OPINION

BAE Systems Surface Ships Ltd v Assessor for Glasgow

Introduction and Summary

[1] These are appeals, under Section 1(3BA) of the Lands Tribunal Act 1949, against refusal by the local Valuation Appeal Committee of an application to refer 2010 revaluation appeals, in relation to two shipyards, to the Lands Tribunal. At the hearing before the Tribunal, the appeals were maintained only on the ‘complexity’ grounds. The valuations are clearly complex in this sense, that in each case they involve a large number of buildings of a variety of kinds and ages, as well as considerable plant and machinery, with quite involved questions as to obsolescence and end allowances. There is some difficulty in considering whether the statutory criteria for reference of the appeals to this Tribunal are satisfied, insofar as the appeals have not yet been fully discussed with the Assessor, so that the appellants are not really able to demonstrate how much is actually in issue. The Tribunal, however, appreciates that such a situation can arise in relation to subjects of this kind without any fault on either side, where parties have to work to the statutory deadline applicable to this and many other commercial subjects. Although the Assessor’s argument was that the appellants had failed to demonstrate that there were live issues meriting referral, we did not understand there to be any criticism of the appellants’ conduct of the appeals to date, and indeed the Assessor himself has apparently still to complete an up-to-date survey of one of the yards.

[2] In these circumstances, the Tribunal has considered whether to continue the present appeals for a period during which the issues (if indeed any issues remain in dispute following full discussion) would hopefully become clear. In this particular case, however, we consider that the material before us is sufficient to enable us to decide now that these appeals do meet grounds (a) and (b) of Regulation 5(1) of the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts (Scotland) Regulations 1995, viz:-

“(a) the facts of the case are complex or highly technical;

(b) the evidence to be given by expert opinion is complex or highly technical.”

The Subjects

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

Shipyard, 1066 Govan Road, Glasgow (“the Govan yard”) £1,000,000

Shipyard, 1359 South Street, Glasgow (“the Scotstoun yard”) £1,100,000

A curious feature of these two valuations is that, apparently, the valuations have, so far at least, been carried out by different valuers within the Assessor’s office, with quite a significant variation in the basic methodology of arriving at valuation rates and the application of different levels of end allowance for, in particular, a ‘state of the industry allowance’.

Parties’ Submissions

[4] The appellants were represented by Mr Haddow QC, instructed by Messrs James Barr. They lodged materials including correspondence in relation to the Committee’s decision; 1998 correspondence vouching that similar appeals had, apparently by agreement, been referred to the Tribunal (although subsequently settled); a list of comparisons, including one English yard; the S.A.A. Practice Note in relation to Contractor’s Basis Valuations; a tabulation showing increases proposed by the Valuation Office Agency in various obsolescence allowances following the Valuation Tribunal’s decision in a case of Tata plc; and the Assessor’s valuations of the subjects of appeal. Some of this material was, however, only lodged at the hearing, with the result that the Assessor was not in a position to deal fully with it. In their Grounds of Appeal, they contended that grounds (a) and (b) (but not other grounds which had been advanced to the Committee) were satisfied and pointed to complexity in 10 different areas, including for example ‘costs of building’, ‘plant and machinery’, ’contract size adjustments’, ‘state of the industry allowances’, etc.

[5] In oral submission, Mr Haddow highlighted the revised V.O.A. allowances following the Tata decision, which he said was not under further appeal. As well as enlarging the range of obsolescence allowances, that case had involved amongst other things a wharf where larger allowances had been claimed, and allowed by the Tribunal, in view of the marine environment. Mr Haddow was, however, unaware whether these matters were in issue in the present appeals, although he said that they had been raised with S.A.A. He then drew our attention to the Assessor’s two valuations, including an appearance of inconsistency in areas such as quantum, allowance for ‘piecemeal development’ and plant and machinery. Complexity would arise, for instance, in relation to older buildings and the so-called Ebdon allowance. Views about the ‘state of the industry’, including issues about ongoing Royal Navy construction contracts, and, potentially, Devolution issues, would also be complex.

[6] The Assessor was represented by Mr Stuart QC. The Assessor had opposed the applications to the Committee, as far as relating to these grounds, on the basis that both shipyards were valued on the comparative principle with an addition for plant and machinery, these being general matters of valuation which the Committee was capable of dealing with, and similarly in relation to expert opinion about cost information, sales information, fees and capital transactions. In answer to this appeal, the Assessor added that the scheme of valuation for industrial subjects had been agreed across Glasgow using evidence from within the city and the vast majority of 2010 revaluation appeals agreed on that basis. Many cases presented before the local Committee had contained expert opinion of a technical nature which had been within the capabilities of the Panel. There was in fact agreement in these cases that the subjects should be valued on both the contractor’s method and the comparative method.

[7] In oral submission, Mr Stuart drew attention to the appellants’ failure to disclose some of the material before the hearing. He submitted that it was for the appellants to satisfy us as to the grounds of referral. They must persuade us that there were issues which were likely to arise which were complex or highly technical, and had not done so. End allowances such as for the state of the industry were matters of discretion and impression. There had been an agreed state of the industry allowance at another yard, at Port Glasgow, and there was nothing to indicate that this was likely to be in dispute here or, if so, complex. It was relevant to consider agreements elsewhere in relation to cost-based valuations.

Consideration

[8] In the situation outlined in para [1] above, we would agree with the Committee that neither of grounds (c) or (d) has been established in relation to these two appeals. The appellants’ decision not to maintain these two grounds appears appropriate. We must focus on the suggestions of complexity, or degree of technicality, in relation to the facts or expert opinions. It is well established that we require to do this in the context of commercial rating appeals: it would obviously be inappropriate simply to ask whether ordinary people would find these matters complex or highly technical. It is, however, not sufficient that the local Committee could deal with the issues, as we have no doubt can be said in the vast majority of cases.

[9] We accept that we should not read too much into specific material which was only produced at the hearing. However, that material did support the more general impression which we have of this case, which is that the evidence in relation to the valuation of these two shipyards is, when judged in the context of commercial rating appeals, both complex and, at least in some respects, highly technical. We give two examples. Issues of obsolescence require in our view to be delved into quite deeply in these appeals, particularly if it is now, as seems likely, necessary to go somewhat further back into the past than before. Questions as to the state of the industry, while they are of course not quantifiable with mathematical precision, may well involve some complex analysis of the state of this particular industry, which may generally involve a variety of types of shipbuilding but also, at particular locations, consideration of particular areas, such as Royal Navy contracting, which the hypothetical landlord and tenant would have to consider (although we did not consider that the reference to devolution added anything). As it seemed to us, the Assessor’s presentation made light of these issues. We appreciate that the Assessor may not accept the appropriateness of some such evidence, and he might in the end of the day be held correct in that, but we accept that the appellants will reasonably wish such evidence to be considered. As a matter of impression on the material before us, we do not agree with the assertion that these appeals are really at no different level of complexity from the run of appeals in relation to industrial subjects. We accordingly hold both grounds (a) and (b) established, and allow these appeals.

[10] Although Mr Stuart suggested that the Assessor would be ready to proceed with a hearing of these appeals early in 2013, we think that is slightly unrealistic where one detailed survey has still to be done and the cases further discussed, for which adequate time should be allowed. It is certainly to be hoped that, even if there is not full agreement, parties will be able to narrow the issues to matters on which they clearly cannot agree. In that situation, the Tribunal will delay issuing formal further orders meantime, and will review the position with parties in January, in the hope that dates can be fixed for these appeals without too much delay. If either party feels that any particular procedural orders, over and above the normal orders in relation to comparisons, productions and the like is required, they are at liberty to apply thereanent to the Tribunal.


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