Section 6 – Discretion of local authority to determine whether lands and heritages are dwellings
34.Section 72(4) of the Local Government Finance Act 1992 enables the Scottish Ministers to make regulations about lands and heritages, or classes of lands and heritages, which are included in, or excluded from, the definition of “dwelling” in section 72(2). If the lands and heritages are a dwelling, they are subject to council tax under section 72(1). Otherwise, they are subject to being entered in the valuation roll and, if so entered, subject to non-domestic rates.
35.Section 6 of the Act makes provision to enable regulations under section 72(4) of the 1992 Act to give a local authority discretion to determine, in circumstances set out in the regulations, whether particular lands and heritages fall within a class of lands and heritages prescribed in the regulations.
36.This power will allow the regulations to make provision about circumstances in which local authorities can exercise discretion in particular cases, where it appears to them that lands and heritages should stay in the non-domestic rates system, where the application of the tests in the regulations would otherwise result in them falling into the council tax system. For example, where lands and heritages fall within a particular class if they are used in a certain way, the regulations may allow the local authority to determine that the lands and heritages fall within that class even if they are not used in that way, if there is a good reason for that.(11)
See the insertion by the Council Tax (Dwellings and Part Residential Subjects) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/489) of regulation 5B of the Council Tax (Dwellings and Part Residential Subjects) (Scotland) Regulations 1992 (S.I. 1992/2955).
