Tayside Assessor v M
| Jurisdiction | Scotland |
| Judgment Date | 17 October 2017 |
| Neutral Citation | [2017] CSIH 64 |
| Date | 17 October 2017 |
| Docket Number | No 5 |
| Court | Court of Session (Inner House) |
[2017] CSIH 64
Second Division
Valuation Appeal Committee
Central Region (Assessor for) v United Glass Ltd 1981 SC 389; 1981 SLT (Notes) 114
Glasgow (Assessor for) v RonWood Greetings Cards Holdings [2000] RA 271; 1999 GWD 38–1868
Highland and Western Isles Valuation Joint Board (Assessor for) v Macleod 2001 SC 476; 2001 SLT 483; [2001] RVR 33
MacMurchie v Assessor for Dundee 1962 SLT 195
Monk (SJ & J) (A Firm) v Newbigin (Valuation Officer) [2017] UKSC 14; [2017] 1 WLR 851; [2017] 2 All ER 971; [2017] RA 95
RGM Properties Ltd v Speight (Listing Officer) [2011] EWHC 2125; [2012] RA 21
Strathclyde Region (Assessor for) v Scottish Special Housing Association 1986 SLT 421
Wilson v Coll (Listing Officer) [2011] EWHC 2824; [2012] PTSR 1313; [2012] RA 45
Armour, SB, Valuation for Rating (5th Haddow and Docherty ed, W Green, Edinburgh, 1985), paras 17.18, 17.19
Bennion, FAR, Statutory Interpretation: A code (6th Jones ed, LexisNexis, London, 2013), pp 657, 658
Craies, WF, Legislation: A practitioners' guide to the nature, process, effect and interpretation of legislation (11th Greenberg ed, Sweet and Maxwell, London, 2017), paras 27.1.12.5, 27.1.12.6
Valuation — Council tax — Exempt dwelling — Whether repairs rendering dwelling unfit for occupation meant it ceased to be a dwelling — Whether unoccupiable dwelling fell to be deleted from valuation list — Council Tax (Exempt Dwellings) (Scotland) Order 1997 (SI 1997/728 (S 68)) — Local Government Finance Act 1992 (cap 14), sec 72
The Assessor for Tayside Joint Valuation Board appealed against a decision of the valuation appeal committee for Perth and Kinross to the Court of Session following an appeal hearing on 26 January 2017 at which parties appeared. No answers were lodged to the appeal to the Court of Session, nor appearance made on behalf of anyone other than the assessor.
Section 72(1) of the Local Government Finance Act 1992 (cap 14) (‘the 1992 Act’) provides that council tax shall be payable in respect of any dwelling which is not an exempt dwelling. Subsection (2) defines dwelling as meaning any lands and heritages which consist of one or more dwelling houses with any garden, yard, garage, outhouse or pertinent belonging to and occupied with such dwelling house or dwelling houses. Subsection (6) defines a chargeable dwelling as being any dwelling in respect of which council tax is payable and an exempt dwelling as any dwelling of a class prescribed by an order made by the Secretary of State.
Article 3 of, and sch 1 to, the Council Tax (Exempt Dwellings) (Scotland) Order 1997 (SI 1997/728 (S 68)) prescribes certain classes of dwellings as exempt dwellings for the purposes of sec 72(6) of the 1992 Act. Paragraph 2 of sch 1 (as amended by the Council Tax (Exempt Dwellings) (Scotland) Amendment (No 2) Order 1999 (SSI 1999/140)) provides a definition of an unoccupied dwelling as one, “(a) which– (i) is undergoing or has undergone (since the last occupation day) major repair work to render it habitable; or (ii) is undergoing or has undergone (since the last occupation day) structural alteration; (b) in respect of which no more than 12 months have elapsed since the last occupation day; and (c) in respect of which no more than 6 months have elapsed since the major repair work or structural alteration in question was substantially completed.”
A homeowner lived in her house from 2007 until July 2015. The house suffered from significant problems with dampness and she vacated the house having arranged for repair and improvement work to be carried out, including to address the dampness problem. In January 2016 stripping out work began, and in July 2016 installation of new floors, windows, partition walls and other replacement or improvement work began. The garage was also converted into additional living accommodation. In August 2016 the homeowner proposed to the assessor that the subjects be deleted from the council tax valuation list with effect from 1 January 2016.
Following upon inspection of the subjects, the assessor did not accept that they had ceased to be a dwelling and referred the matter as an appeal to the local valuation appeal committee. The committee allowed the appeal and directed the assessor to delete the subjects from the list with effect from 1 January 2016. The assessor appealed against that decision to the Court of Session.
Counsel for the assessor submitted that the question was whether, after the commencement of works, the subjects had remained a dwelling house and a dwelling. He submitted that they had so remained while they were under repair and alteration, although it was accepted that they could not be occupied as a dwelling house while the works were underway.
Held that: (1) the proper construction of sec 72 of the 1992 Act and the Regulations involved a two-stage approach, the first stage being the initial question of whether the subjects were a dwelling and, if so, a second stage to determine what the appropriate valuation band was (para 13); (2) where the only reason a dwelling house could not be lived in was because it was undergoing repairs or alterations it did not cease to be a dwelling house or cease to exist, although cases may arise in which the works are so extensive and so prolonged or where the essential physical characteristics of a house were lost such that the proper conclusion was that the property has ceased to exist as a dwelling house while the works are carried out (para 17); (3) that the committee had erred in law in holding that a mere incapacity to be lived in for a temporary period while repair and other alteration works were being carried out was enough to cause a dwelling to cease to be a dwelling (para 20); and appeal allowed.
The cause called before the Second Division, comprising the Lord Justice-Clerk (Dorrian), Lord Brodie and Lord Doherty for a hearing, on 26 September 2017.
At advising, on 17 October 2017, the opinion of the Court was delivered by Lord Doherty—
Opinion of the Court—
[1] M purchased her house at Birchcroft, 9 Orchil Crescent, Auchterarder in February 2007. She lived there until July 2015. The house had very significant problems with dampness. After she vacated the house she arranged for repair and improvement work to be carried out, part of which was to address the problem of dampness. Stripping out work commenced in January 2016. Installation of new flooring, replacement windows, partition walls and other replacement or improvement work began in July 2016. While the works were ongoing it seems that M also decided to convert the house's garage into additional living accommodation.
[2] The subjects have been entered in the council tax valuation list as a dwelling since the list was first prepared in 1993. In August 2016 M made a proposal to the appellant that the subjects be deleted from the list with effect from 1 January 2016, on the basis that on that date they had ceased to be a dwelling. The appellant inspected the subjects in August 2016 at which time, while the strip out and some of the repairs and other work had been carried out, a good deal remained to be done. Since the appellant did not accept that the subjects had ceased to be a dwelling, he referred the disagreement between him and M as an appeal to the local Valuation Appeal Committee (Council Tax (Alteration of Lists and Appeals) (Scotland) Regulations 1993 (SI 1993/355 (S 39)), reg 15(1) (‘the 1993 Regulations’)).
[3] The Valuation Appeal Committee for Perth and Kinross heard the appeal on 26 January 2017. M represented herself before the committee. The appellant was represented by senior counsel. The committee allowed the appeal and directed the appellant to delete the subjects from the valuation list with effect from 1 January 2016. Its statement of reasons made brief reference to the evidence and to the submissions made to it, before setting out its decision and reasons. The crux of its reasoning was as follows:
‘The Assessor cited [Assessor for Highland and Western Isles Valuation Joint Board v Macleod]. There were significant differences from this Appeal. In the Macleod case, the property was vacant as a result of the death of the owner, who had lived in the property prior to his demise. The subsequent owner did not occupy the property. In arriving at its judgement, the Court noted that other houses in this condition continued to be lived in in certain areas of the Highlands. In the present case, the condition of the Appeal Subjects made [sic] incapable of habitation, not just unsuitable for habitation. As a result the Appeal Subjects lost the characteristics of a dwelling.’
[4] Section 82(4) of the Local Government Finance Act 1992 (cap 14) (‘the 1992 Act’) provides that any party to an appeal to the Valuation Appeal Committee...
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