Raeburn Drilling and Geotechnical Ltd and Others v (1)Assessor for Lanarkshire Valuation Joint Board and (2) Assessor for Fife Council

Introduction and Summary

[1] This Note records for convenience the Tribunal’s reasons for its decisions in several appeals from decisions of local Valuation Appeal Committees to refuse to refer appeals to the Lands Tribunal. The appeals were heard together and had this common theme, at least in the written grounds of appeal, that the appellants contended that the appeals raised the same issue as the appeals of Oki (UK) Ltd and others, which the Tribunal allowed following an earlier hearing, and accordingly should also be allowed.

[2] In Oki (UK) Ltd and Others v Lanarkshire Assessor, LTS/VA/2008/02, 04 & 05, 2 July 2008, we decided that one of the statutory grounds of referral to the Tribunal, under Regulation 4(1)(d) of the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995, was satisfied in the situation where the appeals concerned the matter of adjustments for height and adjustments for quantum at larger industrial subjects. We identified a general issue likely to be used as a precedent in other cases. This is an issue about the use, in valuations of manufacturing, or perhaps general industrial subjects, on the Comparative Principle, of rental evidence from distribution warehouses. It is an issue which will not necessarily arise all over Scotland, because there might be areas in which, whatever view was taken, there was anyway sufficient rental evidence from manufacturing or other general industrial subjects. It is, however, an issue which is likely to arise in a certain number of other appeals and there have in fact been quite a number of other applications to committees to refer or, where such applications have been refused, appeals to the Tribunal. In some cases committees have agreed that the same issue arises and granted the applications; in others, although the committee (in some cases, before our decision in Oki) refused applications, Assessors have not opposed appeals. In some other cases, including these appeals, where Committees have refused applications, Assessors have maintained opposition to referral on the grounds that the appeals did not in fact raise the issue and did not raise any other fundamental or general issues.

[3] The appellants in these appeals are Raeburn Drilling and Geotechnical Ltd., Alfred McAlpine plc (2 appeals), W. H. Malcolm Ltd., John Dewar & Sons and Tullis Russell Papermakers Ltd. They were each represented by Mr Haddow QC, instructed by either Messrs James Barr, Chartered Surveyors, or Nigel Thomson FRICS. The Assessors (the Assessor for Lanarkshire in 5 cases and the Assessor for Fife in the Tullis Russell case) were each represented by Mr Doherty QC, instructed by these Assessors. Although the original applications had referred also to Regulation 4(1)(a) and (b), the “complexity” grounds, Mr Haddow did not advance any argument under these grounds. The issue in each case was therefore solely the issue under Regulation 4(1)(d), viz. whether “the case raises a fundamental or general issue likely to be used as a precedent in other cases.”

[4] We are not satisfied in any of these cases that this ground for referral is established, and we have accordingly refused each of these appeals.

Raeburn Drilling and Geotechnical Ltd – Factory, Whistleberry Road, Blantyre

[5] These appeal subjects comprise a factory measuring 2,696 square metres. The assessor had adjusted (by addition) for eaves height. Mr Haddow apparently accepted that the subjects, being below 100,000 square feet (9,300 square metres), were not regarded as ‘large’ industrial subject He pointed out, however, that in the Oki case appeals in comparably sized subjects had in fact been allowed along with those for larger subjects. A schedule of rental evidence produced in the Oki case had started with subjects measuring some 6600 square metres. The assessor might rely on his analysis of all industrial buildings, including the larger distribution subjects, so that that issue would impact on subjects of this size.

[6] Mr Doherty, however, pointed to the Tribunal’s reasoning in Oki, which clearly related only to the larger subjects. The assessor had ample rental evidence for subjects over 1000 square metres, including subjects with the additional eaves height, the majority of these being general industrial subjects and not distribution subjects. While it was the assessor’s contention that there was not in fact such a difference between factory and distribution subjects as was contended for, he was in any event able to separate the evidence for general manufacturing subjects. The fact that a smaller case had slipped through in the Oki case was not an argument for admitting other such cases where the general issue identified by the Tribunal did not in fact arise.

[7] We are entirely clear that our reasoning in the Oki case related to larger industrial subjects. That was clearly the basis on which those appeals were presented to us in argument, and we were told in that appeal that the point arose in various parts of the country in relation to subjects over 100,000 square feet (9300 square metres). We felt that the problem, if there is a problem, arises where there are insufficient rental comparisons from factories or general industrial subjects. We accept the assessor’s submission that the point simply does not arise in relation to smaller subjects, where there is far more comparative material. Having considered again the schedule of rentals produced by the appellants in Oki, we accept that the smallest subjects shown on that schedule measured only some 6600 square metres, and that two others are apparently below 9300 square metres, but we note firstly that these subjects were not all in Lanarkshire and secondly that there was no indication on that schedule of features such as eaves height. We see no reason to depart from the general threshold of 9300 square metres indicated. In paragraph [17], we mentioned that in one of the appeals then before us, only one of the two issues, adjustment for height and adjustment for quantum, arose, but that that did not seem to alter the position on ground (d) and we had not been invited to reach any different decision in any individual case. With hindsight, it seems that had we looked more closely at that case, we should not have allowed the appeal. The point now having been focused, we agree that these smaller subjects do not fall under our reasoning. Nor do they raise any other general issue which could qualify this appeal for referral. We accordingly refused this appeal.

Alfred McAlpine plc – Factory, 7 Bedlay View, Uddingston

[8] These appeal subjects comprise a factory measuring 1550 square metres. The submissions and reasoning are the same. We refused this appeal.

Alfred McAlpine plc – Factory, 27 Waverley Street, Coatbridge

[9] These appeal subjects comprise a factory measuring 3162 square metres. The submissions and reasoning are the same. We refused this appeal.

John Dewar & Sons – Bonded Store, 288 Main street, Coatbridge

[10] These appeal subjects comprise storage/distribution subjects measuring approximately 13950 square metres. Mr Haddow explained, however, that a substantial portion, some 7500 square metres, is used for general industrial use and valued on the comparative principle. The assessor had applied an increase for additional wallhead height in that area, thus raising the same issue. The remaining part is apparently valued on the Contractor’s Principle. Mr Haddow referred to what he described as similar subjects in Renfrewshire, in which an appeal to the Tribunal following the Committee’s refusal to refer was pending.

[11] Mr Doherty replied that since this issue arose only in the area of 7,500 square metres, this was, again, not a case of ‘large industrial subjects’. Again, there was ample comparative evidence. He also pointed out that the subjects in Renfrewshire measured 531,000 square feet (about 49330 square metres), all subject to the general argument.

[12] We see no reason in this case either to depart from the general threshold of 9300 square metres or 100,000 square feet. The reference to the Renfrewshire subjects does not seem to advance the appellants’ position. We refused this appeal also.

W. H. Malcolm Ltd – Warehouse Block 20, 130 Industrial Estate, Newhouse, Motherwell

[13] These appeal subjects comprise storage/distribution subjects. Mr Haddow explained that while the whole of the subjects were used for that purpose, the subjects had originally comprised a factory (Terex) which had been taken over by the present appellants and extended some time ago. Accordingly, while the rental evidence from distribution warehouses referred to reasonably modern premises, it would be argued that the older part, forming around one half of the premises, should attract the lower eaves height addition appropriate to general industrial buildings. Mr Haddow accepted that it would be hard to say that this case would set a precedent, but submitted that its outcome would depend on the answer in the Oki case.

[14] Mr Doherty pointed out that this particular issue, to which neither the application to the Committee nor the grounds of appeal to the Tribunal made any reference, was not the general issue focused in Oki. That case referred to large industrial subjects. The same question simply did not arise. There was no separate general issue. Mr Doherty also complained that it was unacceptable, where the regulations required applicants for referral to specify the basis of applications, simply to come along to the Tribunal with new grounds.

[15] In this case also, we accept the assessor’s submission. The situation here has little to do with the issue about the use, in relation to larger manufacturing subjects, of rental evidence from distribution subjects. It would appear to be a particular issue in relation to adjustment for the older part of these distribution subjects. That is not suggested to be a fundamental or general valuation issue. Nor was it suggested that it arose at any other subjects so that the case might be used as a precedent. We find no possible basis for finding the statutory ground of referral satisfied. Like the assessor, we are surprised that this case has reached this length on the basis of the ‘standard’ grounds of appeal in the Oki and following cases. We refused this appeal.

Tullis Russell Papermakers Ltd – Warehouse, Ashley Road, Southfield Industrial Estate, Glenrothes

[16] In this case, Mr Haddow did not in fact advance any argument in support of the appeal, but asked for a continuation to allow an opportunity for resolution of the case or, if that did not happen, consideration and advice as to whether there were any grounds for maintaining the appeal. These appeal subjects comprise a purpose-built distribution warehouse used for storage. Mr Haddow explained that it had emerged that the Fife Assessor used fixed rates (as opposed to percentages) for eaves height additions, but this was problematic because large parts of the subjects were in fact canopy built rather than standard buildings, thus attracting far lower value rates, so that the height additions represented unacceptably large percentages of the value rates for these parts. Mr Haddow accepted that none of this was presaged in the grounds of appeal or answers, and that he could not advance the appeal.

[17] Mr Doherty opposed the continuation of this appeal. It was for the appellants to focus what was in issue. They had signally failed to do so. It could not be said that they could not have been aware of this aspect of the valuation, because the same agents had acted in the previous revaluation when the methodology had been the same.

[18] We were not prepared to continue this appeal. The issue has nothing to do with the general issue identified in Oki, despite this case having reached this hearing on the basis of standard grounds of appeal which proceeded on the basis that the subjects, being manufacturing subjects, were affected by that issue. Again, there is no suggestion of any general issue. There is nothing to indicate that there is any prospect of this appeal succeeding. We refused this appeal.

Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 1 October 2008

Neil M Tainsh – Clerk to the Tribunal