The High Court has set aside a Valuation Tribunal determination concerning whether parts of State-built broadband infrastructure were liable for commercial rates and ordered the appeals to be reconsidered by a differently constituted division of the tribunal.
In a supplemental judgment delivered on 15 March 2019, Mr Justice Garrett Simons also directed the Minister for Communications, Energy and Natural Resources, E-NASC Éireann Teoranta (ENET) and PlanNet 21 Communications Ltd to pay the Commissioner of Valuation’s legal costs. Those costs are to be taxed if the parties cannot agree, and the order is subject to the usual stay in the event of an appeal.
The proceedings concerned a tribunal determination dated 26 June 2017 that had allowed appeals brought by the Minister, ENET and PlanNet 21 against valuation decisions. The appeals related to the rateability of metropolitan area fibre optic networks, known as MANs, used to provide broadband capacity. The Commissioner challenged the tribunal’s determination by judicial review; the tribunal itself did not participate, while all three notice parties opposed the challenge.
The court had already found in its principal judgment that the tribunal either failed to address the issues before it or failed to give reasons, and that it determined the appeals without fair procedures for the Commissioner. The Commissioner had been entitled to expect a further hearing on the substantive issues if preliminary issues were decided in his favour. The judicial review succeeded.
The supplemental judgment settled the form of the orders. The tribunal must reconsider the appeals in accordance with the findings in the principal judgment of 25 January 2019, and a differently constituted division must hear them. The court declined to direct that the appeals be heard in full rather than through a preliminary issue or modular hearing. It said the principal judgment had made no finding on the tribunal’s jurisdiction or the propriety of that procedure. The omission of such a direction was not an endorsement or recommendation of a preliminary hearing, and the court reached no concluded view on the issue. Parties remain free to raise an objection before the tribunal.
On costs, the Minister argued that an award between State bodies was not in the public interest, while ENET and PlanNet 21 described themselves as innocent bystanders in a dispute between State bodies. The court rejected those arguments. It held that the ordinary rule that costs follow the event applied and that the notice parties had all actively defended the judicial review. The costs order covers reserved costs and the written legal submissions.