OPINION

N.H.S. Greater Glasgow and Clyde v Assessor for Renfrewshire
(Health Centres, Etc.)

Introduction and Summary

[1] These are 16 appeals, on the same grounds, against a refusal by the local Valuation Appeal Committee to refer 2010 revaluation appeals to the Lands Tribunal. The subjects have slightly differing descriptions on the Roll, for example ‘Health Centre’, ‘Clinic’, ‘Day Centre’, etc., and are, we are told, purpose-built or converted buildings used as health centres or clinics. In each case, they have been valued under the comparative principle, the comparison apparently being with offices in the same locality. The appellants, however, contend that such comparison is inappropriate and that the subjects should be valued on the contractor’s principle. 8 similar subjects in this Assessor’s area have been valued on the contractor’s principle. In some other areas all such subjects are valued on that basis, i.e., apparently, it has not been thought appropriate in these other areas to compare with local offices. S.A.A. Practice Note 21, on ‘Valuation of Clinics and Health Centres’ in this revaluation, provides, on the one hand (para 2.1), that:-

“In situations where rental evidence exists for clinics, surgeries or health centres it will be appropriate to value such subjects by reference to the prevailing level of rents”

but, on the other hand (para 2.2), that certain types of such subjects, including purpose-built specialist units, health centres converted from other buildings and health centres adjacent to and operated in tandem with hospitals “would normally be expected to be valued on the Contractor’s Basis”, as “it is unlikely that suitable rental evidence will exist.”

[2] A somewhat larger number of similar appeals against 2010 revaluations in Lothian have been referred to the Tribunal, but the issue in those cases was said, in the application which that Committee allowed, to relate to use by the Assessor of certain, apparently internal Health Service, accounting rental figures. At the hearing of the present appeals, an undertaking was given on behalf of the Assessor not to rely on that different type of comparison evidence.

[3] In their application to the Committee for referral, the appellants relied on grounds (a), (b), (c) and (d); identified areas of evidence on fact or opinion said to be complex and highly technical; but gave virtually no specification at all in relation to (c) and (d). In that situation, the Committee’s brief reasons for refusing the application, summarised perhaps as “there is nothing to suggest …”, are entirely understandable. However, it is well established that in this appeal, we are required to consider the question whether the appeals meet any of the statutory criteria relied on, afresh, on the material before us. Although the Grounds of Appeal and Answers are also in vague terms, we received a clear outline submission of the argument for the appellants, who also produced some supporting documentation, and we also heard oral submissions from Mr Haddow QC on the appellants’ behalf and Mr Stuart QC on the Assessor’s behalf.

[4] Our decision is that ground (d) (“the case raises a fundamental or general issue likely to be used as a precedent in other cases”), but none of the other three grounds argued, is satisfied in this case. We accordingly allow these appeals.

Submissions

[5] The appellants’ written submission, in summary (excluding references to the NHS ‘notional’ rent referred to above and not relied on by the Assessor), was as follows. The appellants contend that the subjects are to be valued, by reference to the Practice Note, under the contractor’s principle. There was no such rental evidence as referred to in para 2.1. In nearby valuation areas, all but one of the appellants’ similar subjects had been valued on the contractor’s principle. The subjects had in the previous revaluation mostly been valued on that basis. The appellants understood that the Assessor had valued these subjects by direct reference to local office rents. In deciding which method was appropriate, the Committee or Tribunal would have to consider whether the subjects might properly be compared with subjects used as a commercial office; whether rent required to be paid under the Primary Medical Services (Premises Development Grants, Improvement Grants and Premises Costs) Directions 2004 was reliable comparative evidence; and what criteria should be applied in determining how the subjects of appeal should be valued. Potential problems with these valuations would depend to a large extent on the determination of complex and highly technical facts based on expert opinion evidence. Further problems would arise in determining the extent of the category of valuation (c.f., e.g., Glasgow Assessor v Monti Marino (Glasgow) Ltd [2012] RA 405 and Spudulike Group v Tayside VJB Assessor [2002] RA 91). If the comparison was with offices, it was likely that detailed evidence would be required from a number of experts, with opinion evidence including probably evidence from planning consultants, as to whether such buildings were truly comparable.

[6] The appellants had also lodged summary valuations, on both sides of all the subjects of appeal, i.e. theirs on the contractor’s principle and the Assessor’s on the comparative principle, some showing the Assessor’s values considerably higher.

[7] In his oral submission, Mr Haddow stressed that, almost universally in the West of Scotland, such subjects were valued on the contractor’s principle; they fitted the categories mentioned in Para 2.2 of the Practice Note; and the appellants were not aware of any such evidence as mentioned in Para 2.1. It was a question of some nicety, as illustrated in Spudulike, what rental evidence might be used for subjects with different uses. In relation to health subjects, the statutory decapitalisation rate implied a lower rental return, which immediately contrasted with shops or office, where the market ruled. Mr Haddow drew attention to recent criticism of this local Committee in Rolls Royce v Renfrewshire Assessor [2103] RA 45: it should not readily be assumed that Committees would be so adept at recognising a flawed approach. He accepted that actual valuation on the contractor’s principle did not raise any complexity. It was, he said, not clear that the Assessor’s undertaking in relation to ‘notional’ rents covered those set out in the 2004 Directions. There was some uncertainty in relation to Planning Use Classes. He drew attention, under reference to the produced valuations, to the extent of the difference between the parties in some cases, and on the basis of one case where a new building had replaced an old, to the artificiality of comparison with offices. The test set out in the Practice Note reflected an element of reality in relation to the extent of permissible comparison. Each of the statutory grounds was satisfied. In relation to (d), there was an issue applicable to all similar subjects.

[8] The Assessor’s written answers in this appeal were in short and general terms (there being no requirement for detailed pleading in appeals of this kind). In his oral submission, Mr Stuart first indicated that there was a sharp issue about the Assessor’s use of office rents. The Assessor considered that these did fall within Para 2.1, although Mr Stuart added, in answer to a question by the Tribunal, that the Assessor might, in any event, feel free to depart from the terms of the Practice Note. The Assessor would not adjust office rental evidence so as to reflect the lower decapitalisation rate which would apply on the appellants’ approach. It was accepted that the Committee would need evidence as to whether office rents would be suitable, but not that the complexity or technicality tests were met in the context of rating valuation disputes. Appeals against valuations on the comparative principle in the Dumbarton area had been withdrawn. Reference was made to the Tribunal’s decision in Lanarkshire Primary Care v Lanarkshire Assessor, LTS/VA/2003/15-16, where similar appeals had been refused in the context of a dispute about comparison between GP surgeries and health centres. The agreed Lothian referrals were on a different issue.

Consideration

[9] We agree that there is a relatively sharp point at issue in these appeals.

[10] We are not persuaded that there is any complexity or high degree of technicality in relation to the evidence which will be required in this case on either fact or opinion. The valuations produced appear to us to show clearly enough that there is no complexity or particular technicality in the makeup, or any specific detail, of the actual valuations on either of the approaches contended for. In so saying, we appreciate that neither side’s valuation is agreed by the other, but it does not appear to us that any differences of view within the actual valuations raise any real complexity for experienced valuers. We understood Mr Haddow to agree this in relation to the contractor’s principle valuations. If he had in mind consideration in the Assessor’s valuations of figures derived from the 2004 Directions, we accept Mr Stuart’s indication that his undertaking not to rely on NHS notional figures covered these also.

[11] That leaves, in relation to complexity and/or technicality, the issue as to whether comparison with office rents is appropriate. While of course there will be competing opinion evidence, and no doubt some slightly technical evidence about, for example, planning use classes, our impression is that the appellants were somewhat exaggerating these matters and that the tests in grounds (a) and (b) are, in context, not satisfied. The buildings, and the two uses, as offices or as health centres, etc., do not seem to us particularly complicated, nor do the relative positions of the hypothetical landlords and tenants.

[12] The issue as to whether ground (c) is satisfied is narrower. We accept that there have been cases, including those referred to by the appellants, in which issues about value comparison with subjects with a different use have not been altogether easy, but on balance we think that there is sufficient authoritative guidance on the law, and the issue in this case is relatively clearcut, with the result that neither part of ground (c) is satisfied.

[13] However, in our opinion, ground (d) is satisfied. The issue here is not the same as that considered by the Tribunal when it refused an appeal against refusal to refer in 2003. That was apparently whether the three health centres in that case were properly to be compared with GP surgeries. That seems to us to be a far narrower issue than the issue whether health subjects of differing descriptions are properly to be compared with physically similar local office buildings. This may not be ‘fundamental’ but it does seem to us, on the basis of what we were told, and applying the familiar test whether a “distinct issue with an appreciable bearing on valuation practice” is identified, that there is here a “general issue likely to be used as a precedent in other cases”.

[14] As a matter of impression on the material before us, it does seem to us that there are differing approaches to valuation of such health subjects. So far as we can see, the Lothian Assessor uses some internal NHS valuations; at least some other Assessors do not appear to consider that local office rents should be used; while the present Assessor, and perhaps one or more others, uses local office rental levels if he can find such. In that situation, a decision one way or the other on the issue whether local office rents provide appropriate comparison is, in our view, likely to be used as a precedent.

[15] Consideration of the current SAA Practice Note fortifies our impression. The issue is not whether or not local office rents fall within Para 2.1, but rather whether they are properly comparable. However, if the Assessor were successful in these appeals, it is hard to imagine the Practice Note staying in the same terms. Equally, success for the appellants would tend to confirm the appellants’ view that office rents should not be used and make it unlikely that, barring some material change in the position, they would be used in future.

[16] For these reasons, we allow this appeal under reference to ground (d) only.

Further Procedure

[17] Both sides appeared ready to proceed with the substantive appeals in the near future, although some further discussion of the detailed valuations on both sides may be required. We will order Grounds of Appeal in each case within 6 weeks, with 6 weeks for Answers, but will be open to any suggestion in relation to hearing a representative sample. The Tribunal will at the same time ask parties for an indication of their availability for a hearing as early as practicable in 2014. One other question which arises is whether or not these appeals might be heard along with the Lothian appeals, although these apparently raise a slightly different issue and involve different appellants’ agents as well, of course, as different Assessors. All four parties will also be asked for their views on that.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 25 September 2013

W Douglas Ballantyne – Deputy Clerk to the Tribunal