OPINION

J D Wetherspoon v Assessor for Scottish Borders Council

Summary

[1] This is an appeal against a decision of the local Valuation Appeal Committee not to refer the appellants’ 2010 revaluation appeal in relation to subjects comprising licensed premises in Galashiels to the Tribunal. The appeal is on similar grounds to an appeal which the Tribunal heard and allowed in respect of 8 public houses in Edinburgh and the Lothians in January 2012.

[2] The Tribunal has not changed its basic view on the issue identified by the appellants then and now. However, having regard to the information provided in this appeal about the resolution of the 8 Lothians cases and a further 8 Glasgow cases, and also to what the appellants told us about the present case, we are not on this occasion persuaded that any of the factors relied on by the appellants is made out. We refuse the present appeal.

Circumstances

[3] For brevity, we refer to our Opinion dated 16 January 2012. Paras 3, 6, 7, 8, 9 and 10, relating to the relevant regulation (Regulation 4 of the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995), to the state of the law applicable (which the appellants do not contend is “uncertain or difficult to apply”) to the history of similar issues raised by the appellants, and to the Assessor’s position in these appeals, apply now as they applied then. The parties’ basic submissions were also essentially as set out in Paras 11 and 12 of that Opinion. The appellants rely on grounds (a), (b) and (d) and of course only require to succeed on one of these.

[4] The Tribunal was due to hear the substantive appeals in the 8 Lothians cases and the 8 Glasgow cases (in which, following our decision in the Lothians cases, the Glasgow Assessor had withdrawn opposition to the appeals being heard by the Tribunal) in August 2012. Some three weeks before that hearing, the appellants intimated that they did not wish to proceed with any of the 16 appeals. At this hearing, we were told the actual resolution of these cases. 7 appeals were simply withdrawn, the appellants having accepted the values entered in the Roll. A further 3 were agreed with reductions of under 2.5%. A further 4 were agreed with slightly larger but still relatively modest reductions. The remaining two were settled with quite large reductions which were, however, not said to reflect the issue which is said to underlie all the appellants’ appeals.

[5] In Galashiels, there was at the relevant time just one competitor with anything like the same turnover as the appeal subjects. The appeal subjects were valued by the Assessor at £80,600 (against £55,000 in the previous revaluation); the competitor at £29,000 (previously £37,000). It is suggested that the competing subjects, having opened in 2004, initially traded successfully but were unable to maintain their success, whereas the turnover of the appeal subjects increased.

[6] The appellants have three other appeals, one in Dunbartonshire and two in Grampian, in each of which the Committee has refused to refer the appeal to the Tribunal and the appellants plan similar appeals to the present.

Tribunal’s Consideration

[7] As we have indicated, the appellants’ position is essentially the same as in the other cases referred to, but Mr Haddow for the appellants produced the information about the resolution of the 16 appeals in Lothians and Glasgow. His submission was that the appellants had not given up their argument that they have a unique trading model and as a consequence the Assessor’s valuation based on percentages of turnover requires to be modified, so that the position in this appeal was essentially the same as on the last occasion.

[8] We consider ground (d) first. Almost by definition, the issue identified does not apply to other ratepayers: if it did, there would be hypothetical tenants with a similar approach in the market. Attention is therefore concentrated on the appellants’ subjects. It appeared in the discussion that parties were not agreed as to the reasons for the reductions agreed in the 7 cases as set out above. It is of course not uncommon for ratepayers and assessors to come away from agreements with different interpretations of the settlements. Mr Haddow indicated that the appellants’ agent, realising that the Assessor was set against accepting the appellants’ main argument, negotiated, as it were, on the Assessor’s terms and sought and obtained reductions based on more normal turnover issues. Thus the appellants had not given up their main argument.

[9] That is a position we can entirely accept. The fact remains, however, that 7 cases, in which there had been said to be a “general issue likely to be used as a precedent”, were settled with no reduction at all and a further 7 were settled, all without it proving necessary to take the matter to adjudication. We accept, as we previously did, that the state of the law does leave general issues as to how this particular type of over-performance is to be established and, if established, how the subjects are to be valued. What we are unable to accept in the circumstances as presented in this appeal is that this remains an issue which is likely to be used as a precedent, when so many cases have been resolved without a decision on it.

[10] In the present case, we were informed that the appellants’ valuation, on the basis of their central argument, was in the region of £70,000. It may be that the issue does indeed arise for decision in the particular circumstances pertaining in Galashiels, but that would not be enough to show that the case raises a general issue likely to be used as a precedent. We note that while many of the 16 appeals related to city centre licensed premises, some did not. For example, subjects in Dalkeith, entered in the roll at £72,200, were agreed at £72,000. We were told that the appellants intended to make a particular comparison with these subjects. There were also agreements at Livingston and Bathgate. We do not ignore the other three appeals in the pipeline, but there was no indication that their situations were any more like the situation in this appeal than the situation in all the appeals which have been agreed. It is by no means clear to us that the outcome of this appeal will serve as a useful precedent.

[11] Accordingly, having carefully considered the position regarding the appellants’ various appeals, we are not persuaded that ground (d) is satisfied.

[12] That leaves grounds (a) and (b), the complexity grounds. The appellants’ position is that, because the Assessor does not accept the position about a different trading model and the effect of that on the issue of using turnover in comparative principle valuations, issues, including accounting issues, of complexity and difficulty are likely to arise. The argument, said Mr Haddow, involved quite sophisticated consideration of pricing policy, the effect on turnover of reducing margins and whether the appellants ran on lower margins than their competitors. The Tribunal has to form an impression as to whether these grounds are satisfied. We expressed a degree of doubt on this on the last occasion, but held on balance that both the facts and the expert evidence satisfied the tests in relation to these grounds. Bearing in mind the general issues indicated in relation to the appellants’ trading model (as opposed to particular local considerations), and that the substantive appeals in the 16 cases, also relating to the 2010 revaluation, i.e. the same relevant date, came within a very few weeks of hearing, we enquired as to what evidence, which might satisfy the tests, had been gathered by the appellants. The answer we received was that “there must be” fresh evidence, but it could not be said that the appellants had gone through the exercise of obtaining it. We were told that the type of evidence would have to be determined depending on discussion with the Assessor, who had apparently referred to one competing company, the “Barracuda Group”, but we were also told that there had been some discussion with the Assessor. It seemed to us that the Assessor’s position had been made clear enough in this and the other appeals for the appellants to have taken steps to gather this evidence which is said to be complex or highly technical, but they have apparently not yet done so. In the particular circumstances as made known to us, we do not find a basis for anticipating accounting or similar evidence at a level which in the context of rating valuation appeals would meet the tests in either ground (a) or ground (b). We were not on this occasion persuaded that either the facts or the opinion evidence are complex or highly technical.

[13] We accordingly refuse this appeal. This does not in any way preclude the appellants from pursuing before the Valuation Appeal Committee the issues which they say still concern them. We express no view on the merits.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 22 February 2013

Neil M Tainsh – Clerk to the Tribunal