OPINION

Coal Pension Properties Ltd v Assessor for Lanarkshire

Introduction and Summary

[1] This is an appeal against the refusal by the local Valuation Appeal Committee of an application to refer an appeal to the Lands Tribunal. The subjects of the appeal are a car park at a town centre shopping centre. The appellants argue that the law applicable to the case is difficult to apply, and/or that the case raises a general issue likely to be used as a precedent in other cases.

[2] The appeal is refused. In summary, the Tribunal accepts that there have in the past been appeals relating to car parks in situations like this in which one or both of these grounds for referral would appear to have been satisfied, but does not consider that the information supplied by the appellants in the present case provides an adequate basis for either ground, even as a matter of impression, which is how this kind of appeal has to be decided. We have added an observation that we are disturbed at the procedure followed in this case, where the appellants have provided very little information about the particular case and there has apparently been no meaningful discussion between the appellants and the Assessor. However, it should be emphasised that nothing in this opinion should be taken as indicating any view either way on the merits of this appeal when it is heard by the Committee, when, of course, the appellants will have the opportunity of providing appropriate evidence and submissions in support of the substantive appeal.

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 appellant 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 this case are complex or highly technical;

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

(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; or

(e) the lands and heritages to which the appeal relates are part of larger subjects situated in more than one valuation area and the valuation of those subjects is appealed in more than one such area,

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

[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 all the materials placed before it. The appellants only require to succeed on one of the grounds.

[5] The appeal relates to the entry in the roll at the 2010 revaluation in respect of a car park at Phase IV, Town Centre, Cumbernauld at a rateable value of £48,500.

[6] The appellants applied to the Lanarkshire Valuation Appeal Panel under Regulation 4 and referred to grounds (c) and (d) above. The Committee refused the application. In their Statement of Reasons, they noted that no information had originally been given as to why the appeal should fall within either ground and they had requested further representations. After considering those further representations and a letter from the Assessor opposing the application, the Committee had asked the appellants’ agents if they wished to make any further representations but had received no reply. They accordingly considered the application and refused it for reasons which they briefly recorded.

Procedure

[7] The appellants’ agents submitted the present appeal by letter dated 25 April 2012. The appeal was said, without any further specification, to be on the grounds that the Committee had erred in their consideration of the grounds advanced. The Assessor lodged Answers contending that the appellants’ grounds did not disclose any basis on which it was maintained that the law was uncertain or difficult to apply; the appellants themselves had submitted to the Committee that B & Q plc v Central Assessor (“the Springkerse case”)was a relevant decision which was not materially different from this case; that and other decisions provided guidance on the law; and the grounds did not disclose any basis on which it was contended that the case raised any fundamental or general issue liable to be used as a precedent. The appeal was heard at an oral hearing on 4 July 2012. The appellants were represented by Anthony MacIver, Advocate, instructed by Messrs Montagu Evans, Chartered Surveyors. The Assessor was represented by Steven Stuart QC, instructed by the Assessor for Lanarkshire. Neither side lodged any further documentation.

Authorities referred to:-

Assessor for Lothian v Livingston Development Corporation 1984 SLT 42
Ravenseft Properties Ltd v Assessor for Strathclyde 1991 SC 266
East Kilbride Development Corporation v Assessor for Strathclyde 1995 SLT (Lands Tr) 27
B & Q plc & Ors v Assessor for Central Scotland 2000 RA 205
Spudulike Group Ltd v Tayside Assessor LTS/VA/2001/5, 14.5.2001
Armour on Valuation for Rating, 5th Edn, 20-05B

Submissions

[8] Mr MacIver indicated that he was contending under ground (c) that the law was difficult to apply; and under ground (d) that there was a general issue likely to be used a precedent. He informed the Tribunal that the subjects were a town centre shopping centre car park. Parking was free. The subjects formed part of the common parts of the Phase IV shopping centre. Maintenance and upkeep of the car parks was carried out by the landlords, with the shop tenants being required to pay a service charge covering the expense of this.

[9] Mr MacIver indicated that the appellants’ argument was that the value of the car park was reflected in the rents paid by the tenants, and to make a separate entry introduced double assessment. He reviewed the law as set out in Armour at 20-05B, and in particular the decision of the Tribunal, following detailed consideration of the evidence including the individual leases, in the Springkerse case. There might, he said, be a distinction between retail parks and shopping centres. That was where the law was difficult to apply. If the factual position at Cumbernauld were similar, the law would suggest that the subjects should not be entered. The first issue was that of rateable occupation, which was a question of paramount occupancy; the second, whether the rateable values of the shops reflected the value of the car park, an issue requiring analysis of both rentals and net annual values. He referred also to Ravenseft Properties Ltd v Assessor for Strathclyde, in which quite a complicated distinction between rentals and net annual values had been made, and Lothian Assessor v Livingston Development Corporation; and distinguished East Kilbride Development Corporation v Assessor for Strathclyde as involving a different issue. Difficulty in applying the law could involve difficulty in deciding on the facts, as, he said, had been considered when the Tribunal upheld this ground in Spudulike v Tayside Assessor. Mr MacIver listed other subjects of a similar nature entered in the roll, some being under appeal, and also some which were not entered, and argued that there was here a general issue likely to be used as a precedent.

[10] For the Assessor, Mr Stuart said that the subjects comprised a part ‘surface’ and part ‘rooftop’ car park attached to Phase IV of the shopping centre, car parks at other phases also having been entered in the roll with their appeals having been settled. There were other similar entries within this Assessor’s area and under appeal. The Assessor’s position was that the phases of the centre were interlinked and the facts were very different from those in the Springkerse case. He confirmed the basic position that car parks at retail parks were generally not separately entered but those at shopping centres were.

[11] Mr Stuart considered the Springkerse case and other decisions and questioned whether, in the light of the decisions, the law could be said to be difficult to apply. The Springkerse case illustrated that the lease terms could be very different, and without seeing the leases in this case (for which, he said, the Assessor had asked but they had not been provided) it was impossible to say that there was any difficulty in applying the law. There was nothing to indicate that the matters which would have to be considered were beyond the competency of an experienced Committee. It was an application of standard principles of rateable occupation. As far as double assessment was concerned, again, the Assessor had not been provided with any information. In relation to ground (d), Mr Stuart referred to the need identified in previous cases for a “distinct issue with an appreciable bearing on valuation practice”. There was nothing to indicate such an issue. The decision would have to have an effect on other cases and not simply be an application of established principles. The present subjects had been entered in the roll at the two previous revaluations, without challenge. The decision in this appeal would turn on its own facts and there was nothing to indicate that the decision in other cases would turn on it.

Tribunal’s Consideration

[12] Mr MacIver’s submission clearly showed, and the Tribunal accepts, that there have been difficulties in relation to common car parks where the leases of adjacent commercial properties, usually shops, make some provision, such as in the present case, in relation to car parking. Apart from the Livingston case (which was decided before the introduction in 1984 of referrals to the Tribunal) each of the decided cases to which he referred was heard by the Tribunal. Further, both Lord Avonside in the Livingston case (at 1984 SLT 42) and Lord Cullen in the Ravenseft case (at 1991 SC 270) referred to difficulties in the application of the law in the context of such commercial leases.

[13] However, firstly, the present case of course arises following these previous authorities which have illuminated the law; and secondly, in any appeal such as the present, it is incumbent on appellants to do sufficient to provide a basis for the tribunal to hold, if only as a matter of impression, that one or other of the grounds for referral exists. Otherwise, the appellants in any appeal in relation to a category of subjects which had caused difficulties in the past would be entitled to a referral, which cannot be right.

[14] In the last of the authorities referred to, the Springkerse case, the Tribunal accepted the distinction for which the appellants in that case argued between retail parks and other shopping centres, including town centre shopping centres. The position on the ground was different, because the Tribunal accepted, contrary to the Assessor’s argument, that the car parks were simply and solely dedicated to the use of the shop tenants through their customers; and the position under the leases was different from that in previous cases such as the Ravenseft case, because, essentially, the leases did not confer paramount occupancy rights on the landlords.

[15] In the present case, it was not suggested that either the facts or the expert evidence are complex or highly technical; nor that the law applicable is uncertain; nor that the case raises any fundamental issue. Mr MacIver actually told the Tribunal very little about this case, beyond the basic position which must apply at many shopping centres. The appellants apparently wish to argue that this town centre shopping centre car park is materially similar to the car park at Springkerse. They may be right, but it seems to the Tribunal that the issues which they wish to raise have been fairly clearly mapped out in the previous decisions and that the law may not be difficult to apply. It was open to the appellants to show, and they needed to do so only as a matter of impression, why it was going to be difficult in this particular case. In the Tribunal’s view, however, their failure to give any but the most basic indication of the circumstances of this case makes it impossible to conclude, even as a matter of impression, that the law is difficult to apply in this case. The law, although well settled, may in some cases be “difficult to apply” (as the Tribunal held in allowing an appeal under this ground in the Spudulike case), but the appellants do need to show that to be applicable in the particular case.

[16] Although the issue of course requires to be decided on the material before the Tribunal, the appellants could have derived some assistance from communications and discussion with the Assessor, if they were able to show that difficulties in relation to these subjects had been identified and discussed. All the appellants were able to inform the Tribunal, however, was that they had, without producing the leases (for which the Assessor maintained he had asked) requested the Assessor to consider deleting the entry on the basis of these arguments. Considering also that the Tribunal was told almost nothing about the particular lease provisions, or about any, even the most preliminary, attempt to compare the rental levels with rateable values in order to set up the ‘double assessment’ argument, the Tribunal is not persuaded that, in the light of the previous authorities in this area, the law will be difficult to apply in this case.

[17] Ground (d) involves consideration of the effect of a decision in this case on other cases. We accept the information given by Mr MacIver to the effect that some shopping centre car parks are entered separately and others not, and there are apparently appeals pending in some cases. What is missing, however, is any indication that the decision in the present appeal will be anything other than an application of established principles to the particular facts of this case. Moreover, the fact that some shopping centre car parks are entered and others not might simply reflect the position which emerged clearly enough from the Ravenseft case, viz. that the lease provisions might or might not leave the landlords in rateable occupation, and that the shop rental values might in some cases be higher than the rateable values, to the extent that there is no double assessment, while in others the rateable values of the shops reflect the full value of the car park as well as the shops with the result that the car park is not entered at value. Differing practice in that latter respect might not be thought entirely satisfactory, but this would not mean that the decision on either of the issues in the present case would rule in any other case.

[18] For these reasons, the Tribunal cannot uphold this appeal on either of the grounds argued.

[19] The Tribunal wishes to add that the procedure followed in this case is disturbing. Although their letters to the Committee are not before us, it is reasonably clear that the appellants initially provided no information at all to the Committee in support of their application and, although the Committee appears to have gone out of its way to give them an opportunity to put flesh on this appeal, they failed to do so. In their grounds of appeal to the Tribunal, they did no more than quote (inaccurately) the statutory grounds. Mr MacIver did his best on their behalf at the oral hearing but it was evident that he had little information to offer about the arguments in the substantive appeal, as opposed to the broad issues which arise in such appeals. We were also told that, for whatever reason, the appellants and the Assessor had not engaged in any meaningful discussion of this case. The Tribunal recognises that there was a time limit for bringing this appeal, but the oral hearing took place more than four months after the application was made to the Committee. Bringing this case to a hearing with so little information about the particular case, without there having been any real discussion with the Assessor, suggests a failure of communication. It appears tantamount to an abuse of process.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 6 July 2012

W Douglas Ballantyne – Deputy Clerk to the Tribunal