[2001] EWLands RA_29_2000 (21 March 2001)
RA/29/2000
	
	LANDS TRIBUNAL ACT 1949
	
RATING – annual value – lock-up shop – valuation – rents and assessments of comparable premises – mode or category of occupation – rebus sic stantibus – ratepayers appeal allowed in part – assessment reduced from £2,550 RV to £2,430 RV 

IN THE MATTER of AN APPEAL from a DECISION of the
NORTH WALES VALUATION TRIBUNAL

BETWEEN	T HUMPHREYS-JONES	Appellant
	T/A CATHEDRAL FRAMES	

	and
		
	ANTHONY WELSBY 	Respondent
	(Valuation Officer)

	Re: 28 High Street, St. Asaph, Clwyd, LL17  0RD

	Tribunal Member: P R Francis FRICS

	Sitting at: Denbigh Magistrates Court, Grove Road, Denbigh, Clwyd
	on
20 February 2001

The following cases are referred to in this decision:

Scottish and Newcastle Retail Ltd v R F Williams (VO) [2000] RA 119
Midland Bank  v Lanham (VO) [1978] RA 1
Irving Brown and Daughter v Smith (VO) [1996] RA 53
Garton v Hunter (VO) [1969] 2 QB 37
London Transport Executive v Croydon LBC and Phillips (VO) (1974) 19 RRC 299

Edward G Humphreys-Jones, with leave, for the appellant
Anthony Welsby, with leave, respondent Valuation Officer in person

DECISION
1.	This is an appeal by T Humphreys-Jones (“the appellant”), occupier of shop premises trading as Cathedral Frames, 28 High Street, St Asaph, Clwyd (“the subject premises”) against a decision of the North Wales Valuation Tribunal (“the VT”) dated 11 May 2000, which determined the assessment in the 1995 non-domestic rating list at £2,550 with effect from 1 April 1995.
2.	Mr. Edward Glyn Humphreys-Jones MRICS of Jones Peckover, Chartered Surveyors, Bangor, appeared for the appellant with leave of the Tribunal and gave evidence.   Mr. Anthony Welsby MRICS, FAAV, a Valuation Officer for the North Wales Valuation Office Group appeared in person with leave of the Tribunal and gave evidence.
FACTS
3.	The parties produced a statement of agreed facts and issues and from this, together with the parties’ reports and oral evidence and my inspection of the subject premises and comparables on the day of the hearing, I find the following facts:
3.1	The appeal hereditament comprises a ground floor lock-up shop located on the south side of St Asaph High Street about midway along the main shopping area between St Asaph Church to the west, and the A 525 crossroads junction with Chester Street to the east.    The High Street is steeply sloping, rising from west to east and there is a narrow pavement separating the subject premises from the road.
3.2	The accommodation comprises a single fronted shop with store/workroom to the rear containing sink unit and door to small rear yard.   There is an outside w.c. which is shared with the occupiers of the adjacent premises known as ‘Glanclwyd’, High Street, (the Kebab shop).   Floor areas are agreed as:
Shop		Zone A:			23.85 sq.m.
		Zone B:			  1.68 sq.m.
Workroom/store				   9.09 sq.m.
In terms of Zone A:		25.59 sq.m. (Zoning pattern 20’)
3.3	The freehold of the subject premises was purchased by the appellant in February 1997 for £8,000 following which a new timber framed shop front was installed, this having a large plate glass window with panelled lights above, and a single, glazed entrance door from the street.   The price was subsequently reduced, by the repayment by the vendor to the purchaser of £500 to reflect the fact that the small rear garden, which had been thought to be included in the sale, was not. 
3.4	The appeal hereditament was entered in the 1995 Valuation List as at 1 April 1995 at Rateable Value £3,350 and at that time was occupied as a bakers.   Following a Valuation Tribunal decision on nearby premises known as Central Buildings, High Street, St Asaph on 20 September 1996, the Valuation List in respect of the appeal premises was reduced to Rateable Value £2,550.   The appellant made a proposal for a reduction in that Rateable Value to £800 on 18 September 1998, and as agreement could not be reached with the Valuation Officer, the matter was referred on appeal to the North Wales Valuation Tribunal.   In its decision of 11 May 2000, following a hearing the previous day, the VT confirmed the Rateable Value at £2,550.      
3.5	Notice of Appeal was formally lodged with the Lands Tribunal 16 June 2000.
3.6	For the purpose of this appeal, the material date is 1 April 1995.
3.7	Details of the following comparable properties referred to in evidence are agreed as:
Property			Rent	Area (ITZA)	Rent per sq.m.	Assessment per sq.m.
City Pharmacy, High St	£4,800	46.23 sq.m.	£103.82		£98.63
1b High Street		£13,000	45.92 sq.m.	£283.10		£183.00
Glanclwyd, High Street	£4,740	15.39 sq.m.	£307.99		£196.00
Old Bank Buildings, High St	£3,640	25.74 sq.m.	£141.41		£131.00
City Barbers, High Street	£2,860	28.58 sq.m.	£100.06		£46.54
Central Buildings, High St	£4,330	43.33 sq.m.	£100.00		£100.00
3.8		As to Central Buildings, where the assessment was determined on appeal, the appellant represented herself at the hearing, with the assistance of her solicitor, and no reference was made to the Rhuddlan Local Development Plan or its presumption against changes of use resulting in loss of A1 (shopping) in the High Street.
ISSUES
4.	The issue in this appeal is the correct rateable value of the appeal hereditament in the Rating List, having regard to the level of values at 1 April 1993 - the Antecedent Valuation Date (“AVD”) taking into account the comparable evidence and whether or not there should be an end allowance to reflect the shared wc, and for alleged blockages to drains and food smells from the adjoining property. 
APPELLANT’S CASE
5.	Mr. Humphreys-Jones is a chartered surveyor with Jones-Peckover, Chartered Surveyors of Bangor, North Wales.   He has over 40 years experience in valuation and rating matters, and was the Statutory Valuation Officer for the purposes of the 1990 and 1995 Rating Lists in Gwynnedd.
6.	He said that in arriving at his opinion as to the correct rateable value of the subject property, he had had regard to two comparable properties – City Barbers and City Pharmacy.   He had also, due to the paucity of relevant comparable evidence in general, analysed the price paid for the freehold by the appellant in 1997.    City Barbers was the only premises where the rental evidence was untainted, and in assessing the value for rating purposes of the subject premises, had used the same value per sq.m. (£46.54) to arrive at a figure of £1,191 from which he had deducted a 10 per cent end allowance for the shared wc and the fact that problems were being encountered with the drains, and cooking smells from the adjoining Kebab shop.  This produced £1,075.  He then carried out a check valuation by adopting 14 per cent of the purchase price (£1,050) as a rental value.  This percentage, which amounted to 7.14 years purchase, was, he said, appropriate for a property of this type in this location.
7.	Mr. Humphreys-Jones said that City Barbers, on the material day, was in similar condition to the subject premises and being only a few metres down the road, was in a comparable trading position.   It was let on a new lease for one year in 1996, with an option to renew for a further two years at a rental of £2,860 per annum.  When taking into account adjustments for maintenance and the fact that the general and water rates and insurance were paid by the landlord, the rent in terms of rateable value became £1,330 which, divided by the agreed floor area, gave £46.54 per sq.m.   Although the rental was agreed three years after the AVD, the difficult trading conditions resulting from the depressed economy meant that there had been no inflationary increase during the period.
8.	The assertion by the Valuation Officer that this was a concessionary rent was not agreed, and Mr. Humphreys-Jones thought the figure reflected the state of trade for A1 retailers at this difficult time.   He said that Mr. Welsby’s evidence relating to the rent of £2,704 agreed on City Barbers in 1999 (exclusive of non-domestic and water rates) and adjusted to £2,501 (£87.50 per sq.m.) in terms of rateable value after allowing 7.5 per cent for repairs, was not only six years after the AVD but also showed there had been a significant increase in rental values in the intervening three years.  It did not indicate, as Mr. Welsby had contended, that the 1996 rent was too low. 
9.	Whilst City Barbers was not ideal, Mr. Humphreys-Jones said the 1996 rental, in his opinion, represented the best evidence of the Zone A value of retail shops on this side of St Asaph High Street.
10.	As to City Pharmacy, which had been used as an A1 comparable by Mr. Welsby, he gave six reasons why he did not regard it as providing a proper indication of rental values for A1 uses in the High Street.    Firstly the policy relating to pharmacies as governed by the NHS (Pharmaceutical Services) Regulations 1992 (as amended) SI 1992 No.662.   This, he said, had the effect of limiting the provision of pharmaceutical services to one outlet within the vicinity or neighbourhood in the absence of compelling or exceptional reasons.  The North Wales Pharmaceutical Committee had advised that it was extremely unlikely permission would ever be given for the opening of a second pharmacy in St Asaph.    Consequently, the fact that an application for inclusion on the pharmaceutical list had been granted (in which the premises had to be named) could be construed to give them an additional value.   Secondly, the fact that the premises were a short, level walk from the doctor’s surgery created an enhancement to value.
11.	Thirdly, the rent of £4,800 per annum agreed for a new lease in June 1991, had been abated by £1,600 per annum for the first 11 years of the 20 year lease to reflect the tenant’s proposed expenditure of £12,000 in connection with Health and Safety issues relevant to the particular business.  Fourthly, the pharmacy’s parent Company had attempted to run a non-prescription drug store following the relocation of the prescription pharmacy to new premises immediately adjacent to the surgery, but this had not been viable.
12.	Mr. Humpheys-Jones’ fifth reason for suggesting that the rental was unrepresentative, or tainted, was that it was fixed 2 years before the AVD in a market that was very much stronger than it was in 1993.   Finally he noted that agents have been trying to sub-let the premises for several months during 2000 and early 2001, at the same rental as that which was fixed in 1991, but with no success.
13.	Thus he concluded that the rent agreed was clearly over and above the open market rental value; therefore the rateable value per square metre of £98.63 (based upon an adjusted rent of £4,560 to allow 5 per cent for landlord’s liability for external repairs), was not representative of values for A1 uses.
14.	Having come to the conclusion that £46.54 per sq.m.in terms of rateable value was the appropriate figure, based on the only ‘untainted’ comparable in the High Street, Mr. Humphreys-Jones decided that, whilst in circumstances where there were many suitable comparables, such action would not be necessary, it was appropriate, as a check, to analyse the purchase price.   He had referred to the Property Market Report of the Valuation Office Agency from 1994, and applied a 14 per cent return, slightly above the figure of 12.5 per cent shown for Llandrindod Wells, to reflect the comparison between the two towns in trading terms.   This gave a rental value of £1,050 for the subject premises which is to all intents and purposes the same as his analysis from the comparable.
15.	As to the proposed end-allowance, he said the smells of cooking from the adjoining premises (a disability not suffered by any of the comparables referred to in evidence) meant the premises could not be adequately ventilated (by leaving the back door open) in the summer months.   Also, blockages to the drains and subsequent flooding of the rear yard caused by congealed cooking fat from the adjoining Kebab shop were a disability not suffered by other premises.  The shared outside wc was also a disadvantage.   In cross-examination Mr. Humphreys-Jones accepted that no complaints had been made regarding the cooking smells, neither had any approaches been made to the Environmental Health Department over the drains.
16.	In respect of the evidence given, and comparables used by Mr. Welsby, Mr. Humphreys-Jones referred first to the valuation tribunal decision in 1996 relating to Central Buildings (The Farm Shop), upon which Mr. Welsby had relied..   A rateable value of £100 per sq.m. had been determined.   This shop was virtually opposite the subject premises and therefore in a similar position in trading terms, but it was larger, more imposing (having some architectural merit) and being a corner unit had a substantial return frontage.   In terms of access and safety it had the benefit of a wide pavement, small forecourt to the front and was immediately adjacent to a private parking area in front of the neighbouring bank.   The premises were superior internally, and had good internal wc facilities.   On the basis of these factors alone, Mr. Humphreys-Jones said there would need to be a very substantial discount for the subject premises.   
17.	However, he also thought that the Farm Shop decision was incorrect as, in considering comparables provided by the VO relating to three premises with A3 use, no account had been taken by the valuation tribunal of local planning policies then in force (as no evidence was provided) or the fact that rental values for A3 uses were higher than for A1.    Mr. Humphreys-Jones said that Policy S6 of the Rhuddlan Local Development Plan stated that there would be a presumption against the change of use of Class A1 (shopping) uses to other uses in the core shopping area of St Asaph, to prevent the further loss of existing shops.   It could not, therefore, be anticipated that a change of use application to A3 would find favour with the planning authority.   He had also received a letter from a Councillor Thomas (in February this year) stating that he would object strongly to any applications for further A3 uses.   Mr. Welsby’s reliance in this appeal upon the 1996 decision, and three premises upon which A3 permission existed was, therefore, flawed and his suggestion that the valuation tribunal decision set the tone for rental levels in that part of St Asaph was incorrect.   
18.	Bearing in mind that, since the construction of the A55 by-passing the town, St Asaph had become a popular stopping-off place for those travellers using the North Wales coast road, demand for A3 uses was high, and any premises with permission for that use would command a premium.   To use A3 rents as comparables was not, therefore, appropriate and did not reflect the restrictions that A1 uses suffered.    The presumption against changes of use (despite the planning officer’s intimation, given on inquiry, that permission might be forthcoming) in the centre of St Asaph meant that a prospective A3 tenant would not be interested in the subject premises, and the market would thus be limited.    Thus Mr. Welsby’s contention that there was not a separate market for A3 uses was wrong.    However, Mr. Humphreys-Jones did say that his own instructions given in the Bangor office during the preparation of the 1995 Rating Lists was that A3 uses in shopping streets should be valued on the same basis as A1, but he submitted that in the circumstances of St Asaph, such an instruction would have been incorrect.
19.	Mr. Humphreys-Jones said he thought that the only reason the premises adjoining the subject premises obtained permission A3 (in 1994) for a Kebab shop was because it had been previously A2 (professional offices) use, and would not, therefore, result in the loss of a retail unit.
20.	The principle of ‘rebus sic stantibus’ as contained in the Lands Tribunal decisions in Midland Bank  v Lanham (VO) [1978] RA 1 and Irving Brown and Daughter v Smith (VO) [1996] RA 53 was agreed between the parties and that meant a property must be valued physically as it stands and in the same mode or category of occupation that existed at the valuation date.   In arriving at the valuation, it would be correct to consider any bids that might arrive as a result of the reasonable expectancy of planning permission being obtained for an alternative use.   However, Mr. Humphreys-Jones concluded, for the reasons of planning policy that he had given, that a change of use from A1 to A3 on the subject premises or The Farm Shop could not reasonably have been expected to be forthcoming on the material date or the date of the proposal.
21.	Finally, Mr. Humphreys-Jones said that he thought the Valuation Officer’s reliance, in support of his case, upon settlements achieved with various surveyors after the 1996 valuation tribunal decision on The Farm Shop, was of no assistance as again there was no evidence that the question of local planning constraints had been considered.
22.	In cross-examination, Mr. Humphreys-Jones admitted that he had no evidence to support his contention that the 1991 rent agreed for City Pharmacy was subject to an uplift or that, as a general rule, pharmacies would be expected to pay higher rents than other occupiers.  He also did not have details of the works for which an abatement to the rent was allowed.  In respect of his analysis of the purchase price of the subject premises as a check valuation, it was accepted that the property was subject to a flying-freehold – the accommodation from the adjoining Kebab shop extending over the first floor.
23.	 Having said in evidence that some of Mr. Welsby’s comparables could only be admissible to indicate a trend in rental levels due to the settlements being after the material date, Mr. Humphreys-Jones accepted that 1b High Street was in existence at the material date of 1 April 1995, and the Kebab shop details were available at the effective date.
24.	Whether or not Mr. Welsby’s evidence regarding the City Barbers exclusive rent agreed in 1999 was admissible, it was Mr. Humphreys-Jones view that an effective 90 per cent increase could be explained by increases in market value, demand having increased in the last two years or so as the economy improved.
RESPONDENT’S CASE
25.	Mr. Welsby commenced by saying that the onus was upon the appellant to show that the valuation tribunal’s decision was wrong, and there had been nothing in Mr. Humphreys-Jones’ evidence to suggest that was the case.  It was his view that the VT had come to the correct decision in confirming a rateable value of £2,550 to the appeal hereditament, based upon a zone A price of £100 per sq.m., and this was supported by his comparable evidence.
26.	He had considered the rent passing on City Pharmacy, analysed for rating purposes at £98 per sq.m.  This was an A1 user, and the licence to trade as a pharmacy, as referred to extensively in the appellant’s evidence, was personal to the occupier rather than attached to the property.  He had no evidence to indicate that rental levels would be increased to reflect the presence of a licence, and the only likelihood of an enhanced value would be if available premises were physically located very close to a doctor's surgery.   The former occupiers of City Pharmacy had indeed moved to new premises adjacent to St Asaph’s surgery in The Roe, and their former premises were now available to let.   With little adjustment required to the rent to bring it into line with the terms of rateable value, Mr. Welsby said he considered this to be a good comparable.
27.	1b High Street had been analysed at £183 per sq.m. for rating purposes (this was an A3 user) but significant adjustments were required and there was an indication on the Form of Return that the parties had been connected.  He therefore attached little weight to this property.     As to Glanclwyd (The Kebab Shop) adjoining the appeal hereditament, and with first floor accommodation extending over 28 High Street, Mr. Welsby said that he had adjusted his original analysis (where the first floor had been treated as storage) following the receipt of information from the letting agent that the first floor had been considered suitable for residential accommodation and thus had significantly more value attributed to it.   This revision had served to reduce the rating analysis of the ground floor shop to £196 per sq.m. from £251 per sq.m., bringing it closer to other values.
28.	With the premises having been let very close to the AVD, he thought the evidence was good, however, he accepted that on either analysis, the value is substantially more than is being sought on the subject premises, and above the general tone of the list – this going to prove that £100 per sq.m. as confirmed by the VT was certainly not too high.   
29.	Mr. Welsby said that the only reason he had included Old Bank Buildings (The Bengal Village) was to attempt to make sense of the somewhat disparate nature of the settlements in this part of the High Street.   Whilst at the AVD the premises had been let as a greengrocers, and the letting in 1996 some three years later for a hot-food takeaway followed the grant of planning permission for A3 use it indicated that rents in the area had not decreased dramatically.   With little adjustment being needed, he thought that the agreed analysis of £131 per sq.m. was reliable.
30.	As to City Barbers, upon which the appellant had placed most reliance, Mr. Welsby said that he had only become aware of the 1996 figure (at £46.54 per sq.m.) when it was brought to his notice by Mr Humphreys-Jones in October 1999.   On analysing the Form of Return that showed the rent to be inclusive of general and water rates, and requiring several adjustments to bring it into line with the definition of rateable value, he came to the conclusion that the rent must have been concessionary.   This opinion was supported by the fact that the analysis for rating purposes of the exclusive rental agreed in 1999 showed £87.50 per sq.m. zone A, a 90 per cent increase in 3 years.   The market in St Asaph had been relatively static during that period, proving, in his judgment, the unreliability of the 1996 rent.   The figure of £46.54 per sq.m. was so out of line with all the other evidence that he had produced, especially as it was agreed 3 years after the AVD, that it simply could not be considered comparable and no weight could be attached to it.
31.	In addition to the analyses that had been agreed between the parties, Mr. Welsby produced evidence of a number of settlements that had been agreed in connection with the 1995 Rating List with owner/occupiers or surveyors acting for occupiers.      These were:
Property				Rent	Area (ITZA)	Rent per sq.m.Assessment per sq.m.
Barrow Craft, High Street		£2,600	26.35 sq.m.	£98.67		£100
Barrow Arms Rest’t, High St	£8,053	89.48 sq.m.	£89.99		£100 (-10% e.a.)
3 Chester Street			£1,037	13.83 sq.m.	£74.98		£75	
10 Chester Street			£5,253	70.04 sq.m.	£75.00		£75	
32.	Barrow Arms was A3 use (a restaurant) and the others were A1 shops and premises.   Barrow Craft was agreed with the owner in January 1997, Barrow Arms was agreed with Mendicks, Chartered Surveyors in February 1998, and the Chester Street shops were agreed with Celt Rowlands & Co and Storey Sons and Parker in September 1998 and February 2000 respectively.   It was agreed with Mr. Humphreys-Jones that these settlements were all after the 1996 VT decision on Central Buildings, and after the material and effective dates.   However, Mr. Welsby said that they indicated that whilst there were considerable variations in rents in the High Street, apart from the 1996 City Barbers rent, which he did not accept, all were at or above the figure sought for the subject premises.
33.	Whilst he did not dispute that the rents for most of the A3 uses were higher than that for the single comparable the appellant had put forward, as a matter of fact, the lack of a discernible pattern of rents in general, did not indicate any reliable evidence that A3 users were prepared to pay more than those for A1.
34.	He did not agree with Mr. Humphreys-Jones contention that the rentals relating to all the A3 premises referred to by the VO in the 1996 VT appeal on Central Buildings, and again in this appeal, would lead to an incorrect finding unless the full implications of the rebus principle had been explained and understood.  The VT is charged with making determinations in accordance with rating law and principle, and is fully aware of the rebus rule.   Although no specific reference was made to it in the 1996 hearing the VT was aware of the uses of the comparables viz one A1 user (City Pharmacy), an A1 use changing to A3 (Old Bank Buildings – now The Bengal Village) and two A3 uses, Glanclwyd (the Kebab shop) and 1b High Street.    Moreover, he said, the rebus principle was specifically referred to in the VT’s decision on the appeal hereditament issued on 10 May 2000.
35.	Mr. Welsby said that the appellant’s surveyor relied heavily on Planning Policy S.6 and the opinion that had been expressed to him in a letter from a councillor in relation to the authority’s stance on A3 uses as at 1993.    Having spoken to the Planning Officer responsible for St Asaph himself, Mr. Welsby said that he had been advised that at the material date a planning application for change of use may have been given approval.    The Lands Tribunal, in Irving Brown  had restated the rebus principle.   There is no rule of law that requires a hereditament to be valued only for its current use.   Alternative uses to which it could be put in the real world in its existing state and having regard to possible minor alterations, and which would be in the minds of hypothetical tenants competing for the premises in the open market are to be regarded as uses within the same mode or category as the current use, providing the existence of such competition can be established by evidence.   Thus, he said, there was no separate market in the High Street for A1 and A3 uses, and the appellant had failed to make out his case in that regard. 
36.	Finally Mr. Welsby said that he did not agree that there should be an end allowance for the lack of an internal wc for the sole use of the occupier as no such allowance had been made in respect of other properties, there being many in St Asaph with the same disabilities; 3 Chester Street was one.   Neither did he accept there should be an allowance for smells from the adjoining shop or alleged drainage problems, as no complaints had been received by the Environmental Health Officer.    
37.	Cross-examined by Mr. Humphreys-Jones, Mr. Welsby did not accept that there was now an ‘enclave’ of hot food takeaway premises at the lower end of the High Street.   As to the 1999 rent on City Barbers, it was accepted that it did not indicate a trend (towards rising rental values) and as it was agreed after the relevant dates there was a question over its admissibility.   However, Mr. Welsby said that all evidence was important, and as it was on the Form of Return he had to consider it.    The question was for the Tribunal to decide how much weight should be given to it.
DECISION
38.	I inspected the subject property both internally and externally, and the comparables externally on the day of the hearing.
39.	The principal issue between the parties is the weight, if any, to be attached in valuing this A1 retail shop to the rents and assessments of other hereditaments in the High Street in A3 use.   The correct approach in law is now to be found in the decision of this Tribunal (the President and Mr P H Clarke FRICS) in Scottish and Newcastle Retail Ltd v R F Williams (VO) [2000] RA 119, upheld by the Court of Appeal on 15 February 2001, [2001] EWCA Civ 185, unreported.   Reference  was made by the parties in this appeal to Midland Bank  v Lanham (VO) and Irving Brown and Daughter v Smith (VO), but Midland Bank was expressly overruled by the Court of Appeal and Irving Brown, which adopted the Midland Bank formulation of the use limb of the rebus sic stantibus rule, now held to be wrong, is similarly no longer good authority.
40.	The rule is (see Scottish and Newcastle in the Lands Tribunal at paras 152 and 198 and in the Court of Appeal at paras 79 and 73) that it must be assumed that the hereditament could only be occupied for a purpose which is in the same mode or category of purpose as that for which it was being occupied on the material day.   Any prospective change of use outside that mode or category is to be ignored.   In determining to what mode or category a particular use belongs it is the principal characteristics of the use to which regard must be had; and shops, offices and factories serve as examples.   I am in no doubt that the shop in the present case is in a separate mode or category of use from the A3 uses on which the VO seeks to place reliance.
41.	There is, however, no rule that evidence relating to another hereditament is irrelevant if that other hereditament is in a different mode or category of occupation (see Scottish and Newcastle in the Lands Tribunal at paras 152 and 198).   Any evidence relating to the rents or assessments of other hereditaments may be taken into account provided it is relevant to the valuation:
“Whether the rents or assessments of hereditaments in a different mode or category of use are relevant, and the weight to be attached to them, is a matter for judgment in the individual case.   Often they will be of no assistance, but there are undoubtedly cases where they may constitute helpful evidence.   Take for example a shopping street which contains, in addition to shops and A3 uses, a few offices in premises built as shops.   The subject hereditament, in office use, is in a part of the street that contains only shops and restaurants apart from the subject hereditament itself.   If the evidence from the other parts of the street is that the rents and assessments of offices are no different from shops and A3 uses, the valuer may well conclude that the best evidence of the value of the subject premises as offices is to be found in the rents and assessments of the adjacent shops and restaurants and he will make his valuation on the basis of the zone A prices that are established for this part of the street frontage.    It is a matter of evidence and argument and valuation judgment in the particular case whether the rents and assessments of hereditaments in a different mode or category of use are of assistance”. (Ibid para 140)
42.	If therefore, I find from the evidence of rents and assessments on the A3 uses in St Asaph High Street that they are not subject to a premium, and are thus no different from those applying to A1 retail uses there is no reason for excluding them for comparison purposes.   In considering the evidence, I do not accept Mr. Humphreys-Jones’ argument that, due to St Asaph becoming a stopping-off place for travellers using the A55 North Wales trunk road there would necessarily be a greater demand for premises with A3 use.  No evidence to this effect was produced.  The High Street is narrow and, certainly in the vicinity of the subject premises, has no on-street parking.   The free car park next to the Cathedral and accessed off the A525 is not easily found from the A55.   I suspect that the restaurants and takeaways that are located in the High Street (and of which there are several) principally serve local trade, but in order to establish whether or not there is a separate market, in rental value terms, from A1 uses, it is necessary for me to consider all the comparable evidence produced – both A1 and A3.
43.	The premises with A3 use were firstly 1b High Street, to which Mr. Welsby attached little weight, and in respect of which he suspected there might be a connected interest.   I therefore ignore it.   Secondly, Barrow Arms, (settled with surveyors acting for the occupier at rateable value £100 per sq.m. zone A) following the 1996 VT decision.  This settlement provides me with a strong indication of an acceptance, between rating surveyors and the VO, that the market for A1 and A3 uses is the same.  However, Old Bank Buildings (Bengal Village) at rateable value £131 per sq.m. and Glanclwyd (the Kebab shop) with a revised assessment of £196 per sq.m. are not just indicative of, in Mr. Welsby’s words, a “substantial variation” in assessments but suggest there could have been a premium for A3 uses.  In considering the final sentence of the quoted passage in para 41 above, I find the Barrow Arms settlement of considerable assistance, but can attach little weight to Old Bank Buildings and Glanclwyd.   Whilst it is impossible from the evidence to accept conclusively Mr. Welsby’s submission that there is no separate market for A1 and A3 uses in St Asaph, and I am mindful of Mr. Humphreys-Jones instructions to the Bangor office regarding the treatment of A1 and A3 uses for rating purposes, the evidence of the A1 comparables is sufficient, in my judgment, to form a conclusion. 
44.	The question of whether or not an application for planning permission for the change of use of the subject premises would have received favourable consideration at the relevant date does not, under the rebus sic stantibus conclusions in Scottish and Newcastle fall to be considered in arriving at a conclusion on rental value 
45.	Looking now at the A1 comparables, from the evidence, there is no doubt in my mind that the 1996 inclusive rent on City Barbers must have been concessionary.  The analysis for rating  (at £46.54 per sq.m.) is so far out of line with all the other comparables, whereas the 1999 exclusive rent (which I consider to be admissible) whilst still being on the low side (at rateable value £87.50 per sq.m.), is more comparable.   The fact that the landlord agreed to pay the general and water rates for the first three years, and then granted a new exclusive lease to the same tenant in 1999 suggests to me that he may well have conceded an allowance whilst the business became established.
46.	As to City Pharmacy I accept the VO’s point regarding the fact that the licence, granted under the NHS (Pharmaceutical Services) Regulations 1992, was personal to the occupier and did not run with the property.  Also, the fact that the occupier chose to move, at a later date, to a location nearer the doctor’s surgery suggests to me that an uplift in rent was unlikely.   The fact that the premises are currently on the market at the same rent as agreed in 1991 indicates to me a static market rather than, as Mr. Humphreys-Jones suggested, proof that the initial rent was artificially inflated.   There was no evidence produced to support his contention that, in general, pharmacies were prepared to pay higher rents.
47.	In respect of Central Buildings (The Farm Shop) principally relied upon as the basis for this assessment following the 1996 appeal decision, I agree with Mr. Welsby’s response to the appellant’s contentions (at para 34 above).   As he said, the VT will make its decisions in accordance with rating law and principles, and will have been aware of the planning uses of the comparable premises referred to, together with the rebus rule.   That rule was, as he pointed out, specifically referred to in the VT’s May 2000 decision on the subject premises.   I do not, therefore accept Mr. Humphreys-Jones arguments on this aspect.
48.	As to the physical characteristics of The Farm Shop, I agree that in trading terms it is located in a very similar position to the appeal hereditament, but it does have the advantage of a highly visible return frontage, an altogether more imposing aspect, and a slightly wider pavement to the front.   The fact that the neighbouring NatWest Bank is set back from the street behind its own small car park does increase The Farm Shop’s overall presence over and above the subject premises.    I also note that it has its own wc.    Were that the only comparable to be relied upon, I would have had serious reservations about applying the same level of rent to the subject premises, especially as Barrow Craft on the east side of the Nat West Car Park, and also with a return frontage (but only utilised with a small window) was also settled at rateable value £100 per sq.m.    However, I note that the settlement for Barrow Craft was direct with the occupier who was not represented by a surveyor.
49.	The Barrow Arms Restaurant further down the High Street was also settled on the basis of rateable value £100 per sq.m., and the two premises in Chester Street, which is on the east side of the A525 crossroads and indisputably ‘off-centre’ were at rateable value £75 per sq.m. each.    Looking at all the comparables does produce a huge range and considerable inconsistencies, but taking account of all of them in reaching a tone (and attaching the most weight to the A1 comparables) does suggest that £100 per sq.m. for the appeal hereditament is not out of line.
50.	Certainly if excluding City Barbers 1996 figure (concessionary) and those relating to 1b High Street (possible connected party),  Glanclwyd (acknowledged by the VO to be high) and Old Bank Buildings (possible premiums for A3 use) the range is substantially narrowed to rateable value £87.50 per sq.m. (1999 City Barbers) through £98.63 (City Pharmacy), and three at £100 (The Farm Shop, Barrow Craft and Barrow Arms). In my judgment, the appeal hereditament occupies a marginally better trading position than City Barbers and City Pharmacy, this supporting a slightly higher figure than those assessments. I exclude the Chester Street settlements as unrepresentative for High Street rental levels, although I do accept Mr. Welsby’s point that rateable value £75 per sq.m. for such an off centre location would certainly suggest a higher figure for the subject premises.   I also consider that reference to the analysis of the purchase price by Mr. Humphreys-Jones is of no assistance.
51.	On balance therefore, and taking into consideration all the evidence I consider to be relevant, I am satisfied that the proposal at £100 per sq.m. for the appeal hereditament represents its value for rating purposes at the antecedent valuation date, and dismiss the appellants arguments.   However, there remains one matter that needs, in my judgment, further consideration, and that is whether or not an end allowance should be made for the shared wc.   Whilst I do not accept the appellant’s representations in regard to the cooking smells and alleged occasionally blocked drains, and accept Mr. Welsby’s point that there is no evidence any complaints have ever been made, I do consider the shared wc to be a disability, and account should be taken of it.
52.	In conclusion therefore, whilst accepting the VO’s evidence regarding the appropriate assessment to be based upon £100 per sq.m., and dismissing the appellant’s arguments in that regard, I determine that an appropriate end allowance for the disability of the shared wc is 5 per cent.   The appeal is thus allowed in part, and I direct that the assessment on 28 High Street, St Asaph shall be altered to RV £2,430 with effect from 21 February 1997.  (25.59 x £95 = £2,431.05 say £2,430).   
53.	What I have said so far determines the substantive issue in this appeal.   It will take effect as a decision when the question of costs is decided and at that point, but not before, the provisions relating to the right of appeal in section 3(4) of the Lands Tribunal Act 1949 and Order 61 rule 1(1) of the Civil Procedure Rules will come into operation.   The parties are invited to make submissions as to costs, and a letter accompanying this decision sets out the procedure for submissions in writing.
DATED: 21 March 2001

(Signed):				P R Francis FRICS

ADDENDUM ON COSTS

54.	I have received submissions on costs from the parties.   Mr Welsby (VO) said that as the respondent’s assessment had been supported by the Tribunal in all but one minor area, the appellant should pay the valuation officer’s costs.
55.	Mr Humphreys-Jones submitted lengthy representations expressing dissatisfaction with the outcome of the appeal, in part re-stating the appellant’s case and the reasoning why his valuation should have been supported.   He said that for those reasons, the appellant’s costs should be paid in full.
56.	The appeal was allowed in part, in that whilst I agreed with the Valuation Officer’s analysis as a basis of assessment, I accepted the appellant’s argument that there should be a discount for the shared wc.   My award thus resulted in a 5 per cent reduction in rateable value, whereas the appellant had claimed a reduction of 58 per cent. 
57.	In my judgment the appellant’s claim could not be considered unreasonably exaggerated, Mr Humphreys-Jones’ evidence being based upon sound principles and satisfactorily argued.   The fact of the matter is that, in most respects, I preferred the VO’s evidence, therefore the fact that the award was so much closer to the VO’s figure does not, in my view, merit the VO being awarded any or all of his costs.  
58.	Had this case been heard under the Simplified Procedure (rule 28, Lands Tribunal Rules 1996) for which, in my judgment, it was well suited, I would have made no award as to costs.   However, in the instant appeal I think it would be appropriate for the appellant to receive a contribution to its costs (which it had assessed at £7,712 plus VAT – in my view excessive, being more than twice that being claimed by the VO). 
59.	In all the circumstances therefore I determine that that the Valuation Office shall make a lump-sum payment of £1,500 plus VAT to the appellant as a contribution to its costs of this appeal.
DATED:  11 April 2001

(Signed)		P R Francis FRICS