Stanberry Investments Ltd. v Commissioner of Valuation [2020] IECA 33 (26 February 2020)

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JUDGMENT of Mr. Justice Murray delivered on the 26th day of February 2020

1. This appeal is from a Judgment and Order of the High Court (O’Regan J.) of 8th

November, 2018 and 18th January 2019, respectively. The proceedings arise from a case

stated of the Valuation Tribunal (‘the Tribunal’) to the High Court of 2nd June, 2017, as

subsequently amended. That case stated was made pursuant to the provisions of s. 39 of

the Valuation Act 2001 (‘the Act’). To avoid confusion between the parties having regard

to their role in the proceedings before the Tribunal, the High Court and this Court, I shall

refer to the appellant in this appeal as ‘the Commissioner’, and the respondent as

2. Stanberry is the owner of a car park at Clarendon Street Dublin (‘the subject property’).

The car park is located on the south side of the city centre behind the department store

‘Brown Thomas’. Although the car park and Brown Thomas are in different ownership, the

subject property is widely referred to as the ‘Brown Thomas car park’.

3. The appeal arises from an order made by the Commissioner under s. 19 of the Act for the

revaluation of all commercial properties in the Dublin City Council rateable valuation area.

The valuation was to be ascertained as of 7th April, 2011. The subject property was

valued accordingly. The valuation process comprised a proposed valuation certificate

issued on 11th January, 2013 with an assessment of €1,235,000.00, a reduction of that

following representations to €1,140,000.00 (16th December, 2013), an appeal to the

Commissioner and revaluation by him (6th August, 2014), and an appeal from that

decision by Stanberry to, and hearing before, the Tribunal (3rd September, 2014 and

15th and 16th December 2015, respectively). The valuation as appealed to the Tribunal

was €1,140,00.00 representing a rate per car parking space of €3,000.00. The valuation

fixed by the Tribunal in its decision of April 1st, 2016 reduced this by €250.00 per space,

leading to a rateable valuation of the subject property of €1,045,000.00.

4. The Case Stated followed from that determination. It identified five questions arising from

the decision of the Tribunal. In the High Court, three of these questions were resolved in

favour of the Commissioner, and one in favour of Stanberry. One question (which in turn

arose from a number of different alleged errors of fact) was resolved partly in favour of

the Commissioner, and partly in favour of Stanberry. The questions resolved in favour of

the Commissioner related to the acceptance by the Tribunal of comparisons close to the

subject premises, to the alleged failure of the Tribunal to take proper account of un-

appealed or agreed valuations of car parks in the north city, and the Tribunal’s use of a

particular method of valuation – the comparison method – as the basis for its valuation.

5. The single question arising from a number of different alleged errors of fact was resolved

in favour of the Commissioner save and insofar as it related to an admitted error in the

description of a car park adjacent to a department store on the north side of the city

centre – Arnott’s – which was relied upon by Stanberry as a comparator property. I will

refer to this property throughout as ‘the Arnott’s car park’.

6. Having resolved the questions in this way, the High Court ordered that the matter be

remitted to the Tribunal for re-hearing before a different division of the Tribunal.

7. It is the questions resolved against the Commissioner that form the subject of this appeal.

Those two questions were framed by the Tribunal in the Case Stated, as follows:

(1) If the appellant is correct that the determination was based on an error of fact, did

the Tribunal fail to comply with s. 48(1) of the 2001 Act or arrive at the

determination which was vitiated by significant errors of fact and thereby erred in

(2) Did the Tribunal err in law in identifying the Setanta car park and Trinity Street car

park as establishing the emerging tone of the list in circumstances where the

8. The High Court Judge proposed that these two questions be answered as follows:

(1) The determination of the Tribunal was based on an error of fact relevant to the

Arnott’s street (sic) car park and thereby erred in law in doing so.

(2) The Tribunal erred in law in having regard to or placing weight on the emerging

tone of the list attributable to Setanta and Trinity Street car parks which were then

9. That the Tribunal recorded in its decision an error of fact in relation to Arnott’s car park is

not disputed. This appeal thus presents two issues. The first is whether an error of

material fact such as to justify the intervention of the Court is presented by an incorrect

statement in the decision to the effect that the Arnott’s car park had contract parking.

The second is whether the Tribunal erred in having regard in the course of that decision to

the emerging tone of the list attributable to other properties which were then the subject

10. Section 48(1) of the Act makes it clear that the net annual value – ‘NAV’ – is an estimate.

The NAV is defined in s. 48(3) by reference to a hypothesis, the object of which is to

determine the rent a hypothetical tenant would bid for the property in issue:

“Subject to section 50, for the purposes of this Act, ‘net annual value’ means, in

relation to a property, the rent for which, one year with another, the property

might, in its actual state, be reasonably expected to let from year to year, on the

assumption that the probable average annual cost of repairs, insurance and other

expenses (if any) that would be necessary to maintain the property in that state,

and all rates and other taxes and charges (if any) payable by or under any

11. The actual rent paid by a tenant for a specific property may be material in reaching this

estimate, but it is not itself conclusive of the NAV. The estimate of value is what a

hypothetical tenant would pay by way of rent and not, for the purposes of the test framed

by the provision, necessarily what any particular tenant is paying. There are different

methods of valuation designed to assist in determining the NAV thus defined. The method

applied to any particular property is a matter of valuation judgment, dependant on a

number of variables including – obviously – the nature of the hereditament being valued,

but also depending on the market and financial information available to the decision

maker. While Stanberry contended unsuccessfully before the High Court that the

valuation ought to have been conducted by reference to the ‘profit’ basis, it has not

appealed the determination of the High Court that it was within the jurisdiction of the

12. That was a comparison method of valuation which depended on identifying other

properties similar to the subject property and seeking to deduce from the valuation

attributed to and rents obtained from those properties a valuation for the subject

property. Before the Tribunal, the evidence proceeded on the basis of a consideration of

the comparators advanced by each party and an examination of the extent to which they

were true comparators having regard to their location, the number of car parking spaces

available, the conditions attaching to the parking facilities that could be made available at

the respective properties, the tariff charged to park, the hours the car parks could open,

occupancy rates and the annual income from the properties (where this was known or

13. The relevant features of the subject property were not in dispute. It has 380 spaces and

is located in a busy retail area, some 100 metres from Grafton Street. Access to the car

park is via Clarendon Street, with the exit on to South William Street. There is direct

pedestrian access via a footbridge from the car park to the Brown Thomas department

store. The property also has pedestrian access to the Powerscourt Shopping Centre. The

daily tariff was at the relevant date, €3.20 per hour. The planning permission granted in

respect of the property prohibited ‘contract parking’ (that is reserved space in the car

park at a pre-paid rate). It also required that increased charges be imposed in respect of

(and with a view to discouraging) long term parking. At the relevant time it opened

Monday to Saturday from 7 am to 1 am and on Sunday from 9 am to 10 pm. The expert

witness called on behalf of the Commissioner (Mr. Sweeney) expressed the view that

turnover was a key element in determining the valuation of properties of this kind, and

that a tenant would consider the turnover being achieved prior to the valuation date and

the likely turnover that could be achieved in the years thereafter. The evidence before the

Tribunal on behalf of the Commissioner disclosed revenue per space for the subject

property in 2009 of €7,739.00, in 2010 of €6,444.00, in 2011 of €6,214.00 and in 2012 of

€6,334.00. Stanberry’s evidence was to the effect that average occupancy at this car park

14. The Commissioner in his evidence to the Tribunal referred to eight other car parks, seven

of which were in the city centre. Two of those were on the north side of the city, and six

on the south. These included Drury Street car park (NAV per space of €1,000.00), the

RCSI car park (NAV per space of €2,150.00) and St. Stephen’s Green Shopping Centre

15. Two of the comparators advanced by the Commissioner are important to this appeal. The

first of these was the Setanta car park. This is located in Nassau Street, also in Dublin’s

south city centre and is approximately 500 metres from Grafton Street. This had a net

annual value of €731,000.00. There were 225 spaces, the valuation per space being

€3,250.00. The parking tariff was €4.00 per hour generating a revenue per space of

between €6,000.00 and €7,000.00 per annum. While Stanberry owns the freehold in the

subject property, the Setanta car park had been rented by its current occupier since

2010. It paid a total rent per annum of €736,667.00. The valuation of this property was

under appeal at the time of the Valuation Tribunal hearing – including a third party appeal

16. The second was Trinity Street car park. This is located on Andrews Lane and is

approximately 200 metres from Grafton Street. This had a net annual value of €731,000.

There were 173 spaces, the valuation per space being €3,250.00. The property generated

a revenue per space of between €6,000 and €7,000 per annum. The Trinity Street car

park had been rented by its current occupier since 2009. It paid a total rent per annum of

€664,429. The valuation of this property was also under appeal at the time of the

17. Based on the comparator evidence thus tendered, the evidence of the Commissioner’s

expert valuer was that a valuation of €3,000.00 per space equating to 47.36% of 2012

revenue represented a valuation in line with similar properties in the locality. He

expressed the view that the subject property was the best located car park in Dublin city

centre and that that Setanta, Trinity Street and the subject property were the best

18. Stanberry stressed in its evidence what it contended were increasing impediments and

disincentives surrounding the subject property of which the hypothetical tenant would be

aware and which, it was said, would impact detrimentally on the revenue earning ability

of the car park. These included declining year-on-year traffic volumes and revenue, the

one-way traffic system to and access from the car park, restrictions on traffic arising from

the bus gate corridor in College Green together with construction works on the LUAS

19. As with the Commissioner’s expert witness, Stanberry’s expert valuer tendered

comparators. These included a number of car parks on the north side of the city centre –

Parnell Centre car park, IFSC car park, Irish Life car park and Drury Street car park. One

of the properties on which he placed particular reliance was the Arnott’s car park. This is

located on the north city centre adjacent to Arnott’s department store. As with the subject

property, it was prohibited from allowing contract parking, but unlike the Brown Thomas

car park, the Arnott’s car park is owned and operated by the department store owner. It

has 370 spaces and has a tariff of €2.80 per hour. Stanberry contended that it had an

occupancy rate of 64.39 %. This property had a net annual value of €592,000.00, the

valuation per space being €1,600.00. This was under appeal at the time of the Tribunal

20. As I have already noted, the hearing proceeded before the Tribunal over two days, the

expert valuers called by each party giving evidence as to the net asset value of the

subject property contended for by them and being cross-examined in respect of same.

Following the appeal, the valuation of the subject property was reduced by the Tribunal to

21. The basis for the Tribunal’s decision appears in two final parts of its ruling, the first

headed ‘Conclusion’ and the second ‘Findings’. It is unclear what distinction the Tribunal

saw as between the propositions in each of these sections, or why it was necessary to

22. Under the heading ‘Conclusions’ the following was stated:

(i) The Tribunal said that the subject property differed from “the comparable” in that

parking must be short term and no contract parking is permitted by the planning

permission. The Tribunal said “no other car parks have this dual restriction”. While

unclear, it would appear that the Tribunal intended to refer to comparables in the

(ii) The Commissioner’s “comments” that the bus gate and Luas works are reflected

and included in the various comparisons were described by the Tribunal as

(iii) Noting Stanberry’s arguments regarding the differentiation between north side and

south side used by the Commissioner in arriving at a “schematic” for the valuation

of car parks, the Tribunal observed that the Commissioner’s argument “that Brown

Thomas is the third best car park in the City with the other two being located on

(iv) The Tribunal said that “limited weight can be placed on Drury Street as it is not

(v) The Tribunal recorded that it was “persuaded that the operation of St. Stephen’s

Green Shopping Centre and RCSI Carparks in tandem lead to congestion issues”

(vi) Of the Setanta Carpark, the Tribunal said “the Tribunal considers the argument that

this is in effect a 2005 rent as the operator renewed an existing lease in 2010 had

some merit, however the fact that it was negotiated between the two parties means

(vii) Finally, the Tribunal said the following “[t]he presence of contract parking in the

various comparisons including Arnotts together with their proximity to retail

destinations will make their application to the subject difficult” (emphasis added).

23. The last conclusion contains an error of fact: contract parking was not permitted in

Arnott’s car park. That this was an error is accepted by the Commissioner – although

obviously the parties disagree as to what the consequences of that error are. It is an error

which is inconsistent with an earlier statement in the Tribunal decision which recorded of

this car park (p.4) that “contract parking is not permitted”. It was also inconsistent with

24. The final section of the Tribunal’s decision (‘Findings’) is as follows:

“The Tribunal finds that the schematic applied by the Commissioner is of

limited benefit in this particular case as it does not make sufficient adjustment for

planning restrictions in this case and it applies a divide between the Northside and

However, the Tribunal is persuaded by the market and emerging tone of the

list comparisons close to the subject, particularly Setanta Carpark and Trinity

The Tribunal finds that insufficient allowance has been made to the subject for

the presence of restrictions which will undoubtedly affect the price that a willing

Accordingly, the Tribunal has reduced the rate applied by the Commissioner by

25. Three issues present themselves as to the interpretation of these ‘Findings’. First, counsel

for neither party was entirely clear as to what the schematic referred to by the

Commissioner in its first finding actually was. Mr. Hickey SC for Stanberry suggested that

this referred to a matrix tendered in the course of the evidence of the expert on behalf of

the Commissioner, Mr. Sweeney. That matrix referred to eight car parks, three of which

were on the northside of the city, and presented a range of information relevant to the

26. Second, the term emerging tone of the list appearing in the second finding is not

defined in the decision. The phrase was used by the expert witness for Stanberry, and –

as I explain below – it was used in a decision of the Tribunal, Marks and Spencer v.

Commissioner of Valuation (9th April 2009, VA08/5/125). There, it was given a very

particular meaning – to which I will return. There was also a disagreement between the

parties as to the implication of this phrase. Mr. Power SC for the Commissioner suggested

at the hearing of this appeal that it did not necessarily have the meaning attached to it in

the Marks & Spencer case and that it may have simply referred to the fact that the

27. Third, counsel disagreed as to the meaning of the term subject to adjustment as it

appears in the second finding. Counsel for the Commissioner contended that this referred

to an adjustment being made by the Tribunal to reflect the fact that the examples of

comparators to which the Tribunal referred were under appeal. Counsel for Stanberry

suggested that the adjustment related to the need to reduce the values of comparator

properties to reflect the fact that they did not have restrictions on contract parking in

their planning permissions – which the subject property did. In this regard he stressed

that the term ‘adjustment’ is applied in this very context in the first finding.

28. Following the decision, Stanberry indicated its intention to appeal and a Case Stated was

prepared. This was signed by the chairperson of the Tribunal – who was not a member of

the panel who had heard the appeal. The Commissioner took objection to the case stated

as so signed, and an application was brought before the High Court to dismiss it. The

Court directed and suggested amendments to the Case Stated, following which the parties

agreed the contents of an amended Case. The costs of that process were awarded to

Stanberry. This ruling as to costs forms part of this appeal and will be addressed

29. O’Regan J. in the course of her judgment identified the relevant principles attending an

appeal on a point of law pursuant to s. 39 of the Act. I will return to those principles

shortly. Her conclusion in respect of the first issue – the effect of the error of fact insofar

as Arnott’s car park was incorrectly recorded in the conclusions section of the judgment

as having contract parking – was that because of this mistake of fact the determination of

the Tribunal was based on an error of law. The Court reached this conclusion by reference

30. First, the Commissioner had contended that this statement should be read so that it said,

effectively, not only that the presence of contract parking at Arnott’s was making it a

difficult comparator, but also that the fact it was proximate to a retail destination in and

of itself would make it a difficult comparator. He also contended that Stanberry had

overstated the impact on the decision of the errors (including this one). O’Regan J.

rejected this contention, noting that while the construction so presented was “one means

of reading the sentence” an equally valid understanding of it was that what rendered

Arnott’s a difficult comparator was the combination of the two. Because the Court was not

satisfied that the Tribunal would have excluded Arnott’s on the sole basis of proximity to

retail destinations, and because the Court determined that it was not the intention to

exclude car parks on the north side of the city from consideration, the error of fact was

31. Second, the Court approved and expressly relied upon a decision of the English Court of

Appeal, E. v. Secretary of State for the Home Department [2004] QB 1044, where four

factors which would render a mistake of fact the basis for a statutory appeal on a point of

law, were identified. These depended on the mistake being as to an existing fact, to the

fact being uncontentious and objectively verifiable, to neither party having been

responsible for the mistake, and to the mistake playing a material (but not necessarily

32. Third, and finally, the Court emphasised its view that the error of the Tribunal was all the

more significant because the comments of the Tribunal in respect of the Commissioner’s

schematic suggested that the north side car parks were not being excluded from

33. In relation to the issue arising from the phrase the emerging tone of the list, the

Commissioner had – as I have noted – contended that the reference to “subject to

adjustment” in the part of the findings dealing with this issue made it clear that the

Tribunal was aware that the relevant valuations were under appeal and was therefore

taking this into account. He had also contended that the fact that the Tribunal had

referred to the emerging tone of the list, further demonstrated that the Tribunal had

recognised that because there were pending appeals, the tone of the list had not yet been

34. In addressing these contentions, the Court attached particular importance to the

comments of O’Malley J. in Commissioner of Valuation v. Carlton Hotel Dublin Airport

[2013] IEHC 170 [2016] 2 IR 385. There, O’Malley J. approved the explanation of the

operation of tone of the list having regard to the existence of appeals ventured in the

decision of the Tribunal in Marks and Spencer v. Commissioner of Valuation. That

explanation – to which I will return – assumed that the emerging tone of the list referred

only to valuations which had been accepted, agreed or determined.

35. O’Regan J. concluded that the Tribunal’s reference to the concept of the emerging tone of

the list had the meaning as determined in Marks & Spencers. Further, the High Court

Judge did not accept that the phrase “subject to adjustment” in the Tribunal’s final section

implied that the Tribunal was expressing its understanding that the Setanta and Trinity

car parks might be reduced on appeal (as the Commissioner had been contending). Even

if that was what the Tribunal was determining, the High Court Judge held, this meant that

the Tribunal was making a guestimate as to the outcome of the appeal which was “neither

valid nor appropriate”. By highlighting Setanta and Trinity car parks in the context of

emerging tone of the list there was an error of law on the part of the Tribunal. She

“The Tribunal erred in law in having regard to or placing weight on the emerging

tone of the list attributable to Setanta and Trinity Street car parks which were then

36. Section 39(5) of the Act defines the jurisdiction of the Court on an appeal by way of Case

“The High Court shall hear and determine any question or questions of law

arising on the case, and shall reverse, affirm or amend the determination in respect

of which the case has been stated, or shall remit the matter to the Tribunal with the

opinion of the Court thereon, or may make such other order in relation to the

37. The legal principles governing the jurisdiction of the High Court in an appeal on a point of

law were considered most recently in Attorney General v. Davis [2018] IESC 27 [2018] 2

IR 357at paras. 54 to 55. There, the specific issue presented itself as to whether an

appeal on a point of law under s. 29(5) of the Extradition Act 1965 included an appeal

against error of fact. In giving the decision of the Court in that case McKechnie J.

explained that a statutory appeal on a point of law will (unless the wording of the

provision conferring that power provides otherwise) enable the Court to interfere with a

decision appealed against in four – overlapping – circumstances. The non-exhaustive

(b) errors such as would give rise to judicial review including illegality; irrationality,

defective or absence of reasoning, and procedural errors of some significance;

38. The errors of fact which will constitute an error of law for the purposes of appeals of this

(a) findings of primary fact where there is no evidence to support them;

(b) findings of primary fact which no reasonable decision-making body could make; and

Inferences or conclusions are thus appealable as an error of law, where they are

unsustainable by reason of an underlying error of fact of the kind described by the Court,

which could not follow or be deducible from the primary findings as made or which were

39. In applying these principles to the first question in this case, the text of the Tribunal’s

decision clearly suggests what all parties agree to be an error: Arnott’s does not have

contract parking. If such an error had been made by the Tribunal, it would clearly be

material, going as it does to the utility of one of the principal comparators relied upon by

Stanberry, and doing so in a context in which the valuation of comparators was evidently

key to the ultimate valuation. The starting point is therefore that the Tribunal has erred in

a material finding of fact and thus its decision is affected by an error of law (see E v.

40. The Commissioner stresses that the evidence before the Tribunal was clear that Arnott’s

car park did not have contract parking, and he notes that earlier in the decision the

correct position is recorded. The statement in the final sentence of the Tribunal’s

Conclusions was, he says, clearly a mis-recital. He notes that “the case stated gives no

indication of what weight the Tribunal gave to this issue of contract parking in Arnott’s”.

He further says that the Court is being asked to determine the weight put on the factors

in issue by the Tribunal in its decision. Similarly, it is said by the Commissioner that

simply finding a sentence which could be interpreted as exhibiting a single error and is

not described as a finding of fact per se in a section of the judgment headed ‘Conclusions’

(as opposed to ‘Findings’) is not a sufficient basis for interfering in a determination of the

Tribunal. None of the case law supports the proposition, it is said, that any error means

that a decision should be set aside. Looked at in toto, it is said, the decision of the

Tribunal was not based upon an unsustainable finding of fact nor was it incapable of being

supported by the facts – which it is emphasised must be all relevant facts.

41. It is difficult not to have some initial sympathy with this argument. The condemnation of

the decision of the Tribunal on the basis of a single sentence, framed in a context where

the evidence before the Tribunal made it clear that Arnott’s car park did not have contract

parking, and indeed where the Tribunal elsewhere in its decision recorded the correct

factual position, is less than attractive. Had the analysis presented by the ruling as a

whole made it clear that the Tribunal was not taking account of the comparator offered by

Stanberry for reasons that stood independently of this error, the Commissioner would be

42. However, none of this can be said here. Stanberry adopted the position that Arnott’s car

park was the most important comparator relied upon by it. The Tribunal was, of course,

entitled to reach a different view – not least of all because it was in a different part of the

city. However, it is easy to see why Stanberry placed this emphasis upon this property. It

was a city centre car park with a similar number of spaces to the subject property,

located similarly close to a department store in a retail shopping area. The erroneous

sentence presents the only clear explanation in the Tribunal’s decision of why the Arnott’s

car park was being discounted. Indeed, if the sentence was – as the Commissioner says –

merely a mis-recital, then it begs the question why the Tribunal was making the

statement at all given that it was eliminating, not applying, Arnott’s car park as a

43. This brings into focus an issue of more general application. The decision the subject of

this appeal was reached in the context of a statutory process which mandates the

Tribunal to give reasons for its decisions. Specific provision is made to this effect in para.

4(3) of the Second Schedule to the Act, which requires that the Tribunal issue “a written

judgment setting forth the reasons for its determination in each appeal”. That, of course,

requires reasons which meet the applicable legal test, which is to communicate sufficient

information to enable the parties to the decision to consider whether they have a

reasonable chance of succeeding in appealing the decision (see Christian v. Dublin City

Council [2012] IEHC 163 [2012] 2 IR 506 at paras. 7 to 8). The same logic dictates that

where a party identifies an error of fact or law in a decision the subject of a statutory

appeal, and where that error relates to an issue that is prima facie material to that

decision, the correct approach is to allow the appeal unless the reasoning of the decision

maker, taken as a whole, allows the Court to conclude that the decision maker reached its

conclusions independently of the error. This follows from the general principle that “where

it is uncertain what the outcome of the decision-making would be in the absence of the

bad reason or reasons, then the decision should be quashed since otherwise the court

becomes the effective decision maker” (De Blacam, “Judicial Review” 3rd Ed. (London,

44. In this case, rather than being able to derive from the Tribunal decision a clear

explanation of how it reached its decision that Arnott’s car park should be excluded as a

comparator, the Commissioner is compelled to contend for a re-writing of the Tribunal

decision. He says that the final sentence of the ‘Conclusions’ should be read so as to

exclude any reference therefrom to Arnott’s having contract parking. This is proposed by

the Commissioner on the basis that it was the case that Arnott’s did not have proximity to

the retail destinations referred to at para. 6 of the High Court judgment (those near the

subject property) and that this is what the Tribunal was in fact addressing. This, however,

is not merely to assume that the error as to contract parking is simply blue pencilled from

the Tribunal decision, but to also require that the reference to retail destinations is itself

expanded so as to refer only to a category of retail shopping referred to at para. 6 of the

High Court Judge’s judgment. It is entirely unclear on what basis that exercise of

interpolation should be undertaken. The approach urged by the Commissioner – that

effectively the Court should overlook the error and rewrite the terms of the Tribunal’s

decision – depends on the Court reversing logic and ignoring not merely the error but

ignoring also the fact that the Tribunal has not provided a sufficiently reasoned account of

its underlying analysis to enable the Court to determine the basis on which it decided the

45. In that regard it is to be noted that at one point in its ‘Conclusions’ reference is made to

the Tribunal being “persuaded” by the Commissioner’s arguments “regarding opening

hours between north and south inner city”. While it might be said that this was a

reference to the difference in opening hours between Arnott’s car park and the subject

property, it is in fact pitched at a level of generality, is not tied to any one of the north

city car parks referred to in the course of the proceedings and is not thereafter elaborated

upon or applied to the valuation process. The statement might also sit uneasily with the

Tribunal’s first “Finding” which suggests that it felt that there was no reason in principle

not to have regard to north side city centre properties – a consideration which itself

underscores the need for an explanation of why the Arnott’s car park was being

46. This leads to a further point, repeated throughout the Commissioner’s submission. It is

said that the Court should be slow to interfere with the decisions of expert administrative

tribunals, reliance being placed in that regard upon the judgment of Hamilton CJ in Henry

Denny and Sons (Ireland) Ltd. v. Minister for Social Welfare [1998] 1 IR 34, of Costello J.

in Proes v. Revenue Commissioners [1998] 4 IR 174 and of Kelly J. in Premier Periclase

Ltd. v. The Commissioner of Valuation (Unreported, High Court, Kelly J., 24 February

1999). To that end, the Commissioner prays in aid ‘curial deference’.

47. When ‘curial deference’ first featured in the case law in this jurisdiction, the concept was

intended to do no more than reflect the common-sense consideration that in relation to

certain types of appeals from certain statutory decision making bodies the Courts should

not assume the function of re-determining de novo issues which have been consigned by

the Oireachtas to certain subordinate expert decision makers. The first reference to the

term was in M&J Gleeson & Co. v. The Competition Authority [1999] 1 ILRM 401. There, it

was introduced by Kearns J. into his analysis of the scope of the appeal arising in that

case because the relevant statutory provision (s. 9 of the Competition Act 1991) enabled

a party to appeal a decision of the Competition Authority to the High Court, without

specifying in any way what, exactly, such an appeal entailed. The appellants had

contended for a wide interpretation of the work “appeal” as it appeared in the legislation,

asserting that the Court should undertake a de novo review of the Competition Authority

decision in issue in that case. Based on the decision of the Canadian Supreme Court in

Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 SCR 748,

Kearns J. posited what was, essentially, a sliding scale of review by reference to the

degree of specialisation of the decision making body “the greater the level of expertise

and specialised knowledge a particular tribunal has, the greater the reluctance there

should be on the part of the court to substitute its own view for that of the authority”

(M&J Gleeson & Co. at 410.) This brought the Court to the point in that case where the

standard of review – notwithstanding the seemingly broad scope of the appeal provided

for under the relevant legislation – was framed by reference to whether the decision of

the authority appealed against “lacks a reasonable basis” (M&J Gleeson & Co. at 411).

This reasoning was subsequently adopted by the Supreme Court in Orange Limited v.

Director of Telecoms (No.2) [2000] 4 IR 159, at pp. 184 to 185. As with M&J Gleeson &

Co., that case was also concerned with a broadly drawn right of statutory appeal, as

48. However, some features of ‘curial defence’ as thus understood merit emphasis. Kearns J.

clearly did not believe that he was introducing any new concept into the law; he expressly

observed that his conclusions reflected what had already been said by Hamilton CJ in

Henry Denny and Sons (Ireland) Ltd. v. Minister for Social Welfare [1998] 1 IR 34, pp. 37

to 38. More fundamentally, he was concerned with the very specific issue of the scope of

a statutory appeal which, in its own terms, was unqualified. When dealing with either

judicial review proceedings, or appeals on a point of law, the issues which thus concerned

the Court in M&J Gleeson & Co. v. The Competition Authority do not arise in the same

49. The Commissioner says in this case, as parties in a similar position frequently do, that the

Court should be “slow to interfere with the decisions of expert administrative Tribunals”.

Without significant qualification, this statement is apt to mislead. Administrative tribunals,

expert or otherwise, obtain no deference on pure issues of law (see Millar v. Financial

Services Ombudsman [2015] IECA 126 [2015] 2 IR 156 at - in particular - para. 62). The

remarks of Kelly J. in Premier Periclase Limited v. Commissioner of Valuation [1999] IEHC 8,

makes it clear that errors of fact simpliciter do not present any issue of curial deference

either; “[w]hen conclusions are based on an identifiable error of law or an unsustainable

finding of fact by a Tribunal, such conclusions must be corrected” (at para 25). A similar

statement of principle appears in Nangles Nursery v. Commissioner of Valuation

[2008] IEHC 73 at para. 25. It follows that in both judicial review proceedings, and appeals on a

50. Furthermore, in judicial review proceedings (and insofar as it arises in an appeal on a

point of law) the notion of ‘deference’ to the decisions of an expert body is already built in

to the procedure by virtue of the combined effect of the presumption of validity, and the

stringent test for review on the grounds of unreasonableness reflected in O’Keefe v. An

Bord Pleanala [1993] 1 IR 39. Indeed, I note that in Attorney General v. Davis

[2008] IESC 27 the Court (at para. 58) suggests some scepticism as to whether deference has

any role in the appeal on a point of law provided for in that case (and see as to the need

for the body claiming such deference to be operating within a specialised sphere, the

judgment of McKechnie J. in FitzGibbon v. Law Society [2014] IESC 48[2015] 1 IR 516 at

paras. 76 to 85). This reflects the analysis proposed by Charleton J. in EMI Records

(Ireland) Ltd. v. Data Protection Commissioner [2013] IESC 34 [2013] 2 IR 699 at para.

“Curial deference does not aid such a specialist tribunal beyond according due

respect for its expert factual assessment or decision on the balance of competing

interests. Curial deference cannot extend to sanctioning breaches of the rules as to

jurisdiction or the bypassing of the tribunal of the obligation to incorporate fair

51. None of this is to deny any role for the sentiment underlying ‘curial deference’ in an

appeal of a decision of the Tribunal. Unlike the position under consideration in Attorney

General v. Davis, when the Oireachtas prescribed an appeal on a point of law from a

decision of the Valuation Tribunal, it must be assumed that that process would operate

cognisant of the fact that issues will arise in the course of a valuation appeal which are

peculiarly suited to the expert determination of the specialist body. These include

considerations such as the reliability of comparators, the appropriate method of valuation,

and the correct approach to application of particular valuation concepts such as the

tenant’s share or divisible balance. In those cases, where an appeal on a point of law

presents an issue of underlying fact or inference in relation to matters within those zones

of expertise, the Courts should certainly afford very significant weight to the decision of

52. However, the arguments advanced by the Commissioner in this appeal extend the

doctrine beyond these parameters, effectively seeking to extract from ‘curial deference’ a

supercharged presumption of validity. It was claimed at one point, for example, that the

Court failed to observe due deference to a specialist body by failing to adopt one

interpretation of the last paragraph of the conclusions section of the Tribunal’s decision:

the Commissioner has sought to contend that ‘curial deference’ means that if there were

two possible interpretations of the decision of the Tribunal available, the Court is required

to adopt the interpretation that upholds it. That is not a correct statement of the principle.

Deference means that in those areas touching on the Tribunal’s expertise, the Court

should be slow to interfere with the Tribunal’s reasoning. It does not mean that where the

Tribunal’s reasoning is unclear so that there are differing possible interpretations of its

decision the Court must simply assume that it was correct in the conclusion it reached. As

Charlton J. said in EMI Records v. Data Protection Commissioner at para. 22, “curial

deference cannot possibly arise where by statute reasons for a decision are required but

none are given.” ‘Curial deference’ is thus properly understood as depending on the

Tribunal having provided a properly reasoned decision, not as affording a mechanism for

compensating where the decision is not so reasoned. This is evident from the judgment of

“… it should be recognised that tribunals which have been given statutory tasks

to perform and exercise their functions, as is now usually the case, with a high

degree of expertise and provide coherent and balanced judgments on the

evidence and arguments heard by them it should not be necessary for the

courts to review their decisions by way of appeal or judicial review” (at para. 38

53. Finally, it is said that the High Court Judge erred in failing to consider the evidence of

market rent that was otherwise available to the Tribunal in reaching its decision. This, it is

said, was a very important part of the evidence. However, the decision refers in its

operative part only once to evidence of the market, and that is in the context of the

Setanta and Trinity Street car parks. There is no basis on which the Court can conclude

that evidence of market rents played any role in out-ruling Arnott’s car park.

54. The other issue presenting itself in this appeal arises from the second ‘finding’ recorded in

the Tribunal’s decision. Stanberry’s point in this regard is simple. The Tribunal recorded

itself as being persuaded by “the market and emerging tone of the list comparisons close

to the subject,” particularly Setanta and Trinity Street car parks. Stanberry points to

these valuations being subject to appeal. It says that the phrase emerging tone of the list

cannot be applied to decisions that are subject of appeal. Therefore, it is said, the

Tribunal erred in taking account of these comparators under the rubric emerging tone of

55. In this regard, it is important that the issue arises in this appeal in the context of a

revaluation made under s. 19 of the Act. This provision enables the Commissioner to

make an order (the ‘valuation order’) specifying a rating authority area as being an area

in relation to which the Commissioner proposes to appoint an officer “to organise and

secure the carrying out of a valuation of every relevant property situate in that area” (s.

19(1)). Upon the making of that order, an officer is appointed to “organise and secure the

carrying out of a valuation of every relevant property situate in” the relevant rating

authority area (s. 19(2)). Revaluations of this kind have to be carried out within ten years

of a previous revaluation (s .25). Although not in force at the relevant time, it is to be

noted that s. 19(5) as inserted by the Valuation (Amendment) Act 2015 now directs that

the valuation list be drawn up and compiled by reference to relevant market data and

other relevant data available on or before the date of issue of the valuation certificates,

and shall achieve – insofar as reasonably possible – both correctness of value and equity

and uniformity of value between properties on that valuation list.

56. The Commissioner when making such a valuation order must specify a date on which the

Commissioner proposes publish a list comprising every relevant property that has been

the subject of revaluation in this way (s. 21(1)). This is the ‘valuation list’ (s. 21(2)). That

list may be subject to alteration in respect of individual properties if the properties are

57. A revaluation of this kind falls to be contrasted with a revision of the valuation of a

property. The procedure for revision is set out in ss. 27 and 28 and can be triggered in

respect of any individual property by rating authority in that area, or by persons having

an interest in or occupiers of individual properties. Section 28(4) allows the officer

appointed to this end (the “revision officer”) to inter alia amend the valuation of the

property on the valuation list if he is satisfied that a “material change of circumstances”

(as defined in s. 2(1) of the Act) has occurred since the last valuation under s. 19 was

“If the value of a relevant property … falls to be determined for the purposes of

section 28(4) … that determination shall be made by reference to the values, as

appearing on the valuation list relating to the same rating authority area as that

property is situate in, of other properties comparable to that property.”

58. This is the ‘tone of the list’ and, obviously, is intended to ensure consistency of the NAV

across a rating authority area. It is not as much a method of valuation per se as it is a

method of comparison. It enables valuation by reference to the values as they appear in

the list of properties comparable to the property in issue. It operates thus in a context in

which quality of rating is a fundamental principle of the law (Poplar Assessment

59. While s .49(1) is framed by reference only to the revision process under s. 28(4), s.

31(a)(ii) makes it clear that in either an appeal against a determination under s. 19 or s.

28, the ‘tone of the list’ is relevant. It provides that an appellant in either such appeal

“by reference to values stated in the valuation list in which the property

concerned appears of other comparable properties, what the appellant considers

60. The specific issue that presents itself here arises because where a revaluation is

undertaken – unlike the position where a revision is underway - and properties are

initially listed, there is no established ‘tone of the list’ as valuations as they appear on

that list may yet be challenged. In the course of its decision of 7th August, 2008 in Marks

and Spencer (Ireland) Ltd. v. Commissioner of Valuation, the Tribunal considered the

correct approach to assessments on the list where there was an appeal against that

61. It did this by differentiating between three separate phases – the preliminary tone, the

emerging tone and the finally established tone of the list, these presenting a spectrum

with little weight being afforded to entries at the preliminary phase, while the list at the

final stage is at a point where because the tone of the list cannot be challenged, rental

evidence is of lesser importance in the assessment process (paras. 13 and 14 of the

“After the 40-day appeal period, as provided for under section 30, the situation

changes somewhat, in that there is then in the list a substantial number of entries

whose assessments have been accepted (or perhaps in some cases agreed at the

representation stage under section 29) or otherwise unchallenged.

At the time of the appeal to the Tribunal under section 34 the situation will have

moved on significantly, in that by far the greater percentage of entries in the

list would have been accepted, agreed or determined at section 30 appeal

stage and hence representative of an as yet emerging tone of the list. When

an individual appeal comes before this Tribunal for determination the Tribunal must

consider and evaluate the evidence then put before it, be it the actual rent of the

property concerned, the rents of other properties of a size, use and location similar

to the property concerned and last, but by no means least, the assessment of

properties which are truly comparable in all respects to the property concerned and

which are currently in the Valuation List and attach such weight to this

evidence as is considered appropriate. Finally a stage will come – but only

when all the appeal procedures under sections 30 and 34 are completed – when the

tone of the list will finally become established and thereafter cannot be challenged.

From this point onwards section 49 will come into play” (emphasis added).

62. This explanation follows closely the analysis by the Lands Tribunal in England in O’Brien v.

Harwood (VO) [2003] RA 244, at paras. 40 to 41, cited with approval by the English Court

of Appeal in Bradford (Valuation Officer) v. Vtesse Networks Ltd. [2010] EWCA Civ 16:

“There are three stages leading to the establishment of tone of the list. At first,

when a new rating list is put on deposit, entries will carry relatively little weight:

they are opinions of value by the valuation officer, as yet unchallenged and

untested by negotiation. Over time assessments will be challenged and agreed or

determined by an LVT or this tribunal or accepted by lack of challenge. Finally, a

stage is reached where enough assessments have been agreed or determined or

are unchallenged to establish a pattern of values, a tone of the list. The list is then

said to have been settled. Rents will be largely subsumed into assessments. At that

stage rating surveyors will have little regard to rents and pay considerable attention

63. As I have already observed, the explanation proffered by the Tribunal in Marks & Spencer

was approved by O’Malley J. in her decision in Commissioner of Valuation v. Carlton Hotel

Dublin Airport Limited. Neither party to this appeal contended as such that either decision

was wrong – although the Commissioner has noted that s. 63 (to which I refer later) was

not considered in Carlton Hotel. The question that thus arises in regard to the second

issue in this appeal relates to the implication of the term emerging tone of the list as it

appears in the Tribunal decision, given that the Tribunal in Stanberry’s appeal applied this

phrase to properties which were subject to appeal. This issue is best examined in stages.

64. First, it is clear when the Tribunal in Marks & Spencers used the term the emerging tone

of the list, it was clearly referring only to valuations that had been accepted, agreed or

65. Second, it is clear that the mere fact that a valuation is under appeal does not preclude

the Tribunal from having regard to it. The Tribunal in Marks & Spencers clearly envisaged

at least the possibility that appealed valuations could be taken account of by the Tribunal

in determining the NAV, although the weight to be given to opinions of value untested by

negotiation or by challenge will be very limited. This is reflected in the decision of the

English Court of Appeal in Bradford (Valuation Officer) v. Vtesse Networks Limited, where

– as I have noted – the explanation of tone of the list of the Lands Tribunal in O’Brien v.

Harwood was cited with approval “when a new rating list is put on deposit, entries will

carry relatively little weight: they are opinions of value by the valuation officer, as yet

unchallenged and untested by negotiation”. A similar statement appears in “Ryde on

Rating and the Council Tax” – “[a]ssessments under appeal will carry less weight than

assessments which are settled in the absence of an appeal or following determination of

an appeal”. (Guy R. G. Roots QC et al, “Ryde on Rating and the Council Tax” 14th Edition

66. Third, the term emerging tone of the list is not an established term of art. The

submissions of counsel before this Court were to the effect that it first appeared in 2008

in the decision in Marks & Spencer. It was used in passing by Mr. Halpin, Stanberry’s

expert witness, in the course of his precis of evidence; “the broader market evidence at or

close to the valuation date and the emerging tone do not support the Commissioner’s

assessment of the subject”, and he is recorded in the Tribunal decision as referencing the

phrase in a similar context in his evidence in chief. As the Commissioner notes in his

submissions to this Court, Stanberry relied upon valuations that were under appeal –

67. Fourth, the Tribunal decision the subject of this appeal operated on the basis that the

evidence of the valuation of, in particular, the Setanta and Trinity car parks was not being

accorded “limited” weight by the decision maker. Whatever the Tribunal meant by

emerging tone of the list, it was clearly material to the Tribunal’s decision: that is the only

explanation for the fact that the Tribunal recorded itself as being persuaded by that

68. These considerations together point to the conclusion that the Tribunal erred when it

juxtaposed the Setanta and Trinity Street car parks with the emerging tone of the list and

found itself persuaded by these comparators. The Court must start from the premise that

when the Tribunal used the term, it was doing so in the same way as it had done in its

own decision in Marks & Spencer. If that is correct, the Setanta and Trinity Street car

parks were not properly viewed as forming part of the emerging tone of the list because

they were under appeal. On that assumption, therefore, the Tribunal erred in law by

affording weight to comparators on an erroneous basis. Even if the Tribunal was using the

term emerging tone of the list in a different sense (and if it was, it should have both said

so and explained why) it erred in elevating the comparators in the manner in which it did.

If not part of the emerging tone of the list, these valuations were admissible as evidence,

but of very limited weight. If the Tribunal was viewing the comparators as being of limited

weight, it is hard to see why it would have designated them as part of the emerging tone

of the list at all, and harder to see why it would have viewed itself as being persuaded by

69. The first point made by the Commissioner in this regard is that the trial Judge erred

insofar as she concluded that the mere fact that a comparator is under appeal does not

mean that it is not a comparator at all. That, the Commissioner says, is wrong in law. Had

the High Court Judge determined that the Tribunal was absolutely precluded from having

regard in the limited way to which I have referred, to valuations that were under appeal,

this would be correct. This is not how I read her judgment. What she said, at para. 22,

was that the concept of the emerging tone involves the review of matters that have been

accepted, agreed, or determined and that it did not embrace those under appeal. Her

concern was with fixing a definition on the term used by the Tribunal itself. The definition

upon which she settled was the Tribunal’s own meaning, albeit tendered in a different

case. Once the Court decided that this was what the term emerging tone of the list

meant, then it followed that it could not be applied to valuations that were subject to

70. Second, the Commissioner says that when the Tribunal used the phrase “subject to

adjustment” in its decision, it was in fact referencing the fact that the valuations were

under appeal. There are three problems with this proposition. First, I have difficulty in

seeing how this meaning can be attributed to the Tribunal decision. In fact, in my view it

is more likely (as Counsel for Stanberry submitted in argument) that the Tribunal was

using the word “adjustment” in this paragraph in the same sense in which it had

introduced the phrase in the preceding paragraph, that is referring to an adjustment to

reflect the planning restrictions. Second, it is very difficult to understand – if this was

what it was doing – how the Tribunal did or could reduce the valuation to reflect the

possibility of the valuation being upset on appeal. Third, this proposition brings me back

to the point I made in the context of the first issue in this appeal: it is the function of the

Court on an appeal of this kind to review the decision of the Tribunal in issue, not to

engage in the exercise of re-writing its decision so as to sustain its validity. Whatever way

the phrase “subject to adjustment” in the second paragraph of the ‘Findings’ is read,

there is a very real ambiguity to the extent that it is not possible to determine what it is

the Tribunal meant. It should not be a matter for the Court in an appeal of this kind to

71. Next, the Commissioner notes that this part of the Tribunal decision did not merely rely

upon the emerging tone of the list, but that the Tribunal also viewed itself as persuaded

by ‘the market’. Assuming that this is a reference to market rents obtained for

comparable properties this could well afford a credible basis for the conclusions reached

by the Tribunal. The evidence before the Tribunal was that in relation to the Setanta car

park the rent per space was €3,277.00 and €3,266.00. In respect of the Trinity Street car

park, the rent was €3,840.00 per space. And of course the Tribunal did not merely base

its decision on these two car parks, referring also to the comparisons close to the subject.

The rent for RCSI car park was €2,544.00 per space, and that for Stephen’s Green

shopping centre €2,150.00 per space. Across that spectrum of rent per space for

proximate comparison properties, it cannot be said that the Tribunal had no basis for

72. However, the test for determining the implication of an error where it forms merely part

of the rationale for a decision is not whether the error was the cause of the decision – in

the sense of whether but for the error the decision would not have been made – but

whether it was material: “the mistake must have played a material (not necessarily

decisive) part in the tribunal’s reasoning”, E v. Home Secretary at para. 66. The manner

in which the Tribunal expresses its finding on this issue makes it difficult to conclude

other than that the mistaken belief that the Setanta and Trinity Street car parks formed

part of the emerging tone of the list was material to the conclusion reached by it on the

issue. In that regard it is significant, as Stanberry notes in its submissions to the Court,

that the valuations then fixed for Setanta and Trinity car parks were both €3,250.00 per

space. The Tribunal moved three lines after the reference to these properties to its

calculation, to recording that it was reducing the rate for the subject property from

€3,000.00 per space by €250.00 (presumably reflecting the adjustment for the contract

parking preclusion). It is not unreasonable to conclude that it was the putative rateable

valuations per space that were upper most in the Tribunal’s reasoning, rather than the

market evidence of rents which could not as readily be used to produce a final figure.

73. Fourth, the Commissioner points to the provisions of s. 63 of the Act which, he contends,

were taken account of in neither the Marks & Spencer nor the Carlton Hall cases.

“The statement of the value of property as appearing on a valuation list shall be

deemed to be a correct statement of that value until it has been altered in

75. Insofar as the Commissioner seeks to extrapolate from this provision the proposition that

once properties appear on the list, he is entitled to value other properties by reference to

that value irrespective of whether the underlying valuation is being appealed, I believe he

is in error. The purpose of this provision is to prevent a collateral attack on valuation of a

property on the list, not to condition the weight to be given to values on the list for the

purposes of the valuation of other properties. Neither the ruling of the Tribunal in Marks &

Spencers nor of the High Court in Carlton Hall affect the operation of s. 63 in any way.

Section 63 functions so as to ensure that the value of a property on the list is taken as

the correct value. Section 49(1) posits (for the purposes of an appeal of a decision made

by way of revision) that the determination of value be made by reference to the values as

they appear in the list. The approach adopted in the decisions in Marks & Spencers and

Carlton Hall determine the weight that can be attached to that value pending the outcome

of appeals against the valuation for the purposes of valuing other properties in a

revaluation. There is no inconsistency between the two. They are directed to different

things – s. 63 to the conclusiveness of the list, the cases to the weight to be given to the

76. The Court cannot conclude that the admitted error in relation to the Tribunal’s description

of the Arnott’s car park was other than material to its decision, and it must conclude that

the Tribunal in referring to the emerging tone of the list was erroneously referring and

attaching significant weight to, the valuation of properties then under appeal. It follows

that this appeal should be dismissed and that questions one and two in the Case Stated

from the Tribunal should be answered as proposed by the High Court Judge.

Result: Dismiss appeal and questions 1 and 2 should be answered

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You are here: BAILII >> Databases >> Irish Court of Appeal >> Stanberry Investments Ltd. v Commissioner of Valuation [2020] IECA 33 (26 February 2020) URL: http://www.bailii.org/ie/cases/IECA/2020/2020IECA33.html Cite as: [2020] IECA 33

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