Belhaven Brewery Company Limited V. The Assessor For Highland And Western Isles
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord Justice Clerk,Lord Hodge |
| Judgment Date | 15 January 2008 |
| Neutral Citation | [2008] CSIH 3 |
| Court | Court of Session |
| Date | 15 January 2008 |
| Published date | 15 January 2008 |
| Docket Number | XA77/07 |
| LANDS VALUATION APPEAL COURT, COURT OF SESSION | |
| Lord Justice Clerk Lord Clarke Lord Hodge | [2008] CSIH 3 XA77/07 OPINION OF THE LORD JUSTICE CLERK In the Appeal by BELHAVEN BREWERY COMPANY LIMITED Appellant; against THE ASSESSOR FOR HIGHLAND AND WESTERN ISLES Respondent: _______ |
Act: Kinroy QC; Simpson & Marwick WS
Alt: Doherty QC; Drummond Miller WS
15 January 2008Introduction
[1] This appeal relates to a public house called the Bar Pivo at 38-40 Academy Street, Inverness. The subjects were previously a bank. The appellant opened them as a public house on 14 March 2003. The assessor entered them in the Roll with effect from that date at a net annual value (NAV) of £32,000. That value applied for the period 14 March 2003 to 31 March 2005. The appellant appealed against the assessment on the ground of a material change of circumstances on the basis of an expected downturn in trade; but withdrew the appeal when the downturn did not occur.
[2] The 2005 revaluation took effect on 1 April 2005. The tone date for the revaluation was 1 April 2003. In the 2005 revaluation public houses were valued in accordance with the scheme of the Scottish Assessors' Association for licensed premises (the 2005 scheme). This scheme introduced the concept of the fair maintainable turnover in the calculation of NAV (cf Suburban Taverns (Glasgow) Ltd v Ass for Glasgow, 15 January 2008). Since the premises opened only about two weeks before the tone date, the assessor based his valuation on turnover figures for the 46 weeks period from 7 March 2003 to 24 January 2004. It brought out an NAV of £41,000. He carried out a check calculation based on the average of the turnovers in the years to 31 March 2004 and 31 March 2005. That brought out an NAV of £40,000. He entered the subjects in the Roll at an NAV of £41,000. The appellant appealed against the entry.
[3] Before the Committee, the appellant's representative, Mr Peter Henry FRICS, submitted that the turnover figures on which the assessor based his valuation were not sustainable (cf Suburban Taverns (Glasgow) Ltd v Ass for Glasgow, supra). He based his valuation on the turnover figures for the year to 31 March 2006, that is to say the first year of turnover after the revaluation came into force and the third year after the tone date. The application of the 2005 scheme to these figures brought out an NAV of £35,200.
[4] The Committee rejected Mr Henry's use of the 2005-2006 figures; but, having regard to the assessor's check valuation and an alternative calculation based on the indexing of the figures for the first year's trading, it allowed the appeal to the extent of substituting an NAV of £40,000.
[5] Mr Henry required the Committee to state a case. He tabled six grounds of appeal. In May 2007 the solicitors for the appellant lodged the stated case. They neglected to serve copies of the stated case on the assessor (cf Act of Sederunt (Valuation Appeal Rules Amendment) 1982 (SI No 1506), rule 10). When the assessor heard by chance that the appeal had been lodged, the solicitors for the appellant told him by e-mail dated 26 October 2007 that, after discussions with Mr Henry, it had been decided that the appeal would proceed. On 11 November 2007 Mr Henry confirmed this to the assessor.
The abandonment of the appeal[6] At the outset of the hearing on 12 December 2007, counsel for the appellant moved for leave to abandon the appeal. In doing so he offered an undertaking on behalf of Mr Henry to which I shall refer. His motion was not opposed by counsel for the assessor.
[7] Counsel told us that the grounds of appeal were drafted by Mr Henry. No advice on the grounds of appeal had been sought until shortly before the hearing. On 7 December 2007 counsel advised that the appeal should be abandoned. On 10 December he amplified that advice. Mr Henry then accepted that the appeal was unstatable.
[8] Counsel for the appellant apologised to the court and to the assessor on behalf of Mr Henry. He said that Mr Henry accepted that he had made a serious mistake.
The background[9] A person who is not legally qualified may be allowed to conduct an appeal before a local valuation appeal committee (Valuation Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regs 1995 (SI No 572), reg 13(1)). This is a useful provision. It can be helpful to a committee if an appeal is presented by a competent rating surveyor; but problems can arise where an appeal is conducted by a representative who lacks a proper understanding of valuation law and practice and who does not take legal advice. In recent years Mr Henry has persistently abused the privilege of conducting...
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