LANDS VALUATION APPEAL COURT, COURT OF SESSION

Lord Justice Clerk Lord Clarke Lord Malcolm

[2012] CSIH 40 XA129/11 OPINION OF THE LORD JUSTICE CLERK in the Appeal by Stated Case by ASSESSOR FOR GLASGOW Appellant; against (1) SCHUH LIMITED; (2) THE ROYAL BANK OF SCOTLAND; (3) THE BODY SHOP INTERNATIONAL PLC; (4) BANK OF SCOTLAND PLC; (5) J & W GREAVES LTD; (6) SPORTS WORLD INTERNATIONAL LTD; (7) PHONES 4 U LTD; (8) SAVERS HEALTH & BEAUTY PLC; (9) OPTICAL EXPRESS (SOUTHERN) LTD; (10) THORNTONS PLC; (11) LUSH RETAIL LTD; (12) ABBEY NATIONAL PLC; (13) BARRATTS SHOES LTD; (14) SUPERDRUG STORES PLC; (15) and (16) OUTDOOR GROUP LTD; (17) M M HENDERSON LTD Respondents: _______

Act: Clarke QC; Simpson & Marwick

Alt: Haddow QC; Brodies

27 April 2012

Introduction

[1] This is an appeal by the assessor against a decision of the Valuation Appeal Committee for Glasgow (the Committee) dated 14 February 2011 by which it allowed the appeals by the respondents (the ratepayers) against the entries in the 2005 Roll for seventeen shops in the pedestrianised section of Sauchiehall Street, Glasgow. The appeals were brought under section 3(4) of the Local Government (Scotland) Act 1975 (the 1975 Act) on the basis of a material change of circumstances.

Zoning

[2] Shops in city centres are valued by the zoning method. This method is based on the principle that the area closest to the frontage (Zone A) is the most valuable part of the shop. When a value per square metre is arrived at for Zone A, the valuer formulaically derives rates for the other zones and from that calculates the value for the shop. In the relevant section of Sauchiehall Street three Zone A rates apply to different blocks of the street. For the purposes of this appeal the important point about the zoning method is that it is based on direct rental evidence (cf Bond and Brown, Rating Valuation: Principles and Practice, 3rd ed (2011), pp 205-207).

The hearing before the Committee

The case for the ratepayers

[3] The ratepayers contended that the rental values of their subjects had fallen significantly during the currency of the 2005 Roll by reason of the economic recession, the effects of changing patterns of retail in Glasgow city centre and the impact of large out-of-town shopping centres, and that these causes together constituted a material change of circumstances within the meaning of section 3(4) of the 1975 Act. They contended that the effective date of the material change should be 1 April 2009.

[4] Mr Harry Reith gave evidence on the decline in rental values in the area. He was experienced in retail rent reviews. He did not speak to valuations of any of the appeal subjects. He described the changes in the market and in Sauchiehall Street retail since September 2008 and spoke of rental transactions that his firm had settled at lower rents than before. He said that the combination of the factors relied on by the ratepayers had severely reduced rental values of shops in Sauchiehall Street. In his view it was probably impossible to allocate the effects of the individual factors into specific proportions.

[5] Mr Brian Rogan, a rating surveyor, referred to twelve comparison transactions in Sauchiehall Street. With one exception, Card Factory, where the parties were agreed that the analysed rent rate was £322 psm, these comparisons ranged from £590 psm to £1267 psm. Of the twelve comparisons, however, six were concluded in the period after June 2010 and therefore fell within the currency of the subsequent Revaluation. Of the six transactions within the period of the 2005 Roll, the assessor's analysis produced different rent rates, but in only one case was the difference significant. On Mr Rogan's figures, the 2010-2011 transactions produced rent rates in the range £776 to £1267 psm. Mr Rogan proposed that the entries should be altered with effect from 1 April 2009 so that where the Zone A rate was £850 psm, it should £600 psm; where it was £1,300 psm, it should be £850 psm; and where it was £1,500 psm, it should be £1,000 psm.

[6] Mr Paul McInnes described how Sauchiehall Street and Argyle Street were once the prime shopping areas but had wasted away over the years. He spoke of Buchanan Street's having become a prime fashion retailing location and referred to the emergence of the St Enoch Centre and the Buchanan Galleries. These changes had led to the entry of discount retailers into Sauchiehall Street and to the adverse effect of that on the street's prestige.

[7] Mr McInnes also gave evidence about the RREEF Retail Fund, which was the landlord of several shops in Sauchiehall Street. He said that in January 2008 its interests in Sauchiehall Street were valued at £15,500,000. By June 2008 that valuation had fallen to £14,250,000. By September 2008 it had fallen to £13,000,000. By December 2008 it had fallen to £9,050,000. By January 2009 it had fallen to £8,050,000. The latter figure was based on an estimated rental value, after incentives, that equated to a Zone A rate of £904 psm. At the 2005 Revaluation the Zone A rate for the same properties was £1,500 psm.

[8] The ratepayers' productions included a statement from Mr Ross Allardice, a retail surveyor, on similar lines to the evidence that I have summarised. The statement was read to the Committee without objection. Mr Allardice too was of the opinion that it was not just the economic downturn that had caused the increasing voids and the reduction in rental values.

The case for the assessor

[9] The case for the assessor was presented by his principal surveyor, Mr Christopher Adams. He led evidence from Mr Derek Kidd, one of the assessor's valuers. The case for the assessor was that the alleged fall in rental values since the tone date had not been proved. The assessor relied on several rental transactions which, he argued, showed no significant fall in values.

[10] Mr Kidd gave evidence of lets in that part of the city centre that were concluded at rental levels that were higher than tone. Some new lettings had been at levels below it. Mr Kidd founded on six comparisons that were not on Mr Rogan's list. Five of these produced analysed rent rates in the range £1656 psm to £1998 psm. Of these five, one was a new rent at £1998 psm; one was a lease renewal at £1656; two were rent reviews concluded with nil uplifts at £1657 psm and £1762 psm; and one was a rent review at an increased rent of £1712. The sixth transaction, Arman Traders Ltd, was a new rent agreed for a kiosk at a rate of £2028 psm, which I should think was a less persuasive comparison. On balance Mr Kidd concluded that the evidence did not establish that there had been a material change affecting value.

[11] Mr Adams submitted that the ratepayers were relying on a substantial body of rental evidence that was outwith the period of the 2005 Revaluation, that having been based on a tone date of 1 April 2003. Much of their evidence related to transactions concluded at least four years after the tone date. Much of it would be relevant only to the 2010 Revaluation. The evidence in its totality did not support the ratepayers' case. If a material change had been proved, the proposed effective date of the change was not contested.

The Committee's findings in fact

[12] The Committee has found that there have been major changes in the pattern of retail in Glasgow in the last 30 years. Whereas there were once two separate core shopping areas, in Argyle Street and Sauchiehall Street, Buchanan Street has emerged since the late 1970's as the prime shopping location in the city centre. Although the position of Argyle Street was enhanced when the St Enoch Centre was opened in 1987, retail in Sauchiehall Street has been strengthened by the opening of the Buchanan Galleries at the eastern end of Sauchiehall Street and the northern end of Buchanan Street.

[13] There have also been major changes caused by the opening of large out-of-town centres. The Braehead Centre is six miles to the west of Glasgow city centre. The evidence suggests that it opened in about 1999. When it opened it had 100 shops and 6500 car parking spaces. The Glasgow Fort Centre opened in about 2004. It is four miles to the east of the city centre with 70 shops and 2000 car parking spaces. It is particularly accessible because it is adjacent to the M8 motorway.

[14] The Silverburn Centre opened in 2007. It is about two miles south west of the city centre and is close to the M77 motorway. It is the largest of these centres. It has a floorspace of one million square feet. It has been an outstanding success. It has attracted a wide range of leading retailers.

[15] The Committee has concluded that these out-of-town centres have established a strong customer base. The customers who now use them are to a large extent customers who would previously have shopped in Glasgow city centre. The opening of these centres has therefore caused a loss of business and of customers to city centre shops.

[16] The Committee has also made findings in relation to the United Kingdom economy. It has found that there was a steady growth in the rent levels of retail units in city centre and town centre locations until around 2007. However, by 2008 there was a downturn in the economy. That had had an impact on retail spending. It caused demand for shop premises to dry up as retailers suffered a decline in trading performance. By the end of 2008 at least 35 well-known retailers had disappeared from the high streets of the United Kingdom. As retailers in Sauchiehall Street and elsewhere went out of business, the demand for shop premises, and the level of rents, in Sauchiehall Street inevitably declined.

[17] The Committee has made the following particular findings which, in my view, are crucial to a proper determination of these cases; namely,

"14 A number of factors came together in relation to Sauchiehall Street. There was the economic downturn. There was the collapse of many retail groups. There was the building-up of the out-of-town shopping centres. All of these factors combined to take business away from Glasgow city centre. All of these factors combined to result in a severe and adverse impact on retail values on Sauchiehall Street. There was an abrupt reduction in rental levels in Sauchiehall Street. The rental levels in Sauchiehall Street were also exacerbated by the expansion and improvement programme in relation to the St. Enoch Centre which meant the area of Argyle Street around the St. Enoch Centre became a more attractive and more competitive retail pitch to a potential occupier of commercial premises in the city centre of Glasgow ...

17 The combination of events described, the opening of out-of-town shopping centres, the economic downturn, the withdrawal from the marketplace of various traders and the expansion and improvement of the St. Enoch Centre all combined to bring about a material change of circumstances affecting rental values in virtually all retail premises within the principal trading sections of Sauchiehall Street. This had occurred by 1 April, 2009 ...

19 The retail profile of Sauchiehall Street mirrored the retail profile of Argyle Street to a greater extent than it mirrored the retail profile of Buchanan Street. Buchanan Street, as the premier fashion location in Glasgow city centre, was less affected than Sauchiehall Street by the factors that have been mentioned ...

21. New lettings within Sauchiehall Street are at levels well below the 2005 tone values. General market conditions and the change in the pattern of supply and demand have combined to bring about a material change in circumstances."

[18] The Committee has also made detailed findings as to the rents of the individual subjects of appeal and in these findings compared the values fixed in the 2005 Revaluation with the rents fixed in subsequent rent reviews and, in line with the evidence for the ratepayers, compared the Zone A rate that had been applied at the Revaluation with the Zone A rate that was brought out by the subsequent reviews.

The Committee's decision

[19] The case for the assessor was that the ratepayers had failed to prove the fall in rental values that they alleged. This was an all-or-nothing line of defence.

[20] The Committee was faced with a clear conflict in the evidence on rental values. It accepted and adopted the evidence for the ratepayers. It considered whether to allow the appeal to the full extent contended for by the ratepayers or to adopt a middle position. It rejected the latter course because:

" ... at the end of the day, the Committee was conscious that if it were to introduce other figures, then there would have to be an appropriate [f]actual matrix for that. The Committee ... effectively had to choose between the Assessor's position ... and the Appellants' position ... "

[21] The Committee accordingly directed that the values in the Roll should be altered with effect from 1 April 2009 in accordance with the ratepayers' proposed Zone A rates.

The Committee's reasons

[22] The Committee's statement of reasons set out most of the findings in fact that I have summarised. It specified various changes that had occurred in the retail sector in Glasgow and in the wider economy. From these it concluded:

"7 The combination of economic turmoil, the collapse of well known national retail groups and the building up of the competing centres at Braehead, the Fort and Silverburn have had a severe and adverse impact on retail values in Sauchiehall Street where an abrupt reduction in rental value has occurred with virtually no tenant demand and an increasing level of supply. The adverse impact on the premises in Sauchiehall Street has been aggravated by the improvement of the St Enoch Centre and the area around Argyle Street St Enoch Centre has begun to offer a more attractive and competitive retail pitch."

[23] The Committee set out details of various lets in Sauchiehall Street in which the rent had been struck at a significantly lower level than the rateable value. It found that there had been a fall in estimated capital values of retail premises in Sauchiehall Street and made findings on the estimated rental values on which the valuations were based.

[24] Finally, it referred to the assessor's evidence of at least a dozen instances of rent reviews that resulted in a nil uplift. It said that these indicated a stagnation of rental levels and confirmed the fall in rental levels to which it had referred. Having made this point, the Committee made no further reference to the assessor's evidence. It said that it was persuaded that the ratepayers' evidence was "more substantial, more detailed and deserving of more weight than the assessor's evidence" and that the case for the ratepayers involved evidence, not only from the point of view of tenants, but also from the point of view of commercial landlords.

[25] This was its conclusion:

"26 The Committee looked at the evidence in the round and considered the evidence available to the Committee established the case for the Appellants that there had been a decline in rental values in this part of Sauchiehall Street. The Committee considered it established that there had been a material change in circumstances affecting value. The Committee was of the view that the Appellants' case should succeed in light of the evidence set out herein."

The draft stated case

[26] The assessor made representations on the draft stated case. He proposed additional findings in fact regarding certain lettings about which he had led evidence. This included an uplift at a rent review on 1 May 2008 of subjects on Sauchiehall Street that increased the rent significantly above the current rateable value. The ratepayers had no objection to this or to some of the assessor's other proposed findings, subject to the inclusion of certain additional details. Nonetheless, the Committee refused to add any reference to these lettings in the stated case.

The stated case

[27] The stated case in effect sets out as findings the material points in the evidence for the ratepayers and incorporates the statement of reasons, which is in line with the ratepayers' case.

The grounds of appeal

[28] The essential points for the assessor are that (1) the Committee held that a material change of circumstance had taken place that had affected values with effect from 1 April 2009 but had accepted evidence that at that date there had been a continuing process of decline in values for over 25 years, with specific declines caused by the openings of Braehead, Glasgow Fort and Silverburn, and the expansion and improvement of the St Enoch Centre, all of which would be taken into account in the next revaluation; (2) it erred in taking account of estimated rental values derived from capital valuations of a landlord's interest, that being irrelevant to the valuation hypothesis; (3) it erred in failing to take account of evidence led by the assessor including evidence of increases in rent and of new tenancies being taken; and (4) it erred in accepting the level of reduction proposed by the ratepayers when they had provided no proper analysis to justify it.

Conclusions

[29] In my opinion, the Committee has misdirected itself on several points, namely the interpretation and application of section 3(4) of the 1975 Act; the use of capital valuations in the application of section 6(8) of the Valuation and Rating (Scotland) Act 1956 (the 1956 Act); its treatment of the assessor's evidence; and its acceptance of the ratepayers' proposed percentage reduction. It has also submitted a defective stated case by reason of its failure to state findings in fact in relation to the assessor's evidence.

Section 3(4) of the 1975 Act

Change and material change

[30] In the retail world change is constant. Retailers and shopping centres compete with one another. In competitive conditions retailers gain and lose market share. Fashions and customer tastes change. New centres and new transport links emerge. Some shops or centres prosper while others fail. Changing patterns of retail, the rise and fall of individual retailers, long-term decline in the fortunes of individual retail locations and the emergence of new shops and centres are all part of the ebb and flow of a dynamic industry. The effect of these changes on individual rentals will be discovered in the course of the assessor's pre-revaluation survey and will be reflected in the net annual values at which the subjects are assessed in the next revaluation. These are the normal manifestations of the free market in retail. Where the rental value of a shop falls in consequence of such changes, the fall cannot in my view constitute a material change of circumstances for the purposes of section 3(4).

[31] Likewise, in my opinion, where there is a fall in rental value in consequence of a fluctuation in the economy, rather than an abnormal economic crisis, such a fall cannot constitute a material change for the purposes of section 3(4). That too is the sort of change that is taken into account to the extent that it is reflected in rental evidence at the next revaluation.

Defining material change

[32] Section 37(1) of the 1975 Act defines a material change of circumstances in relation to any lands and heritages as "a change of circumstances affecting their value." Whether a change is material will usually depend to some extent on the facts of the case. This court has recognised that certain events may be of such significance and impact as to constitute a material change of circumstances; for example, the disruption to retail businesses caused by the building of a city centre tramway (cf Ass for Lothian v H & M Hennes & Mauritz 2010 SC 755; Ass for Lothian v House of Fraser Ltd 2010 SC 762). In Tesco Stores Ltd v Fife Ass (2011 SC 316) this court impliedly accepted that a reduction in the rental value of a local shop caused by the opening of a superstore next to it could constitute a material change of circumstances. When shootings were entered in the roll the question arose whether a reduction in bag returns occurring in an intermediate year could constitute a material change of circumstances. In Scammell v Ass for Highland and Western Isles VJB (1997 GWD 29-1945), in an Opinion with which my colleagues agreed, I said that a material change of circumstances could be said to occur under such a system of valuation only where the change went beyond the inevitable fluctuations in bag returns from one year to another and constituted some new and significant event fundamentally altering the nature of the subjects.

[33] In Argos Distributors Ltd v Ass for Fife (2011 SC 272) the occupiers of shops in a shopping centre appealed on the ground that the economic recession in 2008 had had an immediate and direct impact on the centre that was reflected in the number of vacant units, and that that constituted a material change of circumstances (at para [1]). The Committee held that that ground of appeal was made out on clear evidence of rental transactions in the centre effected between June 2008 and June 2009. On an appeal to this court on the amount of the reduction allowed by the Committee, the assessor accepted that the appellants had made out the material change of circumstances on which they relied (at para [15]).

[34] The distinction between the normal processes of change and the occurrence of significant changes of this latter kind is, in my opinion, the key to a proper understanding of section 3(4). If I am right in making this distinction, it follows that section 3(4) is severely limited in its scope.

Limitation on the right of appeal

[35] Section 3(4) provides inter alia that an appeal against an entry in the Roll may be made "only on the ground that there has been a material change of circumstances since the entry was made ... " It is apparent from the evidence for the ratepayers and the Committee's findings 14,17,19 and 21 (supra) and its reason 7 (supra) that this limitation on the right of appeal was overlooked.

The application of section 3(4) to the findings in fact

[36] There were four questions for the Committee, namely (1) whether there had been a material fall in rental values in the relevant section of Sauchiehall Street since the entries appealed against were made in the Roll; (2) if so, what caused it; (3) whether the cause, or any of the causes, constituted a material change of circumstances within the meaning of section 3(4); and (4) if one or more of the causes constituted a material change of circumstances and another or others did not, to what extent the fall in value was caused by the material change of circumstances.

[37] On each of these questions, the ratepayers bore the onus of proof.

Causes of the fall in rental values

[38] The parties agree that if the ratepayers have proved that there was a material change of circumstances, the effective date of it was 1 April 2009.

[39] The ratepayers sought to prove that there had been a fall in rental values in the relevant part of Sauchiehall Street of the order of 30%; but their case proceeded on an acceptance, made explicit by Mr Reith and Mr Allardice, that the economic downturn was not the sole cause of the fall in rental values. The evidence and the Committee's findings confirmed that judgment. Sauchiehall Street had been in decline as a retail centre for at least 30 years, mainly because of the re-alignment of the prime shopping areas in the city centre, the improvement of existing centres such as the St Enoch Centre and the development of the out-of-town shopping centres. Of the three out-of-town centres that were trading at 1 April 2009, Braehead had been open for about ten years and Glasgow Fort had been open for five. These openings therefore preceded the making of the entries in the Roll that were appealed against. I cannot see what relevance they could have had to section 3(4). Silverburn was opened in 2007 and therefore its impact was separate from that of the economic downturn that began in 2008.

[40] It was obvious in any event that the impact of these centres was part of the normal process of change in retail.

[41] Likewise, in the context of an extensive city centre retail area, I cannot see how the expansion and improvement of the St Enoch Centre could be regarded as such an exceptional and extraordinary event as to constitute a material change of circumstances.

[42] Counsel for the ratepayers presented the case to the Committee on the basis that all of the causes of the decline in Sauchiehall Street set out in finding in fact 17 (supra) constituted collectively the material change of circumstances on which the ratepayers relied. That was obviously an erroneous approach; but the Committee did not question it.

[43] There may also have been some uncertainty in the minds of the Committee as to what the ratepayers required to prove. In opening the appeals before the Committee counsel for the ratepayers said

"The ground of appeal is material change of circumstances which is the phrase in the 2005 Act (sic). The material change of circumstances being that rental values have dropped materially since the level was set for the 2005 Revaluation."

In his closing address he referred to the amendment to the definition of material change of circumstances made by the Rating and Valuation (Amendment) (Scotland) Act 1984 and said

" ... therefore the inevitable position is that a change in the general level of valuations, change of the rent of other lands and heritages are do (sic) qualify as material changes of circumstances."

[44] It may be that the Committee had the impression that a proven fall in rental values was a material change of circumstances per se. It is clear that the Committee was disposed to accept that there had been a general fall in rental values in the relevant part of Sauchiehall Street. It found that there had been several causes of that. It was therefore its duty to consider each of the disparate causes that it identified and to decide whether all or any of them constituted a material change falling within section 3(4). In my view, its failure to do so invalidates its decision.

The reduction allowed by the Committee

[45] The ratepayers accepted that the economic downturn was not the sole cause of the alleged fall in rental values. But since they presented all of the causes set out in finding 17 as constituting a single material change, the logic of their position was that the Committee should allow a reduction of the full 30%. Since the Committee accepted the ratepayers' argument, it did not consider whether that figure should be disaggregated to quantify, however imprecisely, the extent of each of the causes of the decline. Moreover, in view of the line that the assessor took, the Committee was given no alternative approach that could justify any lesser reduction (cf Argos Distributors Ltd v Fife Ass, supra). The result therefore is that the Committee allowed a reduction in the rateable values the amount of which was unwarranted by section 3(4).

The Committee's treatment of the assessor's comparisons

[46] The Committee also erred, in my view, in failing adequately to explain why, on the crucial conflict of fact, it preferred the evidence for the ratepayers to that for the assessor. It failed to make any findings on the assessor's evidence. It simply said that the ratepayers' evidence was more substantial, more detailed and deserving of more weight than the assessor's. That was not enough where the ratepayers' evidence included evidence of transactions some years before the tone date and of transactions that took place some time after it. The assessor's evidence, on the other hand, was at least closely related to the effective date of the alleged material change.

Defective stated case

[47] The Committee's next error was that it refused to state findings in fact on substantially undisputed rental evidence led for the assessor that was relevant to section 3(4). It appears to have dismissed that evidence from its consideration on the view that the ratepayers' evidence was to be preferred.

[48] In my opinion, where there is uncontentious evidence on which either party founds, it is the duty of the Committee, unless the evidence is plainly irrelevant, to make findings on that evidence and to set them out in the stated case (cf Whitwell v Ass for Strathclyde 1986 SC 37; Le Café Noir v Ass for Tayside 1990 GWD 27-157).

Use of evidence of capital values

[49] A material consideration in the Committee's decision to prefer the evidence for the ratepayers was that their case included evidence from the point of view of commercial landlords, that is to say the evidence of the capital valuations of the landlord's interest held by the RREEF Retail Fund. In my opinion, it is unlikely that rental values derived from such valuations will provide a reliable guide to the hypothesis laid down in section 6(8) of the 1956 Act.

[50] The rating hypothesis relates to an open market letting on the statutory terms by parties who transact at arms' length. The complexities by which the capital value of a revenue-producing retail asset is calculated, and the question of yields that lies at the heart of such a calculation, convince me that this method of valuation is not an appropriate way in which to apply the statutory hypothesis. Such a valuation depends on a judgment as to yield and an assessment of estimated rental values. The former figure may vary in response to changing conditions in the investment market. This method cannot be a reliable substitute for evidence of real rental transactions concluded at or near the relevant date. While I do not go so far as to say that such a method of valuation can never be relevant, I think that in the normal case evidence of this kind may serve to confuse the picture and divert the attention of the Committee from the provisions of section 6(8).

[51] I conclude therefore that the Committee erred to the extent that it relied on this evidence in finding for the ratepayers.

The assessor's case

[52] It should have been obvious that the appeals raised important questions relating to section 3(4), and that the outcome of the appeals might have repercussions in Glasgow and in other valuation areas. The errors of the Committee may be said to have been precipitated to some extent by the narrow line of defence taken by the assessor. It was for the assessor to decide how and by whom his case should be presented; but in the result certain obvious legal questions that arose from the ratepayers' case were not explored in any depth.

[53] It could be said that it was the assessor's own responsibility for failing to take all of the legal points that were open to him. On that view, it would be open to this court to refuse the appeal. That, I think, would be the wrong course.

[54] This court has a narrow function in deciding on cases stated on points of law; but it has a broader supervisory function to ensure the integrity and consistency of valuation for rating throughout Scotland. That broader function should not, in my view, be circumscribed by the failure of a party to raise an important question of valuation law before a Committee.

[55] It is for the Committee to direct itself properly in every case. It should ensure that a correct value is entered in the Roll so that there is no injustice between one ratepayer and another, or between one class of ratepayers and another.

[56] In the result, we have a stated case that contains on the face of it a clear error in the interpretation of the section 3(4), lacks an explanation of the Committee's crucial conclusion on the evidence and is incomplete in its findings in fact. That, in my view, requires us to take notice of the decision and to recall it.

Disposal

[57] I propose that we should allow the appeal; recall the decision appealed against, and remit these cases to the Committee to rehear them and to make a decision de novo in accordance with the conclusions that I have expressed.

LANDS VALUATION APPEAL COURT, COURT OF SESSION

Lord Justice Clerk Lord Clarke Lord Malcolm

[2012] CSIH 40 XA129/11 OPINION OF LORD CLARKE in the Appeal by Stated Case by ASSESSOR FOR GLASGOW Appellant; against (1) SCHUH LIMITED; (2) THE ROYAL BANK OF SCOTLAND; (3) THE BODY SHOP INTERNATIONAL PLC; (4) BANK OF SCOTLAND PLC; (5) J & W GREAVES LTD; (6) SPORTS WORLD INTERNATIONAL LTD; (7) PHONES 4 U LTD; (8) SAVERS HEALTH & BEAUTY PLC; (9) OPTICAL EXPRESS (SOUTHERN) LTD; (10) THORNTONS PLC; (11) LUSH RETAIL LTD; (12) ABBEY NATIONAL PLC; (13) BARRATTS SHOES LTD; (14) SUPERDRUG STORES PLC; (15) and (16) OUTDOOR GROUP LTD; (17) M M HENDERSON LTD Respondents: _______

Act: Clarke QC; Simpson & Marwick

Alt: Haddow QC; Brodies

27 April 2012

[58] For the reasons given by your Lordship in the chair, I agree that this appeal falls to be allowed, that the decision appealed against should be recalled, that the cases should be remitted to the Committee to re-hear them and to make a decision de novo in accordance with your Lordship's opinion.

[59] I would, however, wish to make it clear that, while in no way seeking to qualify anything which your Lordship in the chair has had to say as to the duties and responsibilities of committees and this court, in such cases, I am of the opinion that the situation that has arisen in the present case has, to a very significant extent, been brought about by the inadequate way in which the assessor's case was put to the Committee. Moreover, the written and oral submission made by counsel, instructed on behalf of the assessor before this court, barely improved matters and significantly failed to raise and address most, if not all, of the real difficulties in the Committee's approach to its decision as identified by your Lordship in the chair. If this had been a litigation between two private individuals, in a matter not involving public interest, it may have been appropriate for the court simply to refuse the appeal. That is, however, not the position and the responsibilities of the Committee, and this court, spelt out by your Lordship in the chair, both entitle, and require, this court to seek now to have matters put on the correct lines. That must not, however, be seen as giving any licence to assessors to fail to ensure that they provide committees with all the necessary and appropriate assistance in deciding the cases brought before them.

LANDS VALUATION APPEAL COURT, COURT OF SESSION

Lord Justice Clerk Lord Clarke Lord Malcolm

[2012] CSIH 40 XA129/11 OPINION OF LORD MALCOLM in the Appeal by Stated Case by ASSESSOR FOR GLASGOW Appellant; against (1) SCHUH LIMITED; (2) THE ROYAL BANK OF SCOTLAND; (3) THE BODY SHOP INTERNATIONAL PLC; (4) BANK OF SCOTLAND PLC; (5) J & W GREAVES LTD; (6) SPORTS WORLD INTERNATIONAL LTD; (7) PHONES 4 U LTD; (8) SAVERS HEALTH & BEAUTY PLC; (9) OPTICAL EXPRESS (SOUTHERN) LTD; (10) THORNTONS PLC; (11) LUSH RETAIL LTD; (12) ABBEY NATIONAL PLC; (13) BARRATTS SHOES LTD; (14) SUPERDRUG STORES PLC; (15) and (16) OUTDOOR GROUP LTD; (17) M M HENDERSON LTD Respondents: _______

Act: Clarke QC; Simpson & Marwick

Alt: Haddow QC; Brodies

27 April 2012

[60] I agree with the proposal of your Lordship in the chair that the appeal should be allowed and the cases remitted to the Committee. There is nothing that I can usefully add to the reasons given by your Lordship in the chair.