OPINION

Oki (UK) Ltd & Others v Lanarkshire Assessor

Introduction and Summary

[1] Several appeals against refusal by a local Valuation Appeal Committee of applications to refer appeals to the Lands Tribunal have been heard together. They arise in the situation where some ratepayers’ agents are in dispute with some Assessors, in relation to the 2005 General Revaluation, on the matter of adjustments for height and adjustments for quantum at larger industrial subjects. Another local committee has referred some such appeals to the Tribunal.

[2] We have reached the view on the material placed before us that these cases do raise a general issue likely to be used as a precedent in other cases and accordingly that these appeals should succeed and the substantive appeals be heard before the Tribunal and not the local committee. We give some brief consideration at the end of this Opinion to the procedure to be followed in what might turn out to be quite a large number of similar appeals referred to us.

The Issues

[3] Regulation 4 of the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995 provides for either the Assessor or the appellants to seek referral of appeals to the Tribunal. Regulation 5(1) provides as follows:-

“(1) Where an application under regulation 4(1) has been made, and it appears to the Committee that –

(a) the facts of the case are complex or highly technical;

(b) the evidence to be given by expert opinion is complex or highly technical; [or]

(d) the case raises a fundamental or general issue likely to be used as a precedent in other cases;

the Committee shall refer the appeal to the Tribunal for determination … ”

If any of these grounds is made out, the appeal must be referred.

[4] Section 1(3BA) of the Lands Tribunal Act 1949 provides a right of appeal to the Tribunal against a decision not to refer. Such an appeal is ‘open’ in the sense that the Tribunal is not confined to considering whether the Committee erred in its reasons for its decision but rather has to reach its own decision on the materials placed before it.

[5] Oki (UK) Ltd, W. Grant & Sons Distillers Ltd, Konecranes (UK) Ltd, Brian Hewitt Construction, Coca Cola Enterprises, and Datasafe (Records Storage and Management) Limited, applied to the Lanarkshire Valuation Appeal Committee under Regulation 4 in relation to revaluation appeals relative to a number of industrial subjects in Cumbernauld, Bellshill, East Kilbride and Carnwath. The Assessor opposed these applications and the Committee refused them, with reasons. The appellants appealed under section 1(3BA). Both before the Committee and before us the appellants relied on each of grounds (a), (b) and (d).

Procedure

[6] At the oral hearing of these appeals, the appellants were represented by Mr Haddow QC, instructed by Messrs James Barr, Atisreal and Nigel Thomson. The Assessor was represented by Mr Doherty QC. The documentary material placed before the Tribunal included Grounds of Appeal, Answers, correspondence with and the reasons given by the local Committee, a rental analysis by Messrs Barrs of some 31 industrial subjects around the country, a longer list of ‘James Barr Large Industrial Comparisons’, the Scottish Assessors’ Association Industrial Committee’s Practice Note 1 in relation to the Revaluation 2005 (‘Comparative Principle’), a scheme of valuation for ‘Industrials off Estates (Glasgow)’ and correspondence with the Central Scotland Valuation Appeal Committee which had allowed one such application which has already been through some procedure before the Tribunal.

Appellants’ Submissions

[7] Mr Haddow drew our attention to the situation with some other appeals. The Central Committee had recently referred 4 more appeals. There were some 44 similar applications pending before the Lanarkshire Committee. There were some 15 plus applications in Fife and similar issues in Ayrshire. It was not in dispute that there would be different local basic rates for such subjects, but Messrs Barrs’ analysis of large industrial subject rents had led them to disagree with the scheme of adjustments in relation to height and quantum of such subjects within the Industrial Committee’s Practice Note. Agreement had, however, been reached with the Glasgow Assessor, who had prepared his own scheme of such adjustments, and with some other Assessors. In Lothian, whose Assessor was said to have originally prepared the S.A.A. scheme, agreement had been reached with some alteration of the scheme. The difficulty in Lanarkshire related to distribution buildings. There were very few manufacturing rentals, each with some question mark, and therefore only sufficient local rental evidence if distribution warehouses were included. The position was similar in Central, where there were no manufacturing rents. The Lothian Assessor had introduced a manufacturing allowance of 5%. The difference on the general issue was starkly illustrated by the situation at some subjects which straddled Glasgow and Lanarkshire.

[8] In relation to grounds (a) and (b), Mr Haddow referred to analyses of rental evidence of differences in rents between large manufacturing subjects and distribution warehouses. In addition to rating surveyors, there would require to be evidence from agency surveyors dealing in these markets. The Committee of course had experience of challenges to national schemes, but this would go beyond the usual nature of such challenges. Evidence might also be required about differences in planning use classes. The appellants would require to show how the rental analysis fitted in with the scheme which they proposed. The evidence would go far beyond the sort of analysis with which committees were used to dealing in one-day appeals.

Assessor’s Submissions

[9] In relation to grounds (a) and (b), Mr Doherty stressed that the test was not whether there was complexity to an ordinary person, but rather whether there was complexity in the context of commercial rating appeals. The facts and opinion evidence did not have the requisite complexity or technicality. They boiled down to dispute about appropriate comparison and rental evidence, with the Assessor relying on rental evidence within his area (from non-distribution as well as distribution subjects) and the appellants arguing that there was insufficient evidence within the valuation area. The Lanarkshire Assessor had, in fact, like the Glasgow Assessor, departed from the national scheme on the basis that he had sufficient local evidence (some 30 rents), as contemplated by the Practice Note. The dispute as to which set of comparisons was appropriate was ‘meat and drink’ for the local committee.

[10] In relation to ground (d), Mr Doherty said that it was not sufficient to show a general issue likely to be of interest in other cases and it must have an appreciable bearing on valuation practice. These cases involved application of well known principles to the particular circumstances. He referred to the Tribunal’s Note in Lanarkshire Primary Care NHS Trust v Lanarkshire Assessor, LTS/VA/2003/15-17, 26.6.2003. The attributes of the particular appeal subjects and the 40 others outstanding were considerably diverse, there being wide variations in their age, size and height. There would be no uniform answer to the question. The arguments and reasoning would be of interest, but not determinative, in other cases.

Tribunal’s Consideration

[11] The approach which we are required to take to such appeals is not in dispute. Necessarily, we do not have full evidence, only an indication of the issues and likely evidence, so that what we require to do is to form our impression as to whether any of the grounds set out in Regulation 5 is established. In relation to complexity and technicality, it is clearly accepted that this has to be judged, not in relation to how the man in the street would view matters, but in the context of commercial rating appeals, which of course local committees regularly have to consider. The test is not, however, whether the local committee could competently deal with the appeal: that may very well be said in appeals which nevertheless satisfy one of these grounds. In relation to ‘fundamental or general issue’, it is clear that to satisfy the test it is not sufficient to say that the outcome of the case might help to throw light on other cases, or indeed be followed with interest by other appellants and assessors: what is required is a distinct issue with an appreciable bearing on valuation practice.

[12] On the material, we have little difficulty in deciding that ground (a) is not satisfied. The factual material will include evidence about quite a lot of industrial subjects, in some detail, but not, we think, either complex or highly technical in the context of valuation appeals. There is an issue about the comparability of distribution warehouses, but we do not think that the detail which it will be necessary to consider is sufficient to satisfy this ground.

[13] We also do not consider that ground (b) is established. We appreciate that expert analysis will be required to sort out different although related issues as to quantum and height, with differing opinions on issues of comparability, and we think that this test is closer to being satisfied. However, remembering the context, we again do not think that the test is met. We would understand that there will basically be two competing tables of analysis of rental evidence, each apparently of something broadly in the region of 30 subjects, with, no doubt, further tables aimed at expounding the position in relation to height and the position in relation to quantum (and possibly also in relation to age and obsolescence: we were not left very clear as to whether there was any or much dispute about this further adjustment). There will be oral opinion evidence, including, again, about the comparability of distribution subjects and going at least some way beyond mere rental analysis. Various factors relevant to the assessment of such evidence will require to be sifted. One would expect the case to last at least slightly longer than an ordinary rating appeal, but we do not consider that the opinion evidence will be ‘highly technical’ and, more narrowly, we are not satisfied that it will be ‘complex’.

[14] We are, however, satisfied that ground (d) is established. It can no doubt be said in any case involving a familiar type of subject – shop, public house, industrial, etc. – that there is no dispute about basic principle and ex hypothesi there are competing bodies of comparative evidence, that the appeal simply involves consideration, in the particular circumstances of the case, as to whose comparisons are more appropriate. If that is all that can be said, there is clearly no fundamental or general issue likely to be used as a precedent. The question is whether there is anything more than that and, if so, whether it meets the test, which is perhaps in two parts, whether there is a ‘fundamental or general issue’ and, even if so, whether it is of sufficient significance.

[15] In this appeal, we feel that there is sufficient indication of an issue as to whether the distribution subjects provide appropriate comparisons (or, perhaps, as apparently in Lothian, can be used but call for a differential rate). We have the impression (although we stress that this is only a preliminary impression) that if they do not, there may not be sufficient local evidence and therefore that this is an issue which may be decisive. The issue could not be categorized as ‘fundamental’ but is it ‘general’ and of sufficient significance? We have asked ourselves whether, on what we have been told, the issue in any particular case is simply whether, in the circumstances of that case, the Assessor’s distribution subjects evidence supports his comparative valuation, or whether the outcome of exploring that issue in one case will not simply be of interest but may be useful in the determination of other cases and thus have an appreciable bearing on valuation practice. In our understanding and experience, distribution warehouses may differ from manufacturing subjects from a number of points of view. This is of course not the same as saying that the differences will prove to be material, and we again stress that we offer no view on that, but it does seem to us to give rise to an issue of significance at least in the present revaluation. We would not make so bold as to indicate the exact extent of application which this may have in other cases and particularly in other valuation areas, but it seems to us that at least in Lanarkshire it has a general application which is likely to be decisive in a substantial number of other cases and that may also apply elsewhere. As a matter of impression, therefore, and on balance, we think that the more stringent test which clearly must be applied is satisfied. This conclusion is at least slightly fortified by the fact that the Central Committee has accepted that ground (d) applies to cases in which the issue are clearly similar.

[16] We have therefore reached the view that there is within the normal, unexceptional issue as to whose comparisons are better, a general issue about the use of rental evidence from distribution subjects in appeals about manufacturing subjects. If it is decided in one case that such evidence can be so used, that is likely to have an important bearing not just in Lanarkshire but in at least some other parts of Scotland; and similarly if not.

[17] We accordingly allow each of these appeals. We would just mention that it was pointed out in relation to one of these appeals that it raised only one of the two adjustment issues. That might possibly have had a bearing on the complexity questions, but as matters were presented to us, does not seem to us to alter the position on ground (d). We were in any event not invited to reach any different decision in any individual case.

Further Procedure

[18] This decision means that one appeal, by Carron Phoenix Limited, Falkirk, is already before us with grounds of appeal, answers and adjustments but no date yet fixed for the hearing; the present appeals, together with 4 also recently referred by the Central Committee, will now come to the Tribunal; and there may be a rather larger number of applications to committees for referrals (although it does not necessarily follow from this decision that all such applications will satisfy the statutory test). All appropriate steps should be taken to enable appeals to be decided in an efficient and economical way. The appellants in fact made two alternative motions to us in this connection. Firstly, they suggested simply sisting the present appeals, a course of action which did not appeal to us as we did not think it desirable that a body of cases would be left in limbo without a decision whether they were to come to the Tribunal or not. Secondly, they moved that we should not only allow the appeals but also direct that they proceed to a joint hearing along with the Carron Phoenix Ltd. case. We certainly consider that some conjoined hearings of appeals is likely to be appropriate, and the Tribunal can if necessary give such direction. In the first instance, however, we prefer to leave it to the good sense of the agents and assessors involved (including of course the Central Assessor and indeed any other agents or assessors who become involved in referrals to the Tribunal) to come up with an appropriate suggestion as to which cases could most usefully be heard together. We would hope that such an agreed suggestion could be made before, say, the end of September 2008 with a view to the hearing then being fixed allowing an appropriate period for pleading and preparations. If necessary, the appeals will be put out for a procedural hearing then. Parties may also wish now to explore appropriate dates for the hearing so as to meet the availability of counsel and agents who are likely to be involved.

[19] Finally, we would express the hope that despite the referral of these cases to the Tribunal and the likely conjoining of a small number of appeals to be heard together, parties can discuss and agree as much as the evidence, including rental analysis, as possible, with a view to keeping the hearing within a reasonable length and avoiding unnecessary expense. Again, progress on such matters can if necessary be considered at a procedural hearing.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 2 July 2008

Neil M Tainsh – Clerk to the Tribunal