OPINION

Danzan 2003 Trust and Others v Assessor for Lothian
(‘Exclusive Use Venues’)

Introduction and Summary

[1] These are 4 appeals against refusal by the local Valuation Appeal Committee of an application to refer 2010 revaluation appeals to the Lands Tribunal. The subjects are each described by this particular Assessor as ‘Exclusive Use Venues’, being properties available for hire on an exclusive basis for weddings, parties, corporate entertainment, etc. and sometimes having accommodation available for guests. For the 2010 revaluation, this Assessor has produced a scheme of valuation of such subjects, which she, for the first time, recognises as a separate category of subjects. This scheme involves valuing such subjects by the same methodology as hotels, for which there is a Scottish Assessors Association Practice Note setting out, following well established practice, application of various percentages of turnovers for accommodation, catering and liquor. The hotels scheme is based on analysis of hotel rental evidence, i.e. on a comparative basis. The percentages applied under the Assessor’s scheme of ‘Exclusive Use Venues’ correspond approximately to those applied to 4 and 5 star hotels, at or close to the top levels of value of hotels. The appellants, while accepting that a turnover method requires to be used, dispute this level of value; refer instead or additionally to turnover valuations of various other types of subject; and also point to the rent of one of the appeal subjects at a substantially lower level. Valuations of 11 other subjects similarly categorised and valued by this Assessor are settled. Elsewhere in Scotland, there is no such categorisation but apparently only one subject which would fall under this category remains under appeal.

[2] The appeals are based on grounds (c) and (d) of the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995. The Committee did not find either ground established. The Tribunal has not been persuaded that ground (c) (applicable law uncertain or difficult to apply) is established; but does consider ground (d) (case raises a fundamental or general issue likely to be used as a precedent in other cases) established. The appeals are accordingly allowed.

The Subjects

[3] The subjects of appeal and the Assessor’s proposed values are as follows:-

Archerfield House, Dirleton R.V. £309,000

Dundas Castle, South Queensferry R.V. £142,500

Lennoxlove House, Haddington R.V. £68,000

Winton House, Pencaitland R.V. £32,000

[4] Generally, the subjects are each available for hire on an exclusive basis and have no other use such as residential use. Three of them use marquees in addition to the substantial period houses. Some such subjects are licensed; at others, a licence has to be obtained before each function. Across Scotland, there are a number of similar properties with at least some similar use and described in Valuation Rolls in various ways, e.g. Castle, Function Hall, Hall, Hotel, Residential (in Council Tax Lists), Self Catering Units, Historic Buildings.

Turnover Method of Valuation

[5] A variety of subjects in Scotland are valued under Scottish Assessor Association Practice Notes on the basis of percentages of turnover or adjusted turnover. These include hotels, licensed premises, guest houses, historic buildings and exhibition rooms, etc., visitor attractions and various others. A wide range of turnover percentages is used. Some of these schemes are based on rental analysis, others not.

Parties’ Submissions

[6] The appellants were represented by Mr Haddow QC, instructed by Messrs CKD Galbraith, Perth. They lodged copies of the SAA Practice Notes in relation to Hotels, Licensed Premises, Guest Houses, Historic Buildings and Exhibition Rooms etc., and Visitor Attractions; the Lothian Assessor’s Scheme for Exclusive Use Venues; a tabulation summarising turnover percentages adopted at 16 types of property; and a list of 47 subjects, variously described on the Roll, in Scotland, including the subjects of appeal and one other ‘Exclusive Use Venue’ in Lothian, with brief details of the type of ‘exclusive use’ provision at each (this was not suggested to be a full list of such subjects). In their letter of appeal, the appellants had pointed particularly to the Assessor’s Practice Note and the apparent lack of basis for the percentages adopted; to the only rent known to the appellants, for the Dundas Castle subjects, at a much lower level; and to the differences between the percentages adopted by the Assessor for these subjects and those considered in the Floors Castle case (Roxburgh Estates v Borders Assessor, 24.7.2003, LTS/VA/2002/3).

[7] In his oral submission, Mr Haddow accepted that the valuation of these subjects had to relate to income. He said that the Assessor was valuing under the hotels scheme although the subjects were plainly not hotels. He elaborated slightly on the use of the subjects. In previous valuations, valuation of such subjects had not been related to any accepted category. He referred to Fyfe v Fife Assessor 2012 RA 92, and the fact that the subjects in that case were again under appeal. It was recognised that valuation of these subjects was far from straightforward. but the Assessor had apparently adopted a new approach. The appellants would not simply be arguing on the basis of one rent, but would be looking across the range of turnover based valuations, as opposed to valuing at the hotel rate without adjustment. The issue ‘likely to be used as a precedent’ was the issue how to value this category of subjects. ‘Precedent’, for the purposes of ground (d) could extend beyond the present valuation.

[8] The Assessor was represented by Mr Stuart QC. In a brief written Answer in this appeal, the Assessor submitted that neither of the grounds relied on was established: the issue was the appropriate method of valuation of such subjects, which would depend on evidence as to the nature of the subjects and ‘relevant evidence of value’. She had submitted to the Committee that the issue whether a rent (the Dundas Castle rent) had been struck on the open market was neither unusual nor particularly difficult for the Committee; there was no uncertainty in the law applicable; other Exclusive Use venues had been discussed and settled. There was nothing beyond the competency of an experienced Committee. In relation to ground (d), the principle for valuing this type of property had been established and there were no outstanding appeals in Lothian or elsewhere in Scotland; each case would be determined on its own merits.

[9] In oral submission, Mr Stuart pointed to the appellants’ acceptance that the subjects had to be valued on a percentage of turnover, and that they were properly separately categorised as ‘Exclusive Use Venues’. The dispute was about the application of the methodology derived from hotels to the subjects. The Assessor considered that some hotels (whose assessments were based on Scotland-wide analysis of rents) were of similar value. This was not a difficult issue. Mr Stuart referred to the extent of acceptance in Lothian. All the other values of similar properties in Lothian were settled and such enquiries as had been made suggested that there were no other outstanding appeals in Scotland, the subjects at Kinkell Byre referred to in Fyfe not having any residential accommodation.

Consideration

[10] We appreciate that the Valuation Appeal Committee gave careful consideration to this application, albeit on more limited material. Their reasoning indicated that they were not persuaded that differences of character, operation and location, or variations in percentages which might be applied involved uncertain or difficult law. They considered that variations were likely to be accounted for by the characteristics of individual properties rather than involving any fundamental or general issue. They did not accept that there was such an issue in relation to comparable market evidence and physical factors as to bring these appeals within either of the grounds relied on.

[11] This appeal to the Tribunal has, however, to be considered de novo on its merits.

[12] We have reached the same conclusion as the Committee on ground (c). There being no suggestion of any complexity or high degree of technicality in the factual or expert opinion evidence in these cases, it seems to us that these appeals involve the application of well-established principles in relation to categorisation and comparison between subjects, and also to the treatment of the rent to which the appellants refer. The law does not appear to us either uncertain or difficult to apply in these cases.

[13] However, the material before us, particularly that the Assessor admittedly seeks for the first time to apply the level of values applicable to 4 and 5 star hotels to this description of subjects, which both sides agree are a distinct category, appears to us to raise a general issue the outcome of which would be likely to be used as a precedent for other similar subjects. There is a clear differentiation between the two approaches, one using this level of hotel values and the other applying judgment on the basis of a wider range of types of subjects, together with consideration of a rent available for this type of subject. It seems clear to us that this is not simply a question of considering the particular subjects and perhaps adjusting individual values accordingly, but rather a question whether or not the values of these subjects, for which there appears to be no substantial body of rental evidence, are at the same level as those of one other category of subjects for which there clearly is a body of rental evidence which has produced particular value levels. Appreciating that 11 out of 15 such subjects in Lothian have not pursued appeals, that leaves 4 who do not accept this new approach to valuation which appears not to have been adopted anywhere else in Scotland in this revaluation. We have a degree of doubt as to how it can definitely be asserted that there are no other outstanding appeals in Scotland, given the wide range of descriptions given to such subjects. Even, however, if that is correct, given the wide range of descriptions, there is nothing to indicate that other such subjects in Scotland have been valued at this same level of value. Indeed, it appears likely that they have rather been valued under a variety of schemes producing several different value levels. So, as a matter of impression on the basis of what we were told, we do not accept that there is such a generally established scheme as to make the issues in these appeals depend simply on their individual circumstances. To the contrary, it seems to us that upholding the Assessor’s scheme in these cases would be likely to be used in other cases and probably to found a new national practice; whereas rejecting that case would be used to support continuation of the approach, which the appellants here seek to take, of looking more widely at the value levels of some other classes of subjects. We accordingly find ground (d) established and allow these appeals on that basis.

[14] We wish to stress that in reaching this view we have formed no view whatever on the merits, other, perhaps, than that we can understand both sides’ approaches and accept that there is a clear issue to try.

[15] Finally, we note both parties’ stated readiness to proceed to a hearing of these appeals, which is helpful in view of the number of 2010 revaluation appeals which have been referred to the Tribunal. Arrangements will now be made to order grounds of appeal and answers and identify suitable dates for the hearing. The appellants should provide their proposed valuations as soon as possible, and parties are encouraged to follow the usual practice of agreeing as much as possible, for example, any individual adjustment of values under the Assessor’s proposed scheme, in order that attention can be concentrated at the hearing on the general issue as to where to look for evidence of the value of this category of subjects.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 18 September 2013

Neil M Tainsh – Clerk to the Tribunal