Inner House case considering the entry of apartments at the Hamilton Grand in St Andrews on to the valuation roll (for non-domestic rates). Old Course had furnished 2 (out of 26) of the apartments at development and used them as showhouses when selling the other apartments. The assessor entered the showhouses on to the valuation roll with the description “showhouse”.

Old Course appealed against the entry arguing that the showhouses should have been excluded[1] from the roll on the basis that they were dwellings[2]. Although the apartments in question were used as showhouses, Old Course argued that, in terms of the legislation, it is the nature of the subjects (i.e. the natural physical characteristics) which determines whether or not a property is a dwelling and that the use to which the subjects are put is irrelevant.

The Inner House refused the appeal noting that:

 “in characterising subjects for the purposes of valuation for rating it is proper to look not only to their physical circumstances but also to the use to which they are put.  Subjects are valued in their actual state and according to their existing use”.

The court found there was nothing in the legislation to support Old Course’s arguments that use of the subjects is irrelevant and that Old Course’s proposed interpretation of the legislation would lead to absurd results.

The full judgement is available from Scottish Courts here.

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[1]  In terms of s.73 of the Local Government Finance Act 1992.

[2] In terms of s. 72(2) of the 1992 Act.

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.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Case from the Land Valuation Appeal Court. The Valuation Appeal Committee dismissed an appeal from M&S on the basis that M&S’s written statement in support of its appeal (which had been submitted on the last possible day) did not comply with the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995. M&S then appealed to Land Valuation Appeal Court which allowed the appeal.

In order to comply with the regulations the statement had to intimate three essential points; namely (1) the grounds of appeal; (2) the value for which the appellant contended; and (3) the basis on which that value was arrived at. The court found that it had done so. Although the Assessor argued that the statement failed to specify the ground of appeal, the court noted that the statement contended (amongst other things) that the assessor’s valuation was incorrect and excessive and that M&S’s agents disputed the proposed valuation rate. In the view of the court further elaboration was not required.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.