Committee erred in deleting dwelling house from valuation list during renovation work

Lord Doherty
Lord Doherty

An assessor who challenged a decision by a valuation appeal committee to remove a property from a council tax valuation list on the basis that it was no longer a dwelling house has successfully appealed against the determination.

The Inner House of the Court of Session allowed an appeal by the Assessor of the Tayside Valuation Board against the decision of the Valuation Appeal Committee for Perth and Kinross after ruling that the committee “erred in law”.

Renovation works

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Doherty, heard that the homeowner “M” purchased her house at Birchcroft, 9 Orchil Crescent, Auchterarder in February 2007 and lived there until July 2015.

However, the house had significant problems with dampness so M vacated the property and arranged for repair and improvement work to be carried out.

Stripping out work commenced in January 2016 with installation of new flooring, replacement windows, partition walls and other replacement or improvement work began in July 2016, and while the works were ongoing M also decided to convert the house’s garage into additional living accommodation.

The court was told that the subjects had been entered in the council tax valuation list as a dwelling since the list was first prepared in 1993.

After she vacated the subjects M claimed that, for the first six months after she ceased to occupy them, they were an exempt dwelling in terms of paragraph 4 of Schedule 1 to the 1997 Order. That exemption was granted for a period of six months from 13 July 2015.

M also claimed that the subjects were an exempt dwelling by reason of being a dwelling under repair in terms of paragraph 2 of Schedule 1 to the Council Tax (Exempt Dwellings) (Scotland) Order 1997.

That exemption was duly granted for the period from January 2016 until 12 July 2016 – the maximum period of exemption, because by the latter date 12 months had elapsed since the last occupation day.

Property ‘ceased to be a dwelling’

Then, in August 2016 M made a proposal to the appellant that the subjects be deleted from the list with effect from 1 January 2016, on the basis that on that date they had “ceased to be a dwelling”.

The appellant inspected the subjects in August 2016 at which time, while the strip out and some of the repairs and other work had been carried out, a good deal remained to be done.

Since the assessor did not accept that the subjects had ceased to be a dwelling, he referred the disagreement between him and M as an appeal to the local Valuation Appeal Committee.

The committee allowed the appeal and directed the appellant to delete the subjects from the valuation list with effect from 1 January 2016, but the assessor appealed to the Court of Session against the committee’s decision.

Committee ‘erred in law’

Counsel for the appellant, Mr Stuart, submitted that the committee had “erred in law”, and that the subjects ought not to have been deleted from the valuation list.

They had been a dwelling house, and therefore a dwelling, when they were entered in the list and during the whole period that they were lived in by M and there was no suggestion that their condition had changed materially between the date of her moving out and the commencement of the works.

While it was accepted that the subjects could not be occupied while the works were underway, it was argued that they had not ceased to be a dwelling house.

Allowing the appeal, the judges held that “mere incapacity to be lived in for a temporary period while repair or other alteration works are being carried out is not necessarily enough to cause a dwelling to cease to be a dwelling”.

The court observed that the committee approached the case on the basis that it was and in doing so it “erred in law”.

Delivering the opinion of the court, Lord Doherty said: “In our opinion it is clear that, looked at objectively, the nature of the alterations comprised repair works to remedy dampness, and other – mostly internal – works designed to improve the subjects as a dwelling house or to adapt them to accord with M’s preferences for the layout of the living space. Importantly, the alterations were not designed to change the subjects from a dwelling house into a building of a different character or with a different use.

“To the informed objective observer the subjects were, throughout, obviously a dwelling house undergoing repair and internal rearrangement rather than property which had ceased to be a dwelling house. That was how M viewed them when she applied for them to be treated as an exempt dwelling in terms of paragraph 2 of Schedule 1 to the 1997 Order. In our view her characterisation of the subjects as a dwelling at that time was apt.

“For the foregoing reasons we consider that the committee erred in law. We are not satisfied that the subjects ceased to be a dwelling in January 2016 (or at any later date). Accordingly, we shall allow the appeal against the committee’s decision. The consequence is that, contrary to the committee’s direction, the dwelling does not fall to be deleted from the valuation list.”

© Scottish Legal News Ltd 2019

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