Lands valuation appeal in which the assessors appealed against a decision of the Lands Tribunal in which the tribunal upheld appeals by mobile phone companies against entries made in the valuation rolls at the 2005 Revaluation in respect of various mobile mast sites.

The court outlined the typical arrangements at such sites in which there is generally a site owner who owns the site, a host who controls the mast (generally one of the mobile networks) and is a tenant of the owner, and “sharers” who are other mobile networks which the host allows to attach their equipment to the mast in return for a payment (part of which is usually passed to the site’s owner). The sharers usually erect a small cabin or cabinet close to the mast and run a cable from it to the mast.

There was no dispute that the cabin or the cabinet is heritable and is a separate rateable subject. There was also no dispute that the cable when it is attached to the mast and the aerial and other equipment to which it leads are heritable by accession but that the aerial is not rateable[1]. The question was whether the sharer is in rateable occupation of that part of the mast to which its cable and equipment are attached.

The assessors argued that the sharer’s right in the mast was either:

1. a pertinent of the cabin or the cabinet,
2. a wayleave over the mast; or
3. a right of tenancy.

On any of these interpretations the assessors contended that the sharer was in rateable occupation.

The Inner House refused the appeal. The court was not persuaded by the assessor’s argument as to the nature of the sharer’s right finding that the sharer’s right[2] in respect of the cables and equipment was at best a licence to such part of the mast as the host may, from time to time, in its uncontrolled discretion, direct. As to whether the sharer was in rateable occupation the court (the opinion being given by the Lord President) said the following:

 “The question whether the sharer is in rateable occupation turns on the nature and the terms of the sharer’s agreement and the de facto situation that is established in the evidence …. On the facts of these cases, the Tribunal concluded that the sharer was not in rateable occupation. That was pre-eminently a decision for the Tribunal. It is not one with which this court should interfere unless it is contrary to the evidence, or is unsupported by any evidence or is perverse or irrational. It is not suggested that any of these considerations apply. My own view is that the sharer cannot be said to enjoy the exclusivity and paramount control that are essential to rateable occupation; and that the conclusion of the Tribunal on this point is correct… The significant points in my view are that the sharer has no right to occupy any particular part of the mast, but has at most a licence to occupy a part of the mast at the pleasure and at the direction of the host; and that it can be made to reposition its cable and equipment whenever the host should so direct.”

 The full judgement is available from Scottish Courts here.

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