Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

Tesco Stores Ltd v Assessor for Fife [Lands Valuation Appeal Court]

Session Cases Cited in 6 Precedent Map Related
Vincent
JurisdictionScotland
Judgment Date14 December 2010
Date14 December 2010
Docket NumberNo 22
CourtLands Valuation Appeal Court (Scotland)

Lands Valuation Appeal Court

Lord Justice-Clerk (Gill), Lord Hardie, Lord Malcolm

No 22
Tesco Stores Ltd
and
Assessor for Fife

Valuation - Valuation for rating - Material change of circumstances - Whether a fall in turnover constituted a material change of circumstances - Local Government (Scotland) Act 1975 (cap 30), sec 3(4)

Valuation - Valuation for rating - Procedural Rules - Presentation of comparisons - Whether a list of comparisons complied with the terms of reg 10(5) of the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995 (SI 1995/572 (S 41))

Section 3(4) of the Local Government (Scotland) Act 1975 (cap 30) provides, "the proprietor, tenant or occupier of lands and heritages which are included in the valuation roll may appeal against the relevant entry but only on the ground that there has been a material change of circumstances since the entry was made and, notwithstanding the definition of 'material change of circumstances' as set out in section 37(1) of this Act, if in an appeal under this subsection on the ground of a material change of circumstances it is proved that there has been a change of circumstances which has materially reduced the extent to which beneficial occupation of the lands and heritages can be enjoyed, the appeal shall not be refused by reason only that the change of circumstances has not been proved to have affected the value of the lands and heritages to any specific extent."

Regulation 10(5) of the Valuation Appeal Committee (Procedure in Appeals under the Valuation Acts) (Scotland) Regulations 1995 (SI 1995/572 (S 41)) ("the Procedure Rules") provides, "Either party to an appeal may, not later than 21 days before the date set for the hearing, furnish to the other party a list of any lands and heritages, and hereditaments in England and Wales, on which he proposes to found by of comparison at the hearing and may at the same time as he furnishes that list make a written request to the other party to provide him with a list of lands and heritages and hereditaments on which that other party proposes to found by way of comparison at the hearing". Regulation 10(6) provides that at the hearing the committee shall not allow a party to found by way of comparison on lands and heritages or hereditaments not included in a list provided by him under reg 10(5) without the consent of the other party; but it may, if the party seeking to found on such comparisons shows cause why they were not included in the list, allow him to found on them subject to such conditions as it thinks fit.

Tesco operated a supermarket at the Bay Centre, Dalgety Bay. At the 2005 Revaluation, the assessor entered it in the roll at a rateable value of 198,000. Until 2008, the store was the only supermarket in Dalgety Bay and the nearest large supermarket was in Dunfermline. In July 2008, Asda opened a new and much larger purpose-built supermarket 500 yards from the Tesco store. The appellants contended that the opening of the Asda store constituted a material change of circumstances affecting the value of the appeal subjects. In the absence of rental evidence, the appellant relied on the trading performance of the subjects and agreed reductions in other supermarket cases. The assessor argued that the appellant had failed to discharge the onus of proof and also relied on a comparison with the appellant's store in Rosyth. The Valuation Appeal Committee for Fife held that while the opening of the Asda store did constitute a material change of circumstances, the appellant had failed to prove that the change had affected the value of the subjects.

In terms of reg 10(5), the expert witness instructed by the appellant intimated a list of over 400 comparisons throughout the United Kingdom. Neither that list nor the nine additional comparisons added two weeks before the hearing were relied upon by the witness in evidence.

It was argued for the appellant that the appeal was not based purely on the fall in turnover, but was also based on the professional opinion of the appellant's valuer and the evidence that other assessors had conceded reductions in rateable values in similar circumstances. A remit to the committee was sought.

Held that: (1) the committee was entitled to hold that the appellant had failed to discharge the onus under sec 3(4) (para 11); (2) a fall in turnover is not necessarily an indicator of a loss in rental value (paras 14, 23); (3) there was direct rental evidence in relation to the Tesco store in Rosyth upon which the committee was entitled to rely (para 15); and appeal refused.

Observed that lists of comparisons intimated in terms of reg 10(5) of the Procedure Rules should identify those properties upon which the witness intends to rely at the hearing and failure to do so should be treated by the committee as the equivalent of a failure to include a property in the list of comparisons and the committee should refuse to permit evidence to be led about that comparison (paras 20, 26).

Tesco Stores ltd operated a supermarket at the Bay Centre, Dalgety Bay. In 2009, Tesco appealed against the entry on the ground that there had been a material change of circumstances and sought a reduction. On 17 December 2009, the Valuation Appeal Committee for Fife refused the appeal. The appellant appealed against that decision to the Lands Valuation Appeal Court.

Cases referred to:

Fife Assessor v Ruggi 1960 RICS 51 (No 32)

Green (George) Ltd v Assessor for Glasgow 1959 RICS 69 (No 23)

Lanarkshire Assessor v Thomas B Morrison 1963 (1) RICS 49 (No 126)

Lothian Assessor v H&M Hennes and Mauritz UK LtdSC [2010] CSIH 60; 2010 SC 753; [2010] RA 536; 2010 GWD 27-556

Lothian Assessor v Ministry of Defence, Army Careers Office [2009] CSIH 89; [2010] RA 55; 2010 GWD 11-203

The case called before the Lands Valuation Appeal Court, comprising the Lord Justice-Clerk (Gill), Lord Hardie and Lord Malcolm, for a hearing on the summar roll, on 3 November 2010.

At advising, on 10 December 2010-

Lord Justice-Clerk (Gill)-

Introduction

[1] This appeal relates to the appellant's supermarket at the...

To continue reading

Request your trial
5 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT