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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> 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] ScotCS CSIH_37, [2007] 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.

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URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_37.html