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Rouser, Re Appeal of a Decision Of Lothian Valuation Appeal Committee [2007] ScotCS CSIH_37 (29 May 2007)
URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_37.html
Cite as:
[2007] CSIH 37,
[2007] ScotCS CSIH_37
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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
|
Lord Justice Clerk
Lord Johnston
Lord Marnoch
|
[2007] CSIH 37
XA185/06
OPINION OF THE COURT
delivered by LORD MARNOCH
in
APPEAL
under section 82(4) of The
Local Government Finance Act 1992
by
HOLGER R.M. ROESER
Appellant;
against
A decision of Lothian
Valuation Appeal Committee dated 25
October 2006
_______
|
Act: Party (Appellant)
Alt: Kinnear; Solicitor to the City of Edinburgh Council (Respondent)
22 May 2007
[1] This is an
appeal against a decision of the Lothian Valuation Appeal Committee dated 25
October 2006 which upheld the City of Edinburgh Council's restriction of the
discount on Council Tax payable by the appellant on his property at 26 Cornhill
Terrace, Edinburgh to 10%. At all
material times that property was undergoing structural alterations or major
repair work in order to render it habitable.
[2] The appellant
had already enjoyed a 12 months exemption from Council Tax under paragraph 2 of
Schedule 1 to the Council Tax (Exempt Dwellings)(Scotland) Order 1997 S.I. No.
728 (S. 68) as substituted by Article 2(3) of the Council Tax (Exempt
Dwellings)(Scotland) Amendment No. 2 Order 1999 S.S.I. No. 140. However, by virtue of paragraph 3 of the
Council Tax (Discount for Unoccupied Dwellings) (Scotland) Regulations 2005 S.S.I. No. 51 the
appellant claimed, and before us continues to claim, that he should continue to
receive a discount of 50% on the tax otherwise payable. The Council, on the other hand, maintains
that in terms of Article 5(1)(b) and Article 5(3)(b) of the 2005 Statutory
Instrument the appropriate discount, as determined by them, is 10%.
[3] Whether or
not the Council is correct in its contention depends on whether the appellant's
property falls within the definition of "empty dwellings" where that expression
appears in Article 4 of the 2005 Statutory Instrument. As to that, the appellant quite
understandably pointed to the fact that under both the 1997 and 1999 Statutory
Instruments property being repaired was treated as being in a category quite
distinct from that of "empty dwellings", and he submitted that the same logic
should be applied when construing the 2005 Regulations. That submission would, we think, have been
unassailable but for the important fact that, as Mr. Kinnear pointed out, the
2005 Statutory Instrument contains in Article 1(2) its own independent
definition of "empty dwelling" as meaning any dwelling which is "both
unoccupied and unfurnished". This extended definition clearly
differs from the former definition of "empty dwellings" set out in paragraph 4
of Schedule 1 to the 1997 Statutory Instrument.
The result is that, in our opinion, the extended definition lets in not
only "empty dwellings" as formerly defined (para. 4 of the Schedule to the 2005
Statutory Instrument) but also other species of "unoccupied dwellings", as
referred to in the earlier Statutory Instruments, including that species where
the building is unoccupied and unfurnished because of major repairs or
renovations. That was the position in
the present case.
[4] For these
reasons this appeal must be refused.
