OPINION

(1) DSM Nutritional Products and (2) GlaxoSmithKline plc v Assessor for Ayrshire Valuation Joint Board

Introduction and Summary

[1] These are appeals against the refusal of the local Valuation Appeal Committee to refer appeals to the Lands Tribunal. The appeals were heard together as each of the appeal subjects is a large pharmaceutical works valued on the Contractor’s Principle and the arguments raised were the same. The appeals relate to the 2010 Revaluation, but a preliminary issue arose because a schedule of the appeals had inadvertently been omitted from the application to the local Committee. It was argued on the Assessor’s behalf that as a result of that omission the only appeals competently before the Committee, and therefore competently included in the present appeals, were the appeals against the actual revaluation entries and not some subsequent ‘running roll’ entries. The appellants were represented at the hearing by Mr Haddow QC, instructed by Messrs James Barr, Glasgow, and the Assessor by Mr Gill, Advocate, instructed by the Assessor for Ayrshire. We also had before us common Grounds of Appeal and Answers (although the Answers had unfortunately not been intimated to the appellants or seen by Mr Haddow before the morning of the hearing) as well as a small amount of documentation.

[2] The Tribunal has decided:-

(i) In the circumstances of this case, the applications to the Committee may properly be construed as applications in relation to both actual revaluation entries and ‘up-dating’ appeals (as opposed to appeals on other ‘material change’ grounds, as discussed below). The present appeals accordingly also cover these ‘up-dating’ appeals; and

(ii) The appeals satisfy the criteria in grounds (a) and (b) in the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995.

We have accordingly allowed these appeals.

The Preliminary Issue

[3] The appellants’ agents sent two identical letters of application for referral dated 18 June 2013 to the Committee Secretary. The heading of each letter began:-

“2010 Rating Revaluation Appeal”

The letters started:-

“We refer to the appeal for the above property and respectfully suggest that this be referred”

The third paragraphs started:-

“In compliance with the statutory timetable, we hereby make formal application to the Committee for the appeals listed on the attached schedule to be referred”

The stated grounds of the applications, and the Committee’s decision letters dated 26 August 2013 intimating refusal of the applications, refer only to the revaluation appeals. Likewise, the appellants’ Grounds of Appeal in these appeals refer only to revaluation appeal issues.

[4] The appellants’ agents accepted, as a matter of fact, that the schedules were omitted from both letters.

[5] Neither the Secretary, nor the Assessor to whom the applications were intimated, raised the matter of these omissions with the appellants.

[6] In the common Grounds of Appeal, the appellants narrated that the values entered in the 2010 revaluation roll were £2,710,000 (DSM) and £2,340,000 (GSK). They had been duly appealed and there were also appeals against a slightly higher GSK value entered in the roll with effect from 1 June 2010 and at DSM two ‘material change of circumstances’ appeals for the years 2010/11 and 2011/12. The Assessor in fact identified 5 outstanding running roll appeals for GSK and two for DSM. These appeals are apparently cited for a Committee hearing on 21 November 2013.

[7] It is not unusual, particularly in the case of large subjects such as these where there may be numerous physical changes from time to time, for there to be ‘running roll’ entries reflecting changes in subjects after the revaluation entry is made. For the outcome of a revaluation appeal to be reflected in the subsequently entered values effective from the dates from which they had taken effect, there appeals in respect of each entry, notwithstanding that there may be no new or fresh grounds of appeal, are required. Such appeals were referred to at the hearing as ‘up-dating’ appeals. The Tribunal is well used to having such appeals technically before us because if not referred they would require to be disposed of by the local Committee within the statutory timetable which applies to the Committee but not the Tribunal. Such ‘up-dating’ appeals may be contrasted with other ‘material change’ appeals in which there may or may not be a new entry on the Roll but the appellants seek to argue some new point coming within one of the category of appeals which it is competent to bring during the currency of the Roll.

[8] In this case we were told that there were in fact some other ‘material change’ appeals but these were all being withdrawn. That left some ‘up-dating’ appeals which had been included on the omitted schedules. In the case of GSK we were told that in fact there was such an appeal against, not the revaluation entry, but an up-dating entry effective on the same date as the revaluation, 1 April 2010, as can happen, reflecting a change of circumstances between the relevant date for the revaluation and 1 April when the new Roll in fact takes effect. In other words, in that case, the actual revaluation entry never in fact took effect because there was already on 1 April 2010 a new entry in its place.

Submissions on Preliminary Issue

[9] The Assessor’s submission was simply that no appeals other than the actual revaluation entry appeals, had been before the Committee and none were competently before us. In the absence of the Schedule, they could not be said to have been included in the applications to refer.

[10] For the appellants, Mr Haddow confirmed that, in so far as there was reference to ‘other material change’ appeals, these were being withdrawn. In relation to “up-date” valuations, he pointed out that, on the Assessor’s submission, there was in the GSK case no application to refer which could have any effect. In responding to the Committee, the Assessor might have been expected to mention this: he was clearly responding to the application in regard to these subjects. That was also what the Committee had considered.

Consideration of Preliminary Issue

[11] The omission to attach the schedules was of course unfortunate, and only the appellants’ (or their agents’) responsibility. The appellants were, however, unaware of the problem, and matters could have been put right if either the Committee or the Assessor had queried the lack of a schedule. In these circumstances, we consider the point now taken by the Assessor to be highly technical and perhaps not one which it is really appropriate to take in the interests of sensible administration of appeals. It is not at all clear how the “up-dating” appeals could be disposed of in any appropriate kind of way by the Committee before consideration of the actual revaluation appeals.

[12] In our view, the Assessor’s argument is met by common sense interpretation of the letters of application against the known background of a situation commonly encountered in practice, namely that ‘up-dating’ appeals are, on a routine administrative basis, added to revaluation appeals the decision in which will determine the outcome. Against that background, we think that ‘2010 Revaluation Appeal’, together with a reference to a schedule of appeals, plural, may properly be interpreted as including such ‘up-dating’ appeals. The situation about other running roll appeals would obviously be different: if some new issue is being raised in a running roll appeal, that clearly has to be identified and made the subject of submission in support of the application to refer and in any subsequent appeal in relation to referral.

[13] We should stress that it is only in the particular circumstances of this appeal, where the application, although referring primarily to the revaluation appeal, did identify the position that there was more than one appeal, that we can interpret the position in this way. We hope that such a situation will not recur. ‘Up-dating’ appeals can be something of an administrative challenge for Committees and the Tribunal, as well as the parties, without this extra complication.

Submissions on Criteria for Referral

[14] The appellants’ written Grounds of Appeal referred to the claim that the Assessor’s indexation, up-dating values from the previous revaluation, was disputed, particularly in relation to buildings. This made it necessary to test values by reference to Cost Guide figures. The Assessor currently questioned such figures, making it necessary to have regard to the evidence behind the figures. Further, there was a challenge to the level of physical obsolescence (‘age and condition’) allowances made, the Valuation Office Agency having accepted certain figures arising out of the ‘Tata’ decision in relation to a steel works but the Scottish assessors not having done so. Each of these matters gave rise to complexity and a high degree of technicality. All four criteria for referral were advanced.

[15] In oral submission, Mr Haddow did not rely on grounds (c) or (d). He suggested that the issues should be considered in the same way as in the B.A.E. shipyards cases (BAE Systems Surface Ships v Assessor for Glasgow, LTS/VA/2013/29-30, 18.9.2013), and also that the indexation issue was involved in a paper mill case which has been referred to the Tribunal following withdrawal of the Assessor’s opposition to an appeal to the Tribunal. Mr Haddow produced tabular valuations of the subjects, locating the columns on indexation and ‘Further depreciation’ as raising the issues. He also referred to ‘Functional Obsolescence’. The assessor had taken indices over a different period. On indexation of plant values, there were differences between different Assessors. It was correct that there had not been direct discussion of these appeals with this Assessor, but there had been discussion in a national Contractors’ Principle working group.

[16] The Assessor submitted that the appellants were merely speculating, in advance of any discussion, on the issues, and there was no specification of their own case. It was not accepted that indexation required complex or highly technical evidence, the basic principles of indexation being well understood by local Committees. Similarly, in relation to Cost Guide figures. As far as physical obsolescence was concerned, the ‘Tata’ case had no bearing because it involved the extension of allowances for properties older than in this case.

[17] Mr Gill elaborated on these submissions. In relation to indexing, he accepted that there were issues of timing, arguing that such issues were not complex or highly technical. It was not accepted that evidence investigating Cost Guide figures would be required. The question of functional obsolescence had not been mentioned in the Grounds of Appeal. The Assessor’s approach reflected the relevant S.A.A. Practice Note. Again, obsolescence was a common feature in such appeals.

Consideration

[18] We have to decide whether either the facts, or the evidence to be given by expert opinion, are complex or highly technical, taking as our reference point the ordinary range of rating appeals with which the Committee may be taken to be familiar. We have to form an impression on the material available in this case and do not take anything from either the shipyards, or the paper mill, examples cited by Mr Haddow: not only may there have been different ranges of issues but one also has to consider the context in which the issues are raised. In this case the context is very large industrial subjects with a wide range of buildings and plant.

[19] We have some sympathy with the Assessor’s argument that, without discussions having yet taken place between the appellants and the Assessor concerned with these assessments, the appellants’ submissions about the issues were to an extent speculative. We also appreciate that discreet issues on indexing, Cost Guide figures, and age and obsolescence (either physical or functional) in relation to individual items in the valuation are not necessarily always complex. However, when the extent of the valuations is considered, it does appear to us that the combination of such issues can produce complexity. It does seem clear that in the case of large industrial subjects valued on the Contractor’s principle, there remains a national issue, in which Scottish assessors are at odds with their English counterparts, in relation to age and obsolescence, although the extent of application of that issue in these appeals is not particularly clear. Added to that, there is a potentially difficult argument about cost guide figures, relied on in conjunction with a challenge to the Assessor’s indexation approach.

[20] Drawing these things together as a matter of impression, we have reached the view that there is in these two cases sufficient indication of dispute on these matters to make both the fact and the opinion evidence complex. It may of course be that the national issues may be resolved by discussion or in other appeals, but we are persuaded that the two complexity grounds, (a) and (b), are made out in this case.

Further Procedure

[21] The appellants’ agents are required now to identify, both to the Tribunal and to the Committee Secretary (as well as the Assessor) those running roll appeals which are purely ‘up-dating’ appeals and therefore covered by this decision, as opposed to the other ‘material change’ appeals which we were told were being withdrawn.

[22] As far as further procedure in the substantive appeals is concerned, it appears to us that we should allow a short period before requiring Grounds of Appeal and Answers in the substantive appeals, partly because of the extent of activity at the end of the timetable period for cases not before the Tribunal, and partly to allow for discussion and possible resolution of the difficult issues in these and other large industrial subjects. We are also conscious that it is hoped to have other appeals which may have a bearing on issues in these cases heard before the Tribunal in the near future. We have it in mind to commence the formal timetable for these appeals, and start identifying dates for hearing the appeals, in April 2014.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 13 November 2013

Neil M Tainsh – Clerk to the Tribunal