Brian Philp was served by the Highland Council with a demand note for payment of rates of £1,536.87 in respect of a property at Fishery Pier in Kyle of Lochalsh for the period April 2016 to May 2016. He challenged a decision of the council’s ratings board that he was the occupier at the relevant period.

The appeal was heard in the Inner House of the Court of Session by Lord Malcolm, Lord Woolman and Lord Doherty. The petitioner represented himself, and the respondent was represented by Manson, advocate.

Not properly constituted

During the relevant period, the property was entered in the valuation roll by the Assessor for Highland and the Western Isles Valuation Joint Board as a unum quid with a rateable value of £19,000 and with the petitioner entered as the owner and occupier. The petitioner appealed to the respondents on the ground that the rates levied in the demand note had been improperly charged.

The petitioner’s main argument was that he had not been in rateable occupation of the property during the relevant period, and that someone else had been the occupier during that period. The respondents’ officer did not accept that. The respondents’ Non-Domestic Rates Appeal Committee refused the petitioner’s appeal, unanimously deciding that his grounds of appeal had not been substantiated. This was confirmed in writing the day following the appeal.

Following repeated unsuccessful attempts to obtain a meeting to discuss “the implications” of the decision, the petitioner submitted a petition for judicial review of the Committee’s decision to the Outer House. The petition sought an order ordaining the respondents to provide reasons for the decision, and to challenge the decision on the basis that it was unfair that the appeal was heard by the respondents.

The Lord Ordinary dismissed the petition, holding that the petition was time-barred and there was no basis for exercising the court’s equitable jurisdiction to waive or modify the time limit. The petitioner was aware of the potential remedy of judicial review and of the three-month time limit following the decision in which a petition required to be made.

On appeal, the petitioner submitted a new argument that the Ratings Committee was not properly constituted and had no jurisdiction to hear the ratings appeal. When section 56 of the Local Government (Scotland) Act 1973 came into force section 238 of the Local Government (Scotland) Act 1947 ceased to have any force or effect. Thus, a committee appointed under the 1947 Act was incompetent and its proceedings were a nullity.

The petitioner further submitted that the Lord Ordinary had erred in holding that he had no averments seeking to invoke the court’s equitable jurisdiction, or of bias or apparent bias on the part of the Committee.

No excuse for failure

The opinion of the court was delivered by Lord Doherty. Dealing first with the time-bar issue, he said: “The essence of the argument for extending the period is that the petitioner asked the respondent to provide further reasons for the decision. However, it seems to us that by the time of the third letter from the respondents on 7 November 2017 it was very plain that they did not propose to elaborate upon the terms of the decision. We are not persuaded that the petitioner’s request for a meeting to discuss ‘the implications’ of the decision ought to excuse his failure to present a petition timeously.”

For this reason alone, the court held that the reclaiming motion ought to be refused. However, views on the remaining grounds of appeal were nevertheless provided.

On the interaction between the 1947 Act and the 1973 Act, Lord Doherty explained: “Section 238(1) of the 1947 Act makes provision for an appeal by a ratepayer on the ground that he is being improperly charged rates. The appeal is to be heard by the rating authority or a committee thereof. That is the right of appeal which Parliament has provided.”

He continued: “On a proper construction of section 56(8) we are not persuaded that any part of section 238(1) falls within the ambit of section 56(8). It follows that we do not accept that the words ‘or a committee thereof’ or any other part of section 238(1) ceased to have effect when section 56 came into force. Nor, for the same reason, do we consider that the power to appoint a committee to hear appeals which section 238(1) impliedly confers upon a rating authority ceased to have effect on that date.”

Addressing the argument of apparent bias, Lord Doherty said: “We agree with the respondents that the petitioner’s complaint of bias is in effect no more than a complaint about the appeal procedure provided by Parliament. It adds nothing of substance to the petitioner’s first ground of appeal. The respondents had no choice in the matter. It cannot be said that they acted unlawfully in complying with primary legislation.”

The court therefore adhered to the interlocutor of the Lord Ordinary.