With regard to section 3, the Minister has inserted into this section——
Valuation Bill, 1987 [Seanad]: Committee Stage (Resumed).
Question proposed: "That section 3 stand part of the Bill."
I must insist on order being restored in the Chamber. The conversation in the lobby can be heard in the Chamber and constitutes serious disorder. Deputy Enright, without interruption.
Subsection (1) of this section reads:
An owner or occupier of any property, the rating authority or an officer of the Commissioner of Valuation may apply at any time for a revision of the valuation of any property entered in the Valuation Lists or for the inclusion therein of any property not so entered. On my understanding of the present situation, I contend that it appears strange in this instance that the Commissioner of Valuation is now entitled to look for a revision. I am wondering why he is now being granted this power.
Technically, it would be in order to maintain consistency and balance in the updating of valuations. If for any reason a valuation was determined on a specific property which gave a particular service or otherwise, it might be necessary for the Commissioner of Valuation, as a result of that valuation being determined, to ensure that there would be unilateral equity in the valuation of similar properties in other areas. Consequently, in order to ensure that there would be no discrimination in regard to the increase in valuation against one person, or occupier, or owners of a particular property vis-à-vis others, it would be important to maintain that balance and consistency. Therefore that flexibility must be given to the commissioner to ensure that that balance is maintained.
The Commissioner of Valuation is a person who should be totally impartial. He has not had this power or authority up to now to commence or cause a revision. It would be inconsistent for him to be now granted this power. He should be absolutely and totally impartial. I can understand that a rating authority in a particular area would have this power, if they were not satisfied regarding the valuation of a particular premises, to look for a revision. I am quite happy that the occupier of any premises who is not happy with a valuation could look for a revision of property, as could the owner, but it is wrong that a Commissioner of Valuation who should be impartial is granted this power. He and his staff have very wide-ranging work. They have 60,000 revisions per annum to deal with. Their workload should not be further added to. By deleting that power there would be a lessening of the workload and the Commissioner of Valuation would be seen to be impartial.
I appreciate the sentiments expressed by the Deputy, but I am afraid that I cannot accept them. I shall give two simple examples. Let us take two public utility companies, for instance, the ESB and Telecom Éireann. They both transmit power over cables supported by poles. If for any reason the valuation is determined in a particular area or on a particular utility, it may be necessary for the Commissioner of Valuation to revise upwards or downwards the valuation of the other utility. Secondly, let us take two manufacturing companies manufacturing the same product under different brands. A valuation may be determined on the property of one, on their fixed assets and equipment. The other company would be manufacturing the same or a similar product under a different brand. Again, the Commissioner of Valuation would surely need to have flexibility to revise that valuation either upwards or downwards in line with the first determination, or at least request that that determination be made. It is in the interest of equity, balance, consistency and fair play that we give that flexibility to the commissioner so that there can be no discrimination against a person, company or utility.
May I put a simple question to the Minister? Why is that power deemed necessary? If the local authority are not satisfied with the particular valuation, they could make that revision themselves. If there is an imbalance between two particular companies, the local authority should surely have the power, if they are not satisfied, to make that revision. If the ESB, being the owner or occupier of a property, are not happy because the cost is too high they have the power. But this is something new and that is the point I am making. I see the Minister's point, but I feel the existing position is adequate to meet the situation.
Of course the local authority has the right to apply for a revision. The company, the citizen, the owner or occupier of the premises, the local authority and, now, the Commissioner of Valuation have the right to apply for such revision. It is all very well to say the local authority can request this and maybe they should do so, but the local authority in counties Offaly, Mayo or Sligo may not be aware of a particular valuation in the city of Dublin and, consequently, although a decision affecting one local authority area may be relevant in another area, they would not ask for the revision. It is in an effort to maintain consistency and build up case law in the determination of valuations that we must allow flexibility to the commissioner.
In regard to section 3 (3) at line 28 it is provided that determinations will be published every quarter. I wonder is that realistic. Perhaps yearly or half yearly would be more realistic.
The situation there is that the Commissioner of Valuation shall cause every application to be determined within six months of receipt of same and shall issue a list of the determinations on a quarterly basis or within ten days of that; he is allowed ten days leeway after the end of the quarter within which to publish. We hope that this will lead to efficiency so that difficulties will not arise.
Section 3 agreed to.
SECTION 4.
Question proposed: "That section 4 stand part of the Bill".
In advance of agreement of section 4 there is a matter I would like to come back to which was raised with the Minister on Second Stage. That is the question of singling out public sector utilities and why the Minister was confining this scheme of things in regard to the valuation of public sector corporations. I understand that it was intended, in the first instance, to start with the ESB. They are already rate-payers to the various local authorities in which their facilities exist. I listened with interest to the reasons the Minister has for introducing this regime of centrally evaluating and then apportioning out rates on these companies, and the ESB in particular. If this procedure involves bringing into the rating net a greater range of structures and facilities such as cabling and the transfer of electricity and the like, why have the Government not considered it an appropriate means of evaluating rates on multiunit companies such as banks with their buildings and facilities around the country, shopping centres and shopping chains and other industries like co-operatives with outlets of different kinds? Why does the Minister reserve this simply to State companies?
We are talking about a public utility undertaking. It is not confined to a public company or a State company or a semi-State company, but a public utility or a public service of any kind whether given by the State, the semi-State sector, the local authority, a private company or individual. We are talking about any service given nation-wide. All that would be included.
The Deputy has alluded to the ESB situation. The ESB pay an annual bounty to the State of £24 million. They pay a very small rating contribution in certain local authority areas where they have highly sophisticated and very valuable properties, and in other areas where they have not got the same properties or similar properties they do not pay anything. As a result of this Bill they will be valued right across the board on their total utilities in the State and that valuation will be broken down and apportioned into each local authority area, the bounty they contribute to the State will no longer be paid direct but instead they will pay an equitable rating contribution based on the value of the utility they have in each local authority area.
I presume by that the Minister means that it will continue to be paid to the local authority and not directly to central funds?
That is correct.
In regard to section 4 (7) it provides that the Commissioner of Valuation shall apportion the global valuation of an undertaking determined or revised under this section between rating authorities. I feel it should stop at that because there are areas where local authorities have to maintain roadways, for example, on the coast where a lot of fishing is going on and there are lots of trucks going in and out to a particular port particularly if there is fish factory. In such a case I would regard it as unfair if that county's rates were paid to anybody other than to the particular local authority.
In Offaly and in the Minister's constituency of Galway where there are Bord na Móna factories, a considerable number of trucks carrying heavy loads of peat and briquettes travel the roads. There are a number of briquette factories in Offaly and Laois — for example, Cúl na Móna in Portlaoise — and trucks are constantly travelling the roads with heavy loads of peat, briquettes and turf. Those roads are being damaged by such heavy loads. It would be grossly unfair for the Minister for the Environment, after consultation with the Minister for Finance, to prescribe the amount so apportioned to any rating authority. It should be paid to the county whose roads are damaged. The roads in Offaly have been damaged by the continuous use over the years of heavy trucks and we are entitled to the rates that are paid on the ESB power stations and the briquette factories. It is not right that they should be paid to any other authority.
I wish to copperfasten my understanding of what the Minister has said. It may be that in the drift of discussion on Second Stage the wrong interpretation was taken of the proposals in regard to section 4. We should take them in conjunction with the Second Schedule which seems to be drafted in line with public utilities in the public sector — I am using a very broad definition in that regard. I take the Minister's clarification of utilities provided by State, semi-State and other bodies. Am I to take it that there is nothing in the Bill, as it is currently drafted, to prevent the Minister at a future stage, if he so desires, from using this mechanism of global valuation to deal with multi-outlet private concerns? As the Minister was speaking I was trying to think of a public utility on the scale that would warrant global valuation as he describes it. There was a recent Government announcement to set up a private TV channel and that is one area where this type of system could be applied. Am I to take it that there is nothing in the Bill that will prohibit the global valuation scheme from applying to private concerns in the future? Am I correct in understanding that in the initial stage the Minister's intention is to concentrate on the ESB alone and, if so, why?
I will go back to Deputy McCartan's original point and I will then take Deputy Enright's point. First, I will clarify the position regarding a public utility undertaking as defined in the Bill. It includes any undertaking, whether established by or under any enactment or otherwise, which supplies a service to the public whether throughout the State or in any part of the State. It was in that context that I referred to the regional situation earlier. As I have said, we are not confining this scheme to the public sector. The Deputy is correct in his interpretation of the situation in that the Bill will allow, in the future, private companies or individuals providing a multilateral service or facility of any type to the public to be globally valued. The Minister can add to the Schedule by order but of course all the orders, as contained in section 11 of the Bill, must be laid before both Houses of the Oireachtas. The global valuation will be apportioned on a basis to be fixed by ministerial order, as stated in section 4 (7) of the Bill. The basis will differ from undertaking to undertaking. In some cases the distribution will be based on the physical location of the assets in each local authority area and in others on a consumption of products, or possibly a combination of both. For these reasons it is intended that the precise basis of distribution of valuation will be prescribed by order which must be laid before both Houses of the Oireachtas. We do not visualise a global valuation of conglomerates, multinational companies, co-ops, supermarkets or chain stores. The valuations of those outlets would be determined individually on their location within each local authority area.
To go back to the point made by Deputy Enright regarding commercial dockside where there is constant usage of a particular area by commercial interests within a local authority functional area, it would be only fair that the valuations as determined and the moneys that would accrue as a result of those determinations would be paid to the local authority in that area. That is the position and the same will apply right across the board. The position will be the same in regard to supermarket chains. Where a valuation is determined the rates levied as a result of that determination would be paid to the local authority in the area.
If each local authority will have the power to retain their rates there is no necessity for the last part of section 4 (7). The subsection should end after the wording "between rating authorities".
The section should terminate after——
After the words "between rating authorities".
I will read the section and the Deputy can tell me where to stop, although that does not necessarily mean that I will agree with it.
The Commissioner of Valuation shall apportion the global valuation of an undertaking, determined or revised under this section, between rating authorities——
That is where I think the wording should stop.
That may not be possible. I will have to complete the section.
——in such manner as the Minister for Finance shall, after consultation with the Minister for the Environment, by order prescribe and the amount so apportioned to any rating authority shall be the valuation of the property of the undertaking in the area of that authority.
Many of the companies, particularly the semi-State companies, that we are talking about are directly responsible at the end of the day to the Minister of Finance as a representative of the people in the Houses of the Oireachtas. He is the man to whom they must report and give their accounts and balance sheets at the end of each financial year. We must allow him flexibility, in dealing with and in assessing those companies on behalf of the people and the Oireachtas, to decide that there should be a determination made at a particular time for any given reason. We must also allow him to consult with his colleague, the Minister for the Environment, who has overall responsibility for the collection of rates and the funding of local authorities. That flexibility must be there. If any changes are to be made they will be made by order which must come before the House of the Oireachtas, the representative of the people, and the House can either accept or reject the orders being made. The Minister is obliged to put those orders before the House. It would be unfair, in the interest of the viability of companies and in the interest of maximising State resources, to take that flexibility from the Minister for Finance.
The danger is that the Minister shall, by order, prescribe the amount so apportioned to any rating authority. He might decide to equalise it and spread it out, which might be to the disadvantage of one rating authority and to the benefit of another. I would contend that the rating authority should fix the valuation in each case on each hereditament. Such areas will reap the benefits of employment on the one hand but will also carry the disadvantage of having huge trucks passing in their areas, damaging their roadways. The upkeep of the roads and facilities would be to their disadvantage if other areas were to benefit from the rates paid on those premises.
I appreciate the Deputy's sentiments. I cannot but feel that much of what he says would suit his own lovely county of Offaly and perhaps also County Clare——
And the City of the Tribes as well.
Deputies Enright and McCartan have asked why we are using the ESB as an example. If one looks at the ESB properties at Ardnacrusha or at Parteen in County Clare, then one observes that the water drives the turbines, flows down the Shannon River through the various counties, power is transmitted right across regions, all of which must be taken into account. If we were to constrain the Minister, the Tribunal or the Commissioner of Valuation too much by way of flexibility we might not achieve equity in the distribution of valuations and, ultimately, in the collection of rates on account of the service being provided. The reason we are using the ESB as an example is that, first, it is a publicly-known, easily identifiable utility operational in every part of the country. It is a utility that makes an annual contribution to the State by way of a block bounty, which the ESB regard as somewhat arbitrary in its determination, feeling that it may not be equitable for them. The new system will be absolutely fair and equitable right across the board, taking into account the entire utility and facility and the whole of their property portfolio. We are using them as an example on account of their unique position. They are a suitable example of how other utilities and valuations can be determined in the future. We must maintain flexibility to ensure that there is equity, not alone in determining valuations, but also in apportioning the valuations in various local authority areas thereby ensuring that no local authority is placed at a disadvantage vis-à-vis another. If one such utility had an important property on the fringe of a county boundary and the power being generated was beneficial to a county other than the one in which it is generated or vice versa, then there may be some inequity in determining the valuations or in their apportionment.
For that reason I ask the House to ensure that flexibility is given to the Commissioner of Valuation and, ultimately, to the Minister for Finance, the people's representative in this House.
Question put and agreed to.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."
I listened with great interest to the Minister's remarks on Second Stage and on earlier sections. Each case or applicant appealing to the tribunal will have to submit a report in writing. The Minister stated that the reason for this was to build up case law in regard to valuations. The House would commend that aspiration so that when a valuation was being determined or appealed in the future, there would be precedents and case law for referral.
I contend that the provisions of this section will be somewhat onerous on people. At present the only way one can lodge an appeal to the valuation tribunal is by way of a case on a point of law; points of fact will not arise for determination by the courts. I contend it would be good to have a certain number of cases referred to the High Court for determination on points of law. I presume there will be a person with legal qualifications serving on the tribunal. The Minister might confirm that for me.
In accordance with the provisions of this section, if a person is dissatisfied with a determination, contending that it is erroneous on a point of law, he may declare his dissatisfaction to the tribunal. Then subsection (2) states:
The party, having declared his dissatisfaction, may, within twenty-one days after the determination, by notice in writing addressed to the Chairman of the Tribunal, require the Tribunal to state and sign a case for the opinion of the High Court thereon within three months of the date of receipt of such notice.
Let us suppose that a person owning a somewhat modest house discovers that his valuation has been sizeably increased perhaps by way of error on a point of law. Let us suppose again that he is a person of humble means and wishes to bring a case before the High Court. There is no civil legal aid here and this would entail a civil case being brought by such a person. In accordance with the provisions of subsection (3) the party requiring the case shall pay to the tribunal such fee as the Minister for Finance may by regulations prescribe for and in respect of the case, before he is entitled to have the case stated. There would be no problem in the case of a supermarket group, a semi-State body, a Government Department or wealthy property owner, but for a person of humble means the valuation of whose property is affected, let us say, a shopkeeper, butcher, draper, some such person might just not be able to afford to bring a case and have it stated before the High Court.
I put it to the Minister that where a case appears to be reasonable, is not frivolous, where it is not brought for devious or dubious purposes, where a person genuinely believes he has a proper case to be determined by the High Court, in that instance, a person in a democracy, with a solid legal system should not be prevented because of his not having adequate financial resources from bringing his case before the High Court. The House should be generous in its provisions in respect of such persons, allowing their cases to be heard and points of law determined in order to build up case law which will be of benefit not just to those applicants but to the courts, legal advisers, architects, engineers, valuers and, most important of all, the members of the tribunal themselves. It is my belief that subsection (3) should be deleted.
I appreciate the sentiments the Deputy has expressed. Of all the Bills that have come before this House perhaps the broadest and most equitable consideration and/or solution is encompassed in the provisions of this section. It is normal, in our laws and in international law to have two appeals only: if one takes a case to the court one can appeal it to a higher court. In this case an applicant has the right to list his property for determination of valuation, or for revision of valuation. He has the right to be heard by the Commissioner of Valuation and his staff on first appeal in the determination of that valuation. He can further lodge an appeal to the tribunal on the valuation determined by the Commissioner of Valuation. They can again appeal the decision of the tribunal to the High Court and then to the Supreme Court which gives them four opportunities to make a case pertaining to the valuation on their property. This is a very broad option and although I am not that long in the House I have never seen it contained in a Bill.
I appreciate the Deputy's remarks in relation to a person of modest means not being able to take a case to the courts. However, I do not visualise people of modest means in conflict with the commissioner or the tribunal, at least not very often, because, when a property is being assessed for valuation, unless it stands up to certain criteria it will not be valued. Of course I do not want to create an incentive for people to appeal decisions to the courts but it will relate more to companies or conglomerates. I hope that people of modest means would not have to bring a case but in any event the State should ensure that any citizen, irrespective of his means or property, will always have the protection of the law available to them.
I would not like to argue with an eminent lawyer like Deputy Enright regarding free legal aid but I was under the impression as a layman that if you could make a case to the court that you were not able to defend yourself professionally or to pay for professional assistance, the court could then determine whether to make free legal aid available. Perhaps that is too simplistic an interpretation but I am sure the Deputy will correct me if I am wrong. The fee involved will ensure that no frivolous or irrelevant cases are taken to court. We hope that the time of the commissioner, the tribunal and the court will not be wasted by frivolous or irrelevant cases.
It is only with regard to a point of law that a person has a right of appeal and it is in everybody's interest that points of law are determined to set up the framework. If a person feels genuinely aggrieved, he should be asked to pay to the tribunal such fee as the Minister for Finance may, by regulations, prescribe for and in respect of the case before he is entitled to have the case stated. I am not aware of any such provision in other instance where such a regulation is in force.
As far as I am aware, the court can make any order it likes in relation to costs. If a person states in court that they cannot afford to go ahead with the case — and they will have to prove this — the court, in its wisdom, will make a decision. It could make an order apportioning the costs, depending on the circumstances.
A person cannot prove his case until he pays the fee. That is the problem in the section.
We will deal with fees later.
There are two separate and distinct fees. The fees we will deal with in section 7 are different from those mentioned in this section, which relate to a case stated.
Is the Deputy talking about court fees?
I am referring to the fact that he has to pay a fee to the tribunal which has been brought in by regulation of the Minister for Finance. It is a most unusual provision.
I will discuss the matter with the Deputy when we reach that section.
Are we taking Report Stage tonight?
It depends on how we get on.
This matter may not have been fully considered, it is different from the fees referred to in section 7 (1).
Is there any resolution to the fears, real or imaginary, expressed by Deputy Enright?
I should like to put his mind at ease. I am confident that the fees to be decided will take into account the value of the property which is in dispute vis-á-vis its valuation. I expect that normal properties of standard value — small shops, factories or houses — would have a reasonable fee. As the property gets bigger the fee may increase but I can assure the House that we will not set a fee which will prevent the owner or occupier of any property from appealing his case either to the tribunal or from the tribunal to the courts.
I take the Minister's point and I accept his goodwill in that regard. The principle is the same, from the humblest corner shop to Quinnsworth stores, in regard to points of law and that is the difficulty I see in regard to the regulations. It is not as if they can go to the District Court, Circuit Court or the High Court with varying costs involved. In this instance, the case will be heard on a point of law and it will require the same proofs in procedures as in any normal High Court case. However, we will deal with it on Report Stage which will give the Minister an adequate opportunity to consider it.
I hope to give the Deputy more information in regard to fees.
Question put and agreed to.
Section 6 agreed to.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."
There are two separate sections here. There should be no fee on the first appeal stage as this was never the case. However, when the case comes before the Commissioner of Valuation I would not object to a reasonable fee being charged. It seems that the initial appeal will now be subject to a fee. Will there be two fees, one where the appeal goes to the Commissioner of Valuation and a second, separate fee when the case is heard? I am not sure of that point and I should like clarification.
Deputy Enright suggested that in a time of economic crisis we might not be able to afford the luxury of a tribunal. He may have a point about luxuries.
Is the Minister accusing me of doing a U-turn?
I would not accuse anybody of doing anything like that; it does not happen. In my view it is only right to ensure that the valuation office and the tribunal are not a burden on the State, that some money will be raised from the services they are providing. They should be at least partly self-suf-ficient. It is necessary to have a fee of some type because otherwise all valuations determined would be appealed. The last section gave the right for four appeals and unless there is a fee set for each appeal there will be a major problem in the offices of the Commissioners and of the tribunal. We cannot allow that to happen.
The fee will be set by the Minister for Finance. He will be setting fees in respect of appeals to the Commissioner of Valuations or to the tribunal or in respect of an application to the Commissioner. There is no doubt that the fees will be modest and I am confident that people will not quibble about the amount involved.
I accept the Minister's goodwill in regard to this but fees have a habit of increasing annually. For example, a High Court stamp originally cost £8 but that has risen to between £55 and £60. Stamp fees for the Circuit Court and the District Court have also increased. I accept that it is the Minister's intention to keep the fees at a modest level but he cannot speak for Finance Ministers in the future. They may have a different view of what a modest fee should be. In my view it infringes on the rights of citizens if in appealing a decision they must pay a fee. I would not object to a stamp fee being paid on documents lodged with the appeal to the Commissioners of Valuation but I do not think it is right to charge a fee to an appellant to have his or her case heard.
The powers being introduced are unique. A stamp must be paid where there is compulsory arbitration and a very modest fee is charged by An Bord Pleanála but the Minister is proposing to introduce two distinct fees. It is unfair to charge an individual a fee if he decides to appeal the decision to increase his valuation. People of modest means will find it difficult to pay such a fee and as a result may not be able to proceed with an appeal. A shopkeeper who is not in good circumstances because of bank loans, tax commitments and so on may not be in a position to pay an appeal fee even if his valuation is doubled. It is wrong to deprive such a person of a right to have an appeal heard by the tribunal. I do not think the Minister has thought out this provision fully. There is no doubt that with the ravenous demands of the Department of Finance such fees will be increased and people will be deprived of their right to have an appeal heard against a valuation.
Deputy Doyle, who has arrived, and myself are modest people and I hope the standards we have set and expect from the Office of Public Works are not considered modest.
It did not take the Minister too long to scupper Rosslare beach.
Deputy Doyle should not be parochial.
The fees are enabling powers and it does not follow that they will be charged at any particular stage. Any fee fixed will be moderate. They are being introduced in order to prevent frivolous applications and appeals being proceeded with. Fees were provided for in other legislation that has passed through the House. Under the Bill introducing farm tax fees were provided for in respect of appeals to a commissioner, which was the first appeal, and to a tribunal which was the second appeal. I hope that when the fees are being set there will be a provision to waive fees where the applicant is in difficult circumstances.
The Leas-Cheann Comhairle has a great interest in history and I should like to refer him to a decision of 30 June 1852 when Her Royal Highness Queen Victoria was in power in Britain. When an Act similar to the legislation before us was going through the House of Commons on that day it was decided that when any humble citizen wished to appeal a valuation a fee of £5 would be charged. The decision to charge such a fee deprived many people of humble means of the right to appeal a valuation. Such a sum was a lot of money for many people in those days. In this instance we should not deprive people of the opportunity of appealing a valuation. It is very easy to introduce regulations and increase fees in a budget. That is what I am afraid of. I would not have any objection to charging a fee in the case of frivolous appeals and I accept that there should be a payment for a stamp for the second appeal to the valuation tribunal. Let it be fixed by some graded system. If the valuation is between £10 and £50, let the amount be £20, and so on. We should be more definite and precise.
The sum of £5 in 1852 was a lot of money and it deprived many people of having an appeal heard. In this instance we should ignore the example of Queen Victoria and paddle our own canoe.
I appreciate what the Deputy has said. We are a long way from 1852 and Queen Victoria. We are a long way from Victoria Lock between our two constituencies. The fee is designed to provide some contribution towards the cost of administration. It is not intended to be a deterrent. I would hope that the fee would not be too excessive and would not prevent any person from appealing even to the Supreme Court.
Question put and agreed to.
Sections 8 to 12, inclusive, agreed to.
First and Second Schedules agreed to.
Title agreed to.
Agreed to take remaining Stages today.
Bill reported without amendment and passed.
A message will be sent to the Seanad acquainting it that the Dáil has passed the Bill without amendment.