Lands Valuation Appeals

The Assessor, Lothian Valuation Joint Board v. (1) Colin Campbell and (2) Mrs Marion Campbell [2011] CSIH 47

Wed, 10 Aug 2011 22:05:23 GMT

This was an appeal by the assessor for Lothian under section 82(4) of the Local Government Finance Act 1992, against a decision of the Lothian Valuation Appeal Committee dated 31 March 2011. The relevant decision related to the Council Tax valuation band of the respondents' dwellinghouse at 19 Craigmount Place, Edinburgh. The assessor had altered the Valuation List by transferring the house from valuation band E to band F with effect from 9 May 2008, following the discovery of alterations carried out by previous owners to the property. The respondents had appealed to the Committee on the ground that the effective date of the alteration should be 10 January 2011 when the matter of the alterations was brought to the attention of the assessor. The Committee had accepted this approach and had allowed the appeal.

Having reviewed their decision, the Inner House found that the committee had erred. In the opinion of the court, regulation 4(1)(a)(i) of the Council Tax (Alteration of Lists and Appeals) (Scotland) Regulations 1993 (SI No 355) applied, as there was no dispute that the result of the work by the previous owners meant the house should have been valued in Band F. The court reasoned that since the alteration to the list reflected a material increase in the value of the dwelling, regulation 19(1) of the Regulations required that the effective date of the alteration should be the day on which the first sale of the dwelling subsequent to the material increase was completed, that is to say 9 May 2008.

The court ruled that the Committee had no general power, as it had thought, to deal with the retrospective nature of the alteration to the list, or to fix the effective date of such an alteration according to its own perception of what justice demanded. Appeal allowed.

George Davidson v. Assessor to the Central Scotland Valuation Joint Board [2011] CSIH 15

Sun, 22 May 2011 21:26:28 GMT

The appellant had appealed under section 82(4) of the Local Government Finance Act 1992 against a decision of the Central Scotland Valuation Appeal Committee dated 29 October 2009, by which it refused his appeal against the entry of his house in Tullibody at band F in the Council Tax List.

The appellant’s dwelling had been built in 2008 as part of a development of detached villas. Several of the homeowners of the dwellings in this development had earlier appealed against their council tax valuations in 2004, and in the course of those appeals, a representative of the assessor gave evidence on his methodology, which included how he had calculated the valuations of the various dwellings in the development for the purpose of banding. The appellant argued that the committee, in relying on the precedent in the 2004 appeals, had not properly considered his type of property, and that the committee had been incorrect to include his house type in valuation band F along with the larger dwellings in the developmnet. It was submitted that the assessor had erred in law in taking as a starting point house prices in 2004 and seeking to calculate by reference to local data what the prices of those properties would have been in 1991. Secondly, the appellant submitted that the committee had erred by treating itself as bound by its previous decision in 2004, and that as a result, the committee had not considered his appeal on its merits, thereby erring in law.

Agreeing with the submissions of the appellant, the Inner House found that the committee had erred in law due to its failure to give clear and sufficient grounds for its decision. The Inner House noted that it appeared the committee had relied on its 2004 decision and had not properly addressed the issues which the appellant raised in his appeal. Appeal allowed.

Tesco Stores Limited v. Assessor for Fife [2010] CSIH 95

Tue, 04 Jan 2011 23:42:31 GMT

(Subjects: Supermarket, Dalgety Bay)

This appeal related to the appellant's supermarket at the Bay Centre, Dalgety Bay. At the 2005 Revaluation the assessor entered it in the Roll at a rateable value of £198,000. In 2009 the appellant appealed against the entry on the ground that there had been a material change of circumstances, and contended that the valuation should be reduced to £180,000 with effect from 7 July 2008. On 17 December 2009 the Valuation Appeal Committee for Fife refused the appeal. That decision was appealed against in the present case, on the basis of section 3(4) of the Local Government (Scotland) Act 1975.

The court heard that until 2008 the appeal subjects were the only supermarket in Dalgety Bay. In July 2008, Asda had opened a new and much larger purpose-built supermarket only 500 yards from the appeal subjects. Until then the nearest large supermarket had been in Dunfermline. As the two stores are now in direct competition, the appellants contended that the opening of the Asda store constituted a material change in circumstances affecting the value of the appeal subjects, based on a fall in their turnover at the store as a result.

Dismissing the appeal, the Inner House noted that the appellants had not discharged the onus of proof under section 3(4) of the 1975 Act. The court concluded that the evidence led had not actually shown a loss in rental value of the subjects; a fall in turnover was not necessarily an indicator of such loss of rental value.

Moreover, the court took the opportunity to criticize the conduct of the appellant’s expert witness, for failing to compile with the procedural requirements of Regulation 10(5) of The Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995 (SI No 572). The expert witness in question had submitted over 400 comparisons of rental value across commercial premises in Scotland, many of which the court noted, were highly irrelevant to the present case. The Inner House noted that if such submissions of high volumes of superfluous material were common practice before the Committee, witnesses and agents should cease this practice immediately and that the Committee would be entitled to refuse to allow parties relying on such evidence if it did not compile with the terms of Regulation 10(5).

(1) Argos Distributors Limited, (2) C & J Clark International Limited and (3) HMV UK Limited v. Fife Council Assessor [2010] CSIH 92

Tue, 04 Jan 2011 22:40:24 GMT

(Subjects: Shops, The Mercat Centre, Kirkcaldy)

The appellants were occupiers of shops in The Mercat Centre, Kirkcaldy. They had appealed under section 3(4) of the Local Government (Scotland) Act 1975 against the rateable values entered in the Valuation Roll on the ground that the economic recession, reflected in the number of vacant units in the Centre, was a material change of circumstances. By a decision dated 18 February 2010 the Valuation Appeal Committee for Fife allowed the appeals and reduced the rateable value by 20% in each case with effect from 1 September 2009. That decision was appealed against in the present case.

In their original submissions to the Assessor, the appellants had sought reductions in rateable value of 42.5%, 42.8% and 45.8% respectively. The appellants had proposed that the reductions should be back-dated to 1 January 2009. While the Committee was satisfied that there had been a material change of circumstances, it nonetheless concluded that the reductions sought by the appellants were “far too high in light of the evidence actually adduced” and that “the maximum possible reduction” should be 20%.

The court noted that in valuing such subjects, the best evidence was that of open market transactions relating to comparable subjects concluded at arms length, and substantially on the terms of the statutory hypothesis, at or near to the valuation date. The court noted that the Committee had accepted the primary comparative evidence of the appellants, which supported their contentions for reductions in rateable value. It therefore had no basis for its own judgment that the reductions sought by the appellants were “far too high in the light of the evidence actually adduced”. Moreover, the court noted that it had no basis for its decision that the “maximum possible reduction” should be 20%. The court concluded that there was no evidence to support that figure.

In this case, the Inner House took the opportunity to remind Valuation Committees that they were not entitled to make decisions of this nature when there was no evidence to support it, still less to make such decisions in the face of uncontradicted evidence to the contrary. Appeals allowed.

Post Office Limited v. Assessor for Renfrewshire Valuation Joint Board [2010] CSIH 93

Tue, 04 Jan 2011 12:57:59 GMT

The appeal subjects were the site of an automated telling machine (ATM) at a Sub Post Office at 77 Cross Arthurlie Street, Barrhead. They were described on the Roll as “Site of Autoteller”. The occupier of the subjects were Bank or Ireland.

The assessor had entered the subjects in the Roll at an NAV/RV of £4,500, but the parties were agreed that the correct figure should be £2,750. The appellant appealed against the entry on the ground that the subjects are not in separate rateable occupation. By a decision dated 10 December 2009 the Renfrewshire Valuation Appeal Committee refused the appeal. The appellant appealed against this decision in the present case.

The Inner House noted that the contractual structure involving the Bank, the Post Office and the sub-postmaster in this case was identical to that described in Assessor for Central Scotland Valuation Joint Board v Bank of Ireland [2010] CSIH 91 which was heard alongside this appeal. The Inner House noted the facts regarding the siting and usage of the ATM were substantially the same as in that case, and for its reasons given in that appeal, considered that the subjects in this case were rightly entered in the roll. The appeal was therefore refused.

A summary of the decision in Assessor for Central Scotland Valuation Joint Board v Bank of Ireland [2010] CSIH 91 is also available on CaseCheck at:
http://www.casecheck.co.uk/CaseLaw/tabid/1184/EntryID/16807/Default.aspx

Assessor for Central Scotland Valuation Joint Board v. Bank of Ireland [2010] CSIH 91

Tue, 04 Jan 2011 12:54:44 GMT

(Subjects: ATM, Main Street, Polmont)

This appeal related to the site of an automated teller machine (ATM) within a Sub Post Office at Main Street, Polmont. On the installation of the machine, the assessor had entered the site of it in the Roll at a rateable value of £2,750 with effect from 22 February 2008. The tenant/occupier of the site was the Bank of Ireland. The Bank appealed against the entry on the ground that the subjects were not in separate rateable occupation. By a decision dated 19 November 2009 the Valuation Appeal Committee for Central Scotland allowed the appeal. The assessor appealed against that decision in the present case.

The Inner House noted that the Post Office and the Bank of Ireland had an Agreement for the Supply of Cash and for the Installation, Operation and Maintenance of ATMs, under which the Post Office undertook operational responsibilities for the ATM. It supplied the cash for it and was reimbursed by the Bank. Moreover, the Inner House noted that under the agreement, the Bank had the right to install and keep an ATM on the site and it gave the Bank such access to it as it reasonably required to perform its obligations under the Agreement. The Agreement also provided that the Bank was not to advertise on the ATM any services that competed with those provided by the Post Office. The Post Office was likewise not to advertise its counter services in a manner that would encourage its customers to use those services rather than the ATM.

The Inner House also noted that the ATM was entirely within the boundary of the Post Office's property, and projected through the glass frontage of the building. Moreover, the key pad and the screen were accessible only from outside. The floor area on which the ATM was situated could not be used for any other purpose.

Noting that there was no direct link between the ATM site and the operation of the Sub Post Office, the Inner House concluded that this particular ATM was not an in-store facility; rather, it was intentionally provided for the use of the general public. Therefore, the Inner House concluded that the Bank was truly in rateable occupation of the ATM site and that therefore, the site should be entered separately in the Roll. Appeal allowed.

The Trustees of the National Gallery of Scotland v. the Lothian Assessor [2010] CSIH 94

Mon, 03 Jan 2011 23:40:59 GMT

(Subjects: The National Gallery and Restaurant, the Mound, Edinburgh)

The appellants were the proprietors of The National Gallery at 1 The Mound, Edinburgh. At the 2005 Revaluation it was entered in the Valuation Roll at a rateable value of £355,000. The appellants were also the proprietors of a restaurant at 1(A) The Mound, Edinburgh. At the 2005 Revaluation it was entered in the Roll at a rateable value of £54,000.

In July 2009 the appellants appealed against these entries on the basis that the gallery and the restaurant should be entered and valued as a unum quid. On 25 February 2010 the Lothian Valuation Appeal Committee dismissed the appeals, and subsequently, the appellants brought the present action before the Inner House.

It was submitted by the appellants that (1) the assessment for the two properties was excessive and (2) that with effect from 1 April 2009 the subjects should be treated as a unum quid. It was submitted that the error in the Roll could be correct through the powers of section 2(1)(f) of the Local Government (Scotland) Act 1975.

The assessor submitted however that it had been agreed between the parties that there should be separate entries for the gallery and the restaurant when previous appeals were settled in 2004 and that this had not been challenged by the appellants at the time. When the present Roll came into force, again with separate entries, the values had again been settled. Accordingly, the appellants were personally barred from contending that there had been an error in the entries.

In finding for the assessor, the Inner House concluded that the Committee had reached the right decision, but for the wrong reasons. The court noted that it was submitted both property entries were vitiated by an error, and thus considered that the acceptance of the entries at the time of the Revaluation did not of itself preclude the bringing of appeals or result automatically in a plea of personal bar. The court noted that errors could come to light in any year of the current Roll and that was why an appeal under section 2(1)(f) may be taken "at any time while the Roll is in force" (s 3(4A)(b)).

Nonetheless, the court concluded that there had been no error of the assessor justifying use of rectification in terms of section 2(1)(f), as it was truly the appellants who had failed to take the point at the material time, the date of entry in the Roll. It could not be said that the appellants' failure to take the unum quid point was an error of survey or classification, nor as an error of law or opinion. Accordingly, the appeal was refused.

The Assessor for Lothian v. Alliance and Leicester Plc [2010] CSIH 61

Wed, 11 Aug 2010 20:14:33 GMT

This appeal to the Land Valuation Appeal Court at the Inner House, Court of Session related to premises occupied by the respondent at 135-136 Princes Street, Edinburgh.

Following a hearing in December 2009, the Lothian Valuation Committee allowed an appeal by the respondent against the rateable value of £211,250 entered on the roll in respect of the premises, on the ground that there had been a material change in circumstances as a result of the impact of works forming part of the Edinburgh tramway project, during the period 21 February to 29 November 2009. A 20% reduction for the relevant period was allowed.

The Assessor for Lothian appealed against the Committee’s decision to allow a reduction.

On appeal, the Court considered the interpretation of “material change in circumstances” under s2(1)(d) and s37(1) of the Local Government (Scotland) Act 1975, concluding that that clearly a material change in circumstances affecting value had occurred, and that the Committee had not erred in its approach to valuation. Appeal refused.

The Assessor for Lothian v. Royal Bank of Scotland Plc [2010] CSIH 63

Wed, 11 Aug 2010 20:08:35 GMT

This appeal to the Land Valuation Appeal Court at the Inner House, Court of Session related to premises occupied by the respondent at 142-144 Princes Street, Edinburgh, next to the House of Fraser Department store.

Following a hearing in December 2009, the Lothian Valuation Committee refused an appeal by the respondent against the rateable value of £447,000 being entered into the role for the period 1 May to 31 August 2008, that being a reduction from the 2005 Revaluation entry of £523,000. This reduction was ordered, taking into account a “material change to circumstances” in assessing value, caused by the first stage of works forming part of the Edinburgh tramway project. The Committee additionally allowed an appeal by the respondent against the said entry of £523,000 for the period 21 February to December 2009, which was affected by the second stage of works on the tramway project.

The Committee found that the physical impact of the works as a result of the tram works, had had a substantial effect on the properties concerned, in producing noise, vibrations, reduced footfall, narrower pavements, and breaks in water/electricity supplies. The Committee found all these effects adversely affected the retail value of the subjects.

The Assessor for Lothian appealed against these decisions of the Committee.

On appeal, the Court considered the interpretation of “material change in circumstances” under s2(1)(d) and s37(1) of the Local Government (Scotland) Act 1975, concluding that clearly a material change in circumstances affecting value had occurred, and that the Committee had not erred in its approach to valuation. Appeal refused.

The Assessor for Lothian v. H & M Hennes & Mauritz UK Limited and Others [2010] CSIH 60

Wed, 11 Aug 2010 19:17:00 GMT

This appeal to the Land Valuation Appeal Court at the Inner House, Court of Session related to various premises occupied by the respondents along Princes Street, Edinburgh.

Following a hearing in October 2009 and a further hearing in November 2009, the Lothian Valuation Committee allowed an appeal by the respondents against the rateable value entered on the roll in the 2005 Revaluation in respect of all the subjects, on the ground that there had been a material change in circumstances by reason of works forming part of the Edinburgh tramway project, carried out in Princes Street over the course of 2009. A 20% reduction was allowed in respect of the period while the works were going on outside the premises.

Having heard evidence presented by five different surveyors representing the different respondents, and considering evidence presented by the Assessor, the Committee found that the extent to which beneficial occupation of the shops could be enjoyed had been materially reduced during the period of the tram construction works.

The Assessor for Lothian appealed against the Committee’s decision to allow a reduction.

The Assessor for Lothian v. House of Fraser Limited [2010] CSIH 62

Wed, 11 Aug 2010 19:11:00 GMT

This appeal to the Land Valuation Appeal Court at the Inner House, Court of Session related to shop premises occupied by the respondent at 47-52 Princes Street, Edinburgh (the “Jenners Store”) and 146 Princes Street, Edinburgh (the “House of Fraser” department store).

Following a hearing in December 2009, the Lothian Valuations Committee refused an appeal by the respondent in respect of the House of Fraser store, against an entry for its rateable value in the roll for the period 1 May to 1 August 2008. The amended valuation represented a 20% reduction from the entry made at the 2005 Revaluation, taking into account a material change in circumstances caused by the first stage of the Edinburgh tramway project. The Committee additionally allowed an appeal by the respondent against the entries made in the 2005 Revaluation in respect of both premises for the period 21 February to 29 November 2009, on the grounds that there had been a material change in circumstances by reason of the second stage of the tram works.

The Assessor for Lothian appealed against these decisions of the Committee.

AMY LEIGH-ANN ANDERSON v PROCURATOR FISCAL, DUNFERMLINE

Wed, 20 Jan 2010 17:54:22 GMT

Bill of Suspension; the complainer brought a bill of suspension at this Appeal hearing. At trial, the accused was charged with contravention of section 5(1)(a) of the Road Traffic Act 1988. She contended that she had not been given the option of having a urine test, although agreed that she was over the legal alcohol limit according to the breath test and had indeed been offered the option of a blood test. The sheriff preferred the evidence of the officers that she had been given the option of a urine test. Disputed in the bill of suspension; whether the sheriff had formed the view that the compainers agent had put her up to the defence and had reached the view, as a result of that presumption, that the compainer was lying. Refence was made to the sheriffs comment that 'you were going to plead guilty until you were put up to this defence by your solicitor';Whether justice had been seen to be done.

MULTI-LINK LEISURE DEVELOPMENTS LIMITED (Reclaimers) v NORTH LANARKSHIRE COUNCIL (respondents)

Wed, 20 Jan 2010 17:51:35 GMT

Interpretation and effect of a clause in a lease of land. Clause granting tenants an option to purchase. The lease was granted allowing the tenants to 'occupy and use the subjects for the development of a pay and play golf course....and no other purpose without the consent of the Landlords'. Clause 18.2 granted the tenants an option to purchase the land and provided determination of how the Option Price should be established. Following one attempt by the tenants to purchase the land, they later served a 'Notice to Exercise Option'. The landlords fixed the purchase price at £5.3m based on a valuation of the land at 'full market value'. The tenants contended that the effect of Clause 18.2 was that the sole use of the land to which the landlords were to have regard in fixing the full market value was development and use as a golf course. The tenants sought decrees of declarator and reduction, the effect of which would be to require the landlords to sell the subjects for £500,000. The Landlords counter-claimed for declarator that the option to purchase and the contract were validly rescinded and the option was spent and could no longer be exercised by the tenants.

The Assessor for Lothian v. Belhaven Brewery Company Limited [2008] CSIH 60

Tue, 02 Dec 2008 14:44:00 GMT

Land Valuation Appeal:- This was an appeal by the assessor against a decision of the Valuation Appeal Committee at Edinburgh dated 13 March 2008 relating to the respondent's public house, the World's End, at 2-8 High Street, Edinburgh. The subjects were entered in the Valuation Roll at the 2005 Revaluation at a net annual value and rateable value of £51,000. The respondent appealed against the entry and the V.A.C. allowed the appeal to the extent of substituting £47,000. Here the court considered whether the V.A.C. had misdirected itself, in particular, in relation to its treatment of it by comparison with other competitor businesses in the area and in its application of the valuation hypothesis.

The Assessor for Lothian v. BBW Leisure Limited [2008] CSIH 61

Tue, 02 Dec 2008 14:41:00 GMT

Land Valuation Appeal:- This was an appeal by the assessor against a decision of the Valuation Appeal Committee at Edinburgh dated 28 February 2008 relating to the respondent's licensed premises at 47 Buckstone Terrace, Edinburgh. The subjects were entered in the Valuation Roll at the 2005 Revaluation at a net annual value and rateable value of £84,700. The respondent appealed against the entry and the V.A.C. allowed the appeal to the extent of substituting £81,000. Here the court considered whether the V.A.C. had misdirected itself, in particular, in relation to its treatment of it by comparison with other competitor businesses in the area and in its application of the valuation hypothesis.

Belhaven Brewery Co Ltd v The Assessor for Highland & Western Isles [2008] CSIH 3

Thu, 17 Jan 2008 13:29:00 GMT

Appeal – Practice and Procedure/expenses. Net annual value (NAV) assessed by assessor. Basis of valuation disputed by appellants. Valuation had been based on turnover figures for 48 weeks period to 24 January 2004. The premises were acquired on 14 March 2003. The assessors revalued the property based on period 31 March 2004 to 31 March 2005 at NAV of £41,000. Considered, on these figures whether turnover figures sustainable. Appellant based own valuation on turnover figure for first year after revaluation in force. This brought NAV to £35,200. Failure to intimate Committee appeal to assessor. Undertaking by appellant, Mr Henry, that “he would never again take an appeal to this Court without taking legal advice at earliest opportunity”. This undertaking was not met. Unstateable appeal. Mr Henry personally liable to assessor in expenses of appeal.

Suburban Taverns (Glasgow) Ltd v The Assessor for Glasgow [2008] CSIH 5

Thu, 17 Jan 2008 13:28:00 GMT

Lands Valuation Appeal Court – Valuation Roll. Valuation of net annual value (NAV). This case was about a public house acquired by the appellant who appealed against an entry in Valuation Roll on the basis that it was too high. Tone date for entry was 1 April 2003. Public house acquired in July 2005 and local Valuation Appeal Committee refused appeal. Considered methods of valuation. The valuation assessed on “hypothetical achievable turnover” at tone date rather than date of acquisition. Opined that this figure was open to adjustment. Case Magell v Assessor for Dumfries & Galloway 2006 SC627 referred to. Disputed whether appellants should have disregarded previous turnover and based figure entirely on predicted “maintainable” turnover. Held that they should not. Appeal refused.

Belhaven Brewery Co Ltd v Assessor for Glasgow [2008] CSIH 2

Thu, 17 Jan 2008 13:28:00 GMT

Lands Valuation Appeal Court – Court of Session – Appeal of Valuation Appeal Committee decision. Assessor valued public house at net annual value (NAV) of £15,100. That figure appealed by appellant to Valuation Appeal Committee who refused. Their refusal appealed. Matters discussed were methodology of assessor and appellant in arriving at valuation figure. Landlord and Tenant had entered into transaction at date near initial assessment. Disputed whether turnover figures from later period could be considered. Held they could not. Appellant’s valuation misguided. Appeal refused.