The Nail & Beauty Zone LTD against Assessor for Grampian Valuation Joint Board (Court of Session) [2026] CSIH 8 (10 February 2026)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [

DONATE ] Scottish Court of Session Decisions You are here:

BAILII >> Databases >> Scottish Court of Session Decisions >> The Nail & Beauty Zone LTD against Assessor for Grampian Valuation Joint Board (Court of Session) [2026] CSIH 8 (10 February 2026) URL: https://www.bailii.org/scot/cases/ScotCS/2026/2026csih8.html Cite as: [2026] CSIH 8 [ New search ] [ Printable PDF version ] [ Help ]

LANDS VALUATION APPEAL COURT [2026] CSIH 8 XA43/25 Lord Malcolm Lord Doherty Lord Ericht

OPINION OF LORD MALCOLM in the Appeal by THE NAIL & BEAUTY ZONE LTD, trading as Pure Spa and Beauty Appellant against

ASSESSOR FOR GRAMPIAN VALUATION JOINT BOARD Respondent Appellant: M Lumsden; Lay Representative Respondent: J Murphy; Harper Macleod LLP 10 February 2026 [1] I am in full agreement with the opinion delivered by Lord Doherty and with his proposal that the appeal be refused.

LANDS VALUATION APPEAL COURT [2026] CSIH 8 XA43/25 Lord Malcolm Lord Doherty Lord Ericht

OPINION OF LORD DOHERTY in the Appeal by THE NAIL & BEAUTY ZONE LTD, trading as Pure Spa and Beauty Appellant against

ASSESSOR FOR GRAMPIAN VALUATION JOINT BOARD Respondent Appellant: M Lumsden; Lay Representative Respondent: J Murphy; Harper Macleod LLP 10 February 2026 Introduction [2] This appeal concerns a shop at 381 North Deeside Road, Cults. It was entered in the valuation roll at the 2017 revaluation at a net annual value of £16,750. That roll had effect from 1 April 2017. [3] There are two means of access to and egress from the shop, one from North Deeside Road, the other from South Avenue. The entrance from North Deeside Road leads directly to a flight of stairs which descends to the shop's trading area. On the trading area level there is a door to South Avenue, which is the main access and egress to and from the shop. That entrance is adjacent to a car park where customers park. The trading floor is at ground floor level in relation to South Avenue and at lower ground floor or basement level in relation to North Deeside Road. [4] The shop was let to the appellant's predecessors as tenants in terms of a lease entered into in September 2008. The initial rent was £18,000 per year and the period of the lease was 8 years. In March 2014 that rent was reviewed to £20,500 per year. The lease was not terminated at the ish. It was continued for a further year (whether by express agreement or by tacit relocation is unclear). By an assignation and variation of the lease executed in May 2017 the

tenant's rights and obligations were assigned to the appellant and some terms of the lease were varied. The period of the lease was extended until 30 April 2027; the appellant was granted an initial rent-free period of 6 months from 5 May 2017; rent reviews outstanding at that date were to be nil uplift; and rent was to be paid monthly in advance rather than quarterly in advance. [5] Valuations for the purposes of the 2017 revaluation required to be made on the basis of the level of rents prevailing as at 1 April 2015 (Valuation Timetable (Scotland) Order 1995 (SSI 1995/164), Article 3 and the Schedule). [6] The entry for the appeal subjects was not appealed at the revaluation. The appellant did not lodge a new tenant/new occupier appeal within 6 months of becoming the new tenant/new occupier (Local Government (Scotland) Act 1975, section 3(2A)). However, on 23 December 2019 it lodged a running roll appeal against the entry seeking alteration of the entry in the roll to correct an error in it (section 2(1)(f) of the 1975 Act). At that stage it proposed that the net annual value should be £13,679. [7] On 19 August 2020 the appellant intimated a written statement of grounds of appeal. The statement maintained that other shops in North Deeside Road had been valued on a zoned basis using a zone A rate of £290 per m ; and that, as the sales area of the shop was a basement, a zone A

rate of only 20% of £290 (£58) was appropriate, with a further reduction for quantum because of the relatively large size of the trading floor. It was contended that the net annual value ought to have been £7,539.48. [8] The disposal of appeals by valuation appeal committees was delayed by the Covid 19 pandemic. As was the case with very many other appeals, the appeal was not determined by the last date for committees to determine appeals (31 March 2023). As a result, the appeal was transferred to the First-tier Tribunal (the tribunal) on 1 April 2023 (First-tier Tribunal for Scotland (Transfer of Functions of Valuation Appeal Committees) Regulations 2023 (SSI 2023/45), Regulation 5 and Schedule 1, paragraph 1). [9] The appellant lodged grounds of appeal with the tribunal on 20 November 2024 which were in substantially the same terms as the written statement of 19 August 2020. The tribunal were obliged to determine the appeal by 31 December 2024 (Valuation Timetable (Scotland) Order 2022 (SSI 2022/368), Article 7). On 27 November they cited the appellant and the assessor to a hearing to be held on 20 December 2024. The appellant requested that the hearing be adjourned to a later date because the director whom it was proposed would represent the appellant was in Australia until 2025. Mindful of their obligation to determine the appeal by 31 December 2024, the tribunal refused to

adjourn the hearing. They gave the appellant the option to participate remotely by videoconference. The appellant declined that offer. It requested that the appeal be determined on the basis of written representations from the parties without a hearing (First-tier Tribunal for Scotland Local Taxation Chamber Regulations 2022/SSI 2022/364, Regulation 2 and the Schedule (the tribunal's Rules of Procedure 2022), Rule 46). Having ascertained the assessor's view on that proposal, and that he agreed to it, the tribunal considered that they were able to decide the appeal without an oral hearing on the basis of the written representations. The written representations For the appellant [10] The rent the appellant actually paid was £18,000 per year. It was not an economic rent - the business had not been profitable. In terms of Scottish Assessors Association, Commercial Properties Committee, Practice Note 1, Valuation of Shops, the recommendation was that generally shops should be valued on a zoning basis, and only exceptionally on an overall basis. The shop ought not to have been valued using an overall rate which compared it to the shop at 14A South Avenue. It should have been valued on a zoning basis like the other shops in North Deeside Road such as the pharmacy at No 381A and the solicitors' office at No 379. That was an error of classification within the meaning of section 2(1)(f).

If the shop was zoned from North Deeside Road, the trading area ought to have been treated as a basement floor and valued using a rate which was one-fifth of the North Deeside Road zone A rate. Failing that, it should have been zoned from the South Avenue entrance. Either way, there were errors in the valuation, and the net annual value ought to have been lower. For the assessor [11] Section 2(1)(f) applied only to factual errors - matters which were empirically verifiable. Differences of opinion as to the appropriate valuation approach did not fall within its ambit ( Trustees of the National Gallery for Scotland v Lothian Assessor [2010] CSIH 94 , 2011 SC 277). Whether to value the shop on a zoning basis or an overall basis was a matter of valuation opinion and judgement. The assessor's decision to value it on an overall basis rather than a zoning basis was not erroneous, and even if it had been, it was not one of the kinds of error described section 2(1)(f). Nor was his decision that the appropriate comparison was with 14A South Avenue rather than with shops in North Deeside Road; and, once again, even if it had been erroneous, it was not one of the kinds of error specified in section 2(1)(f). [12] In any case, the appellant's proposed zoning valuation was patently flawed. The zone A rate for shops in North Deeside Road was £290 per m . The reduction factor of one- fifth

which the appellant proposed would only apply to an ancillary floor if the full zone A rate had been applied to a principal trading floor. The appeal subjects had only one trading floor. It was not an ancillary floor. Both the appeal subjects and 14A South Avenue had their trading floors at the same level as, and the floors were accessed from, the South Avenue car park. Both subjects had been valued on an overall basis. The actual rents of the appeal subjects and 14A South Avenue supported their net annual values. When adjusted to reflect the statutory hypothesis in section 6(8) of the Valuation and Rating (Scotland) Act 1956 (as to which see Armour, Valuation for Rating , paras 17-11 to 17-19), the rent of £20,500 for the appeal subjects became an adjusted rent of £18,040, which was still significantly in excess of the net annual value of £16,750. The tribunal's decision [13] The tribunal refused the appeal. They found (finding-in-fact 9) that the net annual value was arrived at by applying a rate of £120 per m to a trading floor area of 162m , with allowances for a thick wall and for quantum; that the appellant agreed to an assignation of the lease at a rent of £20,500 per year on 5 May 2017 (findings-in-fact 16 and 17); and that in calculating the net annual value the assessor had used comparable rents. Findings-in-fact 19 and 20 stated: "19. The property at 14a (sic) South Avenue is comparable to the appeal subjects. It is entered from the same car park on South Avenue as the appeal subjects and has its trading area on the South Avenue level only. A new lease for 14a South Avenue was agreed in January 2014 ... at a rate of £128.64 per m . This supported the rate of £120 per m applied to the appeal subjects.

20. The two shops adjacent to the appeal subjects' entrance at 381 North Deeside Road have trading areas on the North Deeside Road level and as such are not comparable to the appeal subjects. They have a rate of £290 per m applied to the trading areas on the North Deeside Road level." The tribunal also found (finding-in-fact 23) that the actual floor area was 166.3m , 4.3m larger than the assessor had understood when he had valued the subjects and made the entry in the roll. The tribunal held that the assessor's decision to value the appeal subjects and 14A South Avenue on an overall basis rather than on a zoned basis was a matter of valuer's judgement. Even if that approach by the assessor had been erroneous, it would not have been an error falling within any of the categories in section 2(1)(f). The tribunal were not satisfied that any error within the purview of section 2(1)(f) had been established. The appeal Submissions for the appellant [14] The appeal should be allowed on the following grounds and the matter should be remitted to a differently constituted tribunal for a rehearing. [15] First, in valuing the subjects on an overall basis rather than on a zoning basis the assessor had committed an error of classification in terms of section 2(1)(f). In rejecting that submission, the tribunal had erred in law. [16] Second, the assessor erred in valuing the subjects by

comparison with 14A South Avenue rather than with shops in North Deeside Road, which were more appropriate comparisons. In rejecting that submission, the tribunal had erred in law. [17] Third, if comparison with shops in South Avenue had been appropriate, the assessor had erred in comparing the subjects with 14A South Avenue rather than with shops a little further away at The Courtyard, St Devenick's Crescent. Comparison with those shops would have produced a lower net annual value than the value in the roll. [18] Fourth, the tribunal had not adequately explained why they accepted that the assessor had been entitled to conclude that an overall valuation basis was preferable to a zoned basis. [19] Fifth, the tribunal's finding that the rent payable by the appellant following assignation of the lease continued to be £20,500 was not correct. It had been agreed with the landlord that the rent would be £18,000. In addition, there had been an initial rent-free period of 6 months. [20] Sixth, the appeal process had been unfair because of the prolonged delay, the determination on written representations rather than following an oral hearing, and because the tribunal's reasons were unintelligible and inadequate. Submissions for the assessor [21] The appeal should be refused. [22] In order for the roll to be altered during the period between revaluations the appellant required to show

that there had been an error of one of the types described in section 2(1)(f). Such errors all involve matters of objectively ascertainable fact. They do not concern matters of opinion, judgement or law ( Trustees of the National Gallery for Scotland v Lothian Assessor , Lord Justice Clerk Gill at paras [23] - [24] and [31] - [33], Lord Hardie at para [38], Lord Malcolm at para [39]; Assessor for Central Scotland v British Waterways Board (Scotland) [2018] CSIH 82 , 2019 SC 222 , Lord Justice Clerk Dorrian at para [8], Lord Malcolm at para [16], Lord Doherty at paras [32] - [35]). The error must pre-date the entry and cause it to be made. [23] There was no error of classification here. The subjects had been classified correctly as a shop. Whether to value them using zoning or an overall basis was a question of valuer's judgement or opinion, as was the issue of whether comparison ought to be with the shops in North Deeside Road or with the shop at 14A South Avenue (or, indeed, with the shops at The Courtyard). The assessor had not been obliged to value on the basis of zoning (Armour, Valuation for Rating , para 19-25). It had been open to him to use an overall approach. Practice Note 1 did not recommend that the zoning method should always be used to value shops. In any case, assessors were not obliged to follow recommendations in practice notes (Armour, paras 1-8,

19-32; Assessor for Grampian v CDS (Superstores International) Ltd t/a The Range [2018] CSIH 13 , [2018] RA 333, Lord Doherty at para [21]). Which comparisons were appropriate involved a question of valuation opinion and judgement (Armour, paras 19 - 19 to 19 - 22). The tribunal had not erred in making the finding-in-fact that the rent payable following the assignation was £20,500. That was the evidence before it. Besides, it is clear that the rent at the rental tone date (1 April 2015) was £20,500, and, when adjusted to reflect the statutory terms, the resultant rent and the rent of the comparison subject at 14A South Avenue fully supported the overall rate of £120 per m used to value each of those subjects. [24] The tribunal's reasons were both intelligible and adequate. They explained that none of the suggested errors were errors falling within the ambit of section 2(1)(f) and they clarified why that was so. Nothing more was required. [25] The appeal procedure had not been unfair. The committee had not cited the appeal for a hearing prior to the last date they could hear appeals. There had been difficulties having hearings because of the Covid 19 pandemic. The history of the appellant's case was not unusual. Thousands of appeals were transferred on 1 April 2023 from committees to the tribunal. The tribunal had been obliged to determine transferred appeals by 31

December 2024. They cited the parties to an appeal hearing scheduled for 20 December 2024. The appellant had asked for the hearing to be adjourned until a date in 2025 because one of its directors was to be in Australia at the time of the hearing. The tribunal refused that request because they were obliged to determine the appeal by 31 December 2024. They made clear that the director could participate in the hearing by videoconference. The appellant did not wish the director to avail herself of that opportunity. It requested that the appeal be determined on the basis of written representations, which request the tribunal granted. Each party submitted written representations and productions which the tribunal considered in reaching their decision. Decision and reasons [26] Section 2 of the Local Government (Scotland) Act 1975 provides: "2.-- Alterations to valuation roll which is in force. (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-- ... (f) to correct any error of measurement, survey or classification or any clerical or arithmetical error in any entry therein: ..." At the time when the appellant appealed to the valuation appeal committee sections 3(4) and 3(4A)(b) provided: "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 or that there is such an error as is referred to in section 2(1)(f) of this Act. (4A) An appeal under subsection (4) above shall be made­ ... (b) on the ground that there has been such an error in the entry as is referred to in section 2(1)(f) of this Act, at any time while the roll is in force." [27] In Trustees of the National Gallery for Scotland v Lothian Assessor , Lord Justice Clerk Gill discussed the interpretation of section 2(1)(f) at paras [22] - [33] of his opinion. At paras [31] - [32] he opined: "[31] ... My own view is that sec 2(1)(f) applies only to errors on matters that are empirically verifiable. `Measurement' denotes matters such as the floor area of a superstore. `Survey', in my opinion, relates to matters such as the extent of the curtilage of a building. `Classification' relates to the identification of the character of the lands and heritages in question; for example, whether they are a hotel or a bed and breakfast. Questions of arithmetical and clerical error are even more obviously factual in nature. Section 2(1)(f) widened the categories of factual errors to which sec 9 of the [Local

Government (Financial Provisions etc)(Scotland) Act 1962] had been held to apply; but it went no further. On all of the questions that arise under the present provision the relevant information is either right or wrong. Its accuracy can be tested objectively by counting, by measurement, by inspection and so on. In short, sec 2(1)(f) applies to errors on matters of objectively ascertainable fact. Questions of opinion and law belong in a different conceptual world. [32] In discussing errors of opinion, Armour suggests that the assessor's survey may include the recording of an opinion on the amenity of the subjects or their environment (paragraph 3.35). I disagree. An opinion on amenity is a subjective matter. I fail to see how an entry that is based on such an opinion, or on any other aesthetic question on which views may reasonably differ, can be said to be erroneous. If the ratepayer disagrees with the assessor's opinion on such a question, his obvious, and in my view only, recourse is to appeal against the entry under sec 3(2) as soon as it is made. The same can be said in relation to an error of law, for example, on the question of rateable occupation. It would subvert the whole system of quinquennial valuations if sec 2(1)(f) provided a right of appeal on such grounds at any time while the roll was in force." Lord Hardie agreed with Lord Gill and added: "[38] It is clear

from sec 2(1)(f) that the error complained of must be an error in the entry in the valuation roll... Moreover the error must fall within one of the categories specified in that subsection. Apart from errors of survey or classification the other categories of error are errors of measurement, clerical errors or arithmetical errors. Errors of measurement and clerical or arithmetical errors are, in my opinion, confined to errors of fact. Similarly errors of survey or of classification could be so categorised. Essentially the survey involves recording the relevant details of the subjects, their geographical location and their environment; classification involves placing the subjects into the appropriate category in the scheme of valuation. Before the appellants can avail themselves of sec 2(1)(f) they must be able to point to a factual error resulting in an error in the entries in the roll..." Lord Malcolm (para [39}) agreed with Lord Gill and Lord Hardie. [28] The appellant maintains that the assessor committed an error of classification when he valued the subjects on an overall basis in preference to a zoning basis. In my opinion the selection between those bases did not involve an issue of "classification" within the meaning of that word in section 2(1)(f), viz placing the subjects into the appropriate category in the scheme of valuation. The assessor classified the subjects as a

shop, and there is no doubt that that was the appropriate category for them. The short answer to this appeal is that there was no error of classification. [29] Moreover, the issue of which valuation approach to adopt involved the exercise of opinion and judgement by the assessor. He was not obliged to follow either one approach or the other. His determination of the most appropriate comparison for the appeal subjects was also a matter which turned upon his opinion and judgement. Neither choice involved an error of classification or any of the other types of error referred to in section 2(1)(f). In neither case was there an error about an objectively ascertainable fact. [30] The appellant's criticisms of the tribunal's reasons and of the appeal procedure are unfounded. The reasons are intelligible and adequate. They explain that none of the suggested errors fall within the ambit of section 2(1)(f) and they clarify why that is so. No more was needed. The proceedings were not unfair. Appeal hearings were delayed by the Covid 19 pandemic. The history of the appellant's case is not unusual. The tribunal's refusal to adjourn the appeal hearing of 20 December 2024 was entirely justified given the statutory deadline for the disposal of transferred appeals and the availability of participation by videoconference. It was at the appellant's request that the appeal was determined on

the basis of written representations. Each party submitted written representations and productions which the tribunal considered in reaching their decision. [31] That is sufficient to dispose of the appeal. However, I think it right to add that nothing said on the appellant's behalf causes me to think that the valuation approach adopted by the assessor resulted in a net annual value for the subjects which is excessive. The net annual value is less than the passing rent for the subjects at the tone date. There is no suggestion that that rent was not a fairly-conditioned open-market rent. Furthermore, it is nothing to the point that the business carried on at the subjects by the appellant proved to be unprofitable. Care needs to be taken not to confuse the circumstances of the appellant with those of the hypothetical tenant. There is no reason to think that the hypothetical tenant of the shop would be unable to make profitable use of it. The rate of £120 per m is also fully supported by analysis of the rent passing for 14A South Avenue at the tone date. It is easy to see why the assessor considered that those subjects were comparable. The appeal subjects and 14A South Avenue each had trading areas which were adjacent to and level with South Avenue and its car park. On the other hand, the trading areas for 381A and 379 North Deeside Road were level with and adjacent to North

Deeside Road. The fact that the appellant's proposed net annual value is less than half of the rental rate derived from analysis of the rents of the appeal subjects and 14A South Avenue is a powerful indication that it does not represent the rent for which the subjects might reasonably have been expected to let on the statutory hypothesis set out in section 6(8) of the 1956 Act. [32] For these reasons I propose to your Lordships that the appeal should be refused.

LANDS VALUATION APPEAL COURT [2026] CSIH 8 XA43/25 Lord Malcolm Lord Doherty Lord Ericht

OPINION OF LORD ERICHT in the Appeal by THE NAIL & BEAUTY ZONE LTD, trading as Pure Spa and Beauty Appellant against

ASSESSOR FOR GRAMPIAN VALUATION JOINT BOARD Respondent Appellant: M Lumsden; Lay Representative Respondent: J Murphy; Harper Macleod LLP 10 February 2026 [33] I have had the advantage of reading a draft of the opinion delivered by Lord Doherty. For the reasons he gives, I consider that the appeal should be refused. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/scot/cases/ScotCS/2026/2026csih8.html