AN BINSE LUACHÁLA
VALUATION TRIBUNAL
AN tACHT LUACHÁLA, 1988
VALUATION ACT, 1988

Dunnes Stores Limited APPELLANT
and
Commissioner of Valuation RESPONDENT

RE: Licensed Supermarket at Map Ref: 5B, Townland: Cornelscourt,
ED: Foxrock - Carrickmines, RD: Dunlaoghaire - Rathdown, Co. Dublin
Preliminary Issue - Increase in first appeal figure applied by the Commissioner for the Tribunal appeal

B E F O R E
Liam McKechnie S.C. Chairman
Mary Devins Solicitor Deputy Chairman
Patrick Riney FRICS.FSCS.MIAVI Member

JUDGMENT OF THE VALUATION TRIBUNAL
ISSUED ON THE 24TH DAY OF FEBRUARY, 1997

(1) Following a major reconstruction and a complete redevelopment, in 1991/2 the hereditament and premises now known as Dunnes Stores Cornelscourt in the County of Dublin were listed for revision. As a result a rateable valuation of £4,000 was placed thereon. The ratepaying company appealed to the Commissioner of Valuation but was unsuccessful in achiving any reduction at First Appeal stage. Consequently its appeal to this Tribunal.

(2) When this matter was first listed for hearing Mr. Donal O'Donnell, SC appeared on behalf of the appellant with Mr. Hicks, Valuer appearing on behalf of the Commissioner.

From the précis of evidence previously exchanged between the parties and submitted to this Tribunal and from the opening submissions made, it was clear to us that one of the primary submissions to be advanced on behalf of the Commissioner was to the effect that he, the Commissioner, could on appeal to this Tribunal seek to have placed on the subject premises a valuation in excess of what he had placed thereon at First Appeal stage. Since this was a matter of some importance the Tribunal felt, in the interests of justice, that it should offer Mr. Hicks an opportunity of getting legal assistance if he so wished. Having considered the position he decided to avail of that opportunity and accordingly the initial hearing was adjourned. The matter, as a preliminary issue, was again listed and a full hearing took place on the 10th day of February, 1997. Mr. Marray, BL appeared on behalf of the Commissioner with Mr. O'Donnell, SC on behalf of the Company.

(3) From a factual point of view the following emerged as being the evidence which Mr. Hicks proffered to us on that occasion. Firstly he said that the valuation of
£4,000, being that placed on the subject premises at First Appeal stage, was seriously inadequate and that the same should be increased to "not less than that agreed on Dunnes Stores at The Square, Tallaght, that is £5,700". This last mentioned rateable valuation was agreed at 1991 First Appeal stage. Secondly "based on comparisons", being eight in number, the Commissioner of Valuation suggested that the correct rateable valuation on the subject premises should be £4,800. Thirdly by adopting the capital value method Mr. Hicks estimated that the NAV should be £850,000 giving a rateable valuation of £5,355 and fourthly his valuation based on turnover yielded an RV of £6,300. As can therefore be seen the evidence adduced offered four figures ranging from £4,800 to £6,300 as potentially representing the correct RV on the subject premises. In the final analysis however the increase sought was not based on or justified by a valuation based on comparisons, or on capital value, or on turnover but was exclusively linked to the agreement reached in 1991 concerning the appellant's store at The Square, Tallaght.

(4) There is no doubt but that all of the relevant information concerning this last mentioned premises was and had to be within the possession of the Commissioner
since 1991. Equally so with regard to the other seven properties offered as comparisons. These properties had their rateable valuations fixed, either at revision or at First Appeal stage, between 1990 and 1991 and accordingly there cannot be any question of this information not being readily available at First Appeal stage. The Commissioner's valuation based on capital value involves knowing what the construction costs were, reducing those costs to November, 1988, adding a site value and on the adjusted capital value obtaining an NAV by applying a decapitalisation rate. Insofar as information was required from the appellant company for the purposes of this approach we have been informed and we accept that all such relevant information was available and was in the possession of the Commissioner not later than First Appeal stage. Accordingly since March, 1995 there has not been made available any material or significant information which was either required or necessary so as to enable the Commissioner of Valuation to suggest a rateable valuation based on capital value.

(5) The position of the valuation based on turnover is slightly different. Having been appointed the Appeal Valuer in this case Mr. Hicks sought on numerous occasions
from Dunnes Stores their turnover figures. The company declined to furnish same. The reasons therefore are not material. As was his right Mr. Hicks invoked the
procedures available under the Valuation Act, 1988 whereby via the discovery process he sought from the company documents relevant to their turnover figures.
Following an oral hearing the Chairman of the Tribunal under the powers conferred on him by the First Schedule to the 1988 Act refused the said application. (See
VA95/1/108 - Dunnes Stores Limited v. Commissioner of Valuation (Direction of Chairman)).

(6) The application so made was refused inter alia on the basis that for the purposes of ascertaining the true rateable valuation of the subject premises the question of turnover figures was not, at that stage, relevant. As no dissatisfaction was expressed in respect of this judgement and as no case stated was requested then this
decision currently stands. Indeed, it should be said that this Tribunal has also taken the view that in the circumstances of this case the turnover figures obtainable at
Cornelscourt are not relevant. This view however is not highly material as when one considers the evidence submitted by Mr. Hicks he does not in fact suggest that the valuation method adopted by him is based on actual turnover figures but freely admits that it is based on estimated turnover figures. That being the case the position of Dunnes Stores has not changed at any time in this appeal process. Consequently the Commissioner's approach based on turnover had to of necessity proceed by way of estimation only and accordingly it is quite clear that the appeal valuer's ability to estimate such figures was not in any way enhanced by the activities of Dunnes Stores between March, 1995 and the date of this hearing. Therefore from a factual point of view it would appear to this Tribunal and we so find that there has been no change, material, substantial or otherwise, in the circumstances which existed between the First Appeal stage and the hearing of this preliminary issue. Likewise we find that there has been no additional information obtained, gathered, used or availed of during this relevant period. It therefore follows that whatever information was used by Mr. Hicks in adopting the turnover approach was equally available to him as of and prior to March, 1995.

(7) From a legal point of view it was submitted on behalf of the ratepayer that, as a matter of principle, with or without any change in material circumstances, this Tribunal should not entertain any evidence or submissions from the Commissioner to the effect that the rateable valuation on a particular hereditament should be increased from that placed thereon at First Appeal stage. It was said that for such a proposition there was no precedent either established by this Tribunal or by the Circuit Court when previously exercising the powers vested in it under the Valuation Acts. It was urged that there was no statutory provision in any of the Valuation Acts and in particular in any of the relevant sections of the 1852 Act which could justify or indeed enable or permit this Tribunal to accede to such a submission. In support thereof reference was made by way of analogy to the principle that in general one cannot argue a ground of appeal not raised or advanced at a previous stage of the appeal process. It was also said that this Tribunal has jurisdiction only to hear and determine appeals under Section 3(5) and 4(11) of the 1988 Act. What this means is that its jurisdiction is invoked by the service of a Notice of Appeal which notice must contain a statement of the specific intended to be relied upon. (See Section 3(5)(b) of the 1988 Act). Accordingly it is the service of such a notice that activates the jurisdiction of this Tribunal which jurisdiction is therefore necessarily confined to dealing with the specific grounds as contained therein.

(8) On behalf of the Commissioner, Mr. Marray takes issue with most if not all of these submissions. He says in effect that this Tribunal has a mandated function to separately value each hereditament that comes before it and that in so doing the Tribunal is free and untrammelled by previous events or circumstances. It can, he submits, fix a valuation quite irrespective as to what the Commissioner did at First Appeal stage. Indeed, it must embark upon a process, in order to arrive at a rateable valuation, in a like manner to what the Commissioner does at revision stage. In effect it is an independent Tribunal conducting a de novo hearing and exercising its own jurisdiction. He goes on to argue that it acts more like an expert than a court or tribunal simply hearing a case, which in normal circumstances is confined to the issues raised between the parties and the evidence adduced by or on their behalf. He states that the Tribunal must apply Sections 11 and 12 of the 1852 Act and Section 5 of the 1986 Act and must do so even if the Commissioner of Valuation, in any given case, happens to be wrong at either revision or first appeal stage. And finally he makes the submission that the Tribunal cannot be stopped by what the Commissioner might do at any previous stage in the appeal process.

(9) As mentioned above this Tribunal is quite satisfied from the evidence adduced before it that there has been no significant, material or relevant change or alteration in circumstances between March, 1995 and the date hereof and that all of the information which presently is available to the Commissioner was available or
obtainable by him at First Appeal stage. That being the situation this case is not one which calls for a decision on the broader or wider question which would arise if in fact there had been within the relevant papers a material change in circumstances.

(10) Dealing therefore with the issue as so defined it is our firm view and opinion that it would be quite wrong both in principle and in practice for this Tribunal to accede to the Commissioner's submission in this case. The Commissioner is in effect a person designated by statute to carry out a statutory function. His position is
probably unique with no true or direct comparison readily available. He or an officer of his is involved at every stage of the process. His role differs from stage to stage. Before this Tribunal he is a Respondent whereas at First Appeal stage he is a decision maker. When exercising this power he must, not only comply with the statutory rules and regulations but must also act fairly and in accordance with the principles of natural and constitutional justice. There is and rightly so a presumption in his favour in this regard. When so acting he necessarily affects the financial and/or property relationship of certain parties. By placing a valuation on property he imposes a financial burden on the occupier and sometimes the owner. By increasing a valuation he increases that burden. So it is of the first importance that ratepayers and indeed rating authorities should have full confidence in the Commissioner when the latter deals with an appeal before him. If it were permissible in circumstances similar to those existing in this case, for the Commissioner on an appeal to this Tribunal to disown or disavow his valuation at First Appeal stage then great uncertainty would be introduced into the entire process. It could very easily and very quickly be seen as reducing the importance of the Commissioner's role and indeed perhaps the great diligence, application and expertise which revising valuers, appeal valuers and the Commissioner bring to bear in carrying out this statutory responsibility could be seen as undermined. Bearing in mind the power of inter alia an officer of the Commissioner to list property for revision at any time it seems to us on principle that at least where there is no change in circumstances the Commissioner should not be permitted to revise upwards a rateable valuation fixed by him at First Appeal stage.

(11) In addition we are not aware of any case or decision which would support the submission advanced on behalf of the Commissioner. There is no authority or
precedent to sustain such a proposition. This either directly or by way of analogy. If one therefore had to apply first principles our reasoning and conclusion would be
similar to that indicated above. Accordingly our decision on the preliminary point is against the Commissioner. If the appeal therefore is to proceed it should proceed
against the rateable valuation of £4,000 and not against any higher figure.

(12) In the circumstances it is not necessary for the Tribunal to make any decision on the other interesting and perhaps far reaching submissions made by both parties to this appeal.