The High Court has set aside a 2017 Valuation Tribunal determination over proposed rates on metropolitan area fibre networks and sent the appeals back for reconsideration.
Mr Justice Garrett Simons ruled on 25 January 2019 that the tribunal had misunderstood the preliminary issues before it, failed to give adequate reasons and crossed into the merits of the appeals without fair procedures for the Commissioner for Valuation. The judge directed that the appeals be heard by a differently constituted tribunal division if possible. He had not yet settled the precise remittal order and invited submissions on whether the appeals should be heard in full rather than by preliminary issue.
The underlying dispute concerns whether fibre optic infrastructure in Waterford’s metropolitan area network is rateable. In 2007, the tribunal determined that the network was exempt from rates because the State was in paramount occupation. In appeals lodged in 2014, the Minister for Communication Energy and Natural Resources, E-Nasc Éireann Teoranta and PlanNet 21 Communications Ltd relied on that decision, arguing that the later valuation certificates amounted to an abuse of process and an unjustified collateral attack on it.
The Commissioner sought to argue that service providers could occupy individual fibres for rating purposes, relying in part on an English Court of Appeal decision. The 2017 tribunal determination treated the appeals as a substantive hearing without evidence, criticised the Commissioner for not producing evidence and found that his decision to issue the certificates did not stand up to scrutiny. It varied the valuation decision.
Justice Simons said the tribunal should first have identified the precise legal questions and the facts on which a preliminary determination would be based. It did not resolve whether res judicata or the rule in Henderson v Henderson applied to taxation matters, or adequately address whether the 2007 decision had dealt with service providers’ use of individual fibres. Nor did it properly examine whether circumstances or contractual arrangements had changed.
The judge did not decide whether the Commissioner’s arguments on rates or the effect of the 2007 determination were correct. He said those issues belonged first before the Valuation Tribunal, and that the outcome of a reconsideration could not be predicted. The certiorari order set aside the 2017 determination in its entirety; the appeals were remitted for reconsideration in light of the High Court’s findings.