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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Assessor for Grampian Valuation Joint Board Against a Decision of the Aberdeenshire Valuation Appeal Panel [2002] ScotCS 292 (12 November 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/292.html Cite as: [2004] RVR 34, [2002] ScotCS 292, [2003] RA 167

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Assessor for Grampian Valuation Joint Board Against a Decision of the Aberdeenshire Valuation Appeal Panel [2002] ScotCS 292 (12 November 2002)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Kirkwood Lord Marnoch	XA44/00 OPINION OF THE COURT delivered by THE LORD PRESIDENT in APPEAL TO THE COURT OF SESSION under section 82(4) of the Local Government Finance Act 1992 in the cause ASSESSOR FOR GRAMPIAN VALUATION JOINT BOARD Appellant; against a decision of the Aberdeenshire Valuation Appeal Committee, dated 9 March 2000   _______

 

 

Act: R.W.J. Anderson, Q.C.; Bennett & Robertson

Alt: Crawford, amicus curiae; R. Henderson

12 November 2002

1. The Assessor has appealed against the decision of the Valuation Appeal Committee that Mallamouch House, Banchory should be placed in Band F for the purposes of council tax.
2. The facts of the case are in short compass. In October 1997 the council taxpayer obtained planning permission for the erection of a dwelling at Maryfield Farm, Banchory. Planning permission was granted subject to a condition that occupancy of the dwelling was to be limited to a person mainly employed on the farm, or a dependant of such a person residing with him or her, or a widower or widow of such a person. This condition was reiterated in an agreement under section 75 of the Town and Country Planning (Scotland) Act 1997. The dwelling was erected in 1998, and the taxpayer took up occupancy of it. Maryfield Farm extends to about 100 acres. It is not large enough to support anyone who is carrying on solely an agricultural operation. It is owned and occupied by the parents of the taxpayer who live there in another dwelling.
3. In or about September 1998 the Assessor carried out a valuation of the dwelling and placed it in Band G for the purposes of council tax. It is not in dispute that, if the restriction which was attached to the grant of planning permission falls to be ignored, the placing of the dwelling in this band was correct. The taxpayer indicated her disagreement with the banding of the dwelling and proposed that it should be in Band C. The Committee took the view that, in consequence of the restriction attached to the planning permission, it should be placed in Band F.
4. The issue in this appeal was whether the planning restriction fell to be ignored or not. The taxpayer was not represented. However, the court had the benefit of submissions by Miss Crawford who had been appointed amicus curiae for this appeal.
5. Under the scheme introduced by Part II of the Local Government Finance Act 1992 dwellings were no longer to be entered in the valuation roll for the year 1993-94 or any subsequent year. Instead the Assessor was required to compile a valuation list of dwellings and to assign them to the bands within which their capital values fell. Section 86 of the 1992 Act, as amended, provides:

"(1) In order to enable him to compile a valuation list for his area under section 84 above, a local assessor shall, in accordance with the provisions of this Part, carry out a valuation of such of the dwellings in his area as he considers necessary or expedient for the purpose of determining which of the valuation bands mentioned in section 74(2) above applies to each dwelling in his area.

(2) The valuation shall be carried out by reference to 1 April 1991 and on such assumptions and in accordance with such principles as may be prescribed.

(3) Where it appears to a local assessor that, having regard to the assumptions and principles mentioned in subsection (2) above, and to any directions given under subsection (5) below, a dwelling falls clearly within a particular valuation band, he need not carry out an individual valuation of that dwelling.

..."

6. Regulation 2 of the Council Tax (Valuation of Dwellings)(Scotland) Regulations 1992, as amended, provides that for the purposes of valuations under section 86(2)

"the value of any dwelling shall be taken to be the amount which the dwelling might reasonably have been expected to realise if it had been sold in the open market by a willing seller on 1 April 1991, having applied the assumptions mentioned in paragraph (2) below...".

7. The following assumptions are stated in paragraph (2):

"(a) that the sale was with vacant possession;

(b) that the dwelling was sold free from any heritable security;

(c) that the size and layout of the dwelling, and the physical state of its

locality, were the same as at the time when the valuation of the dwelling is made or, in the case of a valuation carried out in connection with a proposal for the alteration of a valuation list, as at the date from which that alteration would have effect;

(d) that the dwelling was in a state of reasonable repair;

(e) in the case of a dwelling the owner or occupier of which is entitled to

use common parts, that those parts were in a like state of repair and the purchaser would be liable to contribute towards the cost of keeping them in such a state;

(f) in the case of a dwelling which contains fixtures to which paragraph

(4) below applies, that the fixtures were not included in the dwelling;

(g) that the use of the dwelling would be permanently restricted to use as a

private dwelling; and

(h) that the dwelling had no development value other than value

attributable to permitted development".

8. Counsel for the Assessor submitted that the whole language of Regulation 2 required a series of artificial assumptions to be made. These included an assumption that the dwelling had been sold in the open market by a willing seller on 1 April 1991. For the Assessor to take into account the planning restriction with which the present case was concerned would run counter to that assumption. The same would apply where a dwelling was the subject of a liferent or a pre-emption clause or had a sitting tenant. All such restrictions on the market for the dwelling fell to be ignored. None of the assumptions set out in paragraph (2) of Regulation 2 required that the planning restriction should be taken into account. Counsel pointed out that in Strathclyde Assessor v. Rea 1995 S.C. 577 the court said that these assumptions were exhaustive. The same considerations would apply to a case in which there was a condition which restricted planning permission for use as a dwelling to a limited period. It was to be noted that, in terms of subparagraph (g), it required to be assumed that the use of the dwelling would be permanently restricted to its use as a private dwelling.
9. Counsel for the Assessor went on to seek support for his submission by pointing out the practical difficulty of taking into account the effect of removal of a planning restriction. It was open to an Assessor to review the valuation of a dwelling if there had been physical alterations followed by its sale (see section 87(10) of the 1992 Act and Regulation 4 of the Council Tax (Alteration of Lists and Appeals)(Scotland) Regulations 1993). However, there was no measure by which he could review a valuation in the event of the removal of a planning restriction which was said to affect its value.
10. We are not persuaded that the submission for the Assessor is well-founded. There is nothing in Regulation 2(2) which states, or implies, that a planning restriction which affects the value of a dwelling falls to be ignored. We note that subparagraph (h) requires the Assessor to ignore development value other than value attributable to permitted development. "Permitted development" is defined by Regulation 1(2) as being development for which planning permission, or an application for planning permission, is not required. Thus subparagraph (h) entails that the Assessor does not have to be concerned with the possible enhancement of the value of a dwelling by reason of the existence or prospect of planning permission for development other than "permitted development". However, the Assessor is not required to ignore any depreciation in value which is due to a planning restriction. The assumption under subparagraph (g) that the use of the dwelling would be permanently restricted to use as a private dwelling is evidently intended to exclude its potential value for some other use or uses. That assumption has no bearing on the present issue.
11. The core of the Assessor's argument was that the assumption of sale on the open market by a willing seller excluded any effect which the planning restriction might have on the value of the dwelling. It is of some significance, we consider, to bear in mind that planning permission runs with the land to which it relates (see section 44 of the Town and Country Planning (Scotland) Act 1997). While the number of persons who would be interested in making an offer for the dwelling would, by reason of the planning condition, be limited, it does not follow that it is impossible to assume the dwelling being sold on the open market by a willing seller for the best price which could be obtained in the circumstances. Seen from that point of view the contention that the planning condition fell to be ignored involves a departure from reality which is required neither by the assumption of sale on the open market or by any of the specific assumptions set out in subparagraph (2).
12. For these reasons we have come to the conclusion that the appeal should be refused. The dwelling will accordingly be treated as falling within Band F in accordance with the decision of the Committee.