VALUATION TRIBUNAL S ERVICE A P R I L 2 0 1 2 April 2012 April Issue24

Valuation in Practice the 2010list. against listedappeals 35,000 of for accounted Strike outs case. statementa VOAof providing the settled1600were without a further and statementscase of of were theafter exchange settled 2000 appeals, 26,000 settled Of 2%. wereon given decisions before thehearing; theday live 7%were targetafter around date, listed 2010listrating appeals 78,000 that of shows The data wereappeals received. notice 300 over completion taxand appeals council liability 1200 appeals, tax valuation 3000 Around council hearings. listed118,000 to 1370 and year last appeals almost 280,000 received We for 2011 statistics Appeal month. this be heard the understood it is appealcould Courtand to High the been appealed ViPhas of (23) issue last the in The VTEreported decision spouses student overseas on appeal Court High continue. Service andTribunals Courts Her Majesty‟s into Service ValuationTribunal andthe for the Valuation Tribunal of the potentialon transfer Discussions Registry. tothe Lands the Adjudicator Tribunalsand Agricultural Lands Tribunal, Property the Residential jurisdiction into2013 bringwill its to bein established expected PropertyChamber, timetable.from this The coupled thenow VTE been TribunalsService, de has and Courts Her Majesty‟s Tribunalof Tierwithin the First Property jurisdiction tocontinue createa plans Chamber Whilst Chamber Property of the Establishment 15.sflb.ashx http://www.valuationtribunal.gov.uk/Libraries/Publications/Forward_Plan_2012 2012for Plan itsBusiness 2012Plan nowitsForward published has Service The ValuationTribunal Plan Forward Materialreduction ina dwelling ClassLandClass Q exemption Stoweschool boarding houses Students andthemeaning of ‘full Museums Gatwick airport businesscentre issue: this Inside

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Business Rates Information Letters discounts, small business rate relief, cancellation of certain rates liabilities and (BRIL) from DCLG are available at Enterprise Zones. http://www.communities.gov.uk/ localgovernment/ localgovernmentfinance/ Upper Tribunal (Lands Chamber) businessrates/ busratesinformationletters/ Appeal of Mouland (VO) RA 15/2009

BRIL No 1/2012 summarises effects The appeal property was a business centre at Gatwick Airport‟s South Terminal, on billing of the Non-Domestic Rating providing fully serviced meeting, conference and „touchdown‟ facilities (including (Collection and Enforcement) executive lounge), and offices on short-term contracts. This accorded with its (Amendment) (England) Regulations permitted uses in the lease, which included the restriction that no more than 30% of SI 2012/24 and the Non-Domestic the net internal area could be used for “high quality serviced offices for airport- Rating (Electronic Communications) related customers”. (England) Regulations SI 2012/25. The rateable value (RV) in the 2005 list was £292,500 and the description was BRIL No 2 covers the Non-Domestic „Offices and premises‟. The valuation tribunal panel had reduced this to £170,000, Rating (Small Business Rate Relief) deciding that the rent passing at 1 October 2004 (£177,888) was useful evidence (England) Order 2012, which extends and that a business to 31 March 2013 the relief, centre differed including to eligible ratepayers who significantly from occupy more than one property, and straightforward office the removal of the requirement to use. The parties had submit an application form to claim agreed that the the relief. The newsletter updates on description should be the position regarding cancelling amended to „Business certain backdated rates bills (see Centre and premises‟. BRIL 4 below). It also includes some useful definitions of terms used in The valuation officer (VO) the rating world. appealed against this decision, arguing that the BRIL No 3 gives further details on the terms of the lease were business rates deferral scheme. It too onerous and were also confirms the non-domestic very far removed from multiplier for 2012-13 will be 45.8p those of the hypothetical tenancy which must be assumed for rating purposes; the and the small business non-domestic restriction he believed was mainly for the landlord‟s benefit. The VO had dismissed multiplier 45.0p. The newsletter the appeal property‟s rent as valid evidence, preferring comparable evidence from reminds billing authorities about smaller offices, with no use restrictions, in the same building and another office calculating „Q‟, the inflation factor. building at the airport. He had adopted a tone of £360 plus 5% for air conditioning, giving an RV of £248,000. BRIL No 4 covers the regulations allowing cancellation of certain The Upper Tribunal (Lands Chamber) (UT (LC)) referred in its decision to Fir Mill Ltd v backdated rates liabilities (SI Royton UDC and Jones (VO) [1960] and Williams (VO) v Scottish & Newcastle 2012/537). The Demand Notice Retailing and another [2001] and those cases‟ respective contributions to clarifying Regulations (SI 2012/538), referred the principles of rebus sic stantibus and mode or category of occupation. to in BRIL 2 above, have also been laid. In upholding the VTE decision, the UT (LC) found that the actual serviced office use at 30% meant that the use of the remaining 70%, taken overall, constituted a BRIL No 5 confirms that the rate of different mode or category of occupation to purely office use. interest payable on refunds of overpayment of rates to be applied for 2012-13 is 0%. The newsletter High Court also describes the effects of the Non- Domestic Rating Contributions RGM Properties Ltd v Speight (LO) [2012] RA 21, QBD (Amendment) (England) Regulations SI 2012/664, in allowing discounts This appeal was against a decision of the VTE in 2010 confirming that flats in Enterprise Zones. converted from a derelict office building had been entered correctly into the valuation list from 20 March 2008. The conclusion that the appeal dwellings were BRIL No 6 outlines the business rates capable of occupation at that date was based on limited evidence available, deferral scheme and gives a roundup including photographs of the flats‟ interiors taken in May 2009. There had been of various other measures: local dispute about when the photographs were taken and the hearing was adjourned to clarify this matter. When the hearing was reconvened, the appellant‟s representative wanted to introduce some photographs but the panel refused to allow new evidence

ISSUE 24 Page 2 (Continued from page 2) Interesting VT decisions The appellant company confirmed that there had been little change to the properties between March 2008 and Non-domestic rating Museums, May 2009 apart from electrical work to connect to mains supply. Fire Long stay car park, Manchester The Tribunal considered both the alarms, fire doors and emergency correct method of valuation and lighting also remained to be done in This car park was close to Manchester rateable value (RV) of four very March 2008 and there were problems Airport, the local railway station and the different museums in the with damp that needed to be local motorway network. It was fenced, area. All of the appeals had been remedied. The LO had rebutted the accessed via large double gates and made against Valuation Office notices. latter point, asserting that ,for council controlled automatic barriers, with two tax valuation purposes, the flats had portacabin offices on site. Moorside Mills - an industrial to be assumed to be in a reasonable museum in a former textile mill, state of repair. The valuation officer (VO) brought the three workers‟ terraced houses, assessment into the 2005 rating list on rebuilt on the site to show 19th The completion notice procedure had 26 January 2010 at £94,500 rateable century living conditions, and the not been used by the billing authority; value (RV) with effect from 1 April 2006. original manager‟s house (RV it had asked the LO to insert the new At the hearing, the appellant‟s £90,000); entries into the list. The High Court representative contended that there was agreed with the panel‟s finding that no evidence to reasonably ascertain or this was not a necessary precondition confirm that the property was complete Bolling Hall - a Grade I Listed of entry into the list. and available to be occupied any earlier manor house with 13th - 17th than 26 January 2010 and sought century parts, on the site of a The High Court found that the VTE was alteration to show £86,000 RV from that former Norman timber manor entitled to come to the decision it had date. house (RV £19,500); based on the photographic evidence. Though it was unfair of the panel not In considering the scope of a proposal - a Grade II to allow the appellants to submit more that sought “the rateable value altered Listed gentlemen‟s residence from photographs of their own, it was not to £1 with effect from 1 April 2006”, the the 1820s and extended in 1848 unfair as a result, as those photos panel found the Lands Tribunal case of and 1878 (RV £55,000); would not have changed the decision. Leda Properties Ltd and David Kelvin

Howells (VO) [2006] both persuasive Manor House Museum - a Grade I The appellant company had and authoritative. It would have been Listed 14th century medieval complained that the LO had breached impossible for the VO to deduce that the manor house with 17th century his duty as an expert witness; he had proposer was seeking an alteration of additions and two 18th century submitted information that was not the effective date and, had he well cottages, located on the edge of a accurate and had used photographs founded the appeal, he would have Roman Fort, which is a scheduled selectively, and the panel should not altered the list entry to show £1 with ancient monument (RV £13,250). have accepted this. The High Court effect from 1 April 2006. The panel said that its approach was whether the made a finding of fact that any alteration The appellant‟s representative had VTE had erred in law and that question to the effective date of this entry in the valued all of the properties on the could not be answered by list was outside the scope of the same basis, adopting a percentage of consideration of these matters; the proposal. estimated gross receipts. While High Court had to focus on the admission to the four sites was free decision alone. Both parties had already agreed, and there was no clearly identifiable

following their discussions before the cost base to apply, there was a Further, the High Court commented hearing, that the assessment should be meticulous count of visitors at each that the LO should not have reduced to £86,000 RV. site. This, together with the wealth of introduced the argument about state evidence regarding entrance fees to of repair in a case to establish whether The appeal was allowed but only to the National Trust, English Heritage and a dwelling existed. Disrepair was a extent to give effect to the revised other attractions, could be used to concept that could only be considered assessment that had been agreed by the arrive at an estimated gross receipts once a building was accepted as a parties. figure for each property. He had then hereditament. applied 3% as agreed in the Waltham Full decision: 421517163097/538N05 Abbey Royal Gunpowder Mills Museum Valuation in Practice issue dates case to arrive at his rental bid in each Where we show an appeal Our newsletter is published quarterly case. The RVs sought were number, this can be used respectively £15,000, £1,400, in January, April, July and October. You can sign up for an email alert to view the full decision on £10,000 and £2,700. telling you when a new issue has our website. Click on the been published, by going to In contrast, the VO had adopted a Listings & Decisions tab range of methods and, in some cases, www.valuationtribunal.gov.uk/vip_ne and use the appeal number more than one method of valuation for wsletter.aspx. to search Decisions. different parts of the same museum. (Continued on page 4)

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(Continued from page 3) museums were covered in the VOA However, for both Bolling Hall and Cliffe Rating Manual which provided an Castle, in the absence of another Moorside Mills - the VO believed that approach to arrive at an appropriate valuation method and with regard to the a variation of the contractor‟s basis was appropriate. Instead of valuation method for each type. assessments they had determined on constructing a substitute building, he Informed by their inspections, the panel the other properties, the panel was felt that the diverse nature of the satisfied that the resulting figures were believed the of Bradford would museums put them into different not excessive and fitted in with the rent an alternative mill and, as it had already rebuilt the terrace houses, classes, with no one valuation method overall pattern of values. The panel the contractor‟s basis method of fitting all. The panel therefore decided allowed the appeals to the extent each museum appeal on its own merits: conceded by the VO (RVs £35250 and valuation was valid for valuing the £5,900 respectively). cottages. For the manager‟s house, he had applied a spot figure (RV Moorside Mills - the panel accepted £68,000). that the mill should be valued in line Full decision: 470514161196/244N05

with other mills but rejected the use of the contractor‟s test method for When is an informal agreement Bolling Hall - he argued that the binding? physical characteristics of the the cottages and valued them in line with the manager‟s house (RV property did not support the use of £50,000). The Tribunal determined an appeal on the contractor‟s basis; the council the 1995 rating list concerning a shop would not consider building a modern and premises with a rateable value (RV) substitute as the building itself was Manor House Museum – the panel of £345,000. The panel heard that an the exhibit. He believed there was a believed it could be valued as a informal agreement had been reached minimum value equal to the cost of traditional municipal museum or a between the parties at £305,000 RV. storage. But as a stated purpose of country house museum and adopted However, this agreement was not the council was to display the house the VO‟s contractor‟s test method of ratified, and at the hearing the VO and its contents, he believed a valuation (RV £3,350). defended a RV of £345,000. The hypothetical landlord would not Tribunal determined that it found accept this minimum level of rent and Bolling Hall - from its inspection the nothing to justify the original valuation would agree a figure of double that panel was satisfied that this could be agreed to be incorrect. Accordingly, the (£3,350). best classified as a country house panel determined a rateable value of museum. Although the parties £305,000. Cliffe Castle - given the hybrid nature thought that the contractor‟s test of the property he believed the method was not appropriate for the Full decision: 599015707697/088N05 appropriate way to value it would be Hall, the panel could find little to add the value of the purpose-built difference between this and Manor museum to the value attributable to House and believed that a Council tax liability the original part of the property. For contractor‟s test method of valuation this he had adopted the same was also appropriate here. The Student exemption – approach as Bolling Hall, taking panel was not convinced by the VO‟s meaning of full-time double the notional storage value. approach of adopting twice the value However, as there were more of an estimated notional storage contents, more storage was required, space because this produced an and for the extension he had used a arbitrary figure which did not relate full contractor‟s basis valuation (RV in any way to the actual £35,250). hereditament.

Manor House Museum - he had Cliffe Castle - this gave the panel the valued using the contractor‟s basis most difficulty. It appeared to be a (RV £6,400). traditional museum but was in part in the nature of a country house In arriving at its decision the panel museum. The panel believed that, inspected all of the appeal properties and with the extensions, it went beyond had regard to the case law and the VOA this description because of the range Rating Manual. of non-related collections it housed. Having viewed both Cliffe Castle and While the hearing panel liked the the Manor House, the panel could simplicity and uniformity of the see little difference between the two appellant‟s valuation approach (based on and it believed that the appropriate The decision turned on the definition of actual visitor numbers but notional method of valuation was a full a full-time course of education, in receipts), the panel decided it could not contractor‟s test method. As in paragraph 4 (1) of Part II of Sch 1 of the endorse use of the receipts and respect of Bolling Hall, the panel Council Tax Disregards Order 1992, expenditure method because there were believed the VO‟s dual approach which was amended with effect from 13 no actual receipts submitted. produced an arbitrary figure which May 2011 to read: did not relate to the actual

I S S UE 2 4 hereditament. The panel noted eight classes of (Continued on page 5) Page 4 2 01 2 Interesting VT decisions continued

(Continued from page 4) might take up to four years to complete The billing authority contended that only it. As the appellant had only completed those pupils aged over 18 could be „(a) which subsists for at least one one module it appeared that he was termed „students‟, but the panel academic year of the educational not studying for the university‟s decided that none of the pupils was a establishment concerned or, in the recommended period. „student‟ within the meaning of the case of an educational establishment legislation. which does not have academic years, Full decision 5300M70870/053C for at least one calendar year; An appeal for judicial review has been The School‟s representative argued that lodged with the High Court. the term „halls of residence‟ was not (b) which persons undertaking it are prescriptive but descriptive in the normally required by the educational regulations and was not limited to establishment concerned to undertake Stowe school boarding houses tertiary educational establishments. periods of study, tuition or work experience (whether at premises of the establishment or otherwise) -

i) of at least 24 weeks in each academic or calendar year (as the case may be) during which it subsists, and

Ii) which taken together amount in each such academic or calendar year to an average of at least 21 hours a week.‟

The appellant was undertaking a MBA degree programme over 18 months, by distance learning. He had chosen to study two modules per term, which he reckoned entailed 12.5 hours study per module per week and which matched the recommendation of the university running the programme.

The panel referred to the decision in the High Court case of Feller v Cambridge City Council [2011] (see ViP issue 21), in which Dr Feller was not required to attend for study at any particular place but was found to be a student for the purposes of a discount. The President of the VTE presided with He believed that the distinction made in The billing authority (BA) view was that two members from his panel of S110 of the Finance Act 2002 between the appellant did not meet the criteria chairmen to decide whether the nine „residential accommodation for school before 13 May 2011 as there was no boarding houses of the independent pupils‟ and „halls of residence for requirement to attend (deemed school should be exempt under Class students in further or higher education‟ necessary based on their reading of R M of the Council Tax (Exempt supported his contention, since adding (on the application of Fayad) v the Dwellings) Order 1992 (SI 1992 No. „for students in further or higher London south East Valuation Tribunal 558) (as amended), as „halls of education‟ showed the term would [2008]), and did not meet the criteria residence‟. otherwise have a wider meaning. This after the amendment as he did not “a dwelling comprising a hall of Act has nothing to do with council tax, undertake an average of 21 hours‟ residence provided predominantly however, the panel saw these words as study. This latter argument was based for the accommodation of undermining the appellant‟s argument. on the fact that the appellant had only students” Whilst acknowledging that school submitted one module for assessment. boarding houses and university halls of Each house accommodated around 50 residence had much in common, and it The panel did not agree with the BA‟s boarders aged 13 to 18, together with might be unreasonable that they should assertion about the need for two to seven members of staff and be treated differently, the panel attendance, but agreed that the student their families. In addition to sleeping concluded that Class M did not cover was not studying an average of 21 quarters, the houses had rooms for school boarding houses. The appeal hours or more a week. The basis of the study, relaxation and music and was therefore dismissed. course was its flexibility and a student kitchens.

ISSUE 24 Page 5 Interesting VT decisions continued

Class L and Class Q Exemption mortgagee in possession nor a trustee in possession of the properties. The panel Should an exemption be granted where was satisfied that the BA had correctly a property had been controlled by a and lawfully calculated the liability for receiver under the Law and Property Act council tax. (LPA)? This was the decision that the members had to make at a hearing in Full decision: 3935M74550/212C the West Country. Landlord held liable as insufficient A landlord had not paid council tax on evidence of a tenant three properties and a liability order had been applied for. The landlord advised The appellant landlord contended that the billing authority (BA) that the the property was tenanted from properties were in the hands of an LPA 13 October 2008 to 13 December 2010. receiver and that he had been made Early in 2011 he became aware that the bankrupt during the period. property was vacant; the tenant had left

without informing him and owing rent. bank statements illustrated that there The panel considered, firstly, that LPA had been payments made into his receivers are appointed by mortgage The appellant had not asked for a bank account, however, there was companies to act as agents for the deposit from the tenant as he was a nothing to prove who had made these mortgagors and do not actually have friend of a previous tenant; there was no payments or in what connection. possession of the property themselves. rent book, but there was a tenancy Further, they are used by mortgage Full decision: 4310M80454/134C agreement. companies as an alternative to repossessing the property. Therefore, He was unable to provide forwarding or neither they nor the mortgage company Council tax valuation guarantor details for the tenant, but had could be said to be in possession and bank statements confirming regular as such, a Class L exemption could not Material reduction in the value of the cash receipts. When he contacted utility apply. After the appointment of an LPA dwelling, Northumberland companies, the appellant was informed receiver, the owner or occupier that there was no record of the tenant continued to be liable for council tax, The appeal property, a three bedroom but it appeared that he had rigged the even when the LPA receiver was in end terrace house, had been in band E electricity supply so that he did not have possession of the property. This meant since 1993, at which time it had an to pay. that, despite having very little to do with extensive area of land to the rear, with the property any longer, the owner outbuildings. The billing authority (BA) said the remained liable for council tax without documentation provided was not any exemption. The appellant was seeking a reduction sufficient for the account to be to C on the grounds that the property amended. The appellant had only been Secondly, Class Q exemption applies to no longer had a large rear garden and able to provide a six month tenancy unoccupied properties that have been out buildings. There was now only a agreement from 13 October 2008, after taken into the possession of a person thin strip of gravelled area at the rear the expiry of the agreement, on 9 August who is acting within their capacity as a of the property and three houses 2011. This was after the tenant vacated trustee in bankruptcy under the including a detached property and two and so the council was unable to make Bankruptcy Act 1914 or the Insolvency terraced houses constructed from the checks on the veracity of this Act 1986. The panel noted that the BA former outbuildings. The changes had information by reference to had confirmed with the LPA receiver taken place since 1996 and, in investigations at the material time. that if a receiver had been appointed comparison to other dwellings in the prior to bankruptcy then the properties locality, band E was too high. No In the absence of a rental schedule, rent did not become the possession of the evidence was submitted to detail the book or deposit, or any other documents trustee; they remained in the hands of timeline of events or the date(s) when in the tenant‟s name, the panel was not the LPA receiver. As this established the physical changes to the appeal site convinced that the tenancy agreement that the appeal properties had not been and its immediate locality began to alone supported the appellant‟s claim. taken into the possession of the impact on the value of the dwelling. trustee, the panel agreed with the BA The panel noted that the BA had that the criterion for Class Q exemption A previous Tribunal decision on an attempted to trace the tenant by way of was not met. adjacent property had confirmed that internal records and an external credit at band D. This property was 112m2 agency, but no records were found. Therefore, the panel reasoned, the and had three bedrooms. The LO landlord remained liable for council tax contended that, based on the sales The panel dismissed the appeal, as it until the date each property was sold. evidence and this decision, band E was not persuaded that the appellant Neither a Class L nor a Class Q was correct; in his opinion the loss of had provided sufficient evidence to exemption was applicable as the main the rear garden and outbuildings prove that there was a tenant in the conditions for these exemptions were would not have affected the value of property for the relevant period. The not met: the landlord was neither a the dwelling. (Continued on page 7)

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(Continued from page 6) An entry could be backdated in the list in accordance with Regulation 11 The panel gave consideration to the (1) (a) of the Council Tax (Alteration of plans and the removal of an extremely Lists and Appeals) (England) large area of land and the subsequent Regulations 2009. This required an conversion of the outbuildings to form alteration of the list to include a two dwellings and was of the opinion dwelling which had come into Editorial team: that this would have reduced the value existence, to take effect from the day it of the dwelling below the band E came into existence. Tony Masella threshold. This view was supported by the sales evidence submitted for “There is in consequence no scope Diane Russell terraced properties of a comparable for including in the list a building which Nicola Hunt. size and the decision of a previous is nearly, even very nearly, ready for valuation tribunal. occupation unless the completion Grahame Hunt notice procedure has been As the appellant had failed to include in followed.” (Extract from Paragraph 66 his proposal the date on which he of Porter (VO) v Trustees of Gladman Chief Executive’s Office believed the event occurred, the panel Sipps [2011]). had to have regard to Regulation 11(5a) VTS of the Council Tax (Alteration of Lists The property was ready or capable and Appeals) (England) Regulations of occupation despite the lack of safety 2nd Floor 2009 to establish the effective date. certificates for the electrical, water and The panel determined that the band heating systems, the lack of building Black House should be reduced to band D from the control certification, and an 45 Whitechapel Road date the appellant‟s proposal was outstanding minor physical alteration to the property which had to be made received by the LO. London to comply with fire regulations. In Full decision: 2935600760/092CAD reaching this conclusion, the panel had E1 1DU regard to paragraphs 62 and 63 of the Effective date of entry into the valuation RGM Properties Ltd v Speight (LO) Tel no. 0300 123 2035 list, Cumbria [2011] EWHC 2125 (Admin) decision, in which Mr Justice Langstaff stated The decision highlights what can occur that the lack of planning or building Any views given in when a billing authority (BA) does not control approval was not a legal bar to issue a council tax completion notice. occupation: this newsletter are

On 2 February 2010, the listing officer “If there were a breach of planning personal views and (LO) had backdated the entry of an control (for instance) or a failure unoccupied, newly built, four bedroom to comply with building should not be taken detached house, into the valuation list regulations, that might cause legal as legal opinion. from 23 April 2009. The appeal sought difficulty for the building owner, deletion from the list from this date on but it would not legally proscribe ______the grounds that no completion notice occupation by an occupant.” had been issued by either the BA‟s revenues or building control The case law presented showed departments, and the property was not that the relevant test was whether or capable of beneficial occupation. not the property was ready and capable The photographs used in for occupation as a dwelling. The panel this publication are for A letter from the BA‟s Building Control considered what physical features the illustration purposes only Manager, dated 28 May 2008, outlined appeal property lacked which and may not be of the the remaining items to be attended to prevented occupation; as the property before a completion certificate could be had electricity, water and heating, the actual properties or people issued. They included Standard panel concluded there were none. referred to in the articles. Assessment Procedure (SAP) calculations, an energy performance From a bricks and mortar analysis certificate, an air test, the provision of of the building, the property was a Credits: iStockphoto© Jeffrey Smith; electrical, heating and hot water completed dwelling, albeit one which Alamar Photography; Frankreporter; certificates, details/calculations for the was not compliant with current building VikaValter; Maynard Case roof trusses and a raised step under the regulations. window to the bedroom above the garage to allow a means of escape. Full decision: 0920594535/127CAD

In finding for the LO and dismissing the appeal, it was held by the panel that:: www.valuationtribunal.gov.uk

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