Ceann Comhairle,
I move that the Bill be read a second time. At the outset, on behalf of the Tánaiste, I want to thank the House for facilitating early discussion of this short Bill which is primarily intended to avoid potentially serious disruption to court business following a recent Court of Appeal ruling. Such disruption could arise from the need to transfer proceedings already underway before the Circuit Court to the High Court, or to commence such proceedings in the High Court, with the risk of additional costs and delay for the parties involved.
The Bill contains a series of technical proposals which deal with the
consequences of the Court of Appeal’s ruling of 28 July last in Permanent
TSB – v – Langan, a case stated to the Court of Appeal from the High Court
under the Courts of Justice Act 1936. The High Court had sought Court of
Appeal direction on a number of legal points concerning the jurisdiction of
the Circuit Court in cases involving property following a number of earlier
High Court rulings which had arrived at differing conclusions and had
created legal uncertainty.
Background
The jurisdiction of the Circuit Court in cases involving land has been
defined in several statutes on the basis of the rateable valuation of the
property concerned. These include the Courts (Supplemental Provisions) Act
1961, the Registration of Title Act 1964 and the Succession Act 1965.
Where the rateable valuation is less than €254.00 (originally £200.00) the
Circuit Court has jurisdiction; where the rateable valuation exceeds this
threshold, the High Court has jurisdiction unless the parties agree that
the case may be heard in the Circuit Court.
The issue that arose in the Langan case concerned the Circuit Court’s
jurisdiction in cases in which the property concerned is not rateable under
the terms of the Valuation Act 2001. Section 15 of the Act provides that
the categories of property referred to in Schedule 4 shall not be rateable;
it includes property such as domestic dwellings, agricultural land and farm
buildings.
In Langan, the Court of Appeal ruled that where property is not rateable
under the 2001 Act because it is included in Schedule 4, the Circuit Court
has no jurisdiction to hear proceedings in relation to such property.
While the Court felt obliged to reach this conclusion, it recognised that
the ruling was likely to lead to consequences which were “both unfortunate
and unintended”. The Court acknowledged that certain proceedings would have
to be commenced in the High Court instead of the Circuit Court and that
this would simply create additional costs for litigants “and will serve to
deprive the parties of access to local courts in the manner in which the
Constitution actually intended.” The Bill seeks to address these
unintended consequences and to avoid disruption to the orderly management
and discharge of court proceedings already under way, as well as any
additional costs arising from a collapse or withdrawal of proceedings based
on rateable valuation.
The Tánaiste has asked me to underline the point that this Bill does not
have implications for repossession proceedings in respect of principal
private residences and will neither undermine nor erode the rights of such
borrowers to due process and the remedies afforded by insolvency law. Under
the Land and Conveyancing Law Reform Act 2013, the Circuit Court has been
given jurisdiction to deal with repossession proceedings involving
principal private residences, irrespective of when the mortgage was
created, its rateable valuation or its market value. I very much regret
that attempts are being made to create a contrary perception.
As the House will be aware, a new, innovative mortgage arrears resolution
service - Abhaile - was officially launched recently by the Tánaiste and
the Minister for Social Protection. Under the scheme, eligible clients are
given vouchers to obtain expert advice from financial and legal advisers in
order to resolve their debt issues. In addition, they can get assistance in
court where needed, have access to solicitors, and get help obtaining legal
aid. Over 2,400 vouchers have been issued under the scheme to date in
respect of 1,718 principal private residences. A major Government
information campaign will be launched in the coming weeks to raise
awareness of the scheme.
Content of Bill
I want to turn now to the detailed proposals in the Bill.
Section 1
With a view to minimising disruption to court business and avoiding
additional costs for parties, section 1(1) provides that where proceedings
involving non-rateable property under statutes referred to in the
accompanying Table have already been commenced in the Circuit Court before
the entry into force of this Act, then the Circuit Court shall be deemed to
continue to have jurisdiction to hear and determine the proceedings. This
will help to ensure continuity and avoid disruption.
Subsection (2) provides, however, that the ‘continuity’ provision in
subsection (1) shall not apply where a court has made a finding that the
Circuit Court does not have jurisdiction, or where a party to the
proceedings has raised an issue of the Circuit Court’s jurisdiction or the
Court itself has raised an issue relating to jurisdiction. This is
intended, in particular, to safeguard the rights of any party to the
proceedings that has raised an issue in relation to the Circuit Court’s
jurisdiction.
Subsection (3) explains the terms used in subsections (1) and (2), while
the Table that follows subsection (3) lists three statutes in which Circuit
Court jurisdiction has been defined exclusively in terms of the rateable
valuation of property (i.e. section 22.1(a) of the Courts (Supplemental
Provisions) Act 1961; section 18 of the Registration of Title Act 1964;
section 6 of the Succession Act 1965).
Section 2
The purpose of section 2 is to provide a mechanism whereby the market value
of land which is the subject of existing Circuit Court proceedings and
which will be continued under the provisions of section 1, may be
determined. Subsection (1) provides for the lodging of an affidavit in
which a party states that to the best of his or her knowledge or belief the
market value of the property does not exceed the threshold. A ‘rebuttable
presumption’ mechanism will ensure that any disputes as to the market value
of the property can be resolved.
Section 3
Under both section 10(5) of the Family Home Protection Act 1976 and section
140(10) of the Civil Partnership and Certain Rights and Obligations of
Cohabitants Act 2010, the District Court has jurisdiction in certain cases
in which the rateable valuation of land is less than €25.00. Such
proceedings are also affected by the Court of Appeal ruling in cases of
non-rateable property.
In order to ensure continuity in these cases, section 3 provides that the
District Court shall have, and be deemed always to have had, jurisdiction
to hear and determine the proceedings. This shall not apply, however, where
a party to proceedings or the Court has raised an issue concerning
jurisdiction.
I should point out that it was agreed in the context of the Civil Liability
and Courts Act 2004 that District Court jurisdiction in cases involving
land would be discontinued on commencement of section 48 of that Act.
Following the commencement order which I intend to make to coincide with
enactment of this Bill, the District Court will no longer have jurisdiction
in proceedings involving land where its rateable valuation is less than
€25.00. It will continue, however, to have jurisdiction in the case of
chattels up to a value of €15,000.
Section 4
Section 4 inserts a new section 53A into the 2004 Act. It contains a new
‘rebuttable presumption’ mechanism whereby the value of property will be
presumed to be below €3,000,000 for evidentiary purposes. However, in the
event of a dispute as to the alleged market value, a party may adduce
evidence that the value of the property exceeds €3,000,000 and that
proceedings should be brought before the High Court rather than the Circuit
Court.
Section 5
Section 5 amends several sections of the Civil Partnership and Certain
Rights and Obligations of Cohabitants Act 2010 in order to provide that the
existing right to apply to have proceedings under those provisions
transferred from the Circuit Court to the High Court will only apply where
the land involved has a market value above €3,000,000.
This change will, following the making of relevant commencement orders,
bring the right to apply to have proceedings transferred to the High Court
into line with corresponding provisions in other Family Law Acts (i.e.
Family Home Protection Act 1976; Judicial Separation and Reform Act 1989;
Family Law Act 1995; Family Law (Divorce) Act 1996).
Subsection 2(b) will replace the existing text of subsection (10) of
section 140. As I mentioned already, the District Court will no longer have
jurisdiction in proceedings involving land where its rateable valuation is
less than €25.00 but will continue to have jurisdiction in the case of
chattels up to a value of €15,000, similar to its jurisdiction under the
Family Home Protection Act 1976.
Section 6
Section 6 is a technical provision which substitutes a new text for
subsection (3) of section 60 of the Valuation Act 2001. It will now provide
that production to a Tribunal or Court of a certificate issued under
section 67(4) by an authorised officer shall be sufficient evidence, until
the contrary is proved, of the matters stated in the certificate. At
present, this subsection does not include a reference to section 67.
Section 7
Rateable valuation thresholds are in use not only to determine Circuit
Court jurisdiction but matters unrelated to jurisdiction such as, for
example, eligibility to acquire freehold title in accordance with ground
rents legislation.
Under the Landlord and Tenant (Ground Rents) (No.2) Act 1978, the ground
rent tenant’s right to acquire the freehold arises in certain cases where
the amount of the annual ground rent is less than the rateable valuation
for the property concerned. In order to facilitate continued exercise of
this right – and continued use in various other contexts – in cases of
non-rateable property, section 67 of the 2001 Act allows the Valuation
Office to issue a certificate of rateable valuation to the ground rent
tenant in the case of non-rateable property (i.e. property included in
Schedule 4 of the 2001 Act).
In order to preserve this important mechanism, and continued usage of
rateable valuation in matters unrelated to Circuit Court jurisdiction, it
is proposed to insert a new subsection (2A) in section 67 of the 2001 Act.
It clarifies that the certificates issued under that section are based on
the value of other comparable properties appearing on valuation lists
existing prior to the rollout of the new valuation system under the 2001
Act.
Section 8
This section contains a proposal to rectify a technical error in the
Planning and Development (Amendment) Act 2015, where failure to provide a
negative condition in section 170A(3)(a) means that the subsection as
enacted has the opposite effect to what was intended. It means that
whatever conclusion An Bord Pleanála may come to in its assessment of
whether a proposed amendment to a Strategic Development Zone (SDZ) Planning
Scheme is minor or significant in nature, it must under the current
provision ask the Planning Authority to make the amendment in line with the
procedure laid down in section 169 of the Act, in effect triggering the
full procedure for adopting an SDZ Planning Scheme in the first place.
The proposed amendment will enable An Bord Pleanála to adjudicate on and
amend approved SDZ Planning Schemes in carefully defined circumstances,
such as very minor changes or changes not affecting the broad objectives of
the planning scheme. This was the intended purpose of section 170A.
Section 9
Several provisions in the Licensing Acts – one of which dates from the 19th
century – contain requirements in relation to the rateable valuation of
licensed premises. In each case, the rateable valuation of the property
concerned must be considered by the court in the context of granting a
licence for the sale of intoxicating liquor.
These provisions have in common the fact that they were enacted prior to
the introduction of planning legislation and their objective was to ensure
that certain minimum standards were met by licensed premises. In the case
of the Beer Licences Regulation (Ireland) Act 1877, section 2 requires that
such premises are rated “in the sum of fifteen pounds or upwards.” In the
case of the Tourist Traffic Act 1952, section 44(1) (b) (ii) provides that
the rateable valuation of holiday camp premises shall not be less than two
hundred pounds.
The licensing law provisions referred to in section 9 have been overtaken
by the detailed planning provisions of the Planning and Development Acts
and may now be repealed.
Conclusion
A Cheann Comhairle,
This is an important but essentially technical Bill which seeks to deal
with the unintended consequences of a Court of Appeal ruling.
I commend the Bill to the House.