England and Wales Lands Tribunal

[2003] EWLands RA_22_2002 (05 June 2003)

RA/22/2002

LANDS TRIBUNAL ACT 1949

RATING - advertising rights - Tribunal required to determine rating appeals under existing system - ability to pay - methods of valuation - profits basis -rents - assessments - tone of the list - appeal dismissed.

IN THE MATTER of an APPEAL from the

SOUTH YORKSHIRE VALUATION TRIBUNAL

BETWEEN BARRY O'BRIEN Appellant

and

MARK JAMES HARWOOD Respondent

(Valuation Officer)

Re: Advertising rights at

152 Shoreham Street

Sheffield

Before: Mr P H Clarke FRICS

Hearing under the simplified procedure at

48/49 Chancery Lane, London WC2A 1JR on 9 May 2003

The following cases are referred to in this decision:

Petrofina (GB) Limited v Dalby (VO) [1967] RA 143

Sole v Henning (VO) [1959] 3 All ER 398

Williams (VO) v Scottish and Newcastle Retail Limited [2001] RA 41

Poplar Assessment Committee v Roberts [1922] 2 AC 93

Stirk and Sons Limited v Halifax Assessment Committee [1922] 1 KB 264

Robinson Brothers (Brewers) Limited v Houghton and Chester-le-Street Assessment Committee [1937] 2 KB 445

Garton v Hunter (VO) [1969] 2 QB 37

Lotus and Delta Limited v Culverwell (VO) [1976] RA 141

K Shoe Shops Limited v Hardy (VO) [1983] RA 145

Burroughs Machines Limited v Mooney (VO) [1977] RA 45

Marks v Eastaugh (VO) [1993] RA 11

Jafton Properties Limited v Prisk (VO) [1997] RA 137

Pointer v Norfolk Assessment Committee [1922] 2 KB 471

The appellant in person

The respondent valuation officer in person with leave of the Tribunal


 


DECISION OF THE LANDS TRIBUNAL

1. This is an appeal under the simplified procedure regarding the assessment in the 2000 rating list of advertising rights in Sheffield.
2. Mr Barry O'Brien, the appellant, appeared in person and gave evidence. Mr Mark James Harwood MRICS, the respondent valuation officer, appeared in person with leave of the Tribunal and gave evidence.
3. I have inspected the appeal hereditament and many of the comparables referred to by the valuation officer.

Facts

4. The valuation officer has prepared a statement of facts. This was not expressly agreed by Mr O'Brien but I did not understand him to dispute any of the material facts. I find the following facts.
5. The hereditament which is the subject of this appeal comprises the right to display advertisements on the flank wall of a warehouse building at 152 Shoreham Street, situated on the edge of the city centre of Sheffield in a predominantly commercial and industrial area. At the material date in this appeal the advertising rights were (and still are) exercised by the display of two standard 48-sheet advertising hoardings. At some time before April 2000 the rights were exercised by a single 96-sheet hoarding. The hoardings are at first floor level and face north over a parking area. They can be seen by pedestrians and traffic travelling south along Shoreham Street, particularly by vehicles stationary at traffic lights at the nearby junction of Shoreham Street and Matilda Street. Shoreham Street is part of the inner ring road linking routes around the south of the city centre. It is a natural route to the railway station. It carries a high volume of traffic for much of the day but to the south, beyond St Marys Road, traffic is lighter.
6. I have not been provided with copies of the licences under which the advertising rights were, and are, exercised but the following information has been provided by the valuation officer. Mr O'Brien believes that this information is correct. He exercised the advertising rights under licence granted before 1991 renewable every three years. The annual payments were £3,840 in 1997 and £4,392 in 2000. The rights are now exercised by Maiden Outdoor Advertising under licence from 1 September 2000 on payment of £6,000 per annum.
7. Although the appeal hereditament has existed for many years it was not entered in the 2000 rating list when it was compiled. Early in 2001 Mr O'Brien drew the valuation officer's attention to this omission. On 21 June 2001 the appeal hereditament was entered in the 2000 list with a rateable value of £3,300. On 22 October 2001 Mr O'Brien made a proposal seeking a reduction to £1,000. The resultant appeal was referred to the South Yorkshire Valuation Tribunal and, following a hearing which Mr O'Brien did not attend but submitted written representations, the tribunal reduced the assessment to £2,400, suggested by the valuation officer.
8. On 9 April 2002 Mr O'Brien lodged an appeal to this Tribunal which was ordered to be heard under the simplified procedure. On 12 August 2002 the respondent valuation officer raised as a preliminary issue the question whether Mr O'Brien had the standing to make the appeal. This was ordered to be determined as a preliminary issue. At this hearing the valuation officer withdrew (without admission) his objection to the appeal and on 11 October I issued directions, including a requirement for Mr O'Brien to lodge a statement of case and documents containing full details of his case. This was due to matters raised by him under the Human Rights Act 1998 which required clarification and which appeared to be outside the Tribunal's jurisdiction in this appeal. Following the lodging of a statement of case and documents, further clarification and written representations from both parties, I determined that the jurisdiction of the Tribunal is limited to the factual question of the rateable value of the appeal hereditament.

Appellant's case

9. There are three arguments in Mr O'Brien's case. The first is that liability to rates should be measured by the fair maintainable receipts of the ratepayer and not by the rent payable by a hypothetical tenant. Second, Mr O'Brien said that a receipts method of valuation should be used to find the rateable value, not rents or assessments. Third, three valuations should be prepared – by reference to receipts, rents and assessments – the highest and lowest figures should be rejected leaving the middle figure as the rateable value.
10. Mr O'Brien asked me to accept his receipts valuation of £233 as the rateable value of the appeal hereditament. Rent is not the starting point; fair maintainable receipts should be considered first; rent should be considered last. Rental evidence alone can never be an indication of tax value. It is only an indication of the price which has to be paid to participate in any particular activity. Only by analysis of other information can a true value be determined. Agreed assessments are not good evidence of value. Mr O'Brien said that he is not bound by these agreements, made with large advertising contractors. He cannot compete with these contractors, who sell space by line and in packages.
11. Mr O'Brien calculated the rateable value at £233 using the receipts for 2000, 2001 and 2002 (to the end of August). The average of these three years is £3,881 to which Mr O'Brien applied 6% to obtain his rateable value of £233. Rates payable on this figure would represent about 3% of turnover, which is the national average. He obtained his figure of 6% from a VOA publication "Valuation of Public Houses" at page 9 (band 2). In support he also referred to the decision of this Tribunal in Petrofina (GB) Limited v Dalby (VO) [1967] RA 143 and part of the Rating Manual of the VOA. He said that the best evidence rule, which treated rents as the best evidence of value, has now gone and all methods of valuation can be considered, including receipts. Rent cannot be the measure of rate liability.
12. The appeal hereditament was originally a 96-sheet hoarding but was divided (before the 2000 list) into two 48-sheets. Owing to the adjoining hoarding of More O'Farrell with 96-sheets further bookings of the appeal hereditament were affected. Conversion to two 48-sheets brought little income.

Respondent valuation officer's case

13. Mr Harwood qualified as a chartered surveyor in 1992. He has been employed by the VOA at York (1989-1996) and from 1996 to 1997 at Doncaster. Since then he has been located at the Sheffield Group Valuation Office responsible for rating.
14. Mr Harwood supported the determination of the LVT at rateable value £2,400. This equates to £1,200 for each 48-sheet. In support he referred to the rents of the appeal hereditament, other rents and agreed assessments. (To avoid confusion I will also refer to the annual payments made for the grant of advertising rights as "rents" although strictly speaking, because they arise out of a licence to display advertisements, they cannot be rents in law).
15. Mr Harwood said that the correct starting point is the rents of the appeal hereditament. These equate to £1,920 (1997), £2,196 (2000) and £3,000 (2003) for each 48-sheet. Taken in isolation these figures support a rateable value of £4,000. They suggest that £2,400 is not excessive. Mr Harwood then referred to rents of nine other advertising hoardings which showed figures per 48-sheet of between £955 and £1,650. These are at levels significantly below the rents of the appeal hereditament, indicating that it is either more valuable or that the rents are unduly high. The value should lie within the range identified by the other rents. It would be unsafe to base an assessment solely on the rents of the appeal hereditament. Finally, Mr Harwood referred to the assessments of 15 advertising hoardings in central Sheffield (all except one agreed) which show a range of between £1,200 and £1,650 per 48-sheet.
16. Mr Harwood said that he disagreed with Mr O'Brien's valuation. A receipts and expenditure valuation relies on the tenant being motivated by monetary profit. In this case, the average rent for the last three years exceeds Mr O'Brien's average income. The use of a percentage of receipts as a means of comparison could only be justified if there is an established relationship between rents and receipts from advertising rights. There is no such evidence. In any event, it would need to be applied to the income likely to be achieved by the hypothetical tenant, not the actual occupier, the rights being valued as vacant and to let. The best evidence of value in this appeal comprises rents and agreed assessments.
17. The rental evidence confirms that the valuation of advertising rights is formed using a rental comparison approach. Mr Harwood attached little weight to alternative methods where there is rental evidence. A receipts approach is not appropriate. The evidence indicates a consistent and strong rental market and this must form the basis of valuation. Rents and assessments show that rental levels for advertising rights are sensitive to traffic flow, location and position, height and display angle. The appeal hereditament enjoys good visibility, ranks high as to location and position and is situated in an elevated and prominent position on a major urban traffic route. The rateable value of £2,400 is not excessive.

Decision

18. The issue in this appeal is the correct rateable value in the 2000 rating list for advertising rights at 152 Shoreham Street, Sheffield. Mr O'Brien says that it should be £233; Mr Harwood defends the decision of the LVT at £2,400. The burden of proof is on Mr O'Brien, as appellant, to show that the decision of the LVT is wrong (Sole v Henning (VO) [1959] 3 All ER 398 at 399H).
19. I look first at the relevant statutory provisions. The Local Government Finance Act 1988 ("the 1988 Act") requires the valuation officer to prepare and maintain local rating lists showing the assessments of relevant non-domestic hereditaments in the local authority's area (sections 41 and 42). A hereditament is a unit of property to be shown as a separate item in the list (section 64(1) and section 115 of the General Rate Act 1967). A relevant hereditament includes a right to use land for the display of advertisements, where the right is let out or reserved to a person other than the occupier or owner of the land (section 64(4)(c) and (2)). "Land" includes a wall or other part of a building (section 64(11)). Accordingly, the advertising rights granted in respect of the flank wall of 152 Shoreham Street are a separate hereditament for rating purposes. A person in occupation of a hereditament is subject to non-domestic rates. An advertising right is occupied by the person entitled to exercise the right (sections 43(1) and 65(8)).
20. The measure of liability is rateable value. In this appeal this is equivalent to the rent on a hypothetical annual tenancy (on full repairing and insuring terms) of the advertising right on the assumption that the grant of the right included the right to use any structure or sign available for exhibiting advertisements, notwithstanding that the structure or sign was provided by the occupier or was provided after the grant of the right (Schedule 6 para 2(1) and Non-Domestic Rating (Miscellaneous Provisions) (No.2) Regulations 1989, regulation 4(1) and (4)). In this appeal the rateable value is to be assessed having regard to the circumstances at 1 April 2000 and to the level of values at 1 April 1998 (Schedule 6 paras 2(3)(b), (6), (6A) and (7), Rating Lists (Valuation Date) Order 1998 and Non-Domestic Rating (Material Day for List Alterations) Regulations 1992, regulation 3(2)).
21. It will be convenient to refer here to two underlying principles of rating which arise out of, or have relevance to, Mr O'Brien's case. The first is uniformity or equality. It is an underlying principle of rating that "fairness generally requires comparable properties to be valued by the same yardstick" (Williams (VO) v Scottish and Newcastle Retail Limited [2001] RA 41 at 62, para 63) and "that equality of rating is and should be one of the main objects of all rating systems" (Poplar Assessment Committee v Roberts [1922] 2 AC 93, 109). These requirements of fairness and equality are achieved by individual valuation of each hereditament (Stirk and Sons Limited v Halifax Assessment Committee [1922] 1 KB 264) and application to all properties of the same measure of assessment (rateable value) by reference to a common valuation date (1 April 1998 for the 2000 rating list). I cannot find any breach of fairness and equality in this appeal.
22. The other principle is ability to pay. Except for a few exceptional cases where there is restricted demand (which is not the position here), any question as to the ability of the hypothetical tenant or the ratepayer to pay rent or rates is irrelevant to the assessment of rateable value. Although it soon became established that each occupier should contribute to the poor rate, and subsequently local rates, according to his ability to pay, this is measured by the annual value of the property occupied and not by his financial means. The relevant question is what amount would a hypothetical tenant pay in rent on an annual tenancy? It is not what can the actual ratepayer afford to pay in rent or rates? This appeal concerns a form of property (advertising rights) for which there is a general demand; it is not one of the recognised exceptions where a ratepayer's financial resources might be relevant. I cannot therefore have regard to Mr O'Brien's ability to pay rent or rates.
23. The above is a brief summary of the rating system, so far as it is relevant to this appeal. Valuation officers, LVTs and this Tribunal must operate or make their decisions under this system. It has a long history; alternatives have been considered and rejected; it is now contained mainly in the 1988 Act, associated regulations and decisions of the courts and this Tribunal. Mr O'Brien, however, says that he will have nothing to do with a hypothetical tenancy or the rent payable by a hypothetical tenant. He is an actual ratepayer, not a hypothetical tenant, and his liability for rates should be based on his actual receipts and not on hypothetical rental value. In short, Mr O'Brien is asking me to substitute a local income tax for the property value rating regime now in use. This I cannot do. It is not open to this Tribunal to disregard Parliament and substitute a different measure of liability for non-domestic rates. As I have explained, the principle of ability to pay exists in current rating law and practice but it is measured by rental value on a hypothetical yearly tenancy and not by the actual receipts of the ratepayer. That is not to say that I must exclude all consideration of a receipts method of valuation. Since the abandonment of the best evidence rule (which I consider below) it can be taken into consideration, but subject to weight where there is other and more reliable evidence of value.
24. There are four methods of rating valuation in general use: by reference to rents, by reference to assessments, the profits basis and the contractor's test. Mr O'Brien uses a form of profits valuation to arrive at his rateable value of £233; Mr Harwood arrives at his figure of £2,400 by rents and assessments. It is not in dispute that all methods of valuation are admissible. The best evidence rule, which would have previously excluded the profits basis, on the grounds that rents are the best evidence of value and therefore alone admissible (Robinson Brothers (Brewers) Limited v Houghton and Chester-le-Street Assessment Committee [1937] 2 KB 445, 468-9), has now gone. "Nowadays we do not confine ourselves to the best evidence. We admit all relevant evidence. The goodness or badness of it goes only to weight, and not to admissibility" (Garton v Hunter (VO) [1969] 2 QB 37, per Lord Denning MR at 44D). I agree with Mr O'Brien therefore that I can have regard to his profits valuation. The question, however, is what weight should be given to it compared to rents and assessments? Although the best evidence rule has gone, rents are still usually the most reliable evidence of annual value. In Garton Lord Denning MR went on to say (at 44E):-

"I would amend the dictum" (in Robinson) "so as to say that, when the particular hereditament is let at what is plainly a rack rent or when similar hereditaments in similar economic sites are so let, so that they are truly comparable, that is admissible evidence of what the hypothetical tenant would pay: but it is not in itself decisive. All other relevant considerations are admissible."

And Winn LJ went further and said (at 45G):-

"…I would, in order in a way to amplify what the court has already said about the dictum of Scott LJ now disapproved, suggest, in lieu of it, some such words as these:- Where the particular hereditament is let on what is plainly a rack rent or there are similar hereditaments in similar economic sites so let which are truly comparable, that evidence should be classified in respect of cogency as a category of admissible evidence properly described as superior: in some but not all cases that category may be exclusive. Any indirect evidence, albeit relevant, should be placed in a different category: reference to the latter category may or may not be proper, or indeed unnecessary, according to the degree of weight of the former kind of evidence."

25. I have therefore to consider the three methods of valuation used by the parties. Mr O'Brien's valuation may be described as a percentage of gross receipts. He has taken the receipts from the appeal hereditament for 2000 (£4,292), 2001 (£3,464) and 2002 (£2,592 to August), calculated an average annual figure of £3,881 and applied 6% to arrive at a rateable value of £233, which he says represents a rates burden of 3% of turnover, about the national average.
26. In support Mr O'Brien refers to the decision of this Tribunal in Petrofina (Great Britain) Limited v Dalby (VO) [1967] RA 143. This concerned the assessment of a petrol filling station. The Tribunal (H P Hobbs) rejected rents as good evidence of value due to the needs for adjustments for non-rateable plant and equipment and (in one case) gallonage and found the gross value by reference to the throughput of petrol in preference to the contractor's test (a percentage of capital value). The essential differences between that decision and this appeal are the lack of reliable rents in Petrofina and the different types of property. Petrol filling stations are usually valued on the throughput of petrol due to a lack of reliable rental evidence. In this current appeal we have reliable, and easily analysed, rents, for the appeal hereditament and other nearby advertising rights. Mr O'Brien also refers to the Rating Manual of the VOA, volume 5, section 825, para 5.2: "The most important factor to be taken into account in determining rental value is the level of fair maintainable receipts." He has, however, taken this paragraph out of context. It is in a section headed "Public Houses, Licensed Restaurants and Wine Bar". The usual method of valuation for public houses, and sometimes for licensed restaurants and wine bars, is by reference to gallonage, receipts and expenditure, again due to the absence of reliable rents. Consequently, I do not find support for the valuation of advertising rights by reference to receipts, as in the Petrofina case, or by reference to the Rating Manual. Mr O'Brien also said that, under the Interpretation Act, petrol filling stations, public houses and advertising rights are all "land". Receipts valuations are used for petrol filling stations and public houses and should therefore be used for advertising rights. I do not accept this argument. Valuation is a question of fact, not a question of law. The valuation of petrol filling stations and public houses by reference to receipts is, as I have said, due to a lack of reliable rental evidence for these types of property. That is not the case with advertising rights (in this appeal and generally) where there are usually sufficient rents to make valuation by receipts unnecessary. Direct valuation by reference to rents is more reliable than indirect valuation by reference to receipts.
27. Although I accept that Mr O'Brien's valuation is admissible, I give no weight to it for the following reasons. First, any form of profits or percentage of receipts valuation can only be an indirect method of assessing annual value, useful where there is an absence of rents but inherently unreliable and of limited or no assistance where there is direct rental evidence, as in this appeal. It is not profit or income which is rateable but the rental value on an assumed annual tenancy. Second, and allied to the inherent unreliability of the profits method, Mr O'Brien's figures are of doubtful accuracy and without support. The valuation date is 1 April 1998; Mr O'Brien has based his calculations on receipts for the later years, 2000 to 2002. The receipts of an actual occupier can only be an approximate guide to the receipts which would be achieved by the hypothetical tenant, the advertising rights being assumed to be vacant and to let and not occupied by Mr O'Brien. There is no evidence to show a relationship between 6% of receipts and the rent which a hypothetical tenant would pay. Furthermore, Mr O'Brien obtained his figure of 6% from the different situation of the valuation of a public house. Third, the rateable value produced by Mr O'Brien's valuation is wholly inconsistent with the rents and agreed assessments. In 1997 and 2000 Mr O'Brien paid rents of £3,840 per annum and £4,392 per annum for the advertising rights at 152 Shoreham Street and in 2002 Maiden Outdoor Advertising agreed to pay £6,000 a year. Mr O'Brien now puts the annual value in April 1998 at £233, a fraction of these rents. Rents of other nearby advertising rights are at lower levels but still show from between £600 and £1,600 per 48-sheet poster compared to £116 on Mr O'Brien's figure for the appeal hereditament. Agreed assessments are in the range of £1,200 to £1,650 per 48-sheet.
28. Accordingly, although admissible, I give no weight to Mr O'Brien's valuation. The profits basis, in various forms, is (or has been) used to value hereditaments such as docks and harbours, cemeteries and crematoria, racecourses, seaside piers, public houses, hotels, cinemas and theatres, holiday camps, petrol filling stations and similar properties where there is a lack of rental evidence and profits directly affect the annual value. I have never known advertising rights to be valued on a profits basis because there is usually ample rental evidence.
29. I also reject Mr O'Brien's argument that the rateable value should be found by preparing three valuations, on receipts, rents and assessments, taking the middle figure as the rateable value. For the reasons I have given, receipts valuation carries no weight in this appeal and must be wholly rejected. Rents and assessments should be looked at together to produce an opinion of value. Towards the close of the hearing I refused an application by Mr O'Brien for an adjournment to allow Mr Harwood to prepare a receipts valuation to enable this middle valuation exercise to be carried out. A further receipts valuation, inherently of no weight compared to rents and assessments, would have served no useful purpose.
30. I turn now to Mr Harwood's valuation which is based on rents and assessments. He referred to the decision in Lotus and Delta Limited v Culverwell (VO) [1976] RA 141, where this Tribunal (J H Emlyn Jones) reviewed the authorities and formulated six propositions for dealing with value evidence. These have become accepted as authoritative guidance. He said (at 153-4):-

"In the light of the authorities, I think the following propositions are now established:

(i) Where the hereditament which is the subject of consideration is actually let, that rent should be taken as a starting point;

(ii) the more closely the circumstances under which the rent is agreed, both as to time, subject matter and conditions, relate to the statutory requirements …., the more weight should be attached to it;

(iii) where rents of similar properties are available they, too, are properly to be looked at through the eye of the valuer in order to confirm or otherwise the level of value indicated by the actual rent of the subject hereditament;

(iv) assessments of other comparable properties are also relevant. When a valuation list is prepared these assessments are to be taken as indicating comparative values as estimated by the valuation officer. In subsequent proceedings on that list therefore they can properly be referred to as giving some indication of that opinion;

(v) in the light of the all the evidence an opinion can then be formed of the value of the subject hereditament, the weight to be attributed to the different types of evidence depending on the one hand on the nature of the actual rent and, on the other hand, on the degree of comparability found in other properties;

(vi) ……"

31. It may be helpful if I first summarise in tabular form the rents and assessments before looking further at this evidence:-

		Rent	RV	RV
Ref	Address	Date	per 48-sheet	per 48-sheet
	152 Shoreham Street	1997	£1,920)
	(appeal hereditament)	2000	£2,196)	£1,200
		1/9/02	£3,000)
		___________________
1.	236 Queens Road	1/3/95	£1,200	£1,500
2.	Adj 264 Queens Road	29/3/00	£600	£1,350
3.	Opp 287 Shoreham Street	1/4/97	£1,200	£1,400
4.	Adj 479 Shoreham Street	1/2/00	£750	£1,400
5.	Junc St Marys Road & Shoreham Street	3/00	£1,600	(£1,400 (£1,200
6.	Adj 522 London Road	-	-	£1,500
7.	Football Ground, Bramhall Lane	1/4/97	£955	£1,400
8.	Adj 10 Nursery Street	12/6/98	£1,334	£1,650
9.	Junc Wicker Lane & Nursery Street	1/7/98	£1,700	£1,650
10	Fronting Arnold Laver, Queens Road	-	-	£1,500
11.	Adj 457 London Road	-	-	£1,500
12.	416 London Road	-	-	£1,500
13.	Adj Cricketers Arms, Bramhall Lane	-	-	£1,400
14.	Bramhall Lane	-	-	£1,400
15.	Junc Matilda Street & Shoreham Street	-	-	£1,650

32. The first two propositions in Lotus and Delta can be taken together. The rents agreed for the appeal hereditament are the starting point and the more closely they relate to the statutory provisions, particularly the definition of rateable value, the more weight should be attached to them. I have three rents but little further information – the exact dates for the first two are unknown, only the year, and I do not have copies of the agreements or details of their contents. They appear to be three yearly agreements. The first two rents were agreed by Mr O'Brien and equate to £1,920 and £2,196 per 48-sheet in 1997 and 2000 respectively. The third rent relates to a new licence to Maiden from 1 September 2002 at £3,000 for each 48-sheet. These rents show a rising trend and are all well above the assessment determined by the LVT of £1,200 per 48-sheet. The nearest in time to the valuation date is the 1997 rent of £1,920 per 48-sheet. However, these rents are not conclusive in supporting the assessment and must be considered in the context of other rental evidence.
33. This is the third proposition: rents of similar advertising rights should be looked at to confirm or otherwise the level of value indicated by the rents of the appeal hereditament. The rents referred to by Mr Harwood vary as to date and amount per 48-sheet. All are well-below the rents of the appeal hereditament. In my view, this indicates that these rents are above the level for advertising rents in central Sheffield. Four of the rents are close in time to the valuation date of 1 April 1998, references 3, 7, 8 and 9.
34. Reference 3 is at Bramhall Lane Football Ground (Sheffield United) on the corner of Shoreham Street and John Street. It was let as two 48-sheets and is now one 96-sheet. It faces north but the traffic flow south along this part of Shoreham Street is considerably less than past the appeal hereditament. The rent at 1 April 1997 was £1,200 per 48-sheet indicating a higher figure as at 1 April 1998 for the appeal hereditament.
35. Reference 7 is a multiple site on the corner of Bramhall Lane and Cherry Street comprising three 48-sheets and three 96-sheets. It is on the boundary of the football ground, with a good traffic flow along Bramhall Lane, but is only slightly angled to the road with a lack of prominence. The rent at 1 April 1997 equates to £950 per 48-sheet indicating a higher figure as at 1 April 1998 for the appeal hereditament.
36. The other two rental comparables are closer to the valuation date (references 8 and 9) (June and July 1998) and are situated on or near Nursery Street approximately three-quarters of mile to the north of the appeal hereditament in a different location. They show rents of £1,334 and £1,700 per 48-sheet for this location. These are each single 48-sheet hoardings. In my judgment these rents indicate slightly higher figures for the appeal hereditament in April 1998 but I give less weight to them due to the different location.
37. I mention one other rent, for a site which is close in location to the appeal hereditament but two years after the valuation date. This is reference 5 on the corner of Shoreham Street and St Marys Road (the south ring road). A triangular three 48-sheet hoarding was let in March 2000 for £1,600 per 48-sheet. This is a more prominent position than the appeal hereditament and, taken with the later date, indicates an annual value for this hereditament of below £1,600 on 1 April 1998.
38. My conclusions on the rental evidence are that the rents of the appeal hereditament are higher than the level of advertising rents in central Sheffield and should be treated with caution. The rents for other sites, although, as is usually the case, of varying amounts per 48-sheet indicate that the annual value of the appeal hereditament in April 1998 was above £1,200 but below £1,600 per 48-sheet, although the two sites in the different location of Nursery Street (and therefore of less weight) indicate above £1,334 and £1,700.
39. I now consider proposition (iv) in Lotus and Delta, the assessment of other comparable advertising rights. All except one of the assessments referred to by Mr Harwood have been agreed. The single exception has not been challenged. Mr O'Brien says that these agreements suited the advertising contractors but the discussions were not with him. I agree that he is not bound by these agreements but they are relevant to the question of weight to be given to comparable assessments. This requires a consideration of tone of the list.
40. The concept of tone of the list has been explained by this Tribunal on many occasions (see eg K Shoe Shops Limited v Hardy (VO) [1983] RA 145 at 154; Burroughs Machines Limited v Mooney (VO) [1977] RA 45 at 55; Marks v Eastaugh (VO) [1993] RA 11 at 20-23; Jafton Properties Limited v Prisk (VO) [1997] RA 137 at 166-7). It is concerned with the weight to be given to assessments in the rating list. It is settled law that assessments of comparable hereditaments are admissible as evidence of value (Pointer v Norfolk Assessment Committee [1922] 2 KB 471). Tone of the list may be explained as follows. Rateable value is based on market rents. These usually vary, sometimes considerably, and it is often difficult to find a general pattern. When preparing a rating list the valuation officer is required to value each property individually and to have regard to the underlying principle of uniformity and equality. Although rents may vary greatly assessments must show a uniform pattern. This has led to assessment by the use of common unit figures for classes of hereditament and location with individual adjustments to reflect the characteristics of each property. Advertising rights are usually valued by reference to a figure per 48-sheet poster. This figure will be based on an analysis of the rental evidence.
41. There are three stages leading to the establishment of tone of the list. At first, when a new rating list is put on deposit, entries will carry relatively little weight: they are opinions of value by the valuation officer, as yet unchallenged and untested by negotiation. Over time assessments will be challenged and agreed or determined by an LVT or this Tribunal or accepted by lack of challenge. Finally, a stage is reached where enough assessments have been agreed or determined or are unchallenged to establish a pattern of values, a tone of the list. The list is then said to have settled. Rents will be largely subsumed into assessments. At that stage rating surveyors will have little regard to rents and pay considerable attention to assessments. The position regarding tone of the list at any particular time is a question of fact. When an assessment is challenged before a tribunal the correct time for deciding whether a tone of the list has been established is immediately before the hearing. The question in this appeal is therefore whether a tone of the list has become established for advertising rights comparable to the appeal hereditament?
42. Mr Harwood put in evidence a schedule of 15 assessments of advertising rights in the centre of Sheffield, all except one having been agreed and that one has not been challenged. This schedule is summarised in the above table. Of the agreed assessments eight were agreed by Maiden Outdoor Advertising Limited, one by The Allam Group Limited and four by Lambert Smith Hampton, as agents for the ratepayers. The assessments vary between £1,200 and £1,650 per 48-sheet. I am satisfied that these assessments are sufficient to establish a tone of the list, to which I should have regard when considering the rateable value under appeal.
43. The assessments are close or reasonably close to the appeal hereditament and assist when considering whether the rateable value for this property is excessive. They fall into four groups. Two are very close to the appeal hereditament. On the junction of Matilda Street and Shoreham Street (reference 15) is a three 96-sheet display assessed as six 48-sheets at £1,650 per sheet. Traffic flows are the same but this comparable has visibility in two directions and is at ground level. This is the exception which has not been agreed but no appeal has been lodged. A short distance to the south is a triangular display on the corner of Shoreham Street and St Marys Road (reference 5). The assessment of £4,000 rateable value has been agreed with The Allam Group and devalues to £1,200 per 48-sheet for the Shoreham Street display and £1,400 for each of the two sheets fronting St Marys Road, which has greater traffic flows. These two assessments close to the appeal hereditament support the figure of £1,200 per 48-sheet at the appeal hereditament.
44. A short distance further south are four advertising hoardings on or close to Bramhall Lane and the Sheffield United Football Ground. On the corner of Shoreham Street and John Street is a one 96-sheet hoarding fronting both streets originally let as two 48-sheets (reference 3). Traffic flows are considerably less in this part of Shoreham Street. The assessment of £1,400 per 48-sheet has been agreed by Maiden. This is higher than the assessment of the appeal hereditament which I find surprising – I would expect it to be the same or even slightly lower. The other three comparables in this group are all in Bramhall Lane which is a busy road with similar traffic flows to the appeal hereditament. All are part of, or close to, the football ground. All have been agreed at £1,400 per 48-sheet, two by Lambert Smith Hampton and one by Maiden. These hoardings are at ground level on a busy road and are consistent with the assessment of the appeal hereditament. To the south of this group is a single advertising hoarding in Shoreham Street (reference 4). This is at first floor level on the gable wall of a house and comprises a single 48-sheet agreed by Maiden at £1,400 rateable value. Traffic flows in this part of Shoreham Street are lower than at the appeal hereditament and I would have expected this assessment to be less than the appeal hereditament and the Bramhall Lane hoardings.
45. The final group of advertising hoardings geographically close to the appeal hereditament are in Queens Road (references 1, 2 and 10). This is a busy road leading out of the city centre to the south with traffic flows similar to Shoreham Street at the appeal hereditament. These three assessments have been agreed at £1,500 per 48-sheet (references 1 and 10) and £1,350 (reference 2) where the hoarding is less prominent. These assessments indicate that the assessment of the appeal hereditament is not excessive.
46. I have now arrived at the last of the relevant propositions in Lotus and Delta. In the light of the above evidence of rents and assessments an opinion can now be formed of the annual value of the appeal hereditament, according to the weight to be attached to the different types of evidence and the degree of comparability.
47. The rents of the hereditament are the starting point. They indicate an annual value of at least £1,920 per 48-sheet (the 1997 rent). These rents are, however, out of line, and therefore diminished in weight, compared to other rents of comparable advertising rights. These range from £750 per 48-sheet in February 2000 to £1,700 in July 1998. The nearest rents to the valuation date are for hoardings to the north of the city centre (references 8 and 9), £1,334 and £1,700 per 48-sheet. In terms of comparable location reference 3, £1,200 in April 1997, and reference 5, £1,600 in March 2000, indicate that £1,200 per 48-sheet for the appeal hereditament is not excessive. The varied rents and the inconsistency between the high rents for the appeal hereditament and the others render these rents of less weight than is often the case. In my judgment, the agreed assessments are the best evidence of value, particularly references 5 and 15 which are geographically close to the appeal hereditament. These assessments are £1,400/£1,200 and £1,650 per 48-sheet respectively. Around Bramhall Lane the agreed assessments are all £1,400 per 48-sheet and in nearby Queens Road the figures are £1,350 and £1,500. On these figures I am satisfied that the assessment of £1,200 per 48-sheet for the appeal hereditament is not out of line with the tone of the list for advertising rights in and near Shoreham Street. Considering all the relevant evidence – rents and assessments – I am not persuaded that the rateable value of £2,400 determined by the LVT is wrong. The appeal is dismissed.
48. Costs are not usually awarded under the simplified procedure and neither party asked for costs. I make no order as to costs.

DATED: 5 June 2003

(Signed) P H Clarke