Dante v Assessor for Ayr
| Jurisdiction | Scotland |
| Judgment Date | 10 December 1921 |
| Docket Number | No. 18. |
| Date | 10 December 1921 |
| Court | Court of Session |
Lord Blackburn, Lord Justice-Clerk (Scott Dickson), Lord Salvesen, Lord Ormidale.
ProcessCompetencyCommon law actionFailure to utilise statutory remedyPersonal barValuationEntry in Valuation-rollDeclarator that pursuer was not tenant or occupierRights of appeal under Valuation Acts not exhaustedLands Valuation (Scotland) Act, 1854 (17 and 18 Vict. cap. 91), sec. 5.
In an action of declarator the pursuer sought for decree that he was not a tenant or occupier, in the sense of the Lands Valuation Acts, of certain stances, and was not liable to be rated or assessed in respect thereof. The summons also contained ancillary conclusions for interdict against assessment. The pursuer was entered in the Valuation-roll as tenant and occupier of the stances. He had appealed to the Valuation Committee against the entry relating to the value of the subjects, but not against the entry of his name as tenant and occupier although he had a statutory right of appeal on that point to the Committee.
Held (diss. Lord Salvesen) that the action was incompetent, in respect that the pursuer was seeking to rectify acts done under statutory procedure without having first availed himself of the statutory remedy of appeal which was open to him.
ValuationEntry in the Valuation-rollTenant and occupierRateable occupationSeasonal tenantLands Valuation (Scotland) Act, 1854 (17 and 18 Vict. cap. 91), sec. 1.
Certain stances of concrete partly embedded in the ground were let to a restaurateur as refreshment stances for five seasons at a rent per season. The period of the let for each season was from a date in April to a date in October. The lessee was prohibited from selling anything on the locus on Sundays (save under certain conditions), and on other days except during permitted hours which were from 7 a.m. to 12 p.m.; and the lessee was taken bound to obey the burgh bye-laws. The lessee was entitled to erect (which he did) kiosks of certain dimensions upon the stances, but he was bound to remove them at the close of each season. He was entered in the Valuation-roll as tenant and occupier of the stances.
Opinions (per the Lord Justice-Clerk and Lord Ormidale) that the lessee was rightly entered in the Valuation-roll, in respect that his occupation of the stances was rateable notwithstanding that his right of occupation was for part only of the year.
Opinion contra per Lord Salvesen.
ValuationRates and assessmentsBurgh ratesParish ratesEntries in Valuation-roll as basis for assessment.
A pursuer brought an action concluding for declarator that he was not tenant or occupier, in the sense of the Lands Valuation Acts, of certain subjects, and was not liable to be rated or assessed for burgh and parish rates in respect thereof, and for interdict against such assessment. He averred that he had been entered in the Valuation-roll as tenant and occupier of the subjects; that he was not a tenant or occupier in the sense of the Valuation Acts and could not legally be entered in the Valuation-roll as such; and that he was threatened with proceedings for the recovery of rates and taxes in respect of the subjects in question.
Opinions (per the Lord Justice-Clerk and Lord Ormidale) that these averments were irrelevant, in respect that the entry in the Valuation-roll was not decisive of liability to assessment, which depended on the Burgh Police and Poor Law Acts, and the pursuer had failed to aver that he was not liable to assessment under these Acts.
On 8th December 1920 Alfred Dante, restaurateur, Ayr, brought an action against (1) Alexander Walker, the Assessor of the Royal Burgh of Ayr, and the Provost, Magistrates, and Councillors of the burgh, and the Town Chamberlain as collector of the burgh assessments; and (2) the Parish Council of Ayr and their collector of rates. The conclusions of the summons were for declarator that the pursuer was not tenant or occupier, in the sense of and for the purposes of the Lands Valuation (Scotland) Acts, of certain stances on the Low Green of Ayr let to him by the Town-Council, and was not liable to be rated or assessed in respect of these stances as tenant or occupier thereof; and for interdict against the defenders (other than the Assessor) proceeding against the pursuer by summary warrant or otherwise for recovery of any rates or assessments leviable in respect of the stances.
Defences were lodged by both sets of defenders.
The facts of the case, as averred on record, were as follows:The Provost, Magistrates, and Councillors of Ayr exposed six stances at the Low Green to public roup, and the pursuer, after a competition, was preferred as tenant of stances II., III., and VI. at the respective seasonal rents of 305, 169, and 270. The Low Green was a public park adjoining the promenade and sea front. The stances were of cement concrete laid upon 6 to 8 inches of stone bottoming. They measured 12 feet square, and were 6 inches in thickness, of which 3 inches were imbedded in the ground and 3 inches projected above it. A lease of the stances, dated 15th April and 4th May 1920, was entered into between the Provost, Magistrates, and Councillors of Ayr (who were therein called the first party) as proprietors and the pursuer (who was therein called the second party) as seasonal tenant. The lease provided, inter alia:(First) The first party, in consideration of the rent after specified, hereby let to the second party the refreshment stances Nos. II., III., and VI. and that for the period of five seasons from and after the 5th day of April 1920 (Second) The period of let each season will be from the Monday preceding the April holiday to the Saturday succeeding the October holiday, both days inclusive, on which last-mentioned day the second party shall be bound to remove from the several stances hereby let. On the expiry of the week following the October holiday in the year 1924 the second party will remove from the said stances without any warning or process of law to that effect. The let shall not be held to be renewed by tacit relocation after season 1924. (Third) The second party will not sell anything on the Low Green or on the stances on Sundays nor on other days except between the hours permitted by statute, bye-laws, or regulations, and, subject to the terms of article fourth hereof, he shall within ten minutes after the permitted hour each evening remove his whole effects from the stances and Low Green and shall leave the same clean and vacant until seven o'clock next morning: (Fourth) In the event of the second party erecting on said stances or any of them buildings of the nature of a kiosk suitable for remaining there during the whole season in any one year, he will be entitled to sell articles thereat on each day in the week, including Sundays, during the permitted hours as mentioned in the preceding article. Any such buildings proposed to be erected will be subject to the approval of the first party and must not exceed 12 feet square. Plans and elevations of any proposed buildings must be submitted to and approved by the first party before erection. Such buildings must be carefully closed up each evening on the expiry of the permitted hours and not opened until seven o'clock the following morning. All such buildings must be removed within one week after the close of each season. (Fifth) The second party must conform to all the Burgh bye-laws and obey the directions of the police. The stances must be kept clean and tidy to the satisfaction of the Surveyor of the Burgh, and no glass, paper, or rubbish, shall be left scattered about the Low Green or foreshore. (Sixth) In the event of the second party contravening any of the conditions hereof, or being convicted of any crime offence or contravention under common law or statute or bye-laws in force or hereafter to be made, it shall be in the option of the first party either to enforce the let or to declare the same at an end No process of law shall be required for such termination, and the second party shall have no claim against the first party in respect thereof (Seventh) The said Alfred Dante binds and obliges himself to pay to the first party the sum of 744 sterling in the name of rent for each season during the currency hereof, payable in advance on or before the first day of January in each year, with interest at the rate of six per centum on each season's rent from the first day of January till payment. The pursuer entered on possession of the stances, and continued to possess them on the terms and conditions of the lease. The permitted hour each evening was 12 p.m. On each of the stances the pursuer erected at his own expense a kiosk made of weather boarding and glass. The kiosks were not embedded in the cement, but were set upon its surface and were held down by runners bolted to the cement. They each measured 12 feet square, 7 feet 9 inches to the eaves, and 14 feet to the ridge. They were used by the pursuer for the storage, display, and retail of refreshments.
The parties further averred:(Cond. 5) On or about 25th August 1920 the defender, Alexander Walker, the Assessor of the Royal Burgh of Ayr, served on the pursuer a notice of a valuation of subjects in the burgh of Ayr, being the said stances II., III., and VI., of which the pursuer was said to be tenant and occupier, and which he valued at a yearly rent or value of 305, 169, and 270 sterling respectively. The pursuer was not then, and has never been, tenant or occupier of the said three stances for the purpose of the Valuation of Lands (Scotland) Acts. (Ans. 5 for defenders Alex. Walker and others) The notice of valuation is referred to. Quoad ultra denied. (Ans. 5 for defenders the Parish Council of Ayr) The notice of valuation is referred to for its terms, beyond which no admission is made. Quoad ultra denied. (Cond. 6) The pursuer appealed against his proposed entry in the Valuation-roll in terms of the said notice to the Valuation...
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