Justice Fennelly dissented on one issue in two Supreme Court appeals about valuing toll-road properties: whether operators could deduct payments made to the National Roads Authority from toll proceeds when calculating net annual value. He agreed with Justice MacMenamin on the separate road-maintenance issue.
The appeals were brought by Westlink Toll Bridge Limited and Celtic Road Group (Dundalk) Limited against the Commissioner of Valuation. Fingal County Council and Louth County Council were notice parties in the respective appeals.
Under agreements with the Authority, each operator collected tolls and paid it a specified share of the proceeds, described as a “royalty” or “revenue share”. Fennelly J said the arrangements were governed in detail by agreements freely entered into under section 63 of the Roads Act 1993.
The dispute concerned section 48(3) of the Valuation Act 2001. It defines net annual value by reference to rent, assuming the tenant bears certain maintenance expenses and “all rates and other taxes and charges (if any) payable by or under any enactment in respect of the property”. The operators did not claim their payments were rates or taxes; the issue was whether they qualified as “charges” payable by or under an enactment.
Fennelly J concluded they did not. He reasoned that “charges” should be read alongside rates and taxes, which are payments to public authorities primarily by way of taxation. The operators’ payments instead divided toll proceeds between them and the Authority. He also found that no enactment required the payments: they arose under the agreements, and section 63(5), which requires parties to perform those agreements, did not change that.
Fennelly J would therefore have dismissed the operators’ appeal against the part of the High Court judgment that held the payments deductible. This is his dissenting conclusion on that issue; the source does not set out the Court’s overall disposition of the appeals.
On the separate maintenance question, Fennelly J agreed with MacMenamin J that Celtic Road Group could deduct repair and maintenance costs it incurred across the full 54.7-kilometre road, rather than only the 21.74-kilometre tolled stretch from Gormanstown to Monasterboice. The source excerpt does not state the overall order on that issue.