LOCAL%TAXATION%CASE%LAW% -% ANUPDATE% … · Institute of Revenues Rating and Valuation enquiries...

LOCAL TAXATION CASE LAW -‐

AN UPDATE

GARY L WATSON IRRV (HONS) DEPUTY CHIEF EXECUTIVE IRRV

Institute of Revenues Rating and Valuation www.irrv.org.uk [email protected]

OUTLINE OF PRESENTATION

•  Judicial System •  Appeal Routes

-‐ Council Tax -‐ Non-‐DomesIc Rate

•  Case Stated v Judicial Review •  Analysis of Cases

-‐ Council Tax -‐ Non-‐DomesIc Rate

•  Contact Details


APPEAL ROUTES (COUNCIL TAX)

•  ValuaIon -‐ ValuaIon Tribunal

•  Liability -‐ ValuaIon Tribunal

•  Reliefs -‐ ExempIons * ValuaIon Tribunal -‐ Discounts * ValuaIon Tribunal -‐ ReducIons * ValuaIon Tribunal

•  Recovery -‐ High Court (Case Stated) -‐ High Court (Judicial Review) -‐ Magistrates Court


APPEAL ROUTES (NON-‐DOMESTIC RATE)

•  ValuaIon -‐ ValuaIon Tribunal

•  Liability -‐ ExempIons * ValuaIon Tribunal -‐ OccupaIon * High Court (Case Stated) -‐ Unoccupied Rate * High Court (Case Stated) * ValuaIon Tribunal

•  Reliefs -‐ TransiIon * High Court (Case Stated) * ValuaIon Tribunal



•  Reliefs -‐ Small Business * High Court (Case Stated) -‐ ChariIes, Kindred OrganisaIons & CASC’S * High Court (Case Stated) * High Court (Judicial Review) -‐ Rural Areas * High Court (Case Stated) * High Court (Judicial Review) -‐ Part-‐Occupied * High Court (Judicial Review) -‐ Hardship & Discounts * High Court (Judicial Review)



•  Recovery -‐ High Court (Case Stated) -‐ High Court (Judicial Review) -‐ Magistrates Court


CASE STATED v JUDICIAL REVIEW

•  Case Stated -‐ DefiniIon -‐ SecIon 111 Magistrates’ Court Act 1980 -‐ Magistrates’ Court Rules 1981 -‐ When used -‐ Procedure -‐ 21 day rule -‐ Further right of appeal -‐ Reference to Local TaxaIon * LegislaIon * Case Law


CASE STATED v JUDICIAL REVIEW

•  Judicial Review -‐ DefiniIon -‐ Supreme Court Act 1981 -‐ When used -‐ Procedure -‐ 3 month rule -‐ Further right of appeal -‐ Reference to Local TaxaIon * LegislaIon * Case Law


ANALYSIS OF CASES (COUNCIL TAX)

•  ValuaIon -‐ R (On the applicaIon of a LisIng Officer) v Callear (2012)

•  Liability -‐ MacAaram v Camden LBC (2012)

•  Reliefs -‐ ExempIons -‐ Edem v Basingstoke & Deane BC (2012) -‐ David James Vaughan v South Oxfordshire DC (2012)


ANALYSIS OF CASES (NON-‐DOMESTIC RATE)

•  Liability -‐ OccupaIon -‐ Makro ProperIes Ltd v Nuneaton & Bedworth BC (2012)

•  Liability -‐ Unoccupied Rate -‐ Porter (VO) v Trustees of Gladman SIPPS (2011) -‐ PrudenIal Assurance Company Ltd. v A ValuaIon Officer (2011) -‐ Friends Life Company Ltd v Alexander (VO) and HunIngdonshire DC (2012) -‐ Cosmopolitan Bellshill and Another v North Lanarkshire C (2012) -‐ Moffea v Commissioner of ValuaIon for Northern Ireland (2012) -‐ English CiIes Fund (General Partners) Ltd & Standard Life Assurance Ltd v Grace (VO) and Liverpool CC (2012)


ANALYSIS OF CASES (NON-‐DOMESTIC RATE)

•  Reliefs -‐ ChariIes, Kindred OrganisaIons & CASSC’s -‐ R (On the applicaIon of AugusIne Housing Trust) v Grays Magistrate’s Court (2012) -‐ Preston CC v Oyston Angel Charity (2012) -‐ Kenya Aid Programme v Sheffield CC (2012)

•  Recovery -‐ Tower Hamlets LBC v Rahman (2012)


COUNCIL TAX (VALUATION)

R (On the applicaIon of a LisIng Officer) v

Callear

16th November 2012

High Court (Queen’s Bench Division) (His Hon Judge Shaun Spencer QC)

Reference

This was an appeal by a lisIng officer from a decision of the ValuaIon Tribunal for England dated 1st March 2012 to delete Flat 4, 7 Vernon Avenue,

Huddersfield from the valuaIon list


R (On the applicaIon of a LisIng Officer) v

Callear

•  LegislaIon -‐ SecIon 3 Local Government Finance Act 1992 -‐ Council Tax Chargeable Dwellings Order 1992 (S.I.1992/549)

•  Key Facts -‐ The valuaIon tribunal decided that premises with an area of 30 sm containing faciliIes for sleeping, eaIng, cooking and showering (but with a WC and laundry shared with other similar premises in the same building) did not form a dwelling

-‐ It was argued by the lisIng officer that this conclusion was wrong and it was a self contained dwelling

•  Decision -‐ The appeal by the lisIng officer was allowed -‐ It was held the valuaIon tribunal should have addressed first the quesIon of whether the premises consItuted a ‘dwelling’ and that quesIon was clearly not addressed

and the conclusion that the premises did not amount to a self-‐contained unit was an unreasonable one


COUNCIL TAX (LIABILITY)

MacAaram v

Camden LBC

2nd April 2012

High Court (Queen’s Bench Division) (Judge Robinson)

Reference

This was an appeal to the High Court from a decision of the ValuaIon Tribunal for England that the leasehold owner was liable for council tax for a period From the 5th June 2007 to 9th November 2008 on Flat 3, 32 Croldown

Road, London, W5


MacAaram v

Camden LBC •  LegislaIon

-‐ SecIon 6 Local Government Finance Act 1992 •  Key Facts

-‐ The appellant leased the property to the council for three years from 23rd June 2013 who then failed to give up possession; rent finally ceasing in January 2007 and the keys were returned on 5th June 2007

-‐ Whilst the appellant accepted liability from the 10th November 2008, it disputed the fact it was liable from the 5th June 2007 to 9th November 2008

-‐ The valuaIon tribunal concluded that aler the lease expired, a periodic monthly tenancy arose by implicaIon from the payment and acceptance of rent and that tenancy was a leasehold tenancy; however it was not granted for a term of six months or more and therefore not a material interest

•  Decision -‐ The appeal by the appellant was dismissed -‐ It was held the valuaIon tribunal made no error in law in that the tenant holding over on a monthly tenancy aler the expiry of a fixed term did not have a material interest


COUNCIL TAX (RELIEFS -‐ EXEMPTION)

Edem v

Basingstoke & Deane BC

23rd August 2012

High Court (Queen’s Bench Division) (HHJ Seys Llewellyn QC)

Reference

This was an appeal to the High Court from a decision of the ValuaIon Tribunal for England that a dwelling at 16 Chantry Mews, Basingstoke, was not

exempt under class A


Edem v

Basingstoke & Deane BC (2012) •  LegislaIon

-‐ SecIon 4 Local Government Finance Act 1992 -‐ Council Tax (Exempt Dwellings) Order 1992 (S.I.1992/558)

•  Key Facts -‐ The appellant had rented out the property unIl March 2010 when the tenants of some four years chose to leave -‐ It was accepted the property was not in good repair and it was recommended to the appellant that work need to be carried out before it was let again -‐ The appellant lived elsewhere and contented that a class A exempIon should be awarded; not just a class C exempIon

-‐ The valuaIon tribunal concluded that no class A exempIon was applicable as the property was not uninhabitable whilst any works were carried out

•  Decision -‐ The appeal was dismissed -‐ It was held the valuaIon tribunal was correct in determining there should be no difference between owner occupied and tenanted property when determining an exempIon under class A


COUNCIL TAX (RELIEFS – EXEMPTIONS & DISCOUNTS)

David James Vaughan &

South Oxfordshire DC

4th July 2012

InvesIgatory Powers Tribunal (Mr JusIce Burton, Mr Charles Flint QC and Hon Christopher Gardner QC)

Reference

This was an issue on whether inspecIons of a property carried out by the respondent, to ascertain whether council tax exempIons or discounts have been property claimed on 70 Greys Road, Henley consItuted or intrusive

surveillance within the meaning of the regulaIon of InvesIgatory Powers Act 2000


David James Vaughan &

South Oxfordshire DC

•  LegislaIon -‐ RegulaIon of InvesIgatory Powers Act 2000 (RIPA) -‐ Council Tax (AdministraIon & Enforcement) RegulaIons 1992 (S.I.1992/613)

•  Key Facts -‐ The appellant made a complaint to the Tribunal about surveillance carried out on a property where he had claimed a 25% discount

-‐ Between 25th August 2009 and 31st January 2012, 17 separate visits had been undertaken; one of which involved climbing a ladder at the rear of the property to take pictures -‐ The appellant claimed the property was occupied although the valuaIon tribunal had twice dismissed appeals

•  Decision -‐ The appeal was dismissed -‐ It was held that having reference to the facts of the case and legislaIon, no covert surveillance had been conducted by the council and as a consequence, it was not necessary to decide whether it could have been consItuted intrusive or directed surveillance


NON-‐DOMESTIC RATE (LIABILITY -‐ OCCUPATION)

Makro ProperIes Ltd v

Nuneaton & Bedworth BC

28th June 2012

High Court (Queen’s Bench Division) (His Hon Judge Jarman QC)

Reference

This was an appeal to the High Court from a decision of a Magistrates’ Court issuing liability orders against Makro ProperIes Ltd. In respect of

unoccupied property rates for the raIng years 2009 to 2011 on a retail warehouse at Silverstone Drive, Rowley’s Green, Coventry together with

costs and a liability order for costs against Makro Self Service Wholesalers Ltd


Makro ProperIes Ltd v

Nuneaton & Bedworth BC

•  LegislaIon -‐ SecIons 43 to 46 Local Government Finance Act 1988 -‐ Non-‐DomesIc RaIng (Unoccupied Property) (England) RegulaIons 2008 (S.I.2008/386)

•  Key Facts -‐ The Magistrates’ Court issued liability orders in respect of unoccupied property rates -‐ It was argued by the ratepayer that pallets of paperwork (occupying 0.2%) was sufficient to consItute occupaIon

•  Decision -‐ The appeal by the appellant must be allowed -‐ OccupaIon was a maaer of law and the use (and intenIon) must be taken in to consideraIon (however slight any occupaIon may be) with the acceptance that ratepayers will organise their affairs to avoid paying the rates


NON-‐DOMESTIC RATE (LIABILITY -‐ UNOCCUPIED RATE)

Porter (VO) v

Trustees of Gladman SIPPS

20th May 2011

Upper Tribunal (Lands Chamber) (George Bartlea QC, President, and N J Rose FRICS)

Reference

This was an appeal to the Upper Tribunal (Lands Chamber) against a decision of Gloucestershire ValuaIon Tribunal that office units in a newly

erected office building did not saIsfy the requirements for entry in the raIng list as hereditaments


Porter (VO) v

Trustees of Gladman SIPPS

•  LegislaIon -‐ SecIon 42, SecIon 45 and Schedule 4A Local Government Finance Act 1988

•  Key Facts -‐ Before any compleIon noIce was served, the valuaIon officer entered a number of units in the local raIng list -‐ The material day was set at the 1st May 2006 and all were unoccupied -‐ ValuaIon officer argued that where there is no compleIon noIce, it was necessary to consider whether the building was pracIcally complete and ready for occupaIon -‐ The ValuaIon Tribunal did not accept this argument

•  Decision -‐ Appeal by the valuaIon officer was dismissed -‐ ‘Nearly’ … or ‘very very nearly’ ready for occupaIon not sufficient for entering a hereditament in the local raIng list where no compleIon noIce issued -‐ Obiter Dicta


NON-‐DOMESTIC RATE (LIABILITY – UNOCCUPIED RATE)

PrudenIal Assurance Company Ltd. v

A ValuaIon Officer

21st June 2011

ValuaIon Tribunal for England (Professor G J Zellick QC, President & Mr MarIn Young (Vice-‐President)

Reference

This was an appeal to the ValuaIon Tribunal for England against a decision of the valuaIon officer refusing to remove from the 2005 raIng list relaIng to

properIes at 3 and 4, The Heights, Brooklands Road, Weybridge


PrudenIal Assurance Company Ltd. v

A ValuaIon Officer •  LegislaIon

-‐ SecIon 45 and Schedule 4A Local Government Finance Act 1988 •  Key Facts -‐ The billing authority issued a compleIon noIce on the 24th February 2004 addressed to the developer; not the owner -‐ An agreement was reached between the owner and the billing authority in May 2005 -‐ The appellant (the owner) argued that the compleIon noIce was invalid as it was not served on the owner and any subsequent agreement was immaterial •  Decision -‐ Appeal by the owner was dismissed -‐ The valuaIon officer was enItled, indeed bound, to enter the properIes in the list in

consequence of and in accordance with the agreement



Friends Life Company Ltd v

Alexander (VO) and HunIngdonshire DC

25th June 2012

ValuaIon Tribunal for England (Professor G J Zellick QC, President)

Reference

This was an appeal to the ValuaIon Tribunal for England from a decision of the valuaIon officer refusing to alter the 2010 raIng list in response to a

proposal made by the appellants to delete a hereditament as it was not complete and no compleIon noIce served on the correct owner


Friends Life Company Ltd v

Alexander (VO) and HunIngdonshire DC

•  LegislaIon -‐ SecIon 45 and Schedule 4A Local Government Finance Act 1988 •  Key Facts -‐ The billing authority served a compleIon noIce in April 2007 on Miller Developments Ltd

who were the developers and original owners -‐ Ownership has subsequently passed to Friends Life in July 2006 (then named AXA Sun Life

PLC) who were the appellants -‐ The appellant argued the compleIon noIce was defecIve and the hereditament should be

removed from the local raIng list •  Decision -‐ Appeal by the new owner was allowed -‐ The compleIon noIce was not served on the owner (and therefore invalid)

which resulted in the hereditament being removed from the local raIng list



Cosmopolitan Bellshill Ltd and Another v

North Lanarkshire C

31st August 2012

Outer House, Court of Session (Lord Hodge)

Reference

This was an appeal to the Outer House, Court of Session seeking repayment of Unoccupied Rate amounIng to £289,329.50 on the

grounds the ratepayer had been charged (and paid) for five years from 2006/07 on a new hereditament entered in the valuaIon roll where no

compleIon noIce was served


Cosmopolitan Bellshill Ltd and Another v

North Lanarkshire C

•  LegislaIon -‐ SecIon 25 Local Government (Scotland) Act 1966 •  Key Facts -‐ The assessor entered premises in the valuaIon roll as an unoccupied office from 1st

December 2006 with an RV of £330,000 as it was saIsfied the office was complete and capable of beneficial occupaIon

-‐ No compleIon noIce was served by the authority and no appeal was made against the entry in the valuaIon roll

-‐ Demand noIces were issued, the rate was paid and the ratepayer subsequently requested a refund as no compleIon noIce was served

•  Decision -‐ ApplicaIon was dismissed -‐ There was no requirement to serve a compleIon noIce; the 1966 Act being

more akin to the Local Government Finance Act 1988 than the General Rate

Act 1967 not be overlooked



Moffea v

Commissioner of ValuaIon for Northern Ireland

25th September 2012

Northern Ireland ValuaIon Tribunal (J V Leonard (President), T Hopkins FRICS and A MarIn)

Reference

This was an appeal by wriaen representaIons to the Northern Ireland ValuaIon Tribunal from a decision of the Commissioner issued on the 28th May 2012 dismissing the appellant’s appeal against a compleIon noIce issued on the

22nd March 2012 staIng a compleIon day of the 7th June 2012 in respect of 78 Ballagh Road, Beagh, Fivemiletown, County Tyrone


Moffea v

Commissioner of ValuaIon for Northern Ireland

•  LegislaIon -‐ Rates (Northern Ireland) Order 1977

•  Key Facts -‐ A compleIon noIce was served on the 22nd March 2012 staIng a compleIon date of 7th June 2012 -‐ An appeal was lodged with the commissioner on the 2nd April 2012 staIng the property was not complete and would be completed when the owner had available money to spend as his only source of income was from employment

•  Decision -‐ The appeal by the owner was dismissed -‐ Personal and financial circumstances were held not to be a reason for defending the service of a compleIon noIce; the intenIon of the legislaIon could not be ignored (i.e. to prevent an owner from not compleIng the property)



English CiIes Fund (General Partners) Ltd & Standard Life Assurance Ltd v

Grace (VO) and Liverpool CC

5th February 2013

ValuaIon Tribunal for England (Professor G J Zellick QC, President)

Reference

These were appeals to the ValuaIon Tribunal for England against compleIons noIces served on 5 St. Paul’s Square (August 2008) and 4 St. Paul’s Square in (March 2012) as either the correct owner was not named and / or the service of separate noIces in respect of each floor

was unlawful


English CiIes Fund (General Partners) Ltd & Standard Life Assurance Ltd v Grace (VO) and Liverpool CC

•  LegislaIon -‐ SecIon 45 and Schedule 4A Local Government Finance Act 1988

•  Key Facts -‐ Two compleIon noIces were served by the billing authority:-‐ * No. 5: it was accepted the correct owner and address had not been quoted and that mulIple compleIon noIces had been issued * No. 4: it was accepted the owner and address were correct but that mulIple noIces had been issued

•  Decision -‐ The appeals were allowed:-‐ * No. 5: The correct owner and address had to be quoted and as a result, the compleIon noIce was deemed invalid

* No.’s 4 & 5: Service of mulIple noIces where the purpose was to fix a period that was less than the fair and reasonable period for doing the works that needed to be done was held unlawful -‐ The moral of this tale


NON-‐DOMESTIC RATE (RELIEFS -‐ CHARITIES, KINDRED ORGANISATIONS & CASC’S)

R (On the applicaIon of AugusIne Housing Trust) v

Grays Magistrates’ Court

1st February 2012

Court of Appeal (Carnwath LJ)

Reference

This was a renewed applicaIon for permission to apply for judicial review of decisions of a Magistrates’ Court issuing liability orders for non-‐payment of

Non-‐DomesIc Rate on Suite A and the vacant first floor on first floor of Grover House, Grover Walk, Thurrock


R (On the applicaIon of AugusIne Housing Trust) v

Gray’s Magistrates’ Court

•  LegislaIon -‐ SecIons 43 and 45 Local Government Finance Act 1988

•  Key Facts -‐ Two liability orders (separate addresses … one occupied and one unoccupied) were issued against the defendants without any charitable relief awarded -‐ The claimant objected to being asked to provide accounts; the billing authority should rely on the fact they were a registered charity

•  Decision -‐ ApplicaIon by the ratepayer for judicial review was again refused -‐ The billing authority were enItled to ask for any relevant informaIon (including accounts) that they believe will help them in reaching a decision

(Note: Case stated v judicial review)



Preston CC V

Oyston Angel Charity

19th July 2012

High Court (Queen’s Bench Division) (Hickinboaom J)

Reference

This was an appeal to the High Court from a decision of a Magistrate’s Court refusing the council’s applicaIon for liability orders against the respondent for unpaid rates on unoccupied units at Oyston Mill,

Stand Road, Preston


Preston CC V

Oyston Angel Charity


•  Key Facts -‐ Oyston Angel Charity were held liable for the unoccupied rate as “the person enItled to possession” -‐ The Magistrate’s Court concluded that it did appear that the respondent would next occupy and use the property

•  Decision -‐ The High Court dismissed the appeal from the billing authority -‐ The wording “it appears that when next in use the hereditament will be wholly or mainly used for charitable purposes (whether of that charity or of that and other chari7es) “ were unambiguously clear and meant “used for charitable objects of the owning charity, accompanied or not by other charitable purposes”, and the requirement

for it to appear addiIonally that when the property was next used, the owning charity would occupy and use the property could not be read in



Kenya Aid Programme v

Sheffield CC

22nd January 2013

High Court (Queen’s Bench Division) (Treacy LJ and King J)

Reference

This was an appeal to the High Court from a decision of a Magistrate’s Court to issue liability orders for non-‐domesIc rate in respect of units 1 and 2

Europa Way, Sheffield for the period 9th September 2010 to 31st March 2012 in the sum of £863,756.19 and £750,810.52 respecIvely

and an applicaIon for judicial review on the same grounds


Kenya Aid Programme v

Sheffield CC


•  Key Facts -‐ Two liability orders were issued against the ratepayer on two separate properIes -‐ The Magistrate’s Court had concluded that on the evidence available, the properIes were not wholly or mainly used for charitable purposes

•  Decision -‐ The High Court allowed the appeal but refused the applicaIon for judicial review -‐ Whilst the Magistrate’s Court was enItled to look at the whole evidence and decide on on a broad basis whether the premises were being used wholly or mainly for charitable purposes, the court wrongly took account of other factors or did not analyse them sufficiently (i.e. the efficiency or otherwise of the furniture storage, the

necessity for the ratepayer to occupy both premises, the mutual advantages to the ratepayer and the landlord and the significance of revenue generated for the ratepayer) -‐ Judicial review was not considered to be the appropriate remedy


NON-‐DOMESTIC RATE (RECOVERY)

Tower Hamlets LBC V

Rahman

16th October 2012

High Court (Queen’s Bench Division) (Kenneth Parker J)

Reference

This was a case stated on appeal from a decision of a Magistrates’ Court to re-‐open and then set aside liability orders made against the respondent

for non payment of non-‐domesIc rate on two premises in London


Tower Hamlets LBC V

Rahman •  LegislaIon

-‐ Schedule 9 Local Government Finance Act 1988 -‐ Non-‐DomesIc Rate (CollecIon and Enforcement) RegulaIons 1989 (S.I.1989/1058)

•  Key Facts -‐ The Magistrates’ Court reopened and set aside three liability orders made in January and November 2008 for non-‐payment of non-‐domesIc rate on two premises in London

-‐ The reasons given were:-‐ * There was a dispute over liability (why would he be here otherwise) * An error had been made * The ratepayer had acted promptly

•  Decision -‐ The appeal by the billing authority must be allowed -‐ The magistrates had found there existed a dispute as to liability for the rates but failed to address whether it was arguable and failed to idenIfy clearly a procedural error which led to the making of the liability orders


CONTACT DETAILS

Gary L Watson IRRV (Hons) (Deputy Chief ExecuIve IRRV) Telephone 0207-‐691-‐8988 E-‐Mail [email protected]

LOCAL%TAXATION%CASE%LAW% -% ANUPDATE% … · Institute of Revenues Rating and Valuation enquiries...

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