OPINION

W. A. P. Fyfe v Assessor for Fife Council

Introduction and Summary

[1] This is an appeal against refusal by the local Valuation Appeal Committee of an application to refer a 2010 revaluation appeal to the Lands Tribunal. The subjects mainly comprise a former barn adapted and used as a function venue. This has been valued by the Assessor on a ‘contractor’s principle’ basis under the Scottish Assessors Association Halls scheme. The Assessor’s valuation of the same subjects on that basis in a previous but recent ‘material change’ appeal was upheld by the Committee and an appeal against that decision refused by the Lands Valuation Appeal Court (WAP Fyfe v Assessor for Fife[2011] CSIH 78). On this occasion, however, the appellants argue that the subjects should be categorised as an ‘exclusive use’ venue, this being a category of subjects now recognised by the Lothian Assessor as a separate category with a separate scheme of valuation. The Tribunal recently allowed an appeal in relation to some subjects in Lothian against refusal to refer. In that case, both sides agreed that there is such a separate category of subjects and that they should be valued under reference to their turnover, but disagree as to how the level of turnover is to be arrived at (Danzan 2003 Trust & Ors v Assessor for Lothian, LTS/VA/2013/20-23, 18 September 2013). In this case, the Assessor does not accept that the subjects are comparable with those and other subjects valued in Lothian as ‘exclusive use venues’.

[2] The Tribunal has decided to allow the present appeal, because, although categorisation between ‘exclusive use venue’ (assuming that there is such a separate category of subjects) and the range of subjects included within the Halls scheme would be very much a decision on the circumstances of this particular case and pre-eminently an issue for a local Committee to decide, the issue as to how the subjects fall to be valued if they are categorised as an ‘exclusive use venue’ appears to the Tribunal in present circumstances to be a general issue likely to be used as a precedent in other cases. In our view, therefore, ground (d) in Para 5(1) of the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts (Scotland) Regulations 1995 is satisfied (but not ground (c)). We emphasise that we have formed no view at this stage on the likely outcome of either the categorisation or the valuation argument.

The Subjects

[3] The subjects of appeal are composite subjects apparently developed in a farm diversification project. They consist of a stone built former barn, associated buildings and land used as a function venue, office, toilet blocks, storage facility and track for off-road driving and quad biking. The disputed valuations in respect of which referral to the Tribunal is sought are of the function venue (the former barn) and an associated modern toilet block, the Assessor’s Contractor’s principle valuation of these being around £22,000 and the appellants’ valuation (which Mr Haddow described as ‘tentative’), at 10% of an average gross income, being around £7,000.

Parties’ Submissions Summarised

[4] The appellants were represented by Mr Haddow QC, instructed by Messrs CKD Galbraith, Perth. In their letter of appeal, the appellants referred to the Danzan case and the Committee’s view that the subjects in this case were not comparable as being either licensed and/or providing accommodation. It was argued that there was a wide variety of ‘exclusive use venues’, with no common approach to licensing, catering, etc. In oral submission, Mr Haddow mentioned similarities with, and differences from, the Lothians subjects. The appellants’ argument was that such subjects derived their value from their income, not the cost of building or modern equivalent cost. It was accepted that there was a different issue here, as to whether the subjects should be valued under the ‘Halls’ scheme, but the existence of the Lothians scheme now provided a meaningful alternative and the issue was at least similar.

[5] The Assessor was represented by Mr Stuart QC, instructed by the Assessor for Fife. It was contended that the Lothians subjects were quite different and distinct from the present subjects. They shared the situation of being venues available for hire, but in this case the customer had to organise such matters as catering, licensing, dressing (i.e. d├ęcor of the hall for the occasion) and entertainment. The Lothians subjects, in contrast, were similar to good quality hotels, having accommodation, licensing and catering income streams. The appellant’s argument of valuing from turnover had been the subject of the previous case and the court’s decision would rule this appeal. Neither ground (c) nor ground (d) was satisfied.

[6] Asked by the Tribunal about the Assessor’s position on value if the subjects were held properly categorised as an ‘exclusive use venue’, Mr Stuart insisted that the Assessor would not contemplate any different approach to valuation and would still value the subjects on the Contractor’s principle. There was no question here of applying the Lothian Assessor’s scheme.

Tribunal’s Consideration

[7] The first question in this appeal is whether there is any realistic issue following the very recent decisions by the Committee and the Lands Valuation Appeal Court, both upholding the assessor’s application to these subjects of the ‘Halls’ scheme and rejecting the appellants’ approach based on a percentage of turnover. There has been no change in the subjects. Appellants are of course entitled to appeal at each revaluation but if their argument is just the same there will be no realistic issue on which grounds for referral to the Tribunal could be based. The Assessor’s view that this valuation is authoritatively settled is understandable.

[8] In our view, the appellants’ argument has changed. In the previous case (as summarised at Paras [16] to [18] of the Lord Justice Clerk’s Opinion), they argued on the basis of comparison with two other subjects, one of which had in fact been valued on the contractor’s principle and the other as licensed premises. They did not argue that the ‘Halls’ scheme could not apply. This time, fortified no doubt by the Lothian Assessor’s development of a separate scheme for ‘exclusive use venues’, they seek inclusion in that category. Their aim of valuation on the basis of turnover has no doubt not changed, but the argument has a different basis. The issue as to valuation category has changed. Without of course expressing any view on the merits of the argument, we are satisfied that there is in this appeal a real issue which is not simply disposed of on the basis of the result of the previous case.

[9] However, our further view on the question whether these subjects should be valued as an ‘exclusive use venue’ (regarding that as a separate category of subjects) or as a ‘Hall’ is that this is a question as to the appropriate classification of these subjects and as such very much a question for a local Committee. The Assessor is apparently not suggesting that there is no such category as ‘exclusive use venues’, but rather that these subjects do not belong in it. As a matter of impression, we do not consider that the applicable law is uncertain or difficult to apply, and, as the issue depends on the particular facts and circumstances, it does not raise any fundamental or general issue likely to be used as a precedent.

[10] So on this first issue of categorisation, we would not uphold the present appeal. However, it became evident during this hearing that there is a second issue. That relates to the valuation method if the subjects are properly categorised as an ‘exclusive use venue’. Mr Stuart was clear that even in that case the Assessor would still value on the Contractor’s principle. In Lothian, parties are agreed that valuation should be based on turnover, but they disagree as to how to arrive at the appropriate percentage, a disagreement which the Tribunal has said does raise a general issue likely to be used as a precedent. Again without expressing any view at this stage on the correct answer, it seems unavoidable that a decision in favour of the Assessor’s proposed valuation of these subjects if they are categorised as an ‘exclusive use venue’ would be likely to be used as a precedent. We say this because there are quite a few such subjects with at least some still under appeal in this revaluation and also, as we saw when considering the Danzan case, quite a variation in valuation approaches across the country. There is an issue of principle here: as Mr Haddow graphically put it, there is an issue as between valuation on the basis of ‘stone, mortar and slate’ as opposed to revenue from subjects which characteristically, if not necessarily always, have been adapted from their original purposes and uses. The figures do seem to demonstrate a significant difference in the result. Again, in relation to this issue, the appellants have, as a result of their situation in Lothian, a very different argument to advance from the last time. Having recognised a qualifying general issue as to the valuation approach in the Lothian cases, where both sides are agreed on taking turnover as the starting point, we also recognise the issue between Contractor’s principle and turnover-based valuation of such subjects as qualifying under ground (d) in this case.

[11] We have wondered whether this is really a different issue from the first issue of categorisation, but in view of the Assessor’s insistence on his opposed valuation method regardless of categorisation, we have reached the view that ground (d), although again not ground (c), is satisfied. A slightly different way of looking at it is that in the end of the day it is valuation, not categorisation, which is important; the appellants’ argument is different from that made previously in relation to these subjects; and a decision on it would be a decision on principle which would be likely to have a significant impact on valuation practice. A material distinction between subjects used simply as halls, etc. available for hire and events venues operated so as additionally to provide, broadly, the hospitality in question may either be confirmed or rejected.

[12] For these reasons, we allow the present appeal.

Further Procedure

[13] Parties were agreed on a point made by the Assessor in his written response to this appeal, viz. that if this appeal on referral is allowed, it would not be appropriate to conjoin this appeal on the merits with the Lothian cases. It is to be hoped that the Lothian appeals can be heard reasonably soon. Unless either party suggests otherwise, the Tribunal will delay further procedure in this case meantime.


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