NOTE

Glasgow Airport Limited v Assessor for Renfrewshire Valuation Joint Board

Background

[1] This Note explains the Tribunal’s decision to continue each of these appeals under Section 1(3BA) of the Lands Tribunal Act 1949 to enable the Assessor, if so advised, to pursue in the courts his challenge to the competency of one of the appeals. In our opinion we have no jurisdiction to entertain the argument that the appellants are in the circumstances personally barred from proceeding with their appeal against the 2010 revaluation of the subjects, Glasgow Airport. The matter arises because – and there appears to be no factual dispute about this – in 2009 the appellants and the Assessor ‘pre-agreed’ the valuation at the figure which the Assessor subsequently entered in the Roll, viz. £10,000,000. It seems that when the appellants lodged a statutory appeal against that valuation the Assessor, although unhappy at that development, did not take any formal step to challenge its competency. When, however, the appellants submitted an application earlier this year to the Valuation Appeal Committee to refer the appeal to the Tribunal, the Assessor drew the Committee’s attention to the matter and invited the Committee to hold the appeal incompetent. The Committee, without inviting any submission from the appellants in response, decided that “since the valuation of the subjects has been agreed in writing it is not now competent for any further appeal to be made” and, without further reasoning, refused the request for referral to the Tribunal. This is an appeal against that decision.

[2] At the hearing before us, the appellants were represented by Mr Haddow QC, instructed by Messrs Gerald Eve, and the Assessor by Mr Gill, Advocate. The Tribunal heard argument on three matters: firstly, whether we have jurisdiction to entertain the challenge to competency in the circumstances of this case; secondly, on the Assessor’s submission that the appellants are personally barred from pursuing the appeal; and, thirdly, on the ‘merits’ of the section 1(3BA) appeal against the revaluation entry.

[3] On the second issue, the Tribunal would accept Mr Haddow’s submission that if the challenge to competency, in the form of an argument of personal bar, is competently before the Committee, a hearing (in court terms a ‘proof before answer’) would be required on the application of personal bar. The other two appeals which are the subject of these proceedings are ‘material change’ appeals, which the Assessor does not challenge on competency grounds, but, again, argues that no ground of referral to the Tribunal is established. We heard no specific argument on that matter. In these circumstances, the second and third issues argued are not considered further at this stage.

[4] The factual position about the ‘prior agreement’ is apparently as follows. From time to time, approaches are made to discuss and ‘prior agree’ valuations. We were not told how often this occurs, but it appears to be a mutually advantageous, albeit informal, practice, there being obvious advantages on both sides. In 2009, the appellants were represented in rating valuation questions by their holding company, BAA Limited, and in particular by that company’s Head of Rating, a Mr Wilson. On 6 April 2009, Mr Wilson raised the possibility of ‘prior agreeing’ the valuation of the airport at the 2010 revaluation. Discussions with the Assessor’s principal valuer followed. On 16 July 2009, following these discussions, Mr Wilson intimated acceptance of the value then proposed of £10,000,000 RV. The Assessor set the valuation, incorporating various details which had been discussed, as agreed. On 21 July Mr Wilson again indicated his agreement. This process was vouched by a series of e-mails between Mr Wilson and Ms Aitchison. In due course, the Assessor entered the figure of £10,000,000 in the Roll. The Assessor says that, in the absence of this agreement, he would have entered a figure of £11,000,000, which would then of course have been subject to appeal discussion in the normal way. Attempts also to ‘prior agree’ the valuations of BAA’s (then) other two airports in Scotland, Edinburgh and Aberdeen, were unsuccessful, and one, and perhaps both, of these appeals is being referred to the Tribunal. It seems that Mr Wilson subsequently retired, following which there was some reorganisation of the appellants’ handling of rating matters and in particular the present agents, Gerald Eve, were appointed. These agents appear not to have been aware of exactly what had gone before, but Mr Haddow indicated that there was no challenge to the accuracy of the above account of matters.

Parties’ Submissions on Jurisdiction

[5] Mr Gill’s position was short and sharp. It was, he argued, pars judicis to consider such an argument as to fundamental competency. Reference was made to Ruddy v Chief Constable, Strathclyde Police 2011 SC 527 (Inner House), at 533, Para 16 (the Supreme Court, although disagreeing with the decision, having, Mr Gill said, agreed that competency was a matter for the court). In National Gallery v Lothian Assessor 2011 SC 277, at 281, Para 18, the Lands Valuation Appeal Court had, Mr Gill submitted, left open the possibility of personal bar in other circumstances.

[6] The Tribunal referred Mr Gill to McCreight v West Lothian Council [2009] CSIH 04, in which the Inner House held that the Tribunal did not have jurisdiction to determine a preliminary issue as to forfeiture in an application under Section 71 of the Housing (Scotland) Act 1987. Mr Gill argued that the question there was whether the Tribunal could consider whether a condition necessary for it to have jurisdiction was satisfied, as opposed to his argument, from, as he put it, the opposite direction, that the right of appeal had been abandoned: the appellants did not have to establish any prior fact, but were, rather, purporting to exercise a right.

[7] Mr Haddow submitted that this question of competency was not within the Tribunal’s (or the Committee’s) jurisdiction. Unlike a court, the Tribunal could only determine issues within its jurisdiction. The jurisdiction was under Section 3(2) of the Local Government (Scotland) Act 1975. The limitation there to persons who had not reached agreement referred to Section 2(3), which predicated an appeal having been made. There was nothing in the statute to preclude the bringing of the present appeal. Observations in National Gallery v Lothian Assessor did not support Mr Gill’s submission, as the issue there was one of the relevancy of the appeal in relation to Section 2(1)(f) of the Act. Mr Haddow sought support from McCreight. The competency point was not properly before the Committee.

Consideration

[8] We should start by indicating that we are at a complete loss to understand why the appellants wish to proceed with their appeal against the revaluation entry or what their position in it is. The appellants were either unable or unwilling to offer any indication to us, firstly, why they went back on the agreement made on their behalf following discussion of the valuation, and, secondly, what they consider is wrong with that valuation. They did refer to some issues, and we of course appreciate that detailed issues can arise in relation to the valuation of airports. Such issues might well justify reference to the Tribunal, and indeed, strangely, the valuations of the holding company’s other Scottish airports were apparently not agreed and are being referred by the relevant committees to the Tribunal. They did not, however, give us any real indication as to any issue which was not resolved in the 2009 discussions. By contrast with some other revaluation appeals, in which some uncertainty about the issues may be excusable because appeal discussions have not been completed, in this case, as Mr Gill rightly emphasised, the valuation has been discussed to a conclusion. We express our considerable concern at the way the appellants’ position about the revaluation appeal was presented to us at this hearing.

[9] However, we must consider whether we have jurisdiction to consider the preliminary issue which the Assessor has raised. We consider that we do not. We do not find this an altogether easy question in the context of the specific statutory jurisdictions of Valuation Appeal Committees and the Tribunal, and considered it helpful to draw attention to the opinion of the Lord Justice Clerk in admittedly different circumstances, under a different and perhaps more complicated jurisdiction, in McCreight. In Paras 19, 20 and 22, three situations were identified. Firstly, the Tribunal has power to explicate its own jurisdiction Secondly, that power continues through the course of an application. Thirdly, however, by contrast, the Tribunal does not have power to determine a fundamental and antecedent question on which the Tribunal’s entire jurisdiction depends. Examples of these different situations arising under different jurisdictions of the Tribunal and also the Land Court were given. We can see that the issue in McCreight is reasonably easy to place in the third category, particularly where, as the court pointed out, the issue could affect third parties who could not be convened under the statutory jurisdiction. That does not really arise here, and we have considered whether an argument of personal bar could be seen as an intrinsic or necessary incidental procedural issue under our jurisdiction, rather, as Mr Gill put it, whether they can exercise their right of appeal as opposed to establishing some fundamental prior fact. Not finding a reference to such an issue in the express statutory provisions might not necessarily answer the question. On further consideration, we think the Tribunal’s practice, in very occasional cases in which a party advances a statutory claim and is met by an argument that their claim has been settled in some previous agreement, provides a closer analogy. In such cases, we would not generally regard ourselves as having jurisdiction but have been prepared to consider the issue if both parties agree – in effect, a voluntary reference. In this case, the appellants do not agree to our determining this issue.

[10] This is of course a matter of construction of the particular jurisdictional provision to see how far it extends. It seems right in this case to consider the basic appeal provisions in the 1975 Act, to which Mr Haddow referred us. Sections 3(2) and 2(3) do indeed seem to confine the jurisdiction of valuation appeal committees to the disposal of appeals against entries in the Valuation Roll. If Mr Gill had sought to found on the exclusion of persons who had reached agreement under Section 2(3), we might have been able to regard this as explication of our jurisdiction, but we think he was correct not to do so. That exclusion might loosely be seen as a statutory personal bar, whereas an argument based on the common law principle of personal bar seems to us to be more akin to a contractual dispute about an alleged settlement. That seems to us to take such arguments outside our jurisdiction.

[11] We have considered the reference to personal bar, founded on by Mr Gill, by the Lands Valuation Appeal Court in National Gallery Trs v Lothian Assessor. The appellants had withdrawn previous appeals, but then attempted a fresh ‘running roll’ appeal, on the grounds of error, in reliance on Section 2(1)(f). The Committee apparently upheld submissions that the matter had been contractually settled in 2008 (presumably by the settlement then of the 2005 revaluation appeals) or alternatively the appellants were personally barred from asserting that there had been an error (Para 13). The court held their decision right but for the wrong reasons. The Lord Justice-Clerk, at Para 18, said:-

“The appellants have brought these appeals under Section 2(1)(f) of the Act. Since the proposition in both appeals is that the entry was vitiated by an error, I consider that the acceptance of the current entries at the time of the revaluation does not of itself preclude the bringing of these appeals or found a plea of personal bar.”

It seems to us, with respect, that the issue there can be seen as an issue whether the previous settlement was an agreement within the meaning of Section 2(3) which barred the appellants, under the proviso to Section 3(2), from pursuing the subsequent ‘running roll’ appeal. The Committee characterised the issue differently and the court, before whom no argument on this jurisdictional issue had been advanced, and finding the reasoning anyway wrong, did not enter further into the nature of the argument.

[12] The problem which the Assessor (with whose position we have considerable sympathy in the circumstances) faces arises, as it seems to us, because of the non-statutory basis of the procedure followed. We simply don’t have jurisdiction to decide the effect of action taken outside the statutory scheme. It is not for us to say whether the plea of personal bar is or is not good in the circumstances, but it may be that if this ‘prior agreement’ practice is to flourish (and there seems to be a lot to be said for it), some statutory recognition of it would get round the problem.

[13] In these circumstances, we must decline to rule on the Assessor’s argument.

Further Procedure

[14] As his argument is of course a fundamental objection to these proceedings and the appeal on which they are based, the Assessor should have the opportunity, if so advised, to have the issue resolved in a court. Further procedure in the present appeal should await the possible outcome of that. We shall accordingly, in the first instance, continue this appeal for a period of 6 weeks at the end of which we shall decide on further procedure on the basis of what we are told about the position then. It does occur to us that the parties’ submissions on the merits of this appeal as it relates to the two ‘material change’ appeals (which are not caught by the competency issue) were not really spelt out: we do not have any picture of what change or changes are referred to. In that situation, the appellants will be allowed, if so advised, within 21 days, to make a further written submission in relation to these two appeals, and the Assessor to reply, within a further 21 days, i.e. by the end of the 6 weeks. We would not anticipate requiring to fix a further hearing.

[15] Having regard to the factual position (which may not previously have been so clear to the agents now acting), we consider that the appellants should now seriously consider whether they really intend to proceed with the revaluation appeal.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 2 October 2013

Neil M Tainsh – Clerk to the Tribunal