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John Pettitt and Son Ltd. v. Commissioner of Valuation [2001] IEHC 67 (1st May, 2001)
THE
HIGH COURT
1999
No.
939SS
1. IN
THE MATTER OF THE VALUATION ACTS 1852 TO 1988 AND IN THE MATTER OF THE
supermarket and yard at 73.74 (incl. 69b.70b Main Street), Main Street, Gorey
Urban, RD: Gorey, Co. Wexford.
Appeal
No: VA95/5/015
BETWEEN
JOHN
PETTITT & SON LIMITED
APPELLANT
AND
COMMISSIONER
OF VALUATION
RESPONDENT
Judgment
of Butler J. Delivered on the 1st day of May 2001
- This
is an appeal by way of a case stated by the Valuation Tribunal (hereinafter
referred to “the Tribunal”) dated the 28th of May 1999 arising out
of the judgment of the Valuation Tribunal issued on the 13th of October 1997.
The
appeal before the Tribunal was one dated the 13th of October 1995 by which the
Appellant appealed against the determination of the Respondent in fixing a
ratable valuation of £450 on the hereditament described in the title
hereof. The grounds of appeal were that the valuation is excessive,
inequitable, unwarranted and bad in law and that the Respondent has not
complied with statutory procedures in assessing the valuation of lot 74, Main
Street. This both at revision and first appeal stage.
- As
set out in the case stated:
“The
Appellant is the owner and occupier of the hereditament in which it has and
stills carries out a substantial business of supermarket retailers. The
hereditament is known as “Pettitts Supermarket” and is one of a
chain of such supermarkets in the south east of Ireland. The hereditament is
situate on Main Street, Gorey, Co. Wexford and incorporates both the ground and
first floors and is now is excess of 22,000 sq. ft.. The hereditament was also
the subject of several revisions and appeals from time to time in the years past.
3. In
the case stated the
Recent
Valuation History
of the premises is set out as follows:-
“The
hereditament, above referred to, was contained in separate entries in the
Valuation Lists prior to the valuation process, the subject matter of this
appeal. The hereditament comprises an area described as Lot Numbers 73 and 74
together with Lot Numbers 69b and 70b in the Valuation Lists. The lots are
originally described as follows:
- Lot
73, Main Street:- Shop, bakery, office, stores and yard (including 69b, 70b,
Main Street) RV £295
- Lot
74, Main Street:- House (pt. of), offices and yard RV £5
- Lot
74, Main Street:- House (pt. of), shop, office and yard RV £15.
Since
a revision which took place in 1980 Nos. 69b and 70b were valued together with
Lot No. 73 and thereafter up to 1990 the hereditament, which remained in the
occupation of the appellant, was the subject of further revisions and was
described as Lot No. 73, so that in 1990 the annual revision of Lot No. 73
(which included Lot 72, being itself part of the said hereditament owned and
occupied by the Company) was increased to £295. It was not until after
1992 when Wexford County Council, being the relevant Rating Authority, sought
to revise the valuation of the hereditament to include extensions to the
supermarket and car park, that an officer of the respondent noted that the
hereditament had been extended into Lot No. 74 and no amendment had been made
to reflect that fact in the Valuation Office books of the respondent or in the
relevant maps. Due to an administrative error no amendment was made with
regard to Lot No. 74 in the Valuation Office book. It was initially proposed
to delete Lot No. 74 altogether, this in the proposed amalgamation with Lot 73,
but on subsequent examination it emerged that only part of Lot 74 should be
deleted as in fact Lot No. 74 itself should have been subdivided as it
comprised a further hereditament occupied by a separate Third Party.”
4. The
Revision Process
is then set forth in the case stated as follows:-
- On
the 28th day of July 1992, Wexford County Council, as the relevant Rating
Authority initiated the revision procedure under the 1988 Act by sending the
requisite form to the Respondent (Form R2) seeking to have the value of the
hereditament, described by reference to the Valuation Office Map as Lot No. 73,
owned and occupied by the Appellant, revised to include a valuation of the
extensions to the supermarket and car park thereof. A copy of the Form R2 in
question is annexed hereto and forms part of this Case Stated.
- On
11th August 1992 the same Rating Authority wrote to the Appellant giving notice
(pursuant to Section 3(4)(a) of the 1988 Act) of the fact that the holding
described as Lot No. 73 had been listed by it for Revision.
- On
5th July 1994 with the intention of correcting the aforesaid administrative
error and misdescription of the hereditament, a second R2 Form was completed by
an officer of the Respondent thereby initiating a request for Revision of the
property described as Lot No. 74. The purpose of that request for Revision was
expressed to be to amalgamate that Lot with Lot No. 73, being part of the
Appellant's premises. No notification of this application was served on the
appellant.
- On
10th August 1994 the Respondent issued a revised list in accordance with the
valuation procedure and placed a ratable valuation of £450 on what is
described as "Pettitts Supermarket".
- By
Notice dated 23rd August 1994 this determination was appealed by the Appellant
to the Commissioner of Valuation.
- On
18th September 1995 following the first appeal process the Respondent affirmed
the ratable valuation already fixed for the hereditament without change in the
quantum thereof.
- By
Notice of 13th October 1995 the Appellant appealed to the Valuation Tribunal
against the said decision of the Respondent at first appeal.
- On
15th July 1996 the said appeal first came on for hearing before the Tribunal in
Wexford and was adjourned for further hearing to 21st October 1996 to
facilitate an inquiry into discrepancies found by the Tribunal to exist in the
Valuation Maps in that the same did not accurately reflect the Lot boundaries
as contended for on behalf of the Commissioner.”
2. The
case stated further went on to list facts which it said emerged during the
course of the hearings and were agreed or were so found by the Tribunal to be
material and relevant facts for the purpose of the said appeal. The same are
set forth as follows:-
- “As
part of the 1992 Revision the revising Valuer during the course of his
inspection in June 1994 noticed that part of the hereditament, by that date,
had been extended into Lot No. 74 and hence his initiative in the 1994 Revision
request. He noted that only part of the hereditament was on Lot 73 which had
been listed for Revision. He then reported back on the matter and set in train
the listing of Lot No. 74 for Revision. As a result, an Officer of the
Valuation Office sent an R2 Form to the Rating Authority which was received by
it on 1st July, 1994 and which was stamped "Initiated by an Officer of the
Commissioner. Exempt from fee". This form was thereafter signed by the Local
Authority on 5th July 1994 and it appears that it was returned to the
Commissioner with a letter of the 13th July 1994. A copy of this letter is
annexed hereto and forms part of the Case Stated.
- The
Rating Authority did not in the process of the 1994 Revision serve any notice
on the Appellant under Section 3(4)(a) of the 1988 Act.
- At
the 1994 Revision an administrative error occurred in that no amendment was
made to Lot No. 74 in the Valuation Office book. That error was observed by
the Appeal Valuer, who with the sanction of the Commissioner proposed that the
hereditaments above mentioned, being those formerly comprising Lot No. 74,
should be deleted and that a corrected list should issue with the first appeal
results on 18th September 1995. Unfortunately, such a correction did not take
place at that time.
- Following
the service of the Notice of Appeal to the Valuation Tribunal, the Appeal
Valuer once again noticed the continuance of this error. Accordingly, on the
18th January 1996 he wrote to the Rating Authority pointing out what the
problem was and requesting a deletion from the list of the entire of Lot No.
74, being the hereditaments occupied by Mrs. Finn and Miss Cahill respectively.
On the same date he also wrote to the agents retained on behalf of the
Appellant pointing out the error, its history and his suggested course of
action. A copy of the said correspondence is annexed hereto and forms part of
this Case Stated.
- In
the months following, Wexford County Council looked into this matter. During
the course of their enquiries it emerged that the extension to the supermarket,
whilst incorporating the hereditament formerly occupied by Mrs. Finn, did not
in any way encroach upon the property occupied by Miss Cahill. It so informed
the Commissioner. Accordingly, on the 21st May, 1996 the Appeal Valuer once
again wrote to the Appellant's agent and having set out the latest position
then proposed that Lot No. 74 should be subdivided with that portion formally
occupied by Mrs. Finn (but by that date incorporated into the supermarket)
being designated Lot No. 74(a) with the remainder, being the chemist shop owned
and occupied by Miss Cahill, being designated as Lot No. 74 (b). A copy of the
said correspondence is annexed hereto and forms part of this Case Stated.
- Mention
was also made of Lot Nos. 69 (b) and 70 (b) which Lot Nos. Were first created
at the annual revision in 1944. However, no valuation map could be produced
which showed these Lot Nos. or the boundaries thereof. In addition, a doubt
and uncertainty arose as to whether Lot No. 72 was or was not included in the
valuation.
It
was further found by the Tribunal following special inquiry that the following
was the position relating to the relevant Lot Numbers and their identification
on the Valuation Maps:
Lot
Nos. 69(a) & 70(a) and 69(b) & 70(b)
were created at the annual revision in 1944. These however were not mapped at
that time or on any subsequent maps. In 1980 Lot Nos. 69(b) and 70(b) were
valued with Lot 73 and the ratable valuation of £185 placed thereon. In
all the lists published since then, Lot Nos. 69 (b) and 70 (b) have been
included in the description of the hereditament referred to as Lot No. 73.
Lot
No. 72
first appeared in the Primary Valuation Book in 1853. In 1855 this was
amalgamated with Lot No. 73 but shortly thereafter was again separated. Since
then Lot No. 72 has retained a separate Lot Number in the Valuation Office books.
Lot
No. 73
also appeared for the first time in the Primary Valuation Book of 1853.
Following its amalgamation and subsequent separation from Lot No. 72, Lot No.
73 has, either alone or with additions, appeared as such ever since. As above
stated, Lot Nos. 69 (b) and 70 (b) were valued with Lot No. 73 in 1980. In
1985 a ratable valuation of £320 was placed on Lot No. 73 with occupier
and immediate lessor given as the company. On appeal the figure was reduced to
£265. In the annual revision Lot No. 73 had its valuation increased to
£295 but otherwise there was no change.
3. The
relevant history of Lot No. 74 has been set out above.”
5. The
Tribunal,
inter alia
,
made the following determinations: -
- The
justice of the case required that the Appellant be permitted to raise the issue
of the mapping in the appeal notwithstanding that this issue was not raised in
the appeal to the Commissioner at First Appeal pursuant to Section 19 of the
Valuation Act 1852. On the mapping issue itself, the Tribunal found that there
was considerable confusion and imprecision concerning the description and
identification of the hereditament, but having regard to the evidence adduced
on behalf of the Respondent, whatever confusion or errors did exist, the same
did not of themselves invalidate the entire Revision process.
- On
a careful review of the decided cases it was held that once a request for
Revision is made to the Commissioner which request contains an adequate
description of the hereditament, however so described, then the Commissioner
has jurisdiction to revise and that jurisdiction is not nullified by the
absence of or by the incorrect use of Lot Numbers in the request for Revision
or in the List itself. The Tribunal noted that although Section 3 of the 1988
Act contains its own complete procedure for initiation of the Revision process,
the substance of such procedure was no different than that long established
under the previous Valuation Acts of 1852 and 1854.
- Compliance
with the Provisions of Section 3(4)(a) of the 1988 Act, where an occupier is
known, is mandatory and is a necessary prerequisite to a valid Revision. Even
where an occupier was thereafter involved in the appeal process this did not
obviate the necessity to comply with the statutory provision. The principles
of estoppel not being based on any statutory provision, could hardly be used to
prevent an owner/occupier from raising the issue of non-compliance. It was not
necessary for the Appellant to show that it had suffered express prejudice or
injustice as a result of non-notification. It would not be proper to excuse
non-compliance as this would have the effect of reversing the onus of proof on
this issue as decided in many cases at Appeal before the Valuation Tribunal.
The Tribunal was satisfied that in all cases of failure to notify in compliance
with the Act, every owner/occupier suffers prejudice in that immediately upon
his property being revised he is potentially liable to pay rates in accordance
with the revised valuation placed thereon. This the Tribunal found had
implications for and might well create a
limitation
of his property rights as enshrined in the Constitution. Therefore, even
though the notification for the purposes of the 1992 Revision was of itself
valid, the absence of any notification for the purposes of the 1994 request
for Revision established that there was a clear non-compliance with Section 3
(4) (a) of the 1988 Act.
- The
Tribunal further held that it was accepted that the earlier Revision of 1992
was of itself valid. However, the subject property had been treated as one
unit by the Commissioner in his Revision of 1994 and the subject matter of that
1994 Revision must now be treated as one unit. Consequently, the 1992 Revision
could not be treated as separate from the 1994 Revision. Therefore, the
Tribunal determined that the entire of the Revision, which issued on the 10th
August 1994 was invalid.
- The
Revision issued on the 10th August, 1994 was struck out in respect of the
hereditament, the subject matter of the Appeal.
6. Questions
for determination by this Court are set out at sub-paragraphs (a) to (h)
inclusive of paragraph 10 of the Case Stated I shall deal with the same in
chronological order as follows:-
“(a) Was
the Valuation Tribunal entitled to conclude that the justice of the case
demanded that the appellant company was entitled to raise in the Appeal before
it issues as to the boundaries of Lots appearing in the Valuation Maps, and in
this regard, what portion of the hereditament had been listed for revision in
1992 and 1994, notwithstanding that these issues were not raised at first
appeal in the Appeal to the Commissioner of Valuation pursuant to Section 19 of
the Act of 1852?
”
I
am satisfied that the Valuation Tribunal was entitled to so conclude. The
Tribunal concisely reviewed the law and came to the view that it ought and must
follow the principles which it referred to as enunciated by the Supreme Court
and held that it would be quite wrong that the practise of exclusion which,
given the importance of the case and the interests of justice, did not permit
of exceptions or deviations therefrom. It accepted that whilst, as a general
rule, where a ground of appeal has not been advanced before the Commissioner it
will not be possible to raise it before the Tribunal nevertheless, in
exceptional circumstances were the interest of justice requires, the Tribunal
will permit the raising of a ground, the reception into evidence and the
reliance of a point of law none of which have previously been raised so far or
adduced. I conclude that, as the instant case proceeded, and as confusion
after confusion emerged and abounded it would not have been possible in any
equitable way to proceed with the appeal and to make a decision thereon without
first having the said issue fully explained, debated and discussed. The
Tribunal was, plainly, entitled to so conclude.
“(b) If
the answer to question (a) is in the affirmative, was the Tribunal entitled to
conclude that the Respondent was acting within his jurisdiction to embark upon
and determine the Revision in question notwithstanding the mapping errors and
inaccuracies in the description of the subject property by reference to the
appropriate Lot Numbers as appear at the relevant time on the Valuation
Maps?”
This
question follows the previous one and must, too, be answered in the
affirmative.
“(c) In
the circumstances of this case, was the Tribunal entitled to conclude that
there was a failure to comply with the provisions of Section 3 (4) (a) of the
1988 Act in relation to the failure of the Rating Authority to notify the
Appellant of the application for Revision of Lot 74 by the Valuation Office in
1994?”
The
sub subsection in question reads as follows:-
“Where
an application under sub-section (1) of this Section in relation to any
property is made by any person other than the owner or occupier of that
property, the owner or occupier, if known, shall be notified by the rating
authority of the application”
4. By
letter dated the 11th of August 1992 the Appellant company received
notification of the 1992 revision. The description of the property in that
letter was by reference to Lot Number 74. No notification was given in
relation to the 1994 revision. The use of the word “shall” as
opposed to “may” indicates that the notification in question is
mandatory. I am satisfied that the Tribunal was entitled to conclude that
there was a failure to comply with the provisions of the said sub-section.
“(d) If
the answer to question (c) is in the affirmative, was the Tribunal entitled to
conclude that such non-compliance was such as to deprive the Commissioner of
Valuation of jurisdiction to carry out a Revision of the said hereditament or
that such non-compliance was such as to vitiate the Revision of the Valuation
issued in August 1994?”
The
said notification of August 1992 could not be regarded as a sufficient
notification of the 1994 revision. That being the case non-compliance with the
Section must mean that the resulting revision is invalid.
“(e) Having
regard to the determination of the Tribunal that the Application by the Rating
Authority for Revision in 1992 was valid, was the Tribunal entitled to conclude
that the Revision of the Respondent which issued on 10th August, 1994 was
invalid by reason of the failure to notify the Appellant of the application for
revision made to the Local Authority on 5th July, 1994?”
5. The
Tribunal was clearly so entitled.
“(f)
In
the circumstances where the Tribunal concluded that the request for Revision
made in 1992 was valid, was the Tribunal entitled to conclude that the
determination of the Revision issued in August, 1994 was invalid in
circumstances where the Commissioner had treated the hereditament as comprising
one unit of valuation?”
As
the Tribunal found, since the hereditaments, the subject matter of the 1994
revision, are now treated as “one unit” with the hereditaments the
subject matter of the 1992 revision, one cannot sever one from the other. This
question must be answered in the affirmative.
“(g) Was
the Tribunal correct in law in its determination that there was a separate and
distinct Revision process in 1992 and a second Revision process in 1994 and
that it was not possible to separate these two Revisions on the grounds that
the subject matter thereof was to be treated as one unit?”
This
question should be answered in the affirmative. The Tribunal was correct in
its determination in law and in fact.
6. “(h) Was
the Tribunal entitled to conclude that the subject matter of the 1992 request
for Revision and the 1994 request for Revision were treated by the Commissioner
of Valuation as “one unit” such that the Tribunal was not able to
sever the one form the other and that by reasons of the failure to comply with
the Provisions of Section 3(4)(a) of the Valuation Act, 1988 in regard to the
request for Revision made in 1994, that the entire Revision, the results of
which were given on the 10th August 1994, was invalid?”
I
have already found this to be the case and I answer this question in the
affirmative.
© 2001 Irish High Court
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