OPINION

Lloyds Pharmacy Limited v Assessor for Lothian Valuation Joint Board

Introduction and Summary

[1] In these four appeals by the same ratepayers against the refusal by the local Valuation Appeal Committee to refer the appeals to the Lands Tribunal, the subjects are pharmacies situated within purpose-built health centres. The appellants complain that the Assessor, in valuing these subjects at the 2010 revaluation, has taken the personal pharmacy licences into account, in contrast with pharmacies at ordinary retail locations, which are valued on straightforward comparison with shops. The Assessor maintains that the subjects of appeal are simply valued as shops and that none of the grounds for referral of the appeals to the Tribunal is established.

[2] The Tribunal has been persuaded that the law is difficult to apply to these subjects and that the appeals raise a general issue likely to be used as a precedent in other cases; and has accordingly allowed the appeals.

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 to the Tribunal. Regulation 5(1) provides as follows:-

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

(c) the law applicable to the case is uncertain or difficult to apply;

(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 either of these grounds (the only grounds contended for by the appellants at the hearing of the appeals) 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. In this particular case, the Tribunal was not appraised with the materials which had been before the Committee and it may also be said that, beyond indicating that “the factual background advanced on either side was contradictory as to the application of the criteria”, the Committee appears not to have given any reason for refusing the application.

Procedure

[5] The appellants lodged grounds of appeal. The Assessor lodged an answering submission. At the oral hearing, the appellants were represented by Mr MacIver, Advocate, instructed by Messrs Eric Young & Co, Chartered Surveyors. They produced extracts from the regulations relevant to pharmacy licences, a copy of the Scottish Assessors Association Practice Note on the Valuation of Shops, and some analysis of valuations of pharmacies, post offices and betting shops. The Assessor, Mrs Hewton, was present but relied on her written submission and commented only on one or two matters in response to questions by the Tribunal.

Submissions

[6] The appellants’ position was that the law only allowed an assessor to take the licence into account where the existence of the licence conferred a monopoly on the occupier of the property in question, and not where the licence was personal. The Assessor had valued the subjects very much higher than comparable retail subjects in the locality and had apparently taken the personal pharmacy licences into account because of the passing rents. Mr MacIver referred us to passages in the National Health Service (Pharmaceutical Services) (Scotland) Regulations 2009. It was important that licences under these regulations were personal and not in respect of premises as such. The appellants had 15 such pharmacies in Scotland. It was understood, on the basis of one assessment in Lanark, that there were differences among Assessors in their treatment of such subjects. Mr MacIver referred to the consideration of licences in other contexts: betting shops, post offices and casinos (Stakis Leisure Ltd v Strathclyde Assessor 1993 SLT (Lands Tr) 39). He submitted that the law was difficult to apply. The S.A.A. Practice Note gave no guidance on this problem. There was also a general issue with an appreciable bearing on valuation practice. There had been some units of this kind at the time of the previous revaluation but there were rather more now.

[7] In her submission, the Assessor contended that there was no difficulty in interpretation of the law pertaining to the valuation of licensed premises or shop type properties which held particular licences. The property was valued on the comparative principle with direct regard to open market rental evidence. The case could not raise any general issues likely to be used as a precedent in other cases: the comparative method was the primary method of valuation and was well established in law and practice, and it was inconceivable that its use for these subjects could be overturned and therefore inconceivable that the case could be used as a precedent in other cases. The property was described as a shop, valued as a shop and clearly zoned. The appeal related purely to the appropriate Zone A rate. Mrs Hewton clarified at the hearing that if such a property stood alone, the Assessor would consider its actual rent. The rents for these subjects were on an open market value basis. She also said that the pharmacy licence only went to the pharmacy dispensing part of the subjects.

Tribunal’s Consideration

[8] On one level these appeals may be said to involve shop-type premises which are clearly to be valued on the comparative principle and in which the issue is simply whether there is a sufficient body of comparable shop values in the locality or whether, that not being the position, the valuer must turn to the actual rent which, assuming it to be on the statutory basis, will provide a correct value. Looked at that way, the appeals raise just the sort of issue on which the law is clear and there is no issue, far less a fundamental or general issue, the decision on which would be likely to provide a precedent for other cases. The valuation is made on a zoning basis, underlining the standard nature of the issue. We understand that to be the Assessor’s approach, under which, it would appear, any question in relation to the pharmacy licence is essentially irrelevant.

[9] Without in any way indicating that it is wrong to value these subjects on the basis of their actual rents – that is in issue in the substantive appeal and we offer no view on it at this stage – we feel that matters are not quite so simple in this apparently relatively new situation. The material produced to us does give an impression, on which it is appropriate, for the purposes of this appeal, to proceed, that values based on the actual rents of these subjects are at a considerably higher level than values of ordinary shop properties, including pharmacies in ordinary retail locations, in the same localities. The impression therefore is that there is something else contributing to the level of rent. The appellants say that it is the licences and if these are comparative principle valuations of shops this element should be ignored as it is when the pharmacies are situated at ordinary retail locations. We are not sure that the situation is as straightforward as that. The regulations appear clearly to involve an element of consideration of the adequacy of provision in the neighbourhood. Again, a situation within a health centre would appear particularly favourable for a pharmacy or general chemist business, but the same might be said of an ordinary retail location very close to it.

[10] These considerations suggest to us, firstly, that there may be a question as to the correct categorisation of these subjects, and, secondly, that the licence position may present a slightly similar difficulty to that encountered in relation to casinos. It may be that the Assessor is correct in her assertion that there is no question of these subjects being valued other than on a comparative basis, but an issue arising within the field of comparative valuation may satisfy one of the grounds for referral. The fact that the subjects can, for comparison purposes, be valued on the zoning method also does not seem to us conclusive. In relation to ground (c), we have to decide whether or not, on the material before us, the issue involves any legal difficulty or uncertainty. In relation to ground (d), we have to consider whether or not a distinct issue with an appreciable bearing on valuation practice, likely to be used as a precedent in other cases, is identified.

[11] We have reached the view that both grounds are established. The law may be easy to state but we can see the difficulty in applying it to issues such as the correct categorisation of these subjects and the relevance, if any, of the particular form of licence. In any event, we consider that the cases raise a general issue, likely to be used as a precedent, as to the correct approach to valuation of subjects like these.

[12] We therefore allow these appeals. We note that in her submission the Assessor referred to the desirability of hearing these cases at the earliest opportunity. The Tribunal will proceed to make appropriate orders for Grounds of Appeal and Answers with a view to arranging a hearing without undue delay.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 15 April 2011

Neil M Tainsh – Clerk to the Tribunal