OPINION

The Old Golf Course Limited v The Assessor for Fife

[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 (“the regulations”). The appeal relates to the refusal of the Fife Valuation Appeal Committee to refer to the Tribunal an appeal in respect of subjects entered in the valuation roll as “showhouse” at Hamilton Grand, 21 Golf Place, St. Andrews.

[2] The criteria for referral are set out in section 5(1) of the regulations. The ratepayer sought referral in terms of 5(1)(a), 5(1)(b) and 5(1)(d).

[3] The ratepayers were represented by Mr Graham Dunlop, Advocate, instructed by GVA James Barr. Mr Steven Stuart, QC appeared for the respondent Assessor. The hearing took place in Edinburgh on 9th February 2015.

Background

[4] In the grounds of appeal and in the course of submissions we were advised that Hamilton Grand was a former hotel overlooking the eighteenth green of the Old Course at St. Andrews that, over the period 2010-13, had been converted into 26 flatted dwellings. Two of the flats, numbers 5 and 7, were furnished and used as showhouses. The majority of the apartments, while completed, were unfurnished and yet to be sold. The penthouse had been sold for a figure of about £7,000,000. Number 5 was sold in June 2014 for a sum of £2,048,000 having been on the market at an asking price of £2,464,000. The assessor entered the two flats in the valuation roll as a single entry at a net annual value of £240,000 which was adjusted to £120,000 following the sale of number 5. The remaining flats were entered in the council tax list. We were advised that in recent days two further sales had been agreed.

[5] When the development is fully operational purchasers of flats will enjoy access to a members lounge and snug within the block and priority booking arrangements at a restaurant operated within the block by the ratepayers. In addition they would receive access to a range of facilities and services including: complimentary access to golf courses; complimentary access to spa and leisure facilities at the Old Course Hotel; baby-sitting services; daily housekeeping services; food and beverage services; shopping services; laundry services; transport services; property maintenance services; services of a butler; golf concierge services; arrangement of leisure and cultural activities. The properties and the “benefits” were targeted at high net worth individuals with the majority of enquiries coming from foreign residents.

[6] So far as operation of the showhouses was concerned there was an average of two showings per week lasting one or two hours. There was no trial residence. There were no showhouse staff permanently on site.

[7] Licensing arrangements had been put in place to permit all of the apartments to be used as overspill accommodation for the Old Course Hotel but, as we understand the position, that arrangement has yet to be utilised.

The Ratepayers’ Position

[8] Referring to The Scottish Assessors Association Practice Note 27 dealing with the valuation of show houses, Mr Dunlop indicated that he understood the assessor to have based her valuation on 6% of the asking prices of the flats. In his view the practice note was designed to deal with the conventional case of a showhouse in a housing estate and not the appeal subjects, which were different. Conventional showhouses were utilised throughout the week; they often had offices attached and were routinely manned. They were not always, and perhaps not even usually, available for immediate sale, whereas the present flats were, as had happened with flat 5. In addition the report in its valuation section made no provision for dealing with cases where properties were sold with benefits such as butler services, complimentary sporting arrangements etc. How such matters were viewed would have a significant bearing on how the appellants utilised the other flats at Hamilton Grand in the future.

[9] The primary position of the ratepayers would be that the apartment(s) comprising the showhouse should enter the council tax list rather than the valuation roll as they were not properly to be classed as the parts of a showhouse. It would nevertheless be necessary for the ratepayers to deal with the assessor’s argument. There was a significant issue concerning the devaluation of the Hamilton Grand sale prices for use in terms of the approach set out in the practice note. That would necessitate consideration of facts and evidence that were complex and highly technical.

[10] Referring to the decision of the tribunal in B & Q v Renfrew Valuation Joint Board LTS/VA/2003/2, unreported, 22 January 2013, Mr Dunlop drew attention to the discussion by the tribunal indicating that the definition of “complex” was not to be taken as referring to matters that were beyond the scope of a Committee.

[11] So far as section 5(1)(a) was concerned the facts of the case were complex. If the correct approach was to base the valuation on the sale price of the property then the sum achieved included payment for the “benefits” package and would require adjustment. Issues such as the valuation of the access to the golf courses and Old Course Hotel spa would have to be resolved. The value of a butler service would require to be determined. Service charges were made on a per square foot basis but included services that were not necessarily related in extent of use to that measurement. Cost was not value and it was not clear whether there were any other cases where such a range of benefits was included in the purchase cost. The Hamilton Grand was unique outwith the cities.

[12] It was not simply a matter of going through the list of services and arriving at a figure to deduct from the sale price. Questions arose as to how value was affected by the cross-combination of the various elements making up the complete package. Input would be required from a number of witnesses from several specialities and the apportionment of cost across all properties would be complex and highly technical.

[13] In addition, the ratepayers did not accept that the application of a rate of 6% was correct. It seemed to them that in the case of high value properties a rate of 3% should be applied.

[14] It might also be the case that the valuation of the property should be carried out on a hybrid basis to reflect the fact that the benefits included access to a members’ lounge and snug. This, again, would raise complex questions as to the correct valuation approach.

[15] A further factor was the necessity to backdate sale prices and the benefits to the relevant tone level. It was suggested that uses of the retail price index would involve issues of complexity and that it was far from clear that the range of services in question could be dealt with satisfactorily using that index.

[16] Mr Dunlop dealt with the argument under section 5(1)(b) more briefly arguing that in light of what he had already said the evidence would clearly be complex and highly technical. The evidence to be given in relation to these various matters would be provided by a number of people with specialist knowledge.

[17] Under section 5(1)(d) Mr Dunlop made three points. First, the case raised the question “when is a showhouse not a showhouse?”. There had been no judicial determination in connection with Practice Note 27. The question arose as to how houses marketed for sale and those not marketed for sale were to be differentiated; whether a showhouse that was simultaneously for sale was to be treated differently The question arose as to whether or not limited viewing arrangements were to be differentiated from the more conventional cases.

[18] Secondly there was an issue in principle as to how such benefits as found in the present case were to be valued. The case in question might be unique but it was possible that there existed cases where the benefits were more modest. There might be developments in the future that would follow the precedent set in the current case.

[19] Finally Mr Dunlop submitted that a decision in this case as regards the 6% decapitalisation rate would be relevant in other cases. At this point the ratepayers did not fully understand the source of the percentage applied by the Assessor.

The Assessor’s position

[20] Mr Stuart opened by advising that the appeal subjects had been valued in accordance with Practice Note 27 . The figure in the roll had been calculated by applying the 6% rate to the asking price for the flats and having regard to the sales values of flats in St. Andrews in 2008 and 2013. This, he said, was supported by the subsequent sale of flat 5.

[21] As regards the classification of showhouses Mr Stuart submitted that the practice note at 5.1.2 was clear. If a property was reserved as a showhouse, whether furnished or not, it entered the valuation roll. The fact that a property used as a showhouse might also be available for sale did not mean that it was not a showhouse. If the argument was that the appeal subjects were dwellings and fell to entered in the council tax roll then he did not see that there was any complexity.

[22] Mr Stuart submitted a note of a telephone conversation between the owners and the assistant assessor setting our details of the way in which costs were met. Its burden was that the service charge covered concierge, cleaning of common areas, landscaping, insurance and repairs and maintenance. This, he said, did not give rise to any need to adjust sales prices. The other services were largely provided on the basis that they were paid for directly when the service was called upon. That did not necessitate an adjustment to sale prices.

[23] He acknowledged that complimentary access to the Duke’s Course and the Old Course Hotel spa would give rise to a need for adjustment. However the figures quoted by the Hamilton Grand for a two person membership of both facilities at around £2700 per annum could simply be capitalised and taken into account. Mr Stuart submitted that these were the sorts of matters than one could reasonably expect to be resolved in discussion. They were not complex or highly technical.

[24] As to the possibility of there being areas beyond the four walls of the apartment that required to be taken into account, this was not so very unusual. If need be they could be treated as pertinents and valued accordingly.

[25] The argument to the effect that limited hours spent showing round prospective owners made any difference was not accepted. There was nothing to suggest that the appeal subjects were exceptional in their use or that this was a complex or highly technical matter. A property used as a showhouse with no other competing use was a showhouse.

[26] Turning to section 5(1)(b) Mr Stuart indicated that much the same points arose. The ratepayers must have the costs of the various remaining benefits that required to be adjusted. While he appreciated the distinction between cost and value he suggested that on a practical basis using cost was the appropriate approach. Separation of rateable and non- rateable elements was a matter that was readily capable of being agreed.

[27] On the issue of the appropriate percentage to be applied Mr Stuart was of the view that the issue was not complex or highly technical; rather, it simply required a weighing of the facts.

[28] Dealing finally with section 5(1)(d) Mr Stuart emphasised that the issue of what was and was not a showhouse was dependent on the facts of each particular case. So far as benefits were concerned, they were to be valued and taken into account as necessary. There was no great issue of principle involved. The issue of the correct percentage depended on the facts of the case.

[29] There was no fundamental or general issue that was likely to affect other cases. This was not an instance where the assessor had changed her approach. It was not enough that the case would be of interest to others. All 2010 appeals relating to showhouses other than the appeal subjects had been settled. All issues of benefits where they arose had been resolved. It was not appropriate to view a possible precedent in relation to the same development as suggesting a fundamental or general issue.

Ratepayers’ response

[30] In response, Mr Dunlop again emphasised, in relation to adjusting for benefits, that cost was not value. There had not as yet been a judicially determined challenge to the practice note in relation to adjustment for benefits and it was likely that such a decision in this case would give rise to a precedent. So too with the issue of the appropriate percentage to be applied to high value properties.

[31] While he did not challenge wholesale the contents of the note of conversation submitted by Mr Stuart, Mr Dunlop confirmed that it remained his understanding that butler and golf concierge services were complimentary.

Tribunal’s Consideration

[32]Apart from Mr Dunlop’s mention of the B & Q decision by way of introduction to the issue before us, we were not referred to past cases. Mr Stuart made general reference, in familiar language, to the ratio of decisions in referral appeals as summarised in Armour on Valuation for Rating, 5th ed at 5.09.

[33] In B & Q the Tribunal expressed the view that the standard to be applied in such cases is not that of the man in the street but that the matter must, rather, be seen in the context of Valuation Appeal Committees having a long history of dealing with complex rating cases. But the term “complex” was not to be construed as meaning that a case became complex only when it dealt with issues that were beyond the scope of a committee. The sorts of issues dealt with by VACs were simply a factor to be taken into account in determining levels of complexity. Ultimately it was a matter of impression in a particular case. We respectfully concur.

[34] Neither counsel sought to place significant emphasis on the difference in meaning of the words “complex” and “highly technical” or on the difference between the way that the terms are used as between sections 5(1)(a) and 5(1)(b). While there may be cases where those differences are important, we do not propose in this case to seek to distinguish that which was largely argued together.

[35] Following the approach taken in B & Q, as a matter of impression in relation to the adjustment for benefits, we prefer the submission for the assessor. It seems to us that the elements included in the service charge relate to factoring matters of insurance, repair and maintenance. Apportionment on the basis of floor area is not unprecedented in modern titles. Other mechanisms might have been chosen; rateable value was at one time favoured. The Tenements (Scotland) Act 2004 provides default arrangements. The provision of a concierge is not so very unusual. It is not obvious to us that adjustment for this factor is required or, if it is, that it is complex or highly technical.

[36] Charges for services that may not be taken up by occupiers and are in any event billed on the basis of use are again not obviously matters that require adjustment of sale prices.

[37] In relation to the admitted need to adjust for access to golf and leisure facilities included in the purchase price there seems to be a measure of agreement as to the starting point, namely the cost of memberships of the clubs in question. We do not see these matters, or indeed the provision of butler or golf concierge services, if these do indeed require adjustment, to be matters of great complexity. They are the sorts of issues where one might reasonably expect adjustments to be agreed in the context of a sale price of around £2m.

[38] As regards the appropriate decapitalisation rate to be applied, the ratepayers intend to argue for a substantially reduced figure. Their argument on this front was not greatly developed in front of us and they acknowledged an incomplete understanding of the basis for the 6% figure. Some discussion had taken place, we were told, but had not reached an advanced stage and the member of the assessor’s staff who had been dealing with the matter had since moved to other employment. The ratepayers would, at a minimum, be arguing that the percentage should vary with the level of value of the property in question. We are not persuaded that this matter will be complex or highly technical. The indications are that the amount of evidence to be considered will be limited. Not all difficult decisions are complex or highly technical.

[39] So far as indexing is concerned this arises from the need to adjust to the relevant tone date sale prices and any non-rateable items that require to be deducted. The ratepayers consider that the application of the retail price index would be complex or highly technical and that it might not be suitable for some services. We do not regard the application of an index as a complex procedure. Selection of the most suitable index from those available will no doubt require consideration of their components but beyond that indexing a number does not seem to us to be at all complicated.

[40] Nor do the issues surrounding the unit of valuation appear to us to be complex. These days there are many blocks of flats with common rooms. Committees across their jurisdictions are well used to dealing with common areas and pertinents of properties. On the primary ground of appeal to be pursued, that of inclusion on the council tax list as a domestic subject, the Committees are well practised and we see no particularly complex issue arising.

[41] We should make the point at this stage that the Tribunal has previously been, and remains, disinclined to equate volume with complexity (Gleneagles Hotel Limited v Assessor for Tayside Valuation Joint Board LTS/VA/2003/63, unreported, 28 November 2003). A long list of issues to be resolved does not mean that the test is met and, as suggested in that decision, it is to be expected that where the underlying material is straightforward it can be assumed that most matters will be agreed. We should also observe that as a general proposition much transaction evidence in rating cases requires adjustment to the statutory terms for one reason or another. If a need to adjust evidence and disagreement between the parties settled the issue of referral then the tribunal would require to hear many more appeals than it does.

{42} Turning to the submission on regulation 5(1)(d) it is worth noting that in the B & Q decision the tribunal indicates that to qualify under this ground of referral it is necessary to identify a distinct issue with an appreciable bearing on valuation practice. It is not sufficient to say that a decision might throw light on the proper approach in other cases.

[43] In this case we were told that there are no other outstanding appeals against showhouse valuations. The property in question on the ratepayers’ own account is said to be unique, certainly outside the cities, and is to be distinguished, they say, from the normal run of showhouses. No other directly comparable properties were identified. On the information provided it is difficult to see what other properties beyond Hamilton Grand might be affected. The likelihood of use as a precedent is, accordingly, low.

[44] It was suggested that the precedent would be followed in respect of the other flats in Hamilton Grand, which in due course may come to be furnished and made available for viewing. However, as matters stand there are no other apartments used as showhouses. To allow that the mere possibility of a comparable property coming into existence at some point in the future meets the test seems to us to be inappropriate. In any event we are not satisfied that there is any feature of the arguments advanced that suggests that a fundamental or general issue arises which is the other part of the test.

[45] We accordingly refuse the appeal.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 6 March 2015

Neil M Tainsh – Clerk to the Tribunal