Supreme Court of Ireland Decisions

The Supreme Court

128/1999

Keane C.J.

McGuiness J.

Hardiman J.

Slatterys Limited,

Applicant

And The Commissioner of Valuation And His Honour Judge Liam Devalley

Respondents

And The Right Honourable the Lord Mayor, Aldermen and Burgesses of Dublin

Notice Party

Judgment of Keane C.J. delivered on the 13th day of July, 2001, [Nem Diss].

1.      This case arises out of a remission of rates scheme which came into force in the Temple Bar area of Dublin some years ago. The applicant is the owner and occupier of a licensed premises known as The Oliver St. John Gogarty, a four storey over-basement corner building, at 57/58 Fleet Street in that area. Between January and December, 1992, having obtained the necessary planning permissions, it carried out extensive works on the premises, which included the demolition of all the internal walls, the removal of the roof and all the floors, including suspended floors, to basement level. Substantial works were then carried out which resulted in the premises being reopened in a significantly renovated state. The issue, which arose, was as to whether the applicant was entitled to an entire or a partial remission of the rates under the statutory scheme in respect of the relevant period.

2.      It is, accordingly, helpful at the outset to set out the details of the statutory scheme. Section 7 of the Urban Renewal Act, 1986, provides that:-

"(1) The Minister [for the Environment], with the consent of the Minister for Finance, may make a scheme providing for the remission in whole or part of rates leviable in respect of premises -

(a) which are situate in the Custom House Docks Area and are certified by the [Custom House Development] Authority to have been erected, enlarged or improved after the approval of a planning scheme under section 12, or

(b) which are situate in any other designated area and which the relevant local authority are satisfied were erected, enlarged or improved after the designation of such area.

(2) A scheme under this section shall specify –

(a) the classes or descriptions of premises to which the scheme applies,

(b) the local financial years in relation to which the remission of rates is to have effect,

(c) the terms or conditions (if any) subject to which the remission of rates is to have effect in any local financial year, and

(d) the period during which the scheme is to operate.

…

(4) Where a scheme is made under this section a local authority shall, in relation to a rate leviable by them, give effect to any remission provided for in the scheme.

(5) A remission provided for in a scheme under this section shall not be granted more than once in respect of the same erection, enlargement or improvement of premises."

3.      Under the powers vested in him by this section, the Minister for the Environment made a scheme in respect of the designated area, i.e. the Temple Bar area, in which the premises in question are situated. The scheme is contained in the Urban Renewal Act, 1986 (Remission of Rates) Scheme, 1991 (hereafter "the scheme"), art. 5 of which provides that:-

"Rates leviable in respect of premises to which this scheme applies shall be remitted as follows:

(a) Where it is determined by the Commissioner of Valuation that the entire valuation of the hereditament which consists of or includes the premises is attributable to the erection, enlargement or improvement of the premises, the remission shall have effect in relation to the rates leviable on that valuation;

(b) where the valuation of the hereditament which consists of or includes the premises is increased and it is determined by the Commissioner of Valuation that the increase or part of the increase is attributable to the erection, enlargement or improvement of the premises, the remission shall have effect in relation to the rates leviable on that increase or that part of the increase;

(c) every remission shall have effect in respect of the ten local financial years next following that in which the valuation or increased valuation comes into force."

4.      In the present case, the notice party was notified when the demolition works had been concluded that the premises were ready for inspection to enable the first respondent to make a determination under the provisions of the scheme. It does not appear that, at that point, the premises were inspected on behalf of the first respondent. The rate collector for the notice party, however, Mr. Patrick Lawlor, did inspect the premises and on the 19th May, 1992, reported that:-

"(The) premises [were] incapable of beneficial occupation at the making of the rate – roof removed, interior floors removed. Please fid copy of engineer's report attached."

5.      No rates were levied by the notice party against the premises in respect of the year 1992. On the 21st May, 1993, the applicant was advised by the notice party that, if it wished to make an application for a remission of the rates pursuant to the statutory scheme, it should make an application to that effect to the first respondent. Such an application was forwarded by the applicant to the notice party and, in turn, transmitted by the latter to the first respondent. On the 20th June 1994 , the notice party was informed by the valuation office of the first respondent that the existing rateable valuation of £630 would be subject to a remission of £295. On the 13th March, 1995, the solicitors for the applicant wrote to the notice party claiming that the entire valuation of the premises was attributable to the improvements effected by their client and that, in the result, pursuant to art. 5(a), it was entitled to a remission of the entire of the rates for the relevant period. That communication was transmitted by the notice party to the first respondent but on the 25th July, 1995, the valuation office wrote again to the notice party confirming that the remission applicable was £295. The applicant's solicitors were so informed on the 25th August, 1995.

6.      The applicant's solicitors then wrote on the 15th August, 1996 directly to the first respondent calling on him to make a determination in the case pursuant to the provisions of the scheme and again saying that the matter should be determined pursuant to art. 5(a). They also said that their client had been advised by its rating consultants of several comparable premises in the temple Bar area, the rateable valuations of which were "struck out" by the valuation office in the course of redevelopment works. It was said that such premises were not in anything like the comparable condition of the premises in question at the time the valuations were struck out. On the 16th October, 1996, the valuation office responded stating that the approach of the first respondent was as follows:-

"(1) Where the Commissioner is satisfied of the following:

(a) that a new building has been erected.

(b) that the rateable value of the pre-existing premises (including any developed land) would have been nil, had the premises been revised immediately prior to the commencement of enlargement or improvement… full remission applies.

(2) In circumstances where erection, enlargement or improvement of the premises leads to an increase in rateable valuation … the remission applies in respect of rates levied on the increased rateable value."

7.      That passage summarised what was contained in a circular, which was issued by the first respondent's office, dealing with applications being made to him under the scheme.

8.      From documents furnished by the valuation office, it appears that the valuer concerned was initially of the view that the premises should be regarded as a new building as a result of the works carried out by the applicant. His notes summarised the position as follows:-

"Property gutted – roof removed – prior to major redevelopment – now totally refurbished in a designated area – for the purposes of rates relief can be regarded as a new building …"

9.      However in a report of the 19th June, 1994, he said:-

"At revision I had recommended full remission on the basis of information that the building had been gutted and the roof removed. At my inspection the property was fully refurbished and the information regarding the previous condition of the building was forwarded to me by the rate collector, who was keen to have the original value of £335 deleted.

10.      In view of the recent meeting with the managing valuers on the subject, and taking into account further information obtained, I now consider that the relief should be on the difference of the original value £335 and the new rateable value of £630-£295."

11.      The valuer went on to refer to the fact that there had not been a full demolition of the premises, since the external walls and a small part of the roof were retained. He also said that the relevant planning permission had referred to "alterations" to the elevation of the existing premises. However, he added:-

"In view of the amount of work carried out the applicant could make a good case for total remission if the issue was pursued through the court."

12.      It was also stated on behalf of the applicant, and not disputed on behalf of the first respondent or the notice party, that the sum of £562,240 had been spent by the applicant on the relevant works.

13.      In the meantime, however, the notice party had issued proceedings in the District Court claiming the sum of £22,437, the sum stated in a revised rate demand which had been issued by the notice party on the 13th July, 1994. The District Court having given judgment for the sum claimed, the applicant appealed to the Circuit Court, but by an order dated the 17th January, 1997, of the second respondent, the order of the District Court was affirmed. It is not in dispute that the first respondent, as was usual, was not a party to those proceedings and that the case was dealt with in the Circuit Court on the basis that the court had no jurisdiction to interfere with the determination by the first respondent.

14.      On the 15th July, 1997, the applicant was given leave to apply to the High Court by way of judicial review for an order of certiorari quashing the first respondent's determination of the remission of rates applicable to the premises. It was also given an order extending the time for the making of such an application pursuant to O. 84, r. 21(1) of the Rules of the Superior Courts, 1986. A statement of opposition having been filed on behalf of the first respondent, the matter came on for hearing before Geoghegan J. who, in an ex tempore judgment delivered on the 26th February, 1999, said that he was satisfied this was a proper case in which to extend the time for an application by way of judicial review. As to the substantive issue, he said:-

"… I hold that any conclusion that the applicant's premises is not a new building is not a rational one. Had inspection of the applicant's premises been carried out prior to the commencement of the works, the valuation of the premises would have been nil. The retention of a shell of a premises does not mean that the premises had a value. It could not be held that the erection, enlargement or improvement works to the applicant's premises had simply enhanced the appearance of the premises. The works have crated a new building. The [first respondent] took into account factors which were irrelevant. The question for this court and the [first respondent] is whether the physical state of the applicant's premises had a value or not. I conclude that it was not open to the [first respondent] to hold that the applicant was entitled to a partial remission of rates only following the completion of the works which had been carried out to the premises."

15.      As to the extension of time issue, the learned High Court judge said:-

"An extension of time is justified where there are objective reasons to explain the delay, as where it is thought, with reason, that the desired results can be achieved by pursuing other routes. The applicant, in defending the proceedings which were brought before the District Court, and in appealing to the circuit Court against the District Court decision, reasonably thought that it could secure its objective of obtaining a full remission of rates."

16.      From that judgment, the first respondent has now appealed to this court. The written and oral submissions on behalf of the first respondent to the effect that the judgment and order of the High Court were wrong in point of law, were adopted and supplemented by the notice party.

17.      The first issue that arose was as to whether the High court Judge erred in law in deciding that the applicant was not precluded by the delay which had occurred from obtaining relief by way of certiorari. It was not in dispute that, as was held by this court in O'Flynn v. Mid-Western Health Board [1991] 2 IR 223, in a case such as this, where leave is granted at the ex parte stage, the trial judge at the substantive hearing must adjudicate, if asked so to do, on whether the delay was reasonable and such as might be excused or not.

18.      Order 84, r. 21(1) of the Rules of the Superior Courts, 1986, provides that:-

"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the court considers that there is good reason for extending the period within which the application shall be made."

19.      In O'Donnell v. Dun Laoghaire Corporation [1991] 1 ILRM 301 at p. 315, Costello J. said of this rule:-

"The phrase 'good reasons' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and that the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84, r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example, where third parties have acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay, the court might well conclude that this explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v. Brennan [1981] IR 181.

20.      Or again, the delay may unfairly prejudice the rights and interests of the public authority which had made the ultra vires decision in which event where would not be a good reason for extending the time, or a plaintiff may acquiesce in a situation arising from the ultra vires decision he later challenges or the delay may have amounted to a waiver of his right to challenge it and so the court could not conclude that there were good reasons for excusing the delay in instituting the proceedings."

21.      I am satisfied that that passage is a correct statement of the law. Its application in any case must, of course, necessarily depend upon the factual circumstances of the particular case.

22.      In the present case, the first respondent relies on three separate periods of delay which he says the facts disclose. The first was from the 11th July, 1994, when the applicant was informed of the first respondent's decision, until the issue of District Court proceedings by the notice party in March 1996. The second was from the 15th August, 1996, when the applicant wrote directly to the first respondent calling on him to determine the applicant's entitlements under art. 5(a) as distinct from art. 5(b), until the 17th January, 1997, when the District Court order was affirmed by the Circuit Court. The third was the period from the 17th January, 1997, to the 15th July, 1997, when the applicant applied ex parte for leave to apply by way of judicial review.

23.      If the only period of delay with which the High Court and this court was concerned was the third period, it might well be that the period was not of such duration as seriously to prejudice either the first respondent or the notice party and that it was not unreasonable that the applicant should be afforded time within which to obtain legal advice before taking the expensive course of instituting High Court proceedings. Different considerations clearly apply to the first and second periods which cumulatively amounted to a delay of three years.

24.      The explanation for the delay, which, as the applicant contends, constituted "good reasons" for extending the time, was the institution of the District Court proceedings and their ultimate resolution by the Circuit Court in January, 1997. The applicant submitted that it was entirely reasonable for it to believe that the result, which it wished to be accomplished, could be achieved by making its case in those proceedings.

25.      In reply, the first respondent, supported by the notice party, submits that, as a matter of law, the result which the applicant sought to achieve could never have been obtained in the proceedings in the District Court and the Circuit Court. They say that the determination of the first respondent could never have been set aside in proceedings to which he was not a party and that the District Court and the Circuit Court were right in so holding.

26.      I am satisfied that the submissions on behalf of the first respondent and the notice party are correct. The District Court and the Circuit Court patently had no jurisdiction to set aside a determination by the first respondent on grounds of want of or excess of jurisdiction. Even if they enjoyed such a jurisdiction, which they plainly do not, it could not conceivably be exercised in proceedings to which the public authority, whose decision was being challenged, was not party. The decisions relied on in support of the applicant's proposition – Listowel Urban District Council v. McDonagh [1968] IR 312 and Wandsworth LBC v. Winder [1985] AC 461 – do not in any way support the contention of the applicant. In both of those cases, the public authority concerned was a party to the proceedings.

27.      Apart from those considerations, I would in any event consider that this was a case in which the passage cited from the judgment of Costello J. applies. The notice party, as the rate collecting authority, is obliged in the performance of its statutory duties to collect the rates by whatever legal means are available to it. If the validity of the determination by the first respondent – a determination to which it, as the rating authority, must give full legal effect unless or until it is quashed on certiorari – could be set aside a number of years after the rates had been collected, with whatever legal consequences might flow to the notice party because of the collection by it of those rates, its rights as third parties could be seriously affected.

28.      I am satisfied that the decision of the learned High Court Judge that this was a proper case in which to extend the time was erroneous in point of law and I would allow the appeal on that ground. However, I propose shortly to state my views on the other principal issue which has arisen in deference to the arguments which were addressed to the court.

29.      I am satisfied that, even if it could be said that the decision of the first respondent on the facts of this particular case was that it was a case to which art. 5(b) applied was erroneous – and I am very far from saying that it was – it was nonetheless an error made within his jurisdiction and, accordingly, was not amenable to being set aside by way of certiorari. I respectfully cannot agree with the view of the learned High Court Judge that it was a decision which, under the principles laid down by this court in The State (Keegan) v. Stardust Compensation Tribunal [1986] IR 642 and other cases, was so irrational in nature as to entitle the High Court to set it aside. On the contrary, the material before the first respondent was such as to enable him, discharging the function imposed on him by statute, to determine that the entire valuation of the hereditament was not attributable to the erection, enlargement or improvement of the premises within the meaning of art. 5(a). Indeed, given that he was dealing with a site which, even before the work of reconstruction began, plainly had a development potential, it might on one view be said to have been difficult for him to arrive at a conclusion that, if valued at the relevant time, it should have attracted a nil valuation: see Harper Stores Ltd. v. Commissioner of Valuation [1968] IR 166. As Henchy J. said in that case at p. 173:-

"The ten weeks in question [during which the premises were being reconstructed], amounted, not to a sundering of the appellants' rateable occupation, but to a mere variation of the mode of their continuous use of the premises for the purposes of their business as retailers of ladies' drapery. During those weeks they were using the premises through the agency of the contractors, not (admittedly) for trading, but for the purpose of making structural and other changes which would enhance their trading prospects. This use of the premises was to their benefit as lessees and amounted to rateable occupation."

30.      It is , however, unnecessary to express even the most tentative view as to whether the first respondent was correct in the determination that he arrived at, i.e. that the remission to which the applicant was undoubtedly entitled fell to be determined under art. 5(b) rather that art. 5(a). it is sufficient to say that the submission that it was not within his jurisdiction to make such a determination is without foundation.

31.      I would allow the appeal and substitute for the order of the High court an order dismissing the applicant's claim for judicial review.