This is an appeal under the provisions of Regulation 6(1) of the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995 against the refusal of the Valuation Appeal Committee to refer to the Tribunal an appeal in respect of an entry in the Valuation Roll relating to the site of an Auto Teller machine (ATM) at 16G Main Road, Condorrat, Cumbernauld. The ATM in question is a “hole in the wall” type situated in the outside wall of premises operated as a Post Office.
The criteria for referral to the Tribunal appear in Regulation 5, the terms of which need not be repeated.
We are not satisfied that the facts in issue in this case are likely to be “complex” within the meaning of Regulation 5(1)(a). Use of ATMs is commonplace and although the detail of arrangements for their installation and operation may require consideration of a significant amount of written material, there is no reason to think the issues of fact contained therein are likely to be particularly complicated.
It was not suggested that the case fell under the provisions of head (b) of the Regulation. In relation to (c) we accept that the main principles of law applicable are well established. The relevant tribunal will have to determine whether the site is to be regarded as in rateable occupation of the bank which owns the ATM or the shop adjacent to the site. However, it is an issue of mixed fact and law. Both sides agreed that it would require consideration of a variety of matters and elements of judgement and assessment as to the weight to be given to different issues. We are far from persuaded that this would be an easy or straightforward exercise. There is, of course, no doubt that committees regularly have to make assessments which are neither easy nor straightforward. As parties were agreed that the real issue in the present case fell under head (d) we did not hear submissions on the question of the degree of difficulty to be anticipated before matters can be said to fall under the provisions of head (c).
We are satisfied that the test of rateable occupancy will often be difficult to apply in cases of shared use of heritable subjects. Whether it will ultimately prove in the context of the present case is hard to say at this stage. We were told that there was a conflict between different Assessors in relation to the issues raised by the present case. That might appear to suggest a difficulty in applying the law but we recognise that it might well turn out to be attributable to some distinction of fact. It is clear that modern Post Offices businesses come in a variety of styles and that the description of a shop as a “Post Office” tells little about it. For present purposes it is enough to say that we think that this is a case where it is not clear, at this stage, whether the issues will properly fall under (c) or (d). It is enough to say that we think that if they do not fall within (d) they are likely to fall under (c).
Parties were agreed that the most important provision in the circumstances of the present case was Regulation 5(1)(d). For the appellants it was pointed out that there were some 38 appeals pending in relation to similar premises. There were many other similar premises which would be affected by the decision. In one case, an Assessor had conceded that such a site was not rateable separately from the Post Office shop. It was suggested that although most Scottish Assessors appeared to proceed on the view that all “hole in the wall” machines attached to supermarkets and shops were to be treated as in separate occupation of their bank owners, the approach in England was different. It was said that weight was there given to the dominant purpose of having a provision of ATMs. It was to be argued that similar weight should be given to this purpose in a Scottish context.
For the Assessor it was contended that each case would turn on examination of particular circumstances. It was suggested that there would be no generic issues of principle capable of determining other cases. It was accepted that the outcome of the present case would be likely to be of interest in other cases. It might throw some light on the proper approach but it would not resolve any fundamental question. It would, to a considerable extent, be fact specific.
The Tribunal has made clear its view that the decision in these procedural appeals will often rest on impression. It is not appropriate to attempt a thorough examination of the issues simply to decide which body is to make the determinative examination.
It may be clear enough in some cases whether a fundamental or general issue likely to be used as a precedent arises or simply whether the issues relate to the operation of a particular principle in relation to specific facts. But, we do not think it clear in the present. The written material available to us and to the committee did not appear to identify any such issue. The appellants had pointed out that the ATM could be relocated. But, of course, the concern is not with the ATM as such and it is doubtful whether this could be treated as more than an assertion that the site, however well adapted for use of an ATM, might not always be used for that purpose. That matter was not advanced before us as the dominant issue to be resolved.
It appeared that the fundamental point to be relied on was the weight to be given to the purpose for which the site in question had been provided. It was to be contended that it had been provided for use for an ATM as part of the whole retail operation of the shop premises and that this was of critical importance to the issue of predominant occupation. That, it was suggested, had been accepted in England as a dominant factor.
It may well be that the issues raised in this case will ultimately come to be seen as issues which give rise to fairly routine difficulties in applying the established law rather than issues which, in themselves, are of general importance likely to be used as a precedent within the meaning of head (d). However, our view at this stage is that it is indeed likely that some general issues will have to be identified as being of particular importance in the context of “hole in the wall” ATMs. It may well be possible to point to particular factors by way of comparison or contrast with free standing internal machines. We hesitate to refer to any particular issue in absence of full submission. But, if the Tribunal came to be persuaded that some particular aspect of the purpose of installation or of the method of operation was, indeed, a factor of some special significance, a conclusion to that effect might be expected to have an appreciable bearing on valuation practice.
For these reasons we allow the appeal.
Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 30 September 2009
Neil M Tainsh – Clerk to the Tribunal