The Court of Appeal has dismissed a motorway toll concessionaire’s appeal against a finding that it was not entitled to “special classification benefits” in relation to payments to Transport Infrastructure Ireland (TII) for tolls paid by drivers using the Kinnegad bypass on the N4 use /highway N6.
Eurolink Motorway Operation Ltd (Eurolink) asked the High Court to rule on legal issues relating to revenue share payments it is obligated to pay to TII under a public-private partnership (PPP) arrangement under the Roads Act 1993 .
The motorway was built by Eurolink and the PPP obliges Eurolink to maintain it. Eurolink does not occupy the toll section of the motorway but has exclusive toll rights.
The Valuation Court made valuable valuations of €6.3m and €2.1m for tolls on the M4 motorway.
In February 2021, Judge Alexander Owens upheld important findings of the Valuation Court regarding Eurolink’s payment obligations under the PPP.
The judge said the Oireachtas did not intend to grant “special rating benefits” to toll concessionaires in passing provisions of the Roads Act that allow road authorities to grant toll concessions.
The primary question he had to decide was whether, since Eurolink’s rights to the tolls derive from the PPP under the Roads Act, whether the revenue sharing needs to be treated as a statutory “operating expense” of Revenue and Expenditure (R&D). assessment method, he said.
He ruled that the court had not erred in law in concluding that an annual estimate of the revenue share was not deductible when calculating the annual net value of tolls using the R&E valuation method.
He rejected the objection that the toll should be treated differently because Eurolink had undertaken to pay the revenue share as part of a public-law contract.
Eurolink appealed its judgment to the Court of Appeal, arguing, among other things, that revenue sharing was necessary to uphold the right to collect tolls. Revenue sharing is a legal limitation on Eurolink’s ability to generate revenue from its right to collect tolls.
On Friday, the three-judge Court of Appeal unanimously upheld the High Court’s findings.
In a ruling on behalf of the court, Judge Robert Haughton said Eurolink had failed to persuade the court that revenue sharing was an integral part of its right to collect tolls.
The court was unconvinced that the TII revenue sharing obligation was a mechanism to prevent Eurolink from making “super profits” and that this should be taken into account by the court when calculating the net annual value.
Eurolink’s contention that the revenue share was deductible from gross receipts under the R&E method as a necessary payment to maintain tolls or otherwise failed to persuade the court.
The court, which also included Justices David Barniville and Justice Maurice Collins, dismissed the appeal.
https://www.irishtimes.com/transport/2023/03/10/court-of-appeal-dismisses-eurolinks-appeal-concerning-kinnegad-bypass-payments/ Court of Appeal dismisses Eurolink’s appeal over Kinnegad circumvention payments – The Irish Times