OPINION

Opal Glen Properties Limited v Central Scotland Valuation Joint Board

[1] This is an appeal under the provisions of regulation 6(1) of the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995 against the refusal of the Valuation Appeal Committee to refer to the Tribunal an appeal in respect of an entry in the valuation roll relating to subjects known as Tigh Mor in the Trossachs. The subjects are operated under what is known as a “holiday property bond” scheme. Ms Luise Locke, advocate, appeared on behalf of the appellants and Mr Brian Gill, advocate, appeared for the Assessor.

[2] The subjects were formerly a hotel. The main building, the courtyard block and a separate east wing had been converted into some 76 bedroom or studio apartments and bedroom cottages. Various communal areas were used for a variety of facilities to be shared by users of the accommodation units. Facilities included bar and bistro areas, a laundry, a snooker room, a swimming pool, a steam room, and a sauna. There were various service areas providing facilities for the running and maintenance of the subjects.

[3] It was not disputed that the appellants were occupiers of the whole subjects. The accommodation units were available for use by owners of a holiday property bond. Owners of such a bond were awarded points, depending on the amount invested. These points could be used to obtain accommodation at any of the holiday property bond locations throughout Europe. The bond owners paid a quarterly fee unrelated to any use of property and also a sum to cover direct costs — such as cleaning costs — arising in respect of their actual use of any unit.

[4] The appeal was based on the provisions of Reg 5(1)(d); namely, that “the case raises a fundamental or general issue likely to be used as a precedent in other cases”. The only written material in support of this was based on the proposition that, “It could be the case that any decision on the valuation methodology on level of value arising from a decision in Scotland might be taken as a precedent in the 14 other properties in England and Wales which are operated in a similar manner”. There was no attempt to identify any specific conflict of methodology or any other issue, fundamental or otherwise, resolution of which might provide such a precedent.

[5] At the start of the hearing, when we invited Ms Locke to assist us by defining the fundamental issue which was thought to arise, she explained the matter in terms of a conflict between valuation by reference to the Assessors’ “self-catering scheme” and valuation on a “hybrid hotel” basis. There was nothing in the written material before us mentioning any such conflict and, in particular, nothing referring to a hybrid-hotel method. We expressed concern that this might make it difficult to determine the matter on the day but allowed Ms Locke to elaborate her submissions.

[6] Counsel drew attention to certain features tending to show that the subjects did not fit comfortably into the self-catering scheme. She asserted that the way the subjects operated was closer to the modern development of hybrid hotels where hotels had added self-catering units. Users would make varying degrees of use of the hotel facilities but availability of such communal facilities was thought to be an important feature. This, she said, was directly comparable with the subjects. Various similar subjects, operating by way of holiday property bonds, existed in England. They were all under appeal and it was to be contended that a hotel based approach was preferable to the time-share approach favoured by the Valuation Office there.

[7] The written material submitted by the Assessor disclosed that there was a scheme set out in the Scottish Assessors Association Practice Note 19 under which self-catering accommodation was valued by application of the comparative principle. Values are based on rates per bed space derived from an analysis of receipts and expenditure from properties throughout Scotland. The rate selected for a particular property depends on (i) its structure classification and (ii) its location. A percentage addition to or deduction from value may be made for specific on-site facilities or specific disabilities, respectively, where relevant. The assessor had valued the present subjects as an L1 (luxury) classification in a G+ (superior holiday) location, with a 25% addition for the particular facilities available. Prior to the hearing, the Assessor had understood that the main points of disagreement related to the selection of the location and the percentage addition for leisure facilities. There had been no discussion of any radically different approach. At the hearing we were not told of any established scheme relating to hybrid-hotels but it is clear that there is a scheme for valuation of hotels, as such, and it may have been thought that this was wide enough to cover the appeal subjects.

[8] Because there had been nothing in any of the material available to the Tribunal or to the Assessor prior to the hearing to suggest that use of a hotel based scheme was being contended for, we recognised that Mr Gill might not be in a position to respond on the merits. We suggested that he might wish us to continue the hearing to another day. However, he helpfully said that time for discussion might allow progress to be made and we agreed to allow this. In the event, agreement was quickly reached apparently based on Ms Locke re-stating her position.

[9] Ms Locke indicated that she did not continue to contend that there was a fundamental issue defined in terms of a conflict between a hotel basis and the Assessors’ self-catering scheme. But she submitted that “any decision here may serve as a useful precedent in relation to any holiday property bond operations in England,” whatever approach we took. Ms Locke did not dispute Mr Gill’s subsequent statement of his understanding that the present appeal was being presented on the basis set out in the last substantive paragraph of the appellants’ appeal letter of 27 September 2013. That put the matter in the following way: “We cannot be certain that a Valuation Tribunal in England or Wales would not be actively influenced by a decision of a Valuation Appeal Committee in Scotland for this particular property if there was a dispute before a Valuation Tribunal in England or Wales on an identical line of valuation argument. In the circumstances we do consider that a decision in Scotland might well set a precedent in England and Wales and that the Lands Tribunal should determine this appeal”.

[10] For the Assessor it was contended that, in practice, no issue raised in the appeal was likely to be used as a source of law or authority in any appeal relating to the 14 similar subjects in England and Wales. In England the similar hereditaments were valued as timeshare properties.

[11] It was further contended that any issue determined by a Scottish Committee or Tribunal was not capable of being “used as a precedent” in an appeal in England and Wales. The legal system there was wholly separate from that of Scotland. Any decision in either system could be no more than persuasive in the other. Decisions of the Scottish Tribunal were not seen as authoritative in England any more than decisions of the English Upper Chamber were authoritative here. They might be considered with interest but more was required for a precedent. In the written Answers, it was pointed out that the legislation that would be applied by a Valuation Tribunal in England or Wales was different from the legislation governing the present appeal. The assertion that a decision made in Scotland would be judged equally with a decision made in England and Wales was wholly misconceived. An English tribunal would not, in reality, place much weight on a Scottish tribunal’s decision.

[12] Counsel submitted that, in any event, it was clear that the language in which Ms Locke’s submission was couched fell far short of meeting the test of being “likely” within the meaning of Reg 5(1)(d).

[13] We are satisfied that to come within the scope of head (d) it is necessary to be able to identify a fundamental issue, resolution of which could serve as a precedent. We accept that a dispute over valuation methodology could well be a fundamental or general issue within the meaning of Reg 5(1)(d): Danzan 2003 Trust v Assessor for East Lothian 2013 GWD 699. But Ms Locke ultimately did not attempt to define the issue in this way. She pointed to the factors which would require to be considered and we accept that in a broad sense a decision illustrating the weight which might be attached to each might provide some guidance for future decision makers. However, without necessarily accepting that a decision of this Tribunal could never be viewed as a potential precedent in another jurisdiction we accept the thrust of Mr Gill’s submissions. We doubt whether we could ever be satisfied that a case fell within (d) solely on the basis of potential use as a precedent in England. The situation is unusual. Normally any question of precedent could be tested by reference to application in Scotland and the question of whether it might be a precedent in England simply would not arise. As a purely practical matter we accept that an English tribunal would be very unlikely to give weight to a Scottish decision based on assessment of facts and circumstances in a case such as the present.

[14] The language carefully used by Ms Locke fell short of the normal sense of the expression “likely to be used”. Without attempting a full definition of the term it is sufficient to say that we accept that for the purposes of Reg 5(1)(d) something more is needed than a suggestion that a decision might possibly set a precedent. It would certainly require something more than the very cautious suggestion that we could not be satisfied that an English Tribunal would not be influenced by our decision. In any event, we think that there is a real difficulty in making any assessment of the likelihood of weight being attached to a decision without having a clear idea of the fundamental issues to be resolved by that decision.

[15] We also think it unnecessary to attempt any further exposition of the scope of the word “precedent” or the term “used as a precedent”. A clear decision on a clearly defined issue might well be referred to as a precedent even where the decision was not binding on the body referring to it. The weight to be given to it would be a matter for that body. But where decisions are not binding the weight to be given to them as possible precedents will depend on the nature of the issue. A view expressed on the basis of an assessment of a bundle of facts is unlikely to have the weight that might be given to a decision by a senior lawyer on a defined issue of law.

[16] It is unnecessary to say more for the purposes of the present appeal. We are satisfied that it must be refused. However, we have previously expressed concern about the issue of allowing fresh grounds of appeal after an application has been considered — on the basis that this tends to undermine the important role of the Committees. The same can be said of applications which do not properly identify the material relied on in support of a stated ground.

[17] We note that Ms Locke was prepared to cite material from our decision in IKEA v Assessor for Lothian Valuation Joint Board. In the event, she did not require to do so and we do not know what point it might have been intended to address. However, in case there is any misunderstanding it may be appropriate to add a brief comment about that decision. We had occasion to observe that little was needed by way of grounds of appeal for the purposes of Reg 6(3). However, it should be clear that this has no bearing on the requirements of Reg 4(2). When making “representations” as to which of the criteria apply, full detail of why the criteria apply in the particular circumstances must be given. Something more is required for a representation than simply identifying which head is relied on. In any event, practical common sense dictates a need to put a persuasive case before the Committee and to give the Assessor a proper opportunity to consider it.

[18] We do seek to avoid an unnecessarily formal approach to these appeals. They are not intended to resolve issues of substance and it is important to avoid waste of time and money on the purely procedural question of which body is to hear a particular dispute. We do not normally insist on a formal written response by an Assessor to such appeals because our experience has been that Assessors are likely to have made their position tolerably clear at an earlier stage. But proper notice is a basic essential of efficient dispute resolution. The ratepayer must give adequate notice of the substantive issues both to the Committee and to the Assessor. Unless there is some special explanation, it is plainly unreasonable to seek to rely on wholly new material presented for the first time at a hearing before the Tribunal. We would expect the Committee to be told of the points which are regarded as significant in relation to the application to the Committee to have the case heard before the Tribunal. It is also important, for quite separate reasons, to ensure that adequate notice is given to the Assessor of all significant points. Proper notice will allow him to consider whether a point can be conceded. It might allow appropriate counter proposals. Notice is necessary to allow an Assessor to decide whether to appear before the Tribunal — either personally or with legal assistance — or to rely on written submissions. We can, of course, expect that there will be quite a bit of elaboration of the material at the hearing and some points might reasonably be anticipated without notice. But failure to give proper notice of the basic points is an unreasonable approach to the use of the dispute resolution system provided by the State. We think that it may often be appropriate to impose a sanction in expenses in such cases: see Armour on Valuation for Rating: 5-39D. In the present case we consider it sufficient simply to refuse the appeal on its merits.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 8 November 2013

Neil M Tainsh – Clerk to the Tribunal