East Lothian Council For Judicial Review Of A Purported Decision Of The District Valuer Dated 13th April 1999. V.
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon |
| Date | 14 March 2001 |
| Court | Court of Session |
| Published date | 14 March 2001 |
| OUTER HOUSE, COURT OF SESSION | |
|
| OPINION OF LORD MACKAY OF DRUMADOON in the petition of EAST LOTHIAN COUNCIL for JUDICIAL REVIEW OF A PURPORTED DECISION OF THE DISTRICT VALUER DATED 13 APRIL 1999 ________________ |
Petitioners: J.J.Mitchell, Q.C. ; Allan McDougall & Co. S.S.C..
Tenants: R.A.Smith, Q.C., R.W. Dunlop; Drummond Miller, W.S..
14 March 2001
Introduction
[1]The petitioners are East Lothian Council. They own a dwelling house known as Catcraig Cottage, Barns Ness, by Dunbar ("Catcraig Cottage"). Since 1996 the petitioners have let Catcraig Cottage to Heather Lumsden and Andrew Ingle ("the tenants"), under a secure tenancy in terms of the Housing (Scotland) Act 1987 ("the 1987 Act").
[2]On 3 March 1999, the tenants submitted to the petitioners an application to purchase Catcraig Cottage. That application was served on the petitioners, in terms of section 61 of the 1987 Act. Following upon receipt of that application to purchase, the petitioners instructed the District Valuer to determine the market value of Catcraig Cottage, as at 3 March 1999. Those instructions were issued by the petitioners, in terms of the provisions of section 62(2) of the 1987 Act. The instructions were received by the District Valuer on 29 March 1999. On 8 April 1999, Louise Reid-Thomas, a senior valuer in the Scotland South East Office of the Valuation Office Agency, inspected Catcraig Cottage, on behalf of the District Valuer. On 13 April 1999, the District Valuer, acting on the basis of Miss Reid-Thomas' valuation of the property, determined the market value of Catcraig Cottage, as at 3 March 1999, to be £75,000. The District Valuer intimated his decision to the petitioners on 13 April 1999. In this petition, the petitioners seek reduction of the District Valuer's decision of 13 April 1999, on the ground that it was perverse. In the petition itself, the District Valuer is referred to as "the respondent".
[3]Reduction of the District Valuer's decision is opposed by the tenants, who have lodged written answers to the petition and who were represented, by counsel, at the first hearing. Although the petition was served upon the District Valuer, he has not entered the process. Accordingly, he was not represented at the first hearing before me, when the decision taken in his name came under scrutiny. The task of defending his decision accordingly fell on the tenants. The productions lodged in this petition include a letter dated 23 November 1999, which was sent to the petitioners' solicitors by the Solicitor to the Inland Revenue. The letter sets out an explanation as to the legal and factual bases upon which the District Valuer proceeded, when determining the market value of Catcraig Cottage, as at 3 March 1999. That letter forms one of the productions for the petitioners. The tenants, for their part, have lodged affidavits in the name of Miss Reid-Thomas and William Duthie, a Senior Principal Valuer, who is also employed by the Valuation Office Agency. Both those affidavits seek to defend the approach Miss Reid-Thomas adopted in valuing Catcraig Cottage and the valuation she decided upon.
[4]At the first hearing, senior counsel for the tenants sought to have the petition dismissed. He did so, under reference to the tenants' first plea in law, which is a general plea to the relevancy of the petition, and to their third plea in law, which is a plea that the petition is barred by reason of mora, taciturnity and acquiescence. Senior counsel for the petitioners, whilst resisting the motion that the petition should be dismissed, made clear that at this stage he did not seek to have the tenants' pleas in law repelled. He indicated that he would be content if the petition proceeded to a hearing of evidence, on all the issues between the parties, with the pleas in law of the parties, including the first and third pleas in law for the tenants, all being reserved, until that hearing of evidence has taken place. Before turning to the detail of the submissions, it is appropriate that I should outline the factual background to these proceedings. This emerges partly from the written pleadings. It is also dealt with in certain of the productions lodged by parties. Those productions include a number of affidavits.
Factual background
[5]Catcraig Cottage lies to the east of Dunbar. It is located within a coastal strip of land, which is owned by the petitioners and lies some distance to the north and east of cement works, currently owned and operated by Blue Circle Industries plc. During 1979, Blue Circle obtained planning permission to develop an area of farmland, lying to the east of their existing cement works and immediately to the south of the coastal strip of land, owned by the petitioners. That area of farmland, which is owned by Blue Circle, is known as the North East Quarry site. In January 1999, the petitioners were contacted by Katie Cafferkey, Blue Circle's Estates Manager, who sought a meeting to discuss the extent of the petitioners' ownership of the coastal strip of land lying to the north of the North East Quarry site. At that time the petitioners were informed that Blue Circle were interested in buying some land in the area of the coastal strip. On 9 Febuary1999, a meeting took place in the petitioners' offices in Haddington. Representatives of the petitioners and Blue Circle attended the meeting. During the meeting, the petitioners were informed that Blue Circle wanted to purchase the whole of the coastal strip of land owned by the petitioners. Blue Circle indicated that they wished to do so, for the purposes of gaining access to the North East Quarry site, which they would like to develop. The coastal strip includes the land on which Catcraig Cottage is located. According to an affidavit lodged on behalf of the petitioners, Catcraig Cottage was not specifically mentioned at the meeting.
[6]Following that meeting, by memorandum dated 18 February 1999, the petitioners' Head of Property sought information about the tenancy of Catcraig Cottage from the petitioners' Social Work and Housing Department. In his reply, dated 26 February 1999, Ian Patterson, Group Manager, Community Housing Services, recorded that Catcraig Cottage was let under a secure tenancy and that the family, who occupied the property, were presently pursuing an interest in purchasing it. Mr Patterson expressed the view to his colleague, the Head of Property, that he saw little likelihood of the petitioners being in a position to offer Blue Circle any form of arrangement, which would involve Blue Circle leasing or buying Catcraig Cottage with vacant possession.
[7]As I have already indicated, on 3 March 1999 the tenants served an application to purchase on the petitioners. When the petitioners subsequently instructed the District Valuer to determine the market value of Catcraig Cottage, as at 3 March 1999, they did not mention to him Blue Circle's expressed wish to purchase the coastal strip of ground, including the land upon which Catcraig Cottage is situated.
[8]On 8 April 1999, Katie Cafferkey, Blue Circle's Estates Manager, wrote to the petitioners, seeking their permission to approach the tenants directly. She indicated that Blue Circle wished to discuss with the tenants her company's proposals for the area and a possible purchase/lease of Catcraig Cottage, should the tenants ever exercise their right to buy. The petitioners replied to that letter on 19 April 1999. In that reply the petitioners intimated that they understood that the tenants had no intention of considering any move from Catcraig Cottage. They advised Blue Circle that the tenants had a statutory right to buy Catcraig Cottage, by virtue of the provisions of the 1987 Act, and indicated that "should the tenants wish to pursue this option and ultimately purchase Catcraig Cottage, any discussions relating to the property should be held with them and would be a matter solely for them as owners of the property". That letter did not make clear to Blue Circle that the tenants had already served on the petitioners an application to purchase Catcraig Cottage, a necessary first step in the exercise by the tenants of their statutory right to buy.
[9]On 21 April 1999 Katie Cafferkey wrote to the tenants, on behalf of Blue Circle. She informed them that she was interested in discussing with them how Blue Circle might purchase or lease Catcraig Cottage, in the event that the tenants exercised their right to buy the property. On 3 June 1999, Katie Cafferkey met with one of the tenants, Heather Lumsden. They discussed the possibility of Blue Circle buying Catcraig Cottage from the tenants. At a later date in June 1999, Katie Cafferkey verbally advised Heather Lumsden that Blue Circle would pay the tenants up to £210,000, to cover the costs involved in the tenants re-locating to another property. That verbal offer was subsequently withdrawn by Blue Circle, by a letter dated 30 September 1999, which was sent to Heather Lumsden.
[10]Following receipt of the application to purchase on 3 March 1999, the petitioners took no steps to serve on the tenants a notice of refusal under sections 68 -70 of the 1987 Act. In such circumstances, by virtue of the provisions of section 63(2) of the 1987 Act, the petitioners ought to have served an offer to sell on the tenants, by 3 May 1999. On 21 June 1999, solicitors acting for the tenants wrote to the petitioners. That letter was responded to by a reply dated 25 June 1999, sent in the name of a member of the petitioners' legal staff. Although the letter dated 21 June 1999 was not lodged as a production, it appears clear from the terms of the reply that the tenants' solicitors had enquired as to when an offer to sell would be forthcoming. The reply, dated 25 June 1999, refers to the petitioners' Housing Department having a backlog in the provision of the information required for the preparation of offers to sell. The writer of the letter records...
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