THE HIGH COURT
		No.  1995/1452 SS
IN THE MATTER OF THE VALUATION ACTS, 1852-1988
AND IN THE MATTER OF THE VALUATION OF A STADIUM
AT MAP REFERENCE 43A SOUTH LOTTS ROAD IN THE WARD OF PEMBROKE WEST "A" AND IN THE COUNTY BOROUGH OF DUBLIN

BETWEEN
SHELBOURNE GREYHOUND STADIUM LIMITED
		APPELLANT
AND
COMMISSIONER OF VALUATION 
		RESPONDENT

JUDGMENT of Mrs Justice McGuinness delivered the 22nd day of January, 1997

	This matter comes before the Court by way of a Case Stated by the Valuation Tribunal pursuant to the provisions of Section 5 of the Valuation Act, 1988 upon the request of the Appellant, the Appellant having declared dissatisfaction with the determination of the Tribunal made on the 18th day of May, 1995.
	The case concerns the valuation of the Shelbourne Park Greyhound Racing Stadium which is situated at South Lotts Road, Ringsend in the City of Dublin.  The Appellant, Shelbourne Greyhound Stadium Limited, is a wholly owned subsidiary of Bord na gCon, a commercial semi-State body set up by the greyhound industry under the aegis of the Department of Agriculture pursuant to the Greyhound Industry Act, 1958.  The hereditament to be valued comprises a greyhound racing stadium together with a floodlit running track, viewing stand, ancillary service buildings and carpark.  Part of the hereditament is occupied by Bord na gCon as Totalisator Offices but is valued separately and is not the subject of the present proceedings.  The premises are described in detail in the Case Stated and its appendices.  There is no need here to repeat the details set out in the documentation.
	The Commissioner of Valuation determined the rateable valuation of the hereditament as of November 1993 to be £1,000.  By Notice of Appeal dated  the 21st October, 1994, the Appellant appealed against the Commissioner's determination to the Valuation Tribunal on the grounds

(a)   that the valuation was excessive and inequitable, and
(b)   that the valuation was bad in law.

	The Valuation Tribunal received written submissions from Mr. Peter Conroy, District Valuer of the Valuation Office on behalf of the Commissioner and from Mr. Alan McMillan A.R.I.C.S., Director of Donal O'Buachalla and Company Limited, on behalf of the appellant company.  An oral hearing was held by the Tribunal on the 3rd May, 1995.  The Appellant was represented by Mr. McMillan and the Respondent by Mr. Conroy.  Mr. Hynes, General Manager of the appellant company, was also present.
	The written submissions of Mr. McMillan and Mr. Conroy together with the judgment of the Valuation Tribunal are annexed to the Case Stated by way of appendices.
	In his written submission and in his evidence at the oral hearing, Mr. McMillan, in the main, based his argument on the very considerable decline in attendances, tote turnover and profitability of the Shelbourne Park Stadium over the period between 1980 and 1993.  Both attendances and tote turnover had declined by some 64% during the period, the decline being steady and continuing.  During the same period the appellant company's financial position had declined from a profit of £61,788 (CPI adjusted to 1993 values £139,618) in 1980 to a loss of £115,141 in 1993.  The State, through Bord na gCon, had invested some £1 million in improvements to the facilities at the stadium but this investment had proved unremunerative and the decline had continued.  Mr. McMillan argued that in estimating the Net Annual Value of the hereditament, the Tribunal should accept that any hypothetical tenant would look at the declining profitability of the whole enterprise in fixing a rent that he would pay for the hereditament.  He also referred, for purposes of comparison, to the greyhound tracks at Cork and Limerick, which were valued at £220 and £160 respectively at the last revision in 1988.  The 1993 attendances at both Cork and Limerick were approximately 58% of the attendances at Shelbourne Park.  He suggested that £350 was a fair valuation for Shelbourne Park.
	For the Commissioner, Mr Conroy argued that neither the Shelbourne Park Stadium nor the other greyhound tracks in the State had ever been valued on the basis of profits or attendances.  He gave a detailed history of the valuation of the hereditament in his written submission.  The premises had been valued as follows:-

	1928	RV £300
	1931	RV £340
	1952	RV £1,050
	1965	RV £1,225
	1969	RV £1,000
	1970	RV £1,750 - reduced to £1,200 on appeal
	1981	RV £1,300 - reduced to £1,255 on appeal

	1986	No change - reduced to £1,055 on appeal
	1986   -    Circuit Court Appeal No. 97   -   not yet heard.

	Mr Conroy related the historic variations in the valuation to material changes in the buildings and facilities which formed part of the hereditament.  He set out in detail his estimated Net Annual Value for the various buildings and sections of the hereditament (which varied widely from Mr. McMillan's similar calculations).  He drew attention both to the £1 million already invested  by the State in Shelbourne Park and to the proposed further £2.5 million pounds to be invested in making Shelbourne Park the leading greyhound track in the country and a showcase for the greyhound industry generally.  He accepted that there was a non-profit element in this investment, but said that he had already taken that element into account in the current valuation and that indeed the non-profit element had been taken into account since 1970.
	It is also notable that in his summary of the valuation history, Mr. Conroy states that "following the completion of phases 2 and 3 (August 1995) the property will again be the subject of a Revision request".  As I understand the position, phases 2 and 3 refer to the projected State investment of £2.5 million which was to take place between 1993 and 1995.
	Both sides accepted the ratio of  rateable valuation to Net Annual Value as 0.63%.
	In its judgment the Tribunal took the view that the buildings on the hereditament were high quality buildings, their intrinsic value being indicated by the investment of £1 million approximately in 1991 and the ongoing works, the cost of which had been estimated at £2.5 million.  The Tribunal could not ignore the State's involvement in investment in the hereditament and accepted that the non-profit element had been taken into consideration by the Respondent in arriving at the current rateable valuation.  In the circumstances and in the light of all the evidence, the Tribunal affirmed the decision of the Commissioner of Valuation.
	The questions of law which the Tribunal has referred to this Court for determination are as follows:-

(a)	Was the Tribunal correct in law in having regard to the current investment in the hereditament by Bord na gCon, said to amount to £2.5 million?

(b)	Was the Tribunal correct in law in accepting the claim made on behalf of the Respondent that the non-profit element had been taken into consideration by the Respondent in arriving at the rateable valuation appealed against?

	In considering the questions posed in the Case Stated, this Court must have regard to the background of the statutory and legal principles upon which valuations are founded.  Section 11 of the Valuation (Ireland) Act, insofar as it is relevant, provides as follows:-

	"In every valuation hereafter to be made, or to be carried on or completed under the provisions of this Act, the Commissioner of Valuation shall cause every tenement or rateable hereditament hereinafter specified to be separately valued, and such valuation in regard to the land shall be made upon an estimate of the net annual value thereof with reference to the average prices of ..... agricultural produce hereinafter specified, all peculiar local circumstances in each case being taken into consideration, and all rates, taxes, and public charges, if any, (except tithe rent charge) being paid by the tenant .... and such valuation in regard to houses and buildings shall be made upon an estimate of a net annual value thereof:  that is to say, the rent for which, one year with another, the same might in its actual state be reasonably expected to let from year to year, the probable average annual cost of repairs, insurance, and other expenses (if any) necessary to maintain the hereditament in its actual state, and all rates taxes, and public charges, if any (except tithe rent charge), being paid by the tenant".

	As was pointed out by the learned Barron J. in Irish Management Institute v. The Commissioner of Valuation [1990] 2 I.R. 411 (at page 412-413):

	"The basis approach to the determination of valuations of rateable hereditaments for the purposes of the valuation code is to be found in Section 11 of the Valuation (Ireland) Act, 1852.  It requires a determination as a question of fact of the rent which a hypothetical tenant would pay for the hereditament taking one year with another.  There is no one way in which this issue should be resolved.  See Roadstone Limited v. Commissioner of Valuation [1961] I.R. 239.

	Under the provisions of Section 11 of the Act of 1852 the valuation was required to be fixed at the figure so found for the net annual value.  As the years went by valuations ceased to be made at such figure essentially because of inflation.  Instead valuations were determined upon the basis of comparisons.  This fact has largely been accepted by Section 5 of the Valuation Act, 1986.  That section is as follows:
	'5. (1)   Notwithstanding Section 11 of the Act of 1852, in making or revising a valuation of a tenement or rateable hereditament, the amount of the valuation which, apart from this section, would be made may be reduced by such amount as is necessary to ensure, insofar as is reasonably practicable, that the amount of the valuation bears the same relationship to the valuations of other tenements and rateable hereditaments as the net annual value of the tenement or rateable hereditament bears to the net annual values of the other tenements and rateable hereditaments.

	   (2)   Without prejudice to the foregoing for the purpose of ensuring such a relationship regard shall be had, insofar as is reasonably practicable, to the valuations of tenements and rateable hereditaments which are comparable and of similar function and whose valuations have been made or revised within a recent period.'.

	The section does not alter the fundamental basis upon which valuations are made, i.e. what the hypothetical tenant will offer on the basis of taking one year with another.  What it does is to recognise inflation and to seek to keep a proportion between valuations and annual values after taking inflation into account".

	It is clear that the valuation of the hereditament in the present case provides considerable difficulties.  In assessing the rent likely to be paid by a hypothetical tenant to a hypothetical landlord, one does not have any standard of ordinary market value as one would in the case of an office block, an apartment block or a private house.  The older cases refer to the adjustment of a rent between the hypothetical tenant and the hypothetical landlord by "the higgling of the market" but it is difficult to envisage this "higgling" ever taking place in the case of the Shelbourne Park Stadium.
	The second basis, that of comparison, is also beset with difficulties.  The hereditament, strictly speaking, is comparable only with other greyhound tracks.  The most obvious comparison would be with the other Dublin track at Harolds Cross but this was unavailable to the Tribunal since the Harolds Cross valuation was also under appeal.  The tracks at Cork and Limerick were used as a basis of comparison by Mr. McMillan but on the basis of attendance at these tracks.  It does not seem to me, however, that there is any precedent in the earlier cases for this basis of comparison and Mr. Conroy's basis of comparison by the buildings and facilities at the tracks seems to me to be the correct one.  However, neither of these tracks is really at all satisfactorily comparable with Shelbourne Park.
	In this Court Mr. Gaffney, Senior Counsel for the Appellant, stressed the decline of the greyhound racing industry and the precarious financial situation of Shelbourne Park.  The Tribunal, however, rejected the use of accounts, turnover, attendances etc. as a basis for valuation.  In doing so the Tribunal took the same attitude as did the Valuation Tribunal in the case of United Arts Club Limited v. Commissioner of Valuation (Appeal No. VA 95/1/013).  In that judgment, which was delivered on the 8th March, 1996, the Tribunal rejected valuation on an accounts basis.  At page 10 of the judgment the Tribunal states

	"It is not and has not been the practice to value members' clubs on an accounts basis.  Unless therefore there are compelling and substantial reasons, supported by sustainable evidence as to why, in any particular case involving a members' club, the accounts method should be used, that approach will not be adopted by this Tribunal".

	Consideration of the detailed valuation history provided by Mr. Conroy indicates that the variations in the valuation of the hereditament in the past have been based on alterations in the buildings and facilities.  It is unfortunate that the 1986 valuation at £1,055 is still under appeal to the Circuit Court and that this appeal has not yet been heard.  There is no record in the documents before me of any explanation by either side for the lengthy delay in the hearing of this appeal;  this piece of unfinished business adds yet further to the difficulties facing both the Tribunal and this Court in this case.
The decision of the Tribunal in the present case to reject attendances, turnover etc. as a basis for valuation is, it seems to me, a mixed question of fact and law and should not be disturbed by this Court unless it was unreasonably reached, based on an erroneous interpretation of documents, or based on a wrong view of the law (see James Mara (Inspector of Taxes) v. Hummingbird Limited [1982] I.L.R.M. 421).  This decision of the Tribunal was reasonably based and this Court will not interfere with it.
	The first question referred to this Court for determination is whether the Tribunal was correct in law in having regard to the current investment by Bord na gCon, said to amount to £2.5 million.
	During the submissions to this Court by Counsel, a difficulty arose in the interpretation of this question, in particular as to the identification of the £2.5 million to which it refers.
	Mr. Gaffney, Senior Counsel for the Appellant, took the question to refer to the £2.5 million which apparently was to be invested in the development of the hereditament by the State (through Bord na gCon) in the 1993 to 1995 period - after the date of the November 1993 valuation which was in question before the Tribunal.  He strongly argued that such a "future" investment was by no means a certainty that could be relied upon, and made the point (with which it is difficult to disagree) that Exchequer cutbacks or a change of Minister or indeed a change of Government can well mean that promised State investment does not, in fact, materialise.  A hypothetical tenant, Mr. Gaffney submitted, would be well aware of this uncertainty and would not rely on the promised £2.5 million in offering a rent for the hereditament.
	For the Commissioner, Mr. Marry submitted that the £2.5 million referred to was in fact the £2.5 million estimated capital value of the hereditament provided by Mr. Conroy at page 9 of his written submission.  This estimated capital value clearly takes into account the £1 million already invested by the State (that development having been completed in 1991).  However, it does not, as I understand it, take into account the future investment of £2.5 million.  If this is indeed the £2.5 million which is referred to in the question put to this Court by the Tribunal, it seems to me quite justifiable for the Tribunal to take it into account, including, as it does, the £1 million development monies already invested by the State.
	If, however, Mr. Gaffney's interpretation is correct, the position is somewhat different.  To a large extent I would accept Mr. Gaffney's submissions as to the lack of certainty in future State investment as seen from the point of view of the hypothetical tenant in 1993.
	When considering the Net Annual Value of a hereditament, it is clear from Section 11 of the Valuation (Ireland) Act, 1852 that the estimated rent is to be for the hereditament as it is - "the rent for which, one year with another, the same might in its actual state be reasonably expected to let from year to year" (my emphasis).  To use the phrase which is used in the older cases, the hereditament must be viewed "rebus sic stantibus" - although perhaps in the instant case "canibus sic currentibus" might be a more apt description.
	This approach is in fact borne out by Mr. Conroy's written submission on behalf of the Commissioner.  At page 5, in the course of his account of the valuation history, Mr. Conroy states as follows:-

	"In 1993 the property was revised at the request of Dublin Corporation to value new developments.  These comprise phase 1 development carried out at a cost of £1.25 million and described earlier.  There was no increase in the valuation despite this expenditure but in fact a nominal reduction from £1,055 to £1,000 was allowed".

At page 6 of his written submission, Mr. Conroy states

	"Following the completion of phases 2 and 3 (August 1995) the property will again be the subject of a Revision request".

At page 13 he does refer to the future investment

	"The further investment of £2.5 million for phases 2 and 3 is clearly a 'vote of confidence' in Shelbourne Park and the beginning of a new future for the industry and the stadium.  It is this huge potential which must be reflected in any estimate of rateable value".

Nevertheless, the tenor of his submission is that he is relying on the estimated capital value of £2.5 million (which includes the £1 million already invested) rather than on the future investment of £2.5 million which will be covered in the post-1995 Revision.
	I am of the opinion that this approach is correct.  I do not think that planned investment in a future development should be taken into account in deciding the current Net Annual Value as of November 1993.  As is accepted in Mr. Conroy's submission, the effect of this development on the Net Annual Value will fall to be decided at the post-1995 Revision.
	If, therefore, in question (a) the Tribunal is in fact referring to the phase 2 and 3 (post-1993) development when using the phrase "current investment in the hereditament by Bord na gCon, said to amount to £2.5 million", the answer to question (a) is No.
	If, however, the phrase refers, as argued by Mr. Marry, to the estimated capital value of the hereditament (being £2.5 million), then the answer to question (a) is Yes.
	With regard to question (b), it seems to me that this is more a matter of fact and of evidence than of law.  Mr. Conroy, in his written submission and in his oral evidence, stated that the non-profit element had been taken into consideration by the Commissioner and indeed that it had been taken into consideration in the various valuations since 1970.  It is perhaps unfortunate that no detailed evidence was given to the Tribunal as to how exactly the non-profit element was calculated and to what degree it affected the assessment of the rateable valuation.  However, it does not appear that any evidence was given on behalf of the 
Appellant which factually or effectively challenged Mr. Conroy's evidence that the non-profit element had been taken into consideration.  Nor on the account given in Appendix 4 of the oral hearing before the Tribunal does Mr. Conroy appear to have been cross-examined on this point.
	Given, therefore, the evidence that was available to the Tribunal in regard to the taking into consideration of the non-profit element, the Tribunal was correct in accepting the claim made on behalf of the Respondent and the answer to question (b) is Yes.