from two paid employees, every aspect of the club was run on a voluntary basis by its 400 members. In reply to questions from Mr O'Caoimh, he said that the floating marina was attached by collars to piles which were driven into the sea-bed. He explained that Kinsale Yacht Club held the site on a lease from the Harbour Board which in turn, held it on a foreshore lease from the Department of the Marine. Mr Killen conceded that a rateable easement within the terms of S.12 of the Valuation (Ireland) Act, 1852 existed. He said, however, that only 1/3rd of the easement could be said to lie within the jurisdiction of the U.D.C. Applying a 0.5% fraction (which, he said, had been applied by the Valuation Office in recent revisions in Kinsale), to the rent of £1,440 paid by the Yacht Club, and apportioning the resultant figure between the portions inside and outside the U.D. boundary, Mr Killen said that the correct valuation for the easement was £2.50. In reply to cross-examination by Mr Sreenan, in relation to his written submission, Mr Dineen agreed that out of six marinas in the Republic of Ireland, four of which are clubs and two commercial, none had so far been rated. Mr Dineen said that he felt they had not been rated because they lay outside the high water mark. Mr O'Caoimh, in his submissions, said that even though portion of the
marina might float, it must be regarded as a fixed mooring, since it was
secured to piles driven into the sea-bed. He said that while the pathway
out to the floating section was obviously a fixed element, an overall
view of the marina, as a fixed mooring attached to piles, must be taken.
He referred the Tribunal to the Greater Oxford dictionary definition of
mooring: Mr O'Caoimh contended that the marina could not be considered as exempt under Category 2 of the Schedule to the Valuation (Ireland) Act, 1852, since it was not land and therefore not lands developed for sport. Mr Sreenan submitted that the marina was a development of land and in this connection, referred the Tribunal to the parcels as described in Lease dated 8th August, 1986 made between Kinsale Harbour Board and the Trustees of Kinsale Yacht Club. He further argued that the marina did not come within the definition of fixed mooring and must therefore be considered exempt for rating purposes. The Law S.2 of the Valuation Act, 1986 provided that "For the purposes of the Act of 1852, property falling within any of the categories of fixed property specified in the Schedule to the Act of 1852 (inserted by this Act) shall be deemed to be rateable hereditaments in addition to those specified in Section 12 of that Act." The schedule is as follows. "SCHEDULE
What remains to be determined by the Tribunal is whether the marina is rateable or whether it falls for exemption under Reference No. 2 of the Schedule inserted after S.48 of the Valuation (Ireland) Act, 1852 or under Reference No. 4 of said Schedule. The Tribunal is of the opinion that regardless of the essential sporting
element of the marina, it cannot be said to be land, in view of the Greater
Oxford dictionary definition of land as - The inherent nature of this marina, it would seem, is that it floats on water. It cannot, therefore, be said to be a development of land. The marina itself is a floating object which is attached by collars to piles sunk into the sea-bed. As was so comprehensively described by Mr Kingston the collars can be slipped and the marina floated off to another location. Accepting the dictionary definition of the term "mooring" as put forward by Mr O'Caoimh, the marina platform itself is not the mooring. The piles and the collars are the "mooring" portions of the marina, being respectively the objects to which something, i.e. the marina is moored and the somethings by which a floating object i.e. the marina is made fast. The Tribunal is satisfied that the collars, while obviously moorings, are equally obviously not fixed since evidence has been given that they can be easily removed. The piles, on the other hand, while it might be argued that they are fixed in the lay person's use of the term are not "fixed" in the nautical sense, in that they can be removed if necessary, and are not fixed bollards or posts on a wharf or quay. The piles and the short pathway out to the floating marina are an integral and essential part of the marina which is a floating entity with moorings. Therefore the Tribunal is of the opinion that the marina itself is not a fixed mooring. In the circumstances the Tribunal has concluded that the correct rateable valuation of the subject hereditament is £2.50.
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