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You are here: BAILII >> Databases >> Scottish Sheriff Court Decisions >> SIBLEY ROBERTSON v. SECRETARY OF STATE FOR SCOTLAND [1999] ScotSC 17 (1st June, 1999) URL: http://www.bailii.org/scot/cases/ScotSC/1999/17.html Cite as: [1999] ScotSC 17 |
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A335/96
JUDGMENT OF SHERIFF FIONA LENNOX REITH
in the cause
SIBLEY DIETRICHEN ROBERTSON
Pursuer
against
THE RT. HON. DONALD DEWAR, MP, SECRETARY OF STATE FOR SCOTLAND
Defender
__________
Act: Sutherland QC; Miller Hendry, Solicitors, Perth
Alt: Brown, Advocate; R Henderson, Solicitors Office
PERTH, 1st June 1999
The Sheriff, having resumed consideration of the cause, finds in fact:
Finds in law:
the defender has accordingly not fulfilled his obligation to offer the said land to the pursuer at a price reflecting current market value as at 2nd July 1993 as determined by the District Valuer.
Therefore sustains the first, second and third pleas in law for the pursuer, repels the pleas in law for the defender and finds and declares as follows:
Reserves in the meantime the question of expenses.
NOTE:
The background to this action is that the pursuer originally craved the Court for declarator that the defender was bound to offer to sell to the pursuer, as executor of the late William Robertson, two areas of ground amounting to about 58 acres on which was built Bridge of Earn Hospital and its associated sewage disposal works, and that at a price reflecting the current value of the land as at 2nd July 1993 as determined by the District Valuer. The pursuer's husband, the late William Robertson, had sold the land in question to the defender in 1948. At that time the two areas of ground had formed part of the farm of Oudenarde and Clayton. The ground was needed at that time for the building of Bridge of Earn Hospital. In 1978 and thereafter, in the course of an extended correspondence, the defender gave undertakings to the effect that the land would be offered for sale to Mr Robertson when the land became surplus to requirements. The case came out before Sheriff McInnes in October 1996. Sheriff McInnes concluded, by Interlocutor dated 20th December 1996, that the defender had promised the late William Robertson that when the Hospital was declared surplus to National Health Service requirements, the land on which it stood would be offered to Mr Robertson at a price reflecting current market value as determined by the District Valuer, unless another government department wished to acquire it. Sheriff McInnes also found that this promise was binding on the defender. A Proof before Answer was accordingly allowed on the question of the date at which the current market value of the land should be assessed, and whether the benefit of that promise transmitted to the pursuer as executrix of the late William Robertson.
The defender thereafter added averments admitting that he was bound to offer the land to the pursuer as such executrix at a price reflecting the current market value of the land as at 2nd July 1993 as determined by the District Valuer. By two letters dated 5th March 1997 he also offered to sell to the pursuer the land in question at a total price of £296,000. These offers proceeded on the basis of valuations by the District Valuer of the land in two parts dated 25th February 1997.
The pursuer then amended her pleadings in order to add two further craves, namely a crave to find and declare that the valuations concerned did not constitute a determination reflecting the current value of the land as at 2nd July 1993 and a further crave to find and declare that the letters of 5th March 1997 did not constitute offers to sell the land at a price reflecting the current value of the land as at 2nd July 1993 as determined by the District Valuer. These became craves two and three of the Amended Closed Record.
The case came out again for debate on the amended pleadings, this time before Sheriff Wheatley (as he then was). Both parties had preliminary pleas. In essence, the defender's position was that the craves for declarator were now incompetent as the defender had done what he was required to do in terms of the promise referred to in the Interlocutor dated 20th December 1996 in that he had now offered to sell the land to the pursuer at a valuation at the requisite date arrived at by the District Valuer. It was also maintained that the new craves 2 and 3 were in any event incompetent.
By Interlocutor dated 11th March 1998 Sheriff Wheatley allowed a Proof before Answer of all averments. A Note is appended to his Interlocutor setting out his reasoning.
The Proof before Answer was heard on 24th, 25th and 26th March 1999. Mr Colin Sutherland QC appeared on behalf of the pursuer and Mr Eric Brown, Advocate, appeared on behalf of the defender. In view of the admissions on Record, the evidence led was in relatively brief compass. I heard evidence from two witnesses who were led on behalf of the pursuer, namely Mr John Gilmore Strang, a partner of Messrs Bidwells, Property Consultants, Perth and Alastair Todd, a partner of Messrs Graham & Sibbald, Surveyors, Dundee, and from one witness who was led on behalf of the defender, namely Archibald Brown Rintoul, District Valuer with the Valuation Office Agency (Scotland South East). They are all Chartered Surveyors.
The pursuer's position was that the Proof was about a question of fact, namely whether the offers which had been made by the defender did proceed upon true determinations by the District Valuer of the current market value of the land concerned as at 2nd July 1993, and whether therefore the defender had fulfilled his obligation to offer the land to the pursuer for sale at a price reflecting current market value as at that date as determined by the District Valuer.
It was pointed out on behalf of the pursuer that the defender's position on Record was that the price offered reflected the current value of the land as at that date as determined by the District Valuer and therefore that the defender had done what was sought of him. The pursuer's position on Record was however to the effect that the obligation had not been complied with. In the first place, the offers made to the pursuer were not offers to sell the land at a price reflecting such a current value. This was because the valuations upon which the offers were based had purported to value the land on a "best price" basis rather than on a current value basis. In the second place, the valuations had proceeded upon certain incorrect assumptions of fact which could not properly be disregarded in any proper valuation of the land.
I should add that, in the course of the Proof, including submissions, both Counsel proceeded on the basis that the obligation had been to offer the land at a price reflecting "current market value" as at July 1993 in accordance with the Interlocutor of 20th December 1996. Consequently, in practical terms, the words "current value" on Record were read as meaning "current market value".
The position adopted on behalf of the pursuer in submissions on the basis of the evidence was somewhat broader than that indicated in the pleadings on her behalf. In summary, Mr Sutherland made submissions to the effect that the reasons why it was said that the offers and the valuations did not fulfil the obligation were two-fold. In the first place, the valuations did not purport to be based on current market value and on their face they were not. In the second place, they were based on incorrect assumptions of fact by way of "reservations" and were therefore ex facie incomplete and were thus not "final" determinations of value. The matters so "reserved" were, first, the position about asbestos and, second, the unusual and onerous restrictions. Further, such "final" determinations could, he said, only have been arrived at following negotiations between the parties. There were no such negotiations, which he said there ought to have been had the Crichel Down Rules (Circular No.38/1992 comprising number 5/7/2 of process) been followed. Mr Brown argued on behalf of the defender that there was no Record for the contention that there had been any requirement to negotiate or to comply with the Crichel Down Rules. He also argued that the pursuer had gone beyond her pleadings in other respects. This was in addition to his main argument on the question of the competency of the remedies sought by the pursuer in the craves.
I deal first of all with the pursuer's principal argument on the question of whether the valuations did constitute determinations of the current market value of the land concerned as at 2nd July 1993. Mr Strang, who was led on behalf of the pursuer, spoke in detail to his Report, number 5/7/1 of process. He is a Chartered Surveyor with many years of experience and is in the commercial property department. I was satisfied that he had a sound knowledge of the local property market and the issues surrounding it. I was also satisfied that he had done the best that he could in preparing his Report having regard to the fact that District Valuer had been instructed not to discuss the valuations with Mr Strang. He therefore had to go on the valuations themselves without further information from or discussions with the District Valuer. Having said that, I found his Report to be a careful and detailed one. I also found him to be a careful witness, all of whose evidence I had no hesitation in accepting as both credible and reliable.
He confirmed that when he referred at paragraph 1.5 of his Report to "fair market value", what he was looking at was "current market value". He also confirmed with reference to section 6 of his Report, where he referred to "open market value", that when looking at the valuations by the District Valuer he was seeing whether they conformed to "current market value". In order to provide the background as to the origin of those words, he was referred to paragraphs 4 and 17 of the Circular No.21/1984 (number 5/7/3 of process) and to paragraphs 22 and 24 of the Circular No.38/1992 (the Crichel Down Rules).
Mr Strang was taken through the letters of instruction for the valuations, the letters of Confirmation of instructions, and the valuations themselves in relation to what was said about the basis of valuation to be adopted by the two valuers. He gave evidence to the effect that in both valuations each District Valuer had valued the land concerned on a "Best Price" basis, rather than on the basis of current market value as required by the Interlocutor of 20th December 1996. He said that the RICS Manual (otherwise known as "the Red Book") did not contain such a basis of valuation. Indeed, both valuation reports, numbers 5/3/3 and 5/3/4 of process, themselves acknowledged that "Best Price" was not a basis used in the RICS Manual. He went on to explain that the "Open Market Value" method of valuation referred to in the RICS Manual was that accepted in the profession. This represented current market value. It specifically excluded any bid that may be made by a purchaser with a special interest, whereas the "Best Price" method did take account of such a bid. He went through the definitions in the RICS Manual and explained the difference between the two methods. The requirements of the Manual had been mandatory for all valuations carried out since 1st January 1996, which would include the valuations in question. His view was that the valuations in question did not comprise an open market valuation and could not be considered a "current market value". In re-examination, he confirmed that he had never come across "the Yellow Book" before. He also confirmed that in the Confirmation of instructions letter relating to the Hospital site (number 5/6/1.5 of process) reference was made, in relation to the definition of "Best Price", to "The Standard Terms of Engagement" rather than to the Yellow Book. In the former document (number 5/3/1 of process) the difference between the two methods of valuation could be seen at sub-paragraphs 4.1 and 4.4. The definition there of "Open Market Value" was the same as in the RICS Manual.
As part of the background to Mr Strang's examination of whether the valuations in this case had been done on a "current market value" basis, he also gave evidence about the planning status of the land. The policy of the then District Council was that the land concerned, together with adjoining land (all shown delineated in yellow on the photograph number 5/6/5 of process), was to be investigated for high amenity business use. However, there was no market or demand established for this. Consent for housing was contrary to policy. It still was as at the date of the Proof. A public inquiry into proposed alterations to the Local Plan was scheduled for June 1999, some 6 years after the valuation date in this case. In cross-examination, Mr Strang accepted that, statistically, there was in 1993 a housing shortfall in the area. However, he said that another site had been identified for that and that this site had been excluded. The planning position was he said fundamental to a purchaser's opinion of value. At 1993 the planning position was fairly clear but he accepted that it was always possible that things could change. Hope value would therefore be taken into account, but the question was how much. Even at the date of the Proof the position of the Council as regards housing on the land had still not changed. In addition, there was in fact no bid from a purchaser with a special interest as at the valuation date. As at that date there was no Oudenarde Consortium as their proposals for development had been rejected by the Council. He also pointed out that as negotiations were recommended in the valuation report for the Hospital site, that led him to think that the District Valuer had some doubts regarding his figure.
Mr Todd was also led in evidence on behalf of the pursuer. He too is a Chartered Surveyor with many years experience and in the Dundee/Tayside area. He specialises in commercial valuation and development work, and in the buying and selling of commercial property. He struck me as being a careful and impartial witness. I was impressed by his evidence and had no hesitation in accepting all that he said. He confirmed that he had been asked to look at the two valuations in this case and to provide a view as to whether the basis of valuation adopted had been on a current market value basis. He was asked whether the "Best Price" basis of valuation in the valuations was a basis which was used in the surveying and valuing profession to estimate current market value. He replied to the effect that he was not familiar with it and that this was the first time in his 22 years of practice that he had come across this method of valuation. It was not a basis used in the RICS Manual. He had also not previously seen the Standard Terms of Engagement which contained the definition, which he confirmed was contrary to the definition of "Open Market Value" in the RICS Manual. That was the way he would have proceeded had he been asked to value the property. In cross-examination, he confirmed that although he was not aware of the terms of the Yellow Book, he did understand that if one was acting for a National Health Service client the provisions of that book had to be followed. He was not asked whether he accepted that paragraph 2.1 of the Yellow Book did, as Mr Rintoul subsequently maintained, require that the valuation be carried out on the "Best Price" basis as defined in The Standard Terms of Engagement.
Mr Rintoul confirmed that he had prepared the valuation of the Hospital site. His colleague, a Mr Nisbett who was not led in evidence, had carried out the valuation of the housing. Mr Rintoul confirmed that he had been working for the District Valuer's office since 1975, for the whole of his professional life. He had been involved in the disposal of a number of former NHS properties. He confirmed in evidence in Chief that he had been told that, although the Crichel Down Rules did not strictly apply, the properties were to be offered back to the pursuer in this case as if they did apply. He confirmed that, as a Chartered Surveyor, the RICS Manual applied to him too, but not invariably as he said that there were circumstances in which the basis of value in the Manual could be "disregarded". He relied on the terms of Practice Statement 1.5 of the Manual (number 5/8/2 of process) for this proposition. He maintained that in relation to all transactions for NHS bodies, such as the Trust by which he had been instructed, these were governed by the Yellow Book. He referred to paragraph 2.1 of this publication (number 6/2/1 of process). He said that he understood that to mean that he had to ensure that the price received was the best possible. He considered that this required him to adopt the "Best Price" basis of valuation in sub-paragraph 4.4 of the Standard Terms of Engagement. These were the terms of engagement common to all clients with whom the Valuation Agency did business. In relation to the Confirmation of instructions letter relating to the housing, he said that he understood that the reference to "open market value" as the basis of valuation was that according to the RICS Manual. He said that it should have referred to "Best Price" as the basis of valuation. In the event, the "Best Price" basis was the basis adopted in relation to the housing also. He went through his valuation, number 5/3/3 of process, and explained his approach. He also confirmed that the two offers, for an overall price of £296,000, accorded with the composite valuation of the Hospital site and the housing.
In cross-examination, he sought to maintain that he had been undertaking his valuation in an independent capacity, independent from both parties. I have to say that in view of the terms of his report at the fifth page under the heading "Valuation", I found this assertion somewhat surprising. He confirmed that in accordance with the Crichel Down Rules a valuation would normally be set after negotiations. That had not happened here. He accepted that he had been surprised that he had not been asked to negotiate in this case in view of what he described as being the contentious nature of the valuation as it had involved hope value and "special purchaser" value. He would therefore preferred to have discussed this before reaching a final figure.
In his valuation report Mr Rintoul had acknowledged that the view of the Council in 1993 was that the land should be developed for high amenity business uses only and that residential development should not be permitted. It was also acknowledged in the report that, in order to achieve a positive valuation figure, the land concerned would have to be developed as part of a larger development site and that there would also have to be a substantial number of houses included in the development. It was on that basis that he concluded in the valuation report under the heading "Valuation Considerations": "It may (emphasis added) be...a party could be found who would be willing to pay a sizeable amount in "hope value". There were also what seemed to me to be somewhat vague assertions, under the heading "Valuation", to the effect that "the Robertsons may (emphasis added) be anxious to sell...and may (emphasis added) be prepared to pay nuisance value in order to resolve the matter swiftly". I formed the impression in the course of his evidence that Mr Rintoul attempted to paint a somewhat more optimistic picture than that painted in the report as regards the potential as at the valuation date for bids from a "special purchaser". I was however quite satisfied on the evidence that there were in fact no bids from such "special purchasers" (for the purposes of sub-paragraph 4.1(d) of the Appendix to The Standard Terms of Engagement). This was both in relation to the Hospital site and the housing. I was not satisfied that there was any likelihood (or even a real possibility) as at July 1993 that the Hospital site could have been developed as part of a larger development, including housing. As at that date, and even as at the date of the Proof, residential development there was contrary to planning policy for the area. I also felt that Mr Rintoul sought to paint a somewhat more optimistic picture of the potential of the Hospital site at the time by referring, for example, to the apparent shortage of allocated housing in 1993, to meet the then requirements of the Structure Plan. This appeared to be in support of a contention that the planning position, as regards the potential for housing development on the site, was rather more positive than that indicated by the Council's policy. No mention had been made of any such housing shortage as being of relevance to the site, in the valuation report and he did not in evidence actually go so far as to say that this site was, or was likely to be, ear-marked for this. It was therefore not entirely clear just what real relevance this evidence had. In any event, I preferred the evidence of Mr Strang to the effect that another site had been identified to meet the then requirements of the Structure Plan and that this site had been excluded.
At the fifth page of his report Mr Rintoul had concluded under the heading "Valuation": "...in view of the highly speculative nature of the valuation, I am of the opinion that the value, as at 2 July 1993, on a Best Price basis, with vacant possession, may be in the order of £50,000...but I strongly recommend that the matter be negotiated with the Robertson's Solicitors in order that the most attractive terms are achieved". I have to say that in the course of his evidence I gained the impression that Mr Rintoul tended to "talk up" aspects of his report, to make his valuation sound less "highly speculative" than he had himself described it in his report. Having considered the terms of the report, and in the light of his evidence, I am satisfied however that the valuation was indeed highly speculative. I also formed the impression that Mr Rintoul had in preparing his valuation report perhaps not been quite as careful and considered as might have been expected. For example, although praying in aid Practice Statement 1.5 of the RICS Manual to justify his "disregarding" the basis of valuation laid down by his own professional body, he had wholly failed to comply with the requirements of that Practice Statement to include in his report a "clear statement" to that effect, with details of and reasons for the departure. He made no attempt to account for this in his evidence, and it did not appear to concern him that he had not. I found that surprising. The valuation itself had been wholly silent about the Yellow Book and the Standard Terms of Engagement. The reader had therefore been given no clue as to why Mr Rintoul had proceeded as he had. In the event, I was not satisfied that paragraph 2.1 of the Yellow Book did require a valuation on the "Best Price" basis. It did not seem to me to be inconsistent with the definition of "Open Market Value". Further, Mr Rintoul's approach paid no heed to the terms of the promise itself which necessitated a determination of current market value.
Mr Rintoul accepted that the "normal" method of valuation was that in the RICS Manual. He also accepted that his method of valuation was not one of the bases set out in that Manual. He accepted that there was no speciality about the site itself which required a different form of valuation; the speciality was the client in that they as an NHS body wanted a different method of valuation, the "Best Price" basis.
In his submissions, Mr Sutherland relied on the evidence of Mr Strang and Mr Todd, and indeed what Mr Rintoul himself said, in support of his contention that the valuations were not determinations by the District Valuer of the current market value of the land as at July 1993, and in turn that the offers were not offers to sell at a price reflecting such a value. He pointed out that the reason given for the departure from the normal method of valuation had had nothing to do with the nature of the land or of the market. It was solely to do with the instructions of the client. The concept of market value was one involving principles of economics and had nothing to do with the desires and fears of the seller. The two bases of valuation in the Standard Terms of Engagement were not the same thing. They could not both be current market value, and there was no evidence that they could be. There was no notion of current market value managing to achieve two different values. Whether the seller of the land was the Government or a private body such as BUPA, the current market value should be the same. He also pointed out that Mr Rintoul had not said that he had adopted "Best Price" as a means of determining current market value. It was submitted that in fact Mr Rintoul had expressly not valued the land on the market basis.
In relation to this aspect of the matter, I found the submissions on behalf of the defender somewhat puzzling. It was in the course of submissions repeatedly asserted on behalf of the defender that the valuations were valuations of current market value as at 2nd July 1993 and therefore that the offers on the basis of the figures arrived at did constitute offers to sell on the correct basis. However, it was also submitted that, for the reasons advanced by Mr Rintoul, he had been obliged to value the land on a "Best Price" basis in view of the fact that his instructions were from an NHS body. This had entitled him to depart from the provisions of the RICS Manual in view of Practice Statement 1.5. Mr Brown also submitted that at the end of the day it was a matter of professional opinion what a valuation was to be, and that the defender had taken the value produced by the District Valuer and had put it in the offers.
It seemed to me however that the position being maintained on behalf of the defender was inconsistent. In my view, Mr Sutherland was correct in his submissions in relation to this aspect of the matter, including his submission that the two bases of valuation were not the same thing and that there was no notion of current market value managing to achieve two different values. In relation to the primary assertion for the defender, there was no evidence whatsoever that the valuations were valuations of current market value as at the requisite date. The evidence of Mr Strang and Mr Todd was to the effect that they were not, and it was at no time suggested to them in cross-examination that they were wrong about that. In addition, Mr Rintoul at no point suggested that he was adopting "Best Price" as a means of determining current market value. In the event, as Mr Rintoul had himself said, he had in fact departed from the normal method of valuation which he said he had been entitled to do. In my view, there were no circumstances relating to the land entitling him to do this. The argument on behalf of the defender was in effect that if a client required a different basis of valuation that was sufficient to invoke Practice Statement 1.5 of the RICS Manual. I was not satisfied that this was a correct interpretation of the Practice Statement. This was in view of the fact that what Mr Rintoul was doing here was adopting a basis of valuation specifically contrary to the Manual. It seemed to me that this went beyond what was sanctioned in the Practice Statement. I formed this view particularly having regard to the fact that the word "wholly" preceded the words "in accordance with the Practice Statement". However, if I was wrong about that, the essential point remained that the terms of the promise made to the late William Robertson required a determination of current market value as at the requisite date. That the District Valuer failed to do. Having regard to the fact that the offers proceeded on the basis of these valuations, in my opinion it followed that the defender had not fulfilled his obligation to offer the land to the pursuer at a price reflecting such current market value. If the intention had been that the land was to be sold back to the late William Robertson on the basis of a "Best Price" method of valuation, that ought in my view to have been specified in the promise. It was not.
It was also argued on behalf of the defender that the a valuation on the "Best Price" basis had "permitted" the District Valuer to take into account inter alia hope value. This seemed to be an attempt to justify the District Valuer's adoption of the "Best Price" basis of valuation. I did not accept it. As Mr Sutherland pointed out in submissions, hope value could have been taken into account in a valuation of the land on an "Open Market Value" basis (The RICS Manual number 5/6/2 of process at paragraph 4.25). Mr Strang had also said that hope value would be taken into account in a valuation.
That is sufficient to dispose of the case. However, I require to deal with the subsidiary argument advanced on behalf of the pursuer to the effect that the valuations were in any event based on incorrect assumptions of fact which it was suggested were by way of "reservations" and were therefore ex facie incomplete and were thus not "final" determinations of value. The matters expressly reserved were he said essentially two-fold. First of all there was the question of asbestos. Secondly, there were the unusual and onerous burdens. Mr Sutherland argued that the effect of this was not that the valuations were wrong but that they were qualified by the fact that these things had not been taken into account. The effect of this was in turn that the determinations of value were not complete or final. He maintained that Mr Rintoul had accepted in cross-examination that the valuations were not complete. He said that it was evident that figures had been plucked out of the air as he had not concerned himself with asbestos and burdens. A valuation which excluded such matters was not he said "a final determination" of market value.
The first such matter then was said to be in relation to the question of asbestos. Turning to that question, Mr Strang gave evidence about the physical condition of the site, including the buildings. He had observed considerable amounts of asbestos in 1996. This include asbestos cement sheeting used for external cladding and on the roofs. As at the valuation date considerable quantities must therefore have existed. His evidence was to the effect that without knowing the extent and cost of removal of asbestos it would not be possible to provide a net valuation figure and therefore that the exercise would be an incomplete one. It would have to be taken into account in assessing open market value. In relation to the "Assumptions and Caveats" in the valuation report relating to the Hospital site at paragraph v on the fifth page which stated that one of the assumptions had been "that no deleterious or hazardous materials or techniques were used in the construction of the property or have since been incorporated", he pointed out the inconsistency with the immediately following paragraph, paragraph vi, where the District Valuer had accepted that there was asbestos, which in the view of Mr Strang would have an effect on the ultimate price paid. Mr Todd was also of the view that it would not be possible to reach a view as to the market value of a property without taking into account the cost of removal of the asbestos. In that connection, he pointed to the assumption as part of the definition of open market value (at Practice Statement 4.2.1(e)) that both parties had acted "knowledgeably" and "prudently" before arriving at a figure. In cross-examination it was suggested to him that if the development costs were, say, £1M, £30,000 would not be of any great consequence. Mr Todd said however that he did not see that as any reason not to take it into account or to ignore it. If it was not a known cost, or if there was no estimate, his view was that this would have to be drawn to the attention of the client and that it would have to be made clear that the process was not complete.
In his evidence, Mr Rintoul explained that he had, subsequent to his valuation report, become aware of an estimate of the cost of removing asbestos dated 30 June 1998 (numbers 5/5/1 and 5/5/2 of process). This was for the cost of removing the asbestos insulation from the pipework at the Hospital. The sum involved was about £27,000 excluding VAT. The work still had to be done. He maintained that even if had known of the estimate at the time, it would not have altered his valuation in relation to the Hospital site. This was because his valuation was based on hope value as it seemed to him that there would have been abnormal costs involved in development compared with the end value. It was not financially viable. I found some difficulty in understanding his explanation. In submissions, Mr Brown said that the sum of £27,000 was of no consequence in the context of costs of the order of £5M for providing the infrastructure for development of the site. Even if the position is that the quotation would have made no difference to Mr Rintoul's valuation, which I found a little surprising bearing in mind that the ultimate valuation of the Hospital site was only £50,000, I preferred the evidence of Mr Strang and Mr Todd on this matter. I also noted that in cross-examination Mr Rintoul accepted that the quotation did not cover all the asbestos on site. For example, he accepted that the corrugated sheeting, which was not referred to in the quotation, still had to be removed. I therefore concluded that the valuation of the Hospital site had proceeded on an incorrect assumption of fact in this respect and that the current market value of the land could not be properly determined without knowledge of the extent of the asbestos and the cost of its safe removal. I was therefore satisfied that the valuation was incomplete, and was in that sense not a final determination of value, for this reason also.
The other matter in relation to which it was submitted that there had been incorrect assumptions of fact concerned the question of unusual and onerous restrictions. Mr Strang had examined the title deeds and had found onerous conditions, the particular one of note being an obligation to maintain and keep clear pipes running across the land from the south to the river to the north. He understood there to be two pipes, both at considerable depth and which would require large excavations. His view was that it was not possible to reach market valuation of the land without taking into account such a burden. When the title was put to Mr Strang to look at the burdens, Mr Brown objected on the basis that there were was no Record for this. I allowed the evidence under reservation. He renewed his objection in submissions. In my view, however, there was sufficient on Record to give fair notice of this line. In the first place, at page 7 of the Amended Closed Record the pursuer averred: "Said valuations further assumed that the property was not subject to any "unusual or onerous restrictions, encumbrances or outgoings"." Then at page 8 she averred, in relation to the pipe drains: "Said obligations were unusual and onerous burdens..." It seemed to me that the particular references to "encumbrances" and "burdens" were pretty obviously references to the position in terms of title. I therefore repel the objection taken on behalf of the defender in this respect and have made findings in fact accordingly. Mr Strang also gave evidence to the effect that the title also included an obligation to provide fencing, which he said was of considerable length. However, as pointed out by Mr Brown, there was no Record for this and so I have not taken it into account. Mr Todd also confirmed that it was his view that it was not possible to ascertain the value of a property without taking into account and knowing about any relevant burdens over a property.
In cross-examination, Mr Rintoul accepted the proposition (put without objection) that his was an "incomplete valuation" as he had not taken into account "things like burdens". In examination in chief he accepted that he had not looked at the titles. In relation to the question of drains, he gave evidence to the effect that in his valuation report (at the fourth page under the heading "Drainage") he had taken account of the fact that any sizeable development would require substantial expenditure on drainage and sewage capacity. However, it seemed to me that this was not the same as the title obligation regarding the drains as it was evident that he had not been aware of the obligation in the titles. I therefore concluded that the valuation in relation to the Hospital site proceeded on an incorrect assumption of fact in this respect also. It was accordingly incomplete, and was not in that sense a final determination of value, for this reason also.
It was also submitted on behalf of the pursuer that the valuations had proceeded on a further incorrect assumption of fact in relation to overhead power lines. In evidence in Chief, Mr Rintoul explained that the presence of power lines through the site could have two effects. In the case of industrial development power lines would sterilise an area of ground underneath and to either side, and in relation to residential development due to public concern about the effects of power lines developers would not want them. He had therefore allowed £360,000 for the cost of removing them. He accepted that no mention had been made of this in his report. This seemed to me to be surprising, particularly in view of the amount potentially involved. However, I accepted his evidence that this is what he had in fact done.
In support of his argument that the determinations of value were not complete or final, Mr Sutherland also pointed to the speculative nature of the valuation report in relation to the Hospital site and to lack of basis for, for example, the suggestion that a special purchaser fell to be taken into account. It seemed to me that there was some force in these contentions.
He went on to argue that until the conditions of sale in relation to such matters as asbestos and drains were known, it was not possible to make a final determination of value. His argument was to the effect that for a determination of value to be "final", this had to be on the basis of negotiated terms. He submitted that in the present case the defender had got the valuations, which had in effect simply reserved certain issues, and the offers had been made which did not deal with these matters. He said that a price could only be agreed upon if had been negotiated and agreed upon. He argued that the best illustration of this was in relation to the existence of tenancies. He pointed out that the evidence was that the valuations had been instructed, and arrived at, on the basis that the land was to be sold with no tenancies, whereas what had subsequently been offered was land with tenancies. Mr Rintoul had accepted this (put without objection) in cross-examination. In submissions, Mr Brown stated that the question of tenancies formed no part of the case for the pursuer. He therefore submitted that I should not be "taken off course" by reference to such a matter. In the event, however, Mr Sutherland did not invite me to make any findings in fact in relation to the issue of tenancies. It should also be recorded that no objection was taken by Mr Brown to the questions put to Mr Rintoul in the course of cross-examination.
Developing this line in his submissions, Mr Sutherland invited me to make findings in fact including those to the following effect:
His submission was to the effect that it was self evident that one could not have a determination of value for land until one had determined the conditions upon which the land would be offered for sale. He maintained that until conditions of sale had been agreed it was impossible to reach a value for the land which could be taken as the price. That was why the Rules were, first, to negotiate and, to agree a price. They were in that order (at paragraph 22) although he said that they could no doubt be intermingled. His position was that the Rules set out what ought to have been done in this case and that, had they been followed, the market value would have been agreed. He said that it had been agreed that the Rules were to apply. He pointed out that they were referred to in Mr Rintoul's valuation report.
As already mentioned, Mr Rintoul's position in evidence was that he had been told that, although the Crichel Down Rules did not strictly apply, the land was to be offered back as if they did apply. Mr Rintoul was asked about the Rules in cross-examination. He confirmed that in accordance with the Rules a valuation would normally be set after negotiations. In the course of his submissions, Mr Brown argued that there was no Record for any contention that there had been any requirement to negotiate or to comply with the Rules. He therefore objected to the attempt to expand the pursuer's case beyond the pleadings as there had been no fair notice of this. Mr Sutherland had declined to amend. I agreed with the submissions on behalf of the defender on this point. It is however perhaps right that I indicate that, if the pursuer's pleadings had included the necessary averments, I would in the light of the evidence have been satisfied that the two additional findings in fact proposed could properly have been made.
Mr Brown also argued that the action was incompetent. This was on the view that the defender had implemented the first crave. His assertion was that the valuations were valuations of current market value at 2nd July 1993 and that the offers contained an offer to sell at a price reflecting current market value at that date. There was therefore no longer a live practical issue. The essence of any action of declarator was that what was sought to be declared was some status or right previously doubted or denied. In that connection he referred to Walker, Civil Remedies at pages 105, 110 and 111. Crave 1 had sought to have declared the existence of a right in favour of the pursuer. That was no longer disputed. An offer had been made in the terms set out in the crave. The defender had therefore done what in essence the pursuer had wanted him to do. He was only under an obligation to offer the land concerned; there was no obligation on the defender actually to sell the land to the pursuer.
There was a further argument on the question of competency. Mr Brown accepted that it was not competent to seek declarator against the Crown. He said that the Crown would take cognisance of any declarator. His position was however that what was sought by the pursuer in craves 2 and 3 was in any event incompetent. In that connection he referred to Thomson and Middleton, Manual of Court of Session Practice at pages 130 and 131 where the authors stated, as regards the nature of an action of declarator, that such an action "is one in which the conclusion, as the leading or most important conclusion, is to have the existence of a right declared and established by decree of the Court". His submission was that craves 2 and 3 did not reflect any right. They were just saying that the valuations and letters were not what they bore to be. He also referred to Walker supra at page 112 in support of the proposition that declarator was incompetent of any state of fact which depended on the discretion or opinion of some person. He submitted that was the position in the present case. It was a matter of professional opinion what the valuation was to be. In that connection he referred to Callender's Cable and Construction Co v Glasgow Corporation (1900) 2F 397. He said that there had been no averment of any legal wrong in relation to what was sought in craves 2 and 3. On being asked whether, if the pursuer did not have a remedy in this case she would have one elsewhere, his position was that she might or might not but that was not a matter the defender required to address as it was not relevant to the issue before this Court.
In support of his propositions to the effect that a declaratory action was one in which a right was craved to be declared in favour of the pursuer, that it was incompetent to bring an action to have a fact declared which had no legal consequences for the pursuer, that the pursuer required to have an interest to have declared to be his some particular right which some other person was challenging, that the court would only grant declarator in respect of a live, practical issue, that such actions were designed for making clear that which was doubtful and that a declarator of an abstract proposition without any legal consequences was incompetent, he referred to McPhail, Sheriff Court Practice (1st Edition) at paragraph 20-01, Greens Encyclopeadia of the Laws of Scotland Volume 5 at paragraphs 1036 and 1037, McLaren, Court of Session Practice at page 638 and Stair Memorial Encyclopeadia to the Laws of Scotland, Volume 13 at paragraphs 3, 4 and 5. He submitted that craves 2 and 3 did not set out any legal right and that there were no consequences in themselves as a matter of law. They sought something which was incapable of forming the basis for a declarator.
In response to this argument, Mr Sutherland submitted that one of the findings-in-fact proposed by Mr Brown on behalf of the defender had correctly identified the legal issue in this case. It had been proposed by Mr Brown as follows:
"The defender has fulfilled his obligation to offer the Bridge of Earn Hospital site to the pursuer at a price reflecting current market value on 2 July 1993 as determined by the District Valuer."
Mr Sutherland submitted that the existence of this proposed finding-in-fact for the defender was destructive of the competency argument raised. The live issue in this case was he said whether the defender had in fact fulfilled his obligation to the pursuer or not. That was not a hypothetical issue, and it had clear legal consequences. An issue was whether the pursuer had any remaining right or whether it had been extinguished by the offers made. He said that the law as regards declarators, to which Mr Brown had made reference, was not in dispute. However, he drew attention to what he described as being the modern analysis of the position contained in the Stair Memorial Encyclopeadia, supra, at Volume 13, paragraph 5 where a distinction was made between the function of a declarator against a private individual and that against the Crown. He submitted that a declarator when the Crown was involved took the place of an action of specific implement. Had the remedy of specific implement been available, he said that it would have been to ask the Court to make an order to ordain the defender to make an offer at a price reflecting Current market value. As that was not possible, the pursuer was doing it this way. All that craves 2 and 3 were doing was adding to crave 1 that the defender had not complied with that obligation.
Mr Sutherland also submitted that this was not a case of the pursuer seeking to interfere with the discretion of the valuer. She did not criticise his discretion. What was said though was that he had not produced a valuation of current market value as, first, he had used the wrong basis and, second, he had himself indicated that the valuation was not final. This was in the sense that things had not been taken into account, so that it was not a complete valuation in the sense of being final. He also pointed out that Mr Rintoul had not said that he was adopting "Best Price" as a means of determining current market value. In other words, he expressly did not value the property on a market basis.
In my opinion, the arguments on competency advanced on behalf of the defender were not well founded. It is true to say that, if the valuations were indeed valuations of current market value as at 2nd July 1993 and the offers had then been made at a price reflecting the value so arrived at, the defender would have fulfilled his obligation to the pursuer. However, that merely begged the question. This is because the pursuer's principal position was that the offers did not proceed upon true determinations by the District Valuer of the current market value as at that date at all. The valuations had instead been carried out on some other basis, as well as having proceeded upon certain incorrect assumptions of fact. It could therefore only be said that there was no live issue if it was possible to assert that the valuations did constitute determinations reflecting the then current market value and if the offers were in turn at a price reflecting this. This was the major point at issue. The argument for the defender was therefore circular.
I was therefore of the view that the arguments advanced by Mr Sutherland were to be preferred. I was satisfied that there was a live, practical issue to be determined and that this was a legitimate way for the pursuer to seek to obtain legal consequences against the defender. The pursuer could not proceed by way of specific implement in view of the fact that the defender was the Crown. Neither, in my view, was this a case where what the pursuer was seeking to do was to interfere with the opinion or discretion of the valuer. What she was saying was that he had not produced a valuation of current market value at all. The District Valuer had not, for example, said that he was adopting "Best Price" as a means of determining current market value. In fact, he had expressly selected a different basis of valuation. I therefore took the view that the 3rd and 6th pleas in law for the defender fell to be repelled.
At the outset of his submissions Mr Sutherland moved to amend craves 2 and 3 by inserting the word "market" between the words "current" and "value" in each case. This was not opposed and was therefore granted. At this point, Mr Sutherland had been proceeding on the basis that it would not be necessary to move for decree in terms of the first crave. This was he said on the view that it had been assumed by the pursuer that the defender would abide by the Interlocutor of 20th December 1996 pronounced by Sheriff McInnes which Mr Sutherland initially thought had the status of a declarator. It was submitted on behalf of the defender that that Interlocutor merely had the status of being a finding, and was not an actual declarator in favour of the pursuer. I took the view that this was correct. Mr Sutherland therefore moved for decree also in terms of the 1st crave. At this point the question of inserting the word "market" between the words "current" and "value" was overlooked. It had however appeared in the Interlocutor of 20th December. In the circumstances, the first declarator which I have granted is in effect in terms of the 1st crave, but with the insertion of the word "market" in order to accord with craves 2 and 3. I have also altered the word "said" where it appears before the word "(First)" and have substituted the words "the subjects" in order to make more sense grammatically.
Turning to the question of expenses and related matters, Mr Sutherland moved that sanction be granted for the employment of Senior Counsel. This was opposed on behalf of the defender. I was however in no doubt that the employment of Senior Counsel was entirely reasonable and merited, and therefore that such sanction should properly be granted. I was also moved by Mr Sutherland to certify both Mr Strang and Mr Todd as experts witnesses. Mr Brown did not oppose the certification as Mr Strang as an expert (although he did take issue with a number of parts of his Report as going beyond what should properly have been dealt with in terms of the pleadings on Record). He submitted however that it was not necessary in these proceedings for Mr Todd to have been led in evidence also. He had also said little beyond that said by Mr Strang. He in turn moved that Mr Rintoul should be certified as an expert witness.
In relation to Mr Strang and Mr Todd, I am satisfied that both should be certified as expert witnesses. In my view the pursuer was entirely justified in leading Mr Todd in evidence also, particularly in circumstances where a principal matter at issue was whether the District Valuer had actually adopted the proper basis of valuation at all. This involved matters of professional practice against the background of what had actually been promised by the defender as being the basis upon which the price to be offered would be arrived at. It was of assistance to the Court to have evidence from both witnesses on this to consider along with the evidence of Mr Rintoul. Mr Todd also gave evidence in relation to the requirement (at Practice Statement 4.2.1(e)) for both parties to have acted "knowledgeably" and "prudently" before arriving at a figure for open market value. This was particularly in the context of the issue about asbestos.
I am not satisfied that Mr Rintoul should be certified as being an expert witness. In my view he did not fall within that category in the context of these proceedings. He was a witness to fact, in relation in particular to the Valuation Reports, the basis upon which they had proceeded and his justification for so doing.
In relation to the Report prepared by Mr Strang and the extent to which there should be any recovery in expenses, Mr Brown took issue with a number of parts of his Report as going beyond what should properly have been dealt with in terms of the pleadings on Record. I agree with these submissions in relation to paragraph 6.6 (iv). However, although he also took issue in this connection with paragraphs 4.8 to 4.11, part 5, that part of paragraph 6.8 concerned with hope value, and paragraphs 10.1 and 10.4, he did not take objection to any of these passages when Mr Strang was taken through his Report at length. I therefore do not accept that any expenses should not include such passages.
Mr Sutherland moved for an award of expenses of the action in the event of success. This should include awards of expenses in relation to the two previous debates in relation to which expenses had been reserved on each occasion. Mr Brown however requested that the question of expenses be reserved until the outcome was known. In view of that request I shall therefore reserve the question of expenses.
