Scottish Court of Session Decisions

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Cite as: [2017] CSIH 71, 2018 SC 163, 2017 GWD 38-592, [2017] ScotCS CSIH_71, [2018] RA 165, 2017 SLT 1334

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Page 1 ⇓

LANDS VALUATION APPEAL COURT

Lord Malcolm

Lord Glennie

Lord Doherty

OPINION OF LORD MALCOLM

in the appeal

FIFE COUNCIL ASSESSOR

against

HALL CONSTRUCTION SERVICES LTD

Appellant: O’Rourke QC; Clyde & Co (Scotland) LLP

Respondent: Gill; Morton Fraser

22 November 2017

[2017] CSIH 71

XA47/17

Appellant

Respondent

[1] I have had the advantage of reading a draft of Lord Doherty’s judgment. I agree

with it, and with the proposed disposal of this appeal. I add only a few words of my own.

[2] Counsel for the appellant described the “key issue” as follows: should fluctuations

in the output of a mine be characterised as part of the “ebb and flow” of an industrial

activity? As posed, the question answers itself. The difficulty for the appellant is that the

exhaustion of recoverable reserves is a different thing from a fluctuation in output. This is

so even if there remains a stockpile of coal which, over a period of months, is used for

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ongoing processing and sale. Cessation of extraction is a circumstance far removed from the

realms of market forces, commercial decisions, and similar factors which may influence the

annual output from a mine.

[3] The Valuation Appeal Committee adopted the phraseology used in Scammell v

Assessor for Highland and Western Isles Valuation Joint Board, 1997 GWD 29-1495, in stating:

“It is hard to imagine a more significant or fundamental change than a mine which

has been exhausted of its minerals or coal. Such subjects would be totally

undesirable to the hypothetical tenant, particularly where obligations to restore the

ground were involved.”

[4] It was contended that there can be no material change of circumstances until coal

stops passing the weighbridge. In my opinion there is no warrant for such a restrictive

approach to the statutory test in section 3(4) of the Local Government (Scotland) Act 1975. I

would also reject the submission that a foreseeable or expected event cannot qualify. A

number of previous decisions were cited on behalf of the appellant, but it is axiomatic that

each case must be judged upon its own facts and circumstances. Thus, for example, in

Anstruther’s Trustees v Assessor for Lanarkshire 1927 SC 435 it was held that a national strike

which prevented the winning of coal from a mine did not justify a departure from the

adopted method of valuation. In contrast to a national strike, or the impact of market and

economic forces, the present case is a clear instance of a significant change in the

fundamental nature of the subjects under valuation. The change had a major impact upon

their value to a hypothetical tenant. In my opinion the committee were correct to reject the

appellant’s equiparation of the cessation of extraction with the “ebb and flow” discussed in

cases such as Assessor for Glasgow v Schuh Limited 2012 SLT 904.

[5] The committee addressed the statutory test and applied it to the appropriate facts. I

can identify no proper basis upon which this court should interfere with their decision.

Page 3 ⇓

LANDS VALUATION APPEAL COURT

Lord Malcolm

Lord Glennie

Lord Doherty

OPINION OF LORD GLENNIE

in the appeal

FIFE COUNCIL ASSESSOR

against

HALL CONSTRUCTION SERVICES LTD

Appellant: O’Rourke QC; Clyde & Co (Scotland) LLP

Respondent: Gill; Morton Fraser

22 November 2017

[2017] CSIH 71

XA47/17

Appellant

Respondent

[6] I have had the advantage of reading in draft the judgments to be delivered by

Lord Doherty and by your Lordship in the chair. I agree with both of them. There is

nothing I can usefully add.

Page 4 ⇓

Lord Malcolm

Lord Glennie

Lord Doherty

LANDS VALUATION APPEAL COURT

[2017] CSIH 71

XA47/17

OPINION OF LORD DOHERTY

in the appeal

FIFE COUNCIL ASSESSOR

against

HALL CONSTRUCTION SERVICES LTD

Appellant: O’Rourke QC; Clyde & Co (Scotland) LLP

Respondent: Gill; Morton Fraser

Appellant

Respondent

22 November 2017

Introduction

[7] The single issue in this appeal is whether a material change of circumstances

affecting value occurred when an opencast coal mine became exhausted. The valuation

appeal committee found that it did. The assessor has appealed against the committee’s

decision.

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The Facts

[8] At the 2010 revaluation the assessor made an entry “Minerals” in the valuation roll

for subjects at Earlseat Extension Open Cast Coal Site, Kirkcaldy. Since the net annual value

and rateable value were both £25,000, it may reasonably be inferred that no minerals were

being extracted at that time, and that the value represented plant, equipment and buildings

on the site. On 31 March 2014 the assessor served a valuation notice advising that he was

making an alteration to the entry in the roll, and that the new net annual value and rateable

value were £516,000 and £276,000 respectively with effect from 1 April 2013. The alteration

was in respect of a material change of circumstances affecting value in terms of

section 2(1)(d) of the Local Government (Scotland) Act 1975 (“the 1975 Act”), viz coal

extraction had begun. The respondent appealed against the altered values. Following

negotiation the appeal was settled on the basis of an agreed net annual value of £336,000 and

an agreed rateable value of £186,000. The assessor altered the roll to give effect to that

agreement (s2(3) of the 1975 Act). The agreed net annual value was reached using the

valuation method recommended in SAA Practice Note No 7. £300,000 of the £336,000 net

annual value was arrived at by applying a royalty rate of £2 per tonne to an estimated

average annual output of 150,000 tonnes. The remaining £36,000 represented the annual

value of the plant, machinery and buildings at the site.

[9] Coal extraction at the subjects ceased on 21 April 2015 when reserves were

exhausted. The total tonnage which had been extracted before exhaustion was

261,057.62 tonnes. Of that quantity, 247,948.47 tonnes had been sold and had been exported

from the site by 21 April 2015. The remaining 13,100 tonnes were stockpiled awaiting

washing, processing and sale. 578.94 tonnes were sold in July 2015. Washing of coal was

completed by September 2015. 3,694.62 tonnes were sold in December 2015, 4,489.22 tonnes

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in January 2016, and the final 4,346.37 tonnes in February 2016. The last coal left the subjects

on 29 February 2016.

[10] The respondent appealed against the entry in the roll on the basis that a material

change of circumstances occurred on 21 April 2015 when extraction ceased. It also appealed

on the basis that a further material change of circumstances occurred on 29 February 2016

when the last stockpiled coal left the site. The second appeal was settled by agreement, with

the roll being altered to show a net annual value and rateable value of £36,000 (the annual

value of the plant, machinery and buildings on the site) with effect from 29 February 2016.

The first appeal proceeded to a hearing before the valuation appeal committee.

[11] In terms of its lease with the landlord the respondent paid a ground rent. It also paid

royalties, namely an advance royalty per tonne extracted and a further royalty when coal

was exported from the site. While coal was being extracted by far the more substantial part

of the royalties paid was the advance royalties. When extraction ceased, liability for further

advance royalties also ceased. Consequently, between 21 April 2015 and 29 February 2016

the actual rent paid by the respondent to the landlord was much lower than the rent paid

while extraction was underway.

[12] In terms of paragraph 7 of a Statement of Agreed Facts entered into by the parties

they agreed:

“7. In the event that the Valuation Appeal Committee finds that a material

change of circumstances has occurred at the Site with effect from 21 April 2015, the

appropriate rateable value is £49,000.”

The Relevant Statutory Provisions

[13] Sections 2(1)(d), 2(2), 3(4) and 37(1) of the 1975 Act provide:

“2.— Alterations to valuation roll which is in force.

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(1) Subject to subsection (2) below, the assessor for any valuation area shall, as

respects that area, at any time while the valuation roll is in force, alter the roll—

…

(d) to give effect to any alteration in the value of any lands and heritages

… which is due to a material change of circumstances;

…

3.— Provisions supplementary to sections 1 and 2.

…

(4) Without prejudice to subsection (2) above, the proprietor, tenant or occupier

of lands and heritages … which are included in the valuation roll may appeal against

the relevant entry but only on the ground that there has been a material change of

circumstances since the entry was made …”

The Committee’s Decision

[14] The committee upheld the respondent’s appeal that a material change of

circumstances affecting value occurred on 21 April 2015 when coal reserves were exhausted.

In its view the exhaustion of coal reserves, and the consequences of that exhaustion,

represented a significant and fundamental change. They were not a mere fluctuation in the

output from the mine.

Submissions for the Appellant

[15] Senior counsel for the appellant submitted that the committee had erred in law in

determining that a material change of circumstances affecting value had occurred on

21 April 2015. While coal reserves had become exhausted on that date, the subjects had

continued to be used until 29 February 2016. The last 13,100 tonnes of coal which had been

extracted before the mine became exhausted had been stockpiled and processed on the

subjects prior to its sale and despatch. It was the date coal was weighed and left the site

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which was important, not the date it was extracted from the ground. There could be no

material change of circumstances until all export of coal from the site ceased. Since that had

not occurred until 29 February 2016, that was the date of the material change. A mere fall in

output was not a material change (Assessor for Dunbartonshire v Cloybank Minerals Ltd 1958

SC 587 (“Cloybank”); Scammell v Assessor for Highland and Western Isles Valuation Joint Board

(unreported other than by way of a digest in 1997 GWD 29-1495), 8 July 1997 (“Scammell”)).

The fact that the volume of coal leaving the site and the royalties paid both dropped

substantially after 21 April 2015 was simply part of the ebb and flow of a dynamic industry

(Assessor for Glasgow v Schuh Ltd 2012 SLT 903, [2012] RA 245; Schuh Ltd v Assessor for

Glasgow 2014 SLT 184; Tesco Stores Ltd v Fife Council Assessor 2016 SLT 1260, [2017] RA 83).

Since the subjects had been valued on the basis of estimated average annual output, that

took account of the fact that output might be higher in some years and lower in others. If

exhaustion was treated as being a material change there was a risk that some of a mine’s

output would be left out of account in arriving at net annual value. In a case which pre-

dated the material change of circumstances provisions, Anstruther’s Trustees v Assessor for

Lanarkshire 1927 SC 435 (“Anstruther’s Trs”), the fact that there was no output from a mine

for several months during the general strike had not led to a reduction in the annual value of

the mine. In an even earlier case, Hurll v Assessor for Glasgow 1917 SC 494 (”Hurll”), the court

had reduced a value by almost half because a blaes heap was exhausted before the middle of

the valuation year; but that case should be treated with great caution. The lease had

terminated six weeks after the exhaustion of the blaes. Lord Johnston’s dissent was more

persuasive than the opinions of the majority.

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Submissions for the Respondent

[16] Counsel for the respondent submitted that the committee had been correct to hold

that there had been a material change of circumstances affecting value on 21 April 2015. The

exhaustion of coal reserves, with the resultant drastic reduction in both output and royalties

thereafter, was a very clear material change of circumstances. Of course, some commercial

activity had continued, but it had been on a much reduced scale for the purposes of

processing and disposing of a small residual stockpile of coal. The vastly reduced yield

from the site had not been just a fluctuation in output. It was not merely part of the ebb and

flow of a dynamic industry. A better analogy was perhaps the permanent extinction of a

grouse population on an estate (a possible example of a material change suggested by

Lord Gill in Scammell, at page 4). Here there had been a fundamental change which had

caused the reduction in output - the exhaustion of reserves (cf Armour on Valuation for Rating

(5th ed), para 20-33). There had been no such change in the appeals considered in Cloybank.

In each of those appeals there had been a mere change in output which by itself was not a

material change. The cases prior to the introduction of the material change of circumstances

provisions were of limited assistance. However, Hurll was a case where the exhaustion of

reserves during the year of assessment was an important matter which the court determined

had a significant effect on the annual value. By contrast, in Anstruther’s Trs the cessation of

output was merely temporary. There was no question of the subjects having been

undervalued here. On the contrary, they had been valued on the basis of an estimated

average annual output which considerably exceeded actual output.

Decision and Reasons

[17] A mine is a wasting asset. The removal of minerals changes the lands and heritages.

Page 10 ⇓

However, it is well established that the incremental reduction of mineral reserves while

normal output continues is a corollary of the subjects being exploited as a mine: it is not a

material change of circumstances affecting value (cf Cloybank, per Lord Sorn at pp595-596,

Lord Guest at p598).

[18] It is also settled that ordinarily a variation in the output of a mine will not constitute

a material change of circumstances affecting value within the meaning of section 3(4). Such

variations will usually fall to be treated as being the sort of temporary fluctuations which are

part and parcel of mining (Cloybank). The same approach generally applies to other subjects

which are valued by reference to output (Scammell). Likewise, with retail subjects, changes

which are a consequence of the ordinary ebb and flow of the market between revaluations,

as opposed to extraordinary or exceptional factors, are not material changes of

circumstances affecting value (Assessor for Glasgow v Schuh Ltd; Schuh Ltd v Assessor for

Glasgow; Tesco Stores Ltd v Fife Council Assessor). However, where it can be shown that a

drop in output is not temporary, and that it is attributable to extraordinary or exceptional

factors, such as a fundamental change in the subjects, the position is likely to be different.

[19] The Cloybank case involved consideration of the provisions of the Valuation and

Rating (Scotland) Act 1956 (“the 1956 Act”) relating to material change of circumstances.

However, since the definition of material change of circumstances in section 9(7) of the

1956 Act was substantially the same as the current definition in section 37(1) of the 1975 Act

(apart from amendments effected by section 20 of the Rating and Valuation Amendment

(Scotland) Act 1984 (“the 1984 Act”)), Cloybank continues to provide guidance. Initially,

section 37(1) repeated the definition which had appeared in section 9(7) of the 1956 Act. The

1984 Act removed a number of qualifications to the definition, including the qualification

that a material change of circumstances did not include a change in the rent of the lands and

Page 11 ⇓

heritages or of any other lands and heritages. In Cloybank Lord Sorn noted (p596) that that

qualification precluded the court from considering whether a change in the amount of

royalties constituted a material change of circumstances. There is now no such qualification.

[20] Each of the judges in Cloybank emphasised that a mere variation in output,

unconnected to any other significant factor, was not a material change of circumstances.

Lord Patrick observed (at p594):

“ … in cases where annual value is determined by the annual production from the

subjects, such as valuations of subjects on the revenue principle and valuations of

minerals, a mere rise or fall in that production is not a material change of

circumstances within the meaning of the statute.”

Lord Sorn opined (at p595):

“The question for us then, is whether a change in output, taken by itself, is a material

change of circumstances affecting the value of the subjects within the meaning of the

Act …”

He continued (at p596):

“In all the cases before us the situation is the same. Apart from variation in output,

nothing has changed since the subjects were valued in 1956. Apart from that

variation, it is not suggested that anything else has taken place in relation to the

subjects which could be described as a change of circumstances affecting their value.

In that situation I am not prepared to hold that a mere change in output unconnected

with any other change which might be put forward as a change of circumstances,

itself constitutes a change of circumstances within the meaning of the Act. It may be

a ‘happening’ which, owing to the method of valuation employed, affects value but

the Act does not say that there has to be revision on every occasion when value is

affected, and, in making revision dependent on a change of circumstances in relation

to the subjects, it seems to me that more was envisaged than a mere variation in the

commercial productivity of the subjects.”

Similarly, Lord Guest noted (at p599):

“In my view, despite the wide terms of section 9(7), a material change of

circumstances does not cover a variation in the amount of royalties accruing from the

quarry whether actual or assumed. Different considerations might apply if this

variation was coupled with some other material change of circumstances which

could competently be brought within the terms of section 9(7). But a mere variation

by itself does not, in my opinion, amount to a material change of circumstances

within the meaning of section 9(7) …”

Page 12 ⇓

[21] Both Anstruther’s Trs and Hurll pre-date the first statutory provisions relating to

material change of circumstances. Neither case has any direct bearing upon the issue in the

present case. In Anstruther’s Trs the inability of a mine to operate for a number of months

during the valuation year was treated as a temporary circumstance which did not reduce the

annual value of the subjects. In Hurll, on the other hand, the court held that the exhaustion

of a mine less than halfway through the valuation year was a factor which should result in

reduced annual value for that year. Lord Johnston dissented, but, for my part, I do not find

his reasoning persuasive. Part of the justification for his dissent involved positing (p506) a

mine which was not in fact exhausted when a lease terminated during the valuation year.

That was very different from the facts in Hurll (or the facts in the present case). It is worthy

of note that Hurll was cited, without any hint of disapproval, by each of the judges in

Cloybank (see in particular, Lord Patrick at p592).

[22] In my opinion the change which occurred on 21 April 2015 was not the beginning of

a fluctuation in output. It was not a mere temporary cessation of extraction (cf Anstruther’s

Trs). It was not an ebb in output which would, or could, be followed by increased output.

The change was much more fundamental. Lands and heritages which had formerly had

mineral strata which could be exploited were transformed into subjects which had no such

strata. The facts are at least as exemplary of a fundamental change as the examples posited

by Lord Gill in Scammell (at p4). The site continued to be used for a period while coal

already extracted was processed and sold, but coal despatched from the site, and the

royalties paid to the landlord, were greatly diminished by comparison with the period

before 21 April 2015. The royalty element of the valuation had been calculated using an

estimated annual output of 150,000 tonnes. That equates to 12,500 tonnes per month. The

Page 13 ⇓

average actual output between 1 April 2013 and 21 April 2015 was in fact just over

10,000 tonnes per month. The average actual output (of stockpiled coal despatched from the

site) during the period between 21 April 2015 and 29 February 2016 was about 1,300 tonnes

per month - just over 10 per cent of the estimated output and about 13 per cent of the pre-21

April 2015 actual output.

[23] I am not persuaded that the committee erred in law. On the facts they were entitled

to hold that a material change of circumstances affecting value occurred on 21 April 2015. I

go further. In my opinion, they were correct to find that such a material change had taken

place. The complete exhaustion of extractable coal reserves was the cause of the loss of

output from the subjects, and of the consequential drop in royalties. The primary existing

use of the subjects had been as a mine, with ancillary uses for stockpiling and processing the

extracted coal. The exhaustion of coal reserves was an extraordinary and fundamental

change. The primary, and most valuable, aspect of the existing use of the subjects ceased.

The ancillary uses continued for a period, but the value of the subjects when used only in

those ways was much less than their previous value. In my view that is indisputable. The

rateable value of £49,000 agreed in paragraph 7 of the Statement of Agreed Facts reflects

that.

[24] Finally, I am wholly unconvinced by the suggestion that the upshot of the

committee’s decision is that the subjects may have been undervalued. Total actual output

while the mine was operated was 261,057.62 tonnes, whereas the effect of the committee’s

decision being upheld is that the subjects have been valued as if the total output had been

309,475 tonnes (viz on the basis of average annual output of 150,000 per annum for the

2 years 10 months between 1 April 2013 and 29 February 2016).

Page 14 ⇓

Disposal

[25] I propose to your Lordships that the appeal is refused. The consequence is that the

assessor should give effect to the committee’s decision. The entry in the roll for the period

21 April 2015 until 29 February 2016 should be altered by reducing the net annual value

from £336,000 to £62,000 and by reducing the rateable value from £186,000 to £49,000.