The Assessor For Lothian Valuation Joint Board V. Over The Counter Limited
| Jurisdiction | Scotland |
| Judge | Lady Dorrian,Lord President,Lord Malcolm |
| Neutral Citation | [2014] CSIH 28 |
| Court | Court of Session |
| Docket Number | XA2/14 |
| Published date | 26 March 2014 |
| Date | 13 March 2014 |
| LANDS VALUATION APPEAL COURT, COURT OF SESSION | |
| [2014] CSIH 28 | |
| Lord President Lady Dorrian Lord Malcolm | XA2/14 OPINION OF THE LORD PRESIDENT in the Appeal THE ASSESSOR FOR LOTHIAN VALUATION JOINT BOARD Appellant; against OVER THE COUNTER LIMITED Respondent: _______________ |
For the Respondent: MacIver; Morton Fraser
13 March 2014
Introduction
[1] This is an appeal by the assessor against a decision of the Lothian Valuation Appeal Committee dated 3 October 2013 by which it allowed an appeal by the respondent against an entry in the Valuation Roll relating to the respondent's basement shop at 8(BF)-14 Stafford Street, Edinburgh.
The history
The 2005 Revaluation
[2] In the 2005 Revaluation the subjects formed part of a two-storey shop whose principal sales area was on the ground floor. The gross internal floor area of the basement was measured at 263.26sm. The assessor applied a reduction factor for the basement of 0.125. That produced a reduced area of 24.98 sm. In proceeding in this way the assessor treated the basement as being ancillary to the main ground floor area of the shop.
The 2009 alteration to the Roll
[3] Thereafter the subjects were divided into two separate shops. The assessor therefore altered the Roll with effect from 15 February 2009 by making two new entries. The basement shop was assessed at 263.26 sm and with a reduction factor of 0.125, as before. That produced a reduced floor area of 24.98 sm to which the assessor applied a rate of £350 psm. With an end allowance that produced a net annual value/rateable value of £8,100.
The 2010 Revaluation
[4] The subjects were not re-surveyed in preparation for the 2010 Revaluation. In the result, they were valued on the same basis as before. The assessor applied a rate of £600 psm which, with end allowances, produced an NAV/RV of £13,900.
The 2011 alteration to the Roll
[5] In the course of negotiations with the respondent's surveyor relating to other subjects, it came to the notice of the assessor that the valuation of the basement shop at the 2010 Revaluation had involved an apparent error, namely that it had been valued as the basement of a two-storey shop where the principal trading floor was at ground floor level, whereas it should have been valued as a basement shop in its own right. Valuation as a separate shop would have involved a different methodology, namely the zoning of the floorspace.
[6] Accordingly, in May 2011 the assessor served notice on the respondent, under section 3(2) of the Local Government (Scotland) Act 1975, of an altered entry in the Roll. For the purposes of the altered entry the assessor valued the entire subjects at a uniform Zone A rate, with an appropriate end allowance for the disadvantage that the shop was below street level. The assessor based that valuation on a reduced floor area of 199.77 sm to which she applied a rate of £500 psm. The lower rate resulted from negotiations with the respondent's agents who also represented occupiers of other properties in Stafford Street. The assessor's revised valuation produced an NAV/RV of £36,000. The detailed calculation of this valuation was set out in a schedule that was in due course before the Committee (Pro 1/9).
[7] The respondent appealed against the revised entry on the ground that there had been no error falling within the scope of section 2(1)(f) of 1975 Act and therefore that the alteration of the Roll was invalid.
Pre-hearing events
[8] A hearing in the appeal was fixed for 7 June 2013. By email dated 9 May 2013 the Divisional Assessor, Mr Gary Elliott, answered the respondent's ground of appeal by saying that the 2010 Revaluation entry had been erroneous and had been corrected under section 2(1)(f) (supra). He said:
" ... A number of errors have been corrected including those of measurement, survey and classification. Further, it is my opinion that the original storey reduction factor applied can be corrected in terms of section 2(1)(f) as the Revaluation Appeal survey identified that the appeal subject is not the basement of a two storey shop: instead and in fact it is a shop that has its principal sales floor below ground level.
The error was identified during Revaluation appeal discussions with your firm following the citation of the Revaluation Appeal ... "
[9] The June hearing did not go ahead. The hearing was re-fixed for 3 October 2013. On 5 September 2013 the Divisional Assessor emailed the respondent's surveyor, Mr Kevin Elder. He notified him that the gross floor area was in fact 228.23 sm and that he now based his valuation on a reduced area of 128.83 sm. That, with appropriate end allowances, produced an NAV/RV of £24,200.
[10] Mr Elliott's reduced valuation was set out in a detailed schedule that was in the hands of Mr Elder for about three weeks before the hearing. The same schedule was also before the Committee (Pro 1/10).
The hearing
[11] It was agreed that Mr Elliott would be the first witness in the case. When he came to speak to his revised valuation, counsel for the respondent objected on the basis that this was not the valuation on which the...
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