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VA06.1.004 – Royal Cork Yacht Club

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VA06.1.004 – Royal Cork Yacht Club Status of Judgment: Distributed Appeal No. VA06/1/004 AN BINSE LUACHÁLA VALUATION TRIBUNAL AN tACHT LUACHÁLA, 2001 VALUATION ACT, 2001 Royal Cork Yacht Club APPELLANT and Commissioner of Valuation RESPONDENT RE: Club House, Quay, Jetty at Lot No. 14Ao, Carrigaline Road, Knocknagore, Templebreedy, Kinsale, County Cork Exemption - whether property below high water mark B E F O R E John O'Donnell - Senior Counsel Deputy Chairperson Brian Larkin - Barrister Member Michael McWey - Valuer Member JUDGMENT OF THE VALUATION TRIBUNAL ISSUED ON THE 28TH DAY OF JULY, 2006 By Notice of Appeal dated the 9th day of February, 2006, the appellant appealed against the determination of the Commissioner of Valuation in fixing a rateable valuation of €223.00 on the above described relevant property. The Grounds of Appeal as set out in the Notice of Appeal are: "Valuation includes elements which are not rateable and/or relevant property. The inclusion of the property at 6 (a) (i) namely quay and jetty. [is incorrect] The part of the property below HWM should be excluded (VA 2001 S.3.1(D); LGA 2001 S.227(1) VA 90/3/014.) Property is below HWM. Property does not fall within the definition of relevant property being not any of the property listed in Sched. 3 VA 2001." 2 1. The appeal proceeded by way of an oral hearing which took place in the offices of the Valuation Tribunal, Ormond House, Ormond Quay Upper, Dublin 7 on the 27th March, 2006. On behalf of the Appellant Mr. Owen Hickey, BL, appeared instructed by Coakley Moloney Solicitors. On behalf of the Respondent Mr. Colm MacEochaidh, BL, appeared instructed by the Chief State Solicitor’s Office. Both sides also furnished written submissions. INTRODUCTION: 2. The property is located adjacent to the town of Crosshaven, Co. Cork. It comprises a detached clubhouse building used by members and their guests. There is a fixed mooring marina with accommodation for approximately 176 berths. The property is held on a foreshore lease from the Department of Communications, Marine and Natural Resources. 3. The property was the subject of a revision of valuation in 2005. The occupier made submissions at appeal stage. Having considered the appeal the Commissioner reduced quantum from €268 to €223. An appeal to the Valuation Tribunal was lodged on the 9th February, 2006. 4. The essential issue for determination is whether the part of the marina lying outside the high water mark, i.e. the relevant parts of the berths, moorings and piers which lie outside that high water mark, ought to be excluded from valuation. In this regard the Notice of Appeal received by the Valuation Tribunal asserts (at section 6(a)) that the valuation is incorrect because “the valuation includes elements which are not rateable and/or relevant property”. 5. At section 6(b) the Appellant says that the Valuation Certificate includes incorrect details on the basis that it includes the properties set out at 6(a)(i), namely “quay and jetty” . The Appellant later on asserts at section 6(c) of the Notice of Appeal that the property should have been excluded from the relevant list on the basis that “the part of the property below HWM (High Water Mark) should be excluded.” 3 THE APPELLANT’S CASE: 6. On behalf of the Appellant Mr. Hickey handed in a map which showed what had been agreed between the parties as being the appropriate high water mark at ordinary tides. In his submission the issue to be determined was the meaning of the words “land which is above the high water mark”. 7. By way of preliminary submission Mr. Hickey contended that it is in the first place a matter for the Respondent Commissioner of Valuation to establish that the areas which he seeks to value are within the relevant administrative boundaries. If the property is not within the relevant rating area then the Rating Authority has no authority to strike a rate in relation to that property. Mr. Hickey contended that the piers, berths and part of the marina below the high water mark were not within any rating area of any Rating Authority at all and that unless and until proof was adduced that they were within the relevant rating area no rate could be struck in respect of them. In this regard we were referred to the decision in John Pettitt & Son Ltd. –v- Commissioner of Valuation (VA95/5/015). This determination makes it clear that where the issue of compliance is raised then the onus is on and remains on the Respondent to prove compliance in accordance with section 3(4)(a) of the Act then applicable. The validity of such an application for revision is dependent on compliance with the section where it so applies. 8. In his contention the property the subject matter of the appeal was outside of the relevant or any rating area and therefore the Rating Authority in Cork had no power to strike a rate in respect thereof. 9. Mr. Hickey also raised the issue of notification. He referred to the decision in Trustees of Cork & Limerick Savings Bank –v- Commissioner of Valuation (VA90/3/74) where the Tribunal held that where the issue of notification was raised then the onus was on the Respondent to prove compliance; the Tribunal also held in that case that the power to apply for revision was subject to notification and that where there had been no notification the revision was invalid. 4 10. In this regard also Mr. Hickey drew our attention to section 227(3) of the Local Government Act, 2001. Section 227(2)(a) deals with “land which is above the ordinary high water mark”. Section 227(3) states that “Where a local authority becomes aware that land referred to in subsection (2)(a) has by virtue of this section become part of its administrative area, the authority shall notify the Chief Boundary Surveyor of that fact”. For these purposes the Chief Boundary Surveyor was submitted to be the Commissioner of Valuation. 11. In response to this preliminary submission Mr. MacEochaidh, on behalf of the Respondent, submitted that this was an argument about who had the burden of proof. In the Respondent’s view this was incorrect. The fact that the Respondent had formed an opinion on a particular issue does not mean that the entire burden of proof reverses and goes on to the Valuation Office. In his submission the Valuation Office had come to the conclusion that the property the subject matter of the appeal was rateable and had assessed a valuation. It was now a matter for the Appellant to prove on appeal that it was not rateable. Mr. MacEochaidh made it clear that he was prepared to accept the high water mark as set out on the agreed map. The real issue in this context was what meaning was to be given to section 227 of the Local Government Act, 2001. It was thus a matter of legal interpretation of a section of a statute rather than a matter of burden of proof and in the circumstances there was no reason why the Appellant did not go first as would happen in the ordinary course of events. 12. In response Mr. Hickey submitted that the issue raised was an issue in relation to jurisdiction of the Rating Authority rather than rateability. Mr. Hickey referred to paragraph 34 of the determination in Pettitt in which the Tribunal makes the point that a reasonable person must know that his property is liable to be valued and that obligations imposed by statute must be complied with. THE DECISION ON THE PRELIMINARY ISSUE: 13. Having retired to consider the matter the Tribunal determined that the onus of proof in respect of the appeal remained on the Appellant and that it was appropriate that the Appellant should go first. 5 THE APPELLANT’S EVIDENCE: 14. Mr. Patrick Dorgan gave evidence on behalf of the Appellant. He has been a member of the Royal Cork Yacht Club for 30 years. He is an experienced sailor and committee member and has a boat on the marina. 15. He explained the manner in which the marina had been constructed. Posts made up of steel and timber were driven into the ground. The marina and platform itself has a steel frame with timber decking. The marina platform has a series of “collars” attaching the marina decking to the various posts; the marina then moves up and down with the tide. The posts or piles are inspected by a diver each year for evidence of rotting or corrosion. 16. In addition there are two access bridges. One section of the bridge is fixed. The gangway section which is on wheels then goes up and down with the marina which itself floats up and down on the tide. Mr. Dorgan gave evidence that there were a total of perhaps 50 piles for the two sections of marina with between 20-30 metres between each. In his view neap tides came in to a level of approximately 4ft. Spring tides came into a level of in excess of 15ft. 17. In his view the high water mark was not a vertical measurement. Rather, it was a type of boundary. So in his view ownership of land which was adjacent to the sea stopped at the high water mark. In his view the land above the ordinary high water mark refers to property on what might be regarded as “the higher land”. Below the ordinary high water mark conversely therefore meant a property on what may be described as “the lower land”.
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