OPINION

Ministry of Defence v Grampian Assessor

[1] These are appeals against the refusal of the local Valuation Appeal Committee to refer appeals in relation to two substantial MOD subjects, at Lossiemouth and Kinloss, to the Lands Tribunal. The substantive appeals are 2010 revaluation appeals for both subjects and also some ‘material change’ appeals, including a revised entry on the Roll reflecting the change of the Kinloss subjects from RAF Station to Army Barracks in 2012. Such MOD subjects have only relatively recently entered the general revaluation system and it seems that there have been continuing issues which have not been fully resolved despite settlements reached of appeals in the previous two revaluations. In a written response to the present appeals, the Assessor, while drawing attention to the way in which the applications for referral had been made to the Committee, did not state any grounds for resisting the present appeals and indicated that he would be content to follow the Tribunal’s determination as to the appropriate forum for these appeals.

[2] On the material made available to us in these appeals, and with the benefit of the appellants’ oral submissions, we have, without difficulty, concluded that these appeals satisfy at least the two ‘complexity’ grounds for referral to the Tribunal, and we accordingly allow the appeals.

[3] However, we wish to express our considerable concern at the way in which the appellants’ agents advanced this matter. Their written applications to the Committee narrated the statutory grounds of referral said to apply but offered no reasoning whatsoever as to why any of these grounds was satisfied. In that situation, the Assessor, understandably, opposed the applications, and the Committee, entirely correctly, refused them: the Committee could not have done otherwise, having not been given any reason why the applications should be granted. Further, contrary to normal practice, the appellants did not, in submitting these appeals, refer us to the correspondence considered by the Committee.

[4] This way of proceeding appears to us to be an abuse of the statutory process. Appellants proceeding in this way, apparently relying, in the event of the Committee refusing their application, on the established rule that appeals under Section 1(3BA) of the Lands Tribunal Act 1949 are considered de novo, are effectively disregarding the proper process.

[5] Mr McIver, who appeared for the appellants (and who we assume would not have been involved in any way with the prior procedure) explained that the appellants had assumed that the Assessor would not oppose the applications to the Committee. The appellants, however, had not asked the Assessor whether he would be opposing. In any event, the Committee must be supplied with reasons to enable them to consider whether any of the grounds of referral is established (unless a joint application is made under Section 15 (2AA) of the Local Government (Financial Provisions) (Scotland) Act 1963).

[6] We were also shown a further e-mail sent by the appellants’ agent to the Committee giving slightly more detail after the Assessor had written opposing the application. There is no procedure, and no stipulated time to allow for, such further representations: the Committee would be entitled to dispose of the application as soon as the Assessor’s response to it is received. Further, proceeding that way deprives the Assessor of the opportunity either to consider whether to oppose or to answer the points made. So if there is any practice of making incomplete applications and waiting to see whether the Assessor opposes before providing the Committee with reasoning, or further reasoning, in support of the application, we cannot approve of such a practice. See also Imperial Chemical Industries plc v Central Region Valuation Appeal Committee 1988 SLT 106, per, Lord Jauncey.

The Subjects

[7] The subjects of these appeals are:-

[8] The air force base at Lossiemouth was constructed in or around 1939. It houses RAF Tornado GR4’s and has now been identified as the only required operational air force base in Scotland. The base at Kinloss also opened in 1939. This was the home of the Nimrod maritime patrol fleet until 2010, but an upgrade of the Nimrod fleet was subsequently cancelled and in November 2011 it was announced that the base would be utilised as a barracks for army personnel. We were told that the effect of changes such as these had not been dealt with in previous valuations.

Submissions

[9] The Grounds of Appeal, supplemented by Mr McIver’s oral submissions and also a number of productions, were to the effect that the complexity grounds were established where there were hundreds of items of contractors’ principle valuation with reference to specialised buildings and other facilities. Having regard to the ages of the various items and also changes such as those mentioned above the evidence in relation to these items, including issues as to redundancy of some newish buildings, etc., as well as old, the evidence, both factual and expert opinion, was highly complex. Asked by the Tribunal to elaborate, Mr McIver gave examples such as the construction of hardened shelters and the variety of runways built and partially replaced at different times, etc. There were still difficult issues about the use of actual costs as opposed to uniform cost rates. There was a draft Practice Note which had undergone several revisions, and was the largest such note produced by SAA. Discussions on some matters were continuing with the Valuation Office Agency. The Tribunal had upheld an appeal referring to similar complex issues in 2009. There were outstanding appeals for other airbases, a naval base and missile bases, a munitions depot and oil tank farm, raising similar issues, so that the case raised general issues likely to be used as a precedent.

Consideration

[10] We are satisfied that both the facts of these cases and the evidence to be given by expert opinion are complex by the standards of non-domestic rating valuations. The mere number of items in the contractor’s principle valuations might not justify this view, and no doubt very many of the items are of a standard type of industrial building, but we accept that there are also more specialised items in which cost issues of real difficulty arise, as well as issues of redundancy, including, at least in the running roll appeals, issues arising as a result of spending reviews, cancellations of projects and the change at Kinloss from air force base to army barracks. So we hold grounds (a) and (b) in Para 5(1) of the 1995 Regulations established. We accordingly allow these appeals.

[11] Mr McIver did not seek to persuade us that ground (c) is satisfied. As regards ground (d) relied on, “general issue likely to be used as a precedent in other cases”, it is not altogether clear to us that there are in these cases general issues such as to satisfy that ground, as opposed to some particular issues of difficulty in which, no doubt, decisions would have a bearing on other cases. We have the impression that the question whether unit cost rates are to be preferred to actual costs may depend to a substantial extent on the position at the particular location. So, as in 2009, we do not uphold either of these grounds.

Further Procedure

[12] The appeals having been allowed, the next stage of procedure is to order grounds of appeal and answers. In this case, however, we agree with Mr McIver that it is unrealistic to expect the substantive appeals to progress when SAA has apparently not finalised its Practice Note and discussions with VOA south of the border are still ongoing. It is of course to be hoped that these appeals may be able to be discussed and agreed. We shall review the position with parties in mid-2014, when we hope it may be possible to proceed towards a hearing if that is going to be required.

Expenses

[13] Referring again to the concerns expressed at Paras [3] to [6} above, it seems likely to us that if grounds for referral had been properly justified in the application to the Tribunal, the Assessor might not have opposed that application and in any event the Committee might well have allowed it. If that is right, the present appeals would not have been required. The Assessor, having not on this occasion appeared at the hearing, has not sought an award of expenses. On the basis of what we have seen, we do not consider that the client appellants should be required to meet the expense of the present appeals.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 9 October 2013

Neil M Tainsh – Clerk to the Tribunal