The Gazette 1984

GAZETTE

JULY/AUGIJST

19

The Unconstitutionality of the County Rate on Land

by Colum Gavan Duffy, M.A., LL.B. Lecturer in Law, University College, Galway

O N 23 July 1982, Mr. Justice Barrington, after an extensive hearing of 14 days, delivered a most learned and historic judgment on the constitutional effect of the Valuation Acts from 1852 to 1964, in the case of Brennan and Others -v- Wexford County Council and Attorney-General. Briefly, the plaintiffs succeeded in obtaining a declaration of inconsistency with the Constitution in respect of Sections 11 and 34 of the Valuation Act 1852 and a declaration of invalidity in respect of the other impunged statutory provisions, in so far as they related to the Valuation Acts. The Plaintiffs also obtained a declaration of invalidity in respect of the valuation placed on their own lands. The Supreme Court (O'Higgins C.J., Finlay P., Walsh J., Henchy J. and Griffin J.) upheld the High Court decision in a single judgment (per O'Higgins C.J.) on 20th January 1984. The four plaintiffs, who were all members of the PLV. Action Committee of Co. Wexford farmers, claimed these declarations against Wexford Co. Council and the Attorney General; Wexford Co. Council was allowed to withdraw from the case from the outset. Under the Valuation Acts and amending Acts, the valuation of the lands and buildings of Ireland, by reference to an estimate of the annual land value, was carried out from 1852 to 1866 by Sir Richard Griffith. In the course of these 14 years, agriculture became more prosperous and rents rose consequently all over Ireland. Griffith prepared "Instructions to Valuation" which gave guidance in analysing the quality of the soil and underlying rock. Section 34 of the 1952 Act contemplated that there could be a general revaluation of all the lands of Ireland from time to time; and revisions were provided for every 14 years, but none in fact were ever undertaken. However, the original land owner, unlike the owner of buildings, had no right of appeal. In 1902, the Royal Commission on Local Taxation stated that the Irish valuation system was completely out of date, but nothing was done and no further revaluations have been carried out to the present day. The plaintiff, Brennan, had a farm of 64 acres near New Ross, and the other three plaintiffs had farms of from 106 to 150 acres in other parts of Co. Wexford. Each valuation of the plaintiffs' lands represented the original rateable valuation which determined the liability to the State to pay income tax, resource tax and health contributions and the liability to the Wexford County Council to pay rates subject to reliefs. The plaintiffs claimed that their present valuation, as originally assessed, bore no true relationship to the real value of their land, and were wholly inconsistent on the double ground that these valuations were fixed as a result of limited scientific knowledge after the Famine of 1845,

and were also fixed in relation to commodity prices prevailing between 1849 and 1851. Because of these factors the plaintiffs contended that these rateable valuations constituted an arbitrary, unjust and inequitable basis for the imposition of taxes; and that, consequently, the Valuation Acts constituted an unjust attack on their property rights contrary to Article 43 of the Constitution. They also claimed that the failure of Parliament to allow them a right of appeal violated the basic right of fairness guaranteed by Article 40 (3) of the Constitution. The aim of the Valuation Act 1852 was to have one uniform system for the valuation of lands. As stated, Section 34 of that Act (as applied) provided that a County Council could apply to the Minister for Finance every 14 years from the last general valuation for a revaluation, but this had never been done in the Republic. In Northern Ireland, quinquennial valuations were introduced in April 1936. During the course of the High Court hearing evidence was given by the four plaintiffs, by two soil scientists; by the property arbitrator and three auctioneers; and by a farm consultant and a statistician. All the expert witnesses for the plaintiffs conceded that there was a relationship between valuation and the price of farms, because larger farms had a higher selling price than hill farms. A number of examples of the inconsis- tencies of valuation were given, e.g., the plaintiff, Clancy, farmed 106 acres, and his rateable was £105.50, whereas, his brother who had 32 acres of superior arable land useful for tillage or pasture, had only a valuation of £62.50. Plaintiffs' Submissions After full consideration of all the evidence, the High Court was satisfied with the validity of the following submission (as also, on appeal was the Supreme Court): (1) The existing valuation system did not provide a uniform system for valuing lands. (2) There was no consistency between one county and another. (3) The Valuation system had failed to reflect the changing patterns of modern agriculture. (4) The whole system was shot through with anomalies and inconsistencies. The plaintiffs relied on the following Articles of the Constitution for relief:— Article 43; Article 40 (1); and Article 40 (3). As regards Article 43, the Supreme Court decision in Blake and others -v- Attorney-General 1 was followed, in which it was stated that Article 43 did not say what the 137