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Appeal No. VA00/3/016 & VA00/3/017 AN BINSE LUACHÁLA Bantry Terminals Ltd. APPELLANT RE: VA00/3/016 - Land under water at
Map Reference: Land Under Water, B E F O R E
By Notice of Appeal dated 4th October, 2000
the appellant appealed against the determination of the Commissioner of
Valuation in fixing rateable valuations as follows on the above described
hereditaments : The mooring buoy is held in place by a six-anchor catenary system of chain legs. The SPM facilitates the loading and discharging of fuel tankers ranging from 35,000 tons to 320,000 tons. The base of the SPM is connected to a pipeline end manifold (PLEM) by means of two underbuoy hoses each 24 inches in diameter. The PLEM is in turn connected to the main storage facility by two steel pipelines that cross the seabed and connect to the onshore pipeline system on the island. Ships 'tie-up' using special mooring hawsers and are connected to the SPM by two floating hoses of 24" internal diameter. Cargo is then routed through these two hoses, through the mooring buoy to the two underbuoy hoses beneath the SPM. All SPM operations are controlled and monitored from a
central control room on Whiddy Island. Valuation History 1978: Following representations by Lisney & Son, agents
for Gulf Oil, the rateable valuation was reduced by agreement to £15,000.
The 25% reduction took account of changing economic circumstances and
a substantial decline in throughput. The new valuations were: 1979: Following the disaster the valuation was reduced
by agreement to £5,500 1982: The valuation in the townland of Reenaknock was
reduced from £3,500 to £2,500 leaving a total rateable valuation
of £4,000. 1986: The valuation was further reduced by agreement to
£3,500 1987: The agreed valuation following on the 1987 First
Appeal was £3,500. Appeals by Cork County Council to the Valuation Tribunal on the grounds "Failure to revise, increase and update to current levels the valuation of the holding to take account of the 1986 Act" were later withdrawn. 1990: Three tanks were in use for the storage of crude oil with one tank in use for storage of diesel.
No change was made to the total rateable valuation of
£3,500. The valuation was apportioned:
The decision was appealed to the Valuation Tribunal who affirmed the valuations. 1999 An appeal was lodged against the assessment and at first
appeal the Commissioner made the following changes: The appeal proceeded by way of an oral hearing, which
took place on the 30th day of March 2001 in the Tribunal Offices, First
Floor, Ormond House, Ormond Quay Upper, Dublin Mr Des Killen FRICS, FSCS, IRRV of GVA Donal O'Buachalla gave evidence of behalf of the appellant. Mr James O'Connor Terminal Manager also gave evidence on behalf of the appellant. Mr. Peter Conroy M.I.A.V.I., Valuer Grade 1, Dip Environmental Economics, gave evidence on behalf of the respondent. Submissions were made and evidence given in accordance
with the written submissions given to the Tribunal in advance of the hearing. Findings and Determination 1. The Bantry Bay facility is a single operating entity i.e. a large storage depot with a storage capacity in excess of over 1 million tonnes of crude oil which is offloaded from tankers by means of a single point mooring (SPM), which is situated approximately 1,500 metres off Whiddy Island. 2. The SPM together with the associated pipe work and sub-sea crude oil lines are located in that part of Bantry Bay that was added to the functional area of Cork County Council by "Extension Of Boundary Local Government Reorganisation (Supplementary Provisions) (Cork) Order 1985 dated the 17th June 1985. This order was made in accordance with the provisions of Section 28 of the Local Government (Reorganisation) Act 1985. 3. The SPM installation and its operation are governed by the terms and conditions contained in the lease between the Department of the Marine and Bantry Terminals Ltd. dated 7 February 2000, from the 25th day of July 1996 for a term of 35 years. 4. The storage tanks and the associated pipe works are widely dispersed throughout Whiddy Island and are located at three separate townlands i.e. Close, Kilmore and Reenaknock. The sub-sea pipelines from the SPM come onshore at Reenaknock and from there the crude oil is distributed to the various storage tanks. 5. On the 1st October 1999 Cork County Council made an
application to the Commissioner of Valuation to carry out a revision of
valuation of the Whiddy Oil facility and listed the three entries in the
current valuation list i.e. 6. The nature of the revision requested in each instance was couched in identical terms. "Revise as necessary to value upgraded Whiddy Oil terminal facility for BTL. Value all new developments to include additions, alterations, improvements and refurbishments. Value Single Point Mooring ". 7. On the 6th of October, Cork County Council in accordance with section 3 (4)(a) of the Valuation Act 1988 advised Bantry Terminals Ltd. of the three applications made to the Commissioner of Valuation and in the notices set out the reasons for the revision. 8. In due course the Commissioner of Valuation issued three determinations one in respect of each entry in the valuation list. The total rateable valuation of the facility amounted to £15,070 of which £3,297 was attributed to the SPM which was valued as being in the townland of Reenaknock. 9. At first appeal stage the total rateable Valuation was reduced to the agreed sum of £12,593 of which £2,430 was attributed to the SPM and once again the SPM was valued as being in Reenaknock Townland. 10. It is clear that the entire facility has been valued as a single entity and the resultant valuation apportioned between the three existing entries in the valuation list presumably in proportion to the storage capacity of the tanks located in each townland and the value attributed to the SPM i.e. £2,430 included in the valuation for Reenaknock. These valuations were agreed with the appellant but without prejudice to the appellant's contention that the SPM "can only be properly valued when the property within which it is located is properly listed for revision of valuation in accordance with section 3 Valuation Act 1988 and the payment of the correct statutory fee." 11. Why the Commissioner of Valuation decided to include the valuation of the SPM in Reenaknock is difficult to understand in the light of the fact that the SPM is located in that part of Bantry Bay that is within the functional area of Cork County Council and moreover is occupied under a lease from the Department of the Marine. The unit of assessment in accordance with section 11 of the Valuation (Ireland) Act 1852 is the tenement or rateable hereditament and for each a separate assessment is required. In the case of Switzer & Company v The Commissioner of Valuation (1902) 2 IR. 275, it was held (and later found by the Court of Appeal) "that premises had to be assessed as to net annual value having regard to any leases on which the premises were held and that each lease required a separate net annual value." In the circumstances of this appeal it is common case that the SPM is occupied and operated in accordance with the agreement between the Department of the Marine and BTL and hence, in accordance with the Switzer case, should have a separate assessment. It is also clear as a matter of fact that the SPM is not located in the townland of Reenaknock and hence the rateable valuation attributed to the SPM should not, both as a matter of law and fact be included in that townland. 12. On many occasions this Tribunal has dealt with the matter of section 3 notices and in the Tribunal appeal Pettitt v Commissioner of Valuation (VA95/5/015) the jurisdiction of the Commissioner of Valuation to carry out a revision was critically examined in the light of the legislation and case law. In regard to the circumstances of this appeal paragraphs 20 and 22 of the Pettitt Judgment as set out below are considered to be particularly relevant: "20. What is abundantly clear from the foregoing is that the learned Judge (Barron J. in the case of R & H Hall v Commissioner of Valuation) accepted that the Commissioner had been requested to revise the hereditament in question. It is also quite clear that in his view no particular method of request is necessary and that there is no obligation to describe the property, the valuation of which is to be revised, by reference to lot numbers. Once it can be ascertained from the list sent to the Commissioner that the hereditament in question is included within a request for revision then that is sufficient. In our respectful view this is correct and is further supported by the analysis hereinafter mentioned of section 17 of the 1852 Act and the appropriate forms referred to therein and there following……………………………..." 22. "This in our view is indeed support for the
general proposition above 13. The Tribunal was asked on behalf of the appellant
to distinguish the cases of John Pettitt VA95/5/015 and McDonnell Commercials
VA99/2/035 insofar as the proposed rateable hereditament was not described
in this case by reference to a map as it never had a rateable existence
before. In addition it was submitted on behalf of the appellant that the
provisions of article 37(e) of the Adaptation Of Irish Enactments Order
1899, that prescribed the form to be used by the local authority for listing
properties for revision, required that properties would be described by
reference to a separate map and description. The Tribunal is of the opinion
that while the facts in the cases sought by the appellant to be distinguished,
do differ in some details from this case, the case of Alma v Dublin Corporation
(1876-77) 10 IR CL 476 approved by Blaney J. in Coal Distributors Ltd.
v the Commissioner of Valuation [1990] ILRM page 172, does not allow the
Tribunal to distinguish these cases as invited. The Tribunal is strongly
influenced in this view and bound by the passage quoted by Blaney J. with
approval from Alma v Dublin Corporation on page 177 of the report in Coal
Distributors Ltd. v the Commissioner of Valuation. 14. However, in fairness to the appellant it is accepted by the Tribunal that none of the authoritative cases relied upon by the Tribunal in making its decision specifically dealt with the form of application for revision provided for in the Local Government (Adaptation Of Irish Enactments) Order 1899. Of these decisions the Switzer case related to a revision that apparently occurred before the operation of the 1899 Order. R & H Hall Plc v the Commissioner of Valuation (unreported judgement of Mr. Justice Baron delivered on the 16th December 1994) mentions the form of notification of the 1899 Order. While the Coal Distributors Ltd. case does refer to the 1899 Order, there is no specific discussion or consideration of the form prescribed thereby and its possible influence on the decision of the court. In view of this absence of discussion of the influence of this form of application the Tribunal considers that it should examine same to see if anything arises therefrom that would alter its views having considered the available authorities. 15. The Tribunal notes that the entity, that is required
by the form of the 1899 Order to be revised, is referred to as a 'holding'
as distinct from a 'rateable hereditament' or a 'tenement'. The use of
the word holding seems to be a looser and less defined term compared with
tenement or hereditament and would seem to refer to adjacent property
in the one ownership. This interpretation would be quite consistent with
the requirement of section 4 of the 1854 Act, as adapted in accordance
with the 1899 Order. The section is set out in full on pages175 and 176
of the report of the Coal Distributors case. The relevant part of this
lengthy section provides: 16. The Tribunal's view is that the form provided for in the 1899 Order referring to "holding" provides sufficient latitude for the local authority to list for revision a tenement which may have been expanded by an extension of its limits so as to become an extended "holding" which ultimately on the examination by the Commissioner may necessarily, by the operation of the Switzer case, become two rateable hereditaments. This is what the Tribunal understands happened in the subject case and the Tribunal consider that the process may not be impugned. The Tribunal is reinforced in this view on a consideration of the judgement of Pallas CB, in the Switzer case, where he accepts that initially it might not be possible for a local authority to ascertain the identity of the lessor's interest from the outset in the revision process but admonishes them that at least the existence of lessor's in respect of each hereditament should be noted. The necessary implication arising from this view is that this aspect would be defined further by the Commissioner in the more specialist process of revising the valuation. 17. The request forwarded to the Commissioner by Cork County Council on the 1st October 1999 was very specific regarding the purpose of the revision and so also were the contents of the Section 3 notices served on the occupier. In the circumstances the Tribunal holds that the Commissioner of Valuation had full authority to value the SPM although as previously held, the valuation should not be included in Townland Reenaknock. THE SECOND GROUND OF APPEAL 19. Section 7 (1) of the Valuation Act 1988 provides as follows: 1) "The Minister for Finance may by regulation prescribe the fee to be charged in respect of an appeal to the Commissioner of Valuation under Sections 19 and 31 of the Act of 1852 or to the Tribunal or any application to the Commissioner of Valuation, or any class of such appeal or application under this Act" Article 2 of the Valuation (Revisions and New Valuations)
(Fees) Regulations, 20. It is common case that no separate fee of £100 was paid in respect of the SPM as a separate hereditament. The payment of a sum of money or the entering into a recognisance as a pre-condition to the exercise of jurisdiction in the valuation code is not new, and, in comparatively recent times, was the subject of analysis in The State (Commissioner Of Valuation) -v- His Honour Judge O'Malley, unreported judgment by Mr. Justice McWilliam on the 27th day of January 1984 in which a recognisance required by Section 22 of the Valuation (Ireland) Act 1852 to be lodged within three days after being entered into, on the institution of an appeal to the Circuit Court against a revised valuation of property, was held to be an essential and mandatory pre-condition for the pursuit of the appeal. 21. The question to be decided by the Tribunal is whether, in similar fashion, the provisions of Section 7 (1) and of the Valuations (Revisions and New Valuations) Fees Regulations 1996 require the payment of £100 fee as a mandatory pre-condition to the exercise of the revising powers of the Commissioner under the Valuation Acts. 22. It appears to the Tribunal that the wording of Section
7(1) and the Regulations do not provide for the consequences of the non-payment
of fees or for any sanction following the non-payment of fees. All that
can be said from a reading of the plain meaning of the words is that there
is a duty on the local authority to pay the fee of £100 in conjunction
with the listing and little further guidance can be obtained. However
as a matter of established custom and practices it would appear that the
Commissioner of Valuation has authority to create a number of new entries
in the valuation list on foot of a single request, such as to value a
new shopping centre or indeed a new industrial development or a multi-storey
office building in multiple occupation. Indeed it is only when the Commissioner
of Valuation has carried out an inspection on the ground that it can be
conclusively determined in what and how many lots the property listed
for revision can properly be valued. Nonetheless the Tribunal is of the
view that it may be appropriate in the circumstances to have regard to
the style of parliamentary draughtsmanship used in connection with the
payment of fees under the provisions relating to appeals to An Bord Pleanála.
The relevant provision is Section 10(4) of the Local Government (Planning
and Development) Act 1982. 23. In relation to this subsection, the Tribunal has regard to the Judgment of Henchy J. in relation to the previous provision of Section 17 of the Local Government (Planning and Development) Act 1976 in State (Alan Developments Ltd) -v- An Bord Pleanála [1981] ILRM 108, that - "The lodgement of a deposit of £10 with the appeal (perhaps not necessarily physically or contemporaneously with the appeal) would also seem to be an essential part of the statutory scheme, so as to discourage frivolous, delaying or otherwise worthless appeals", 24. Furthermore on the plain meaning of the words of Section 10(4), the payment of the fee for the appeal is undoubtedly a necessary pre-condition for the exercise of the appellate jurisdiction of An Bord Pleanála. The Tribunal is of the opinion that if the legislature wished to qualify the right of appeal or revision provided for in the Valuation Act of 1988, a form of drafting such as was used in Section 10(4) of the Act of 1982 would have been invoked. The Tribunal is supported in this opinion by the approach taken by Henchy J. in the State (Elmcourt Developments) case in which he deals with other aspects of the notice of appeal in respect of which the appeal fee was to be paid, arising from an absence of grounds of appeal - "I am satisfied that the grounds of appeal required
are essentially informative. To hold that they must be given as part of,
or contemporaneously with, the notice of appeal, would be to attribute
a conclusiveness to them which the Statute clearly shows they cannot have.
I consider that the Board's practice of informing an appellant in a case
such as this, who has not stated grounds of appeal, is a correct evaluation
of the place that grounds of appeal take in the statutory scheme. It would
be unduly legalistic, and unfair, if laymen, who may have no skill in
such matters, but who may be vitally affected by the permission which
they wish to appeal against, were to be shut out from appealing, merely
25. Also the Tribunal notes, without purporting to interpret conclusively, the more clear-cut words of the Valuation Act 2001, in relation to the payment of fees as significant and further support for its view of the lack of any connection between the non-payment of revision fees and lack of jurisdiction under the present Act. 26. Similarly, the Tribunal is concerned that laymen should not be prejudiced by an interpretation that the payment of such fees was a mandatory pre-requisite to having their appeals made in time, or their applications for revisions struck down because of inadvertent non-payment of fees. Perhaps the local authority in this case might not seek the same latitude or excuses given to laymen, but nevertheless the local authority is entitled to benefit from this approach when dealing with the same set of provisions regarding fees. 27. The Tribunal is aware that it is a practice of the Tribunal to insist on the payment of appeal fees where such fees have not been paid in time with the appeal. However, this is a control in place to ensure that the Tribunal does not hear any case where the appropriate fees have not been paid. The Tribunal is of the opinion that a like approach should be taken by the Commissioner in relation to the payment of fees and where it is known that the appropriate fee has not been paid, it would be appropriate that the revision or appeal procedure would not continue until such fee was paid. It may be difficult for local authorities listing properties for revision, to know in every case whether an application for revision will result in a revision producing additional rateable units. The collection of fees in such cases is a matter for control, rather than jurisdiction for the Commissioner and no part of the revision or appellate system should allow proceedings to continue where there is a refusal or failure to pay fees which are clearly due. Determination
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