Bennett v Copeland Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,Lord Justice Rix,LORD JUSTICE RIX,LORD JUSTICE LONGMORE |
| Judgment Date | 14 May 2004 |
| Neutral Citation | [2004] EWCA Civ 672 |
| Date | 14 May 2004 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C1/2003/2216 |
[2004] EWCA Civ 672
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR MICHAEL SUPPERSTONE QC)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Peter Gibson
Lord Justice Rix
Lord Justice Longmore
C1/2003/2216
MR ANDREW GORE (instructed by Messrs Brignalls Balderston Warren, Stevenage SG1 1BA) appeared on behalf of the Appellant
MR PETER OLDHAM (instructed by Copeland Borough Council, PO Box 19, The Council Offices, Catherine Street, Whitehaven, Cumbria CA28 7NY) appeared on behalf of the Respondent
I will ask Lord Justice Rix to give the first judgment.
This is the appeal of Mr George Bennett from the decision of Mr Michael Supperstone QC, sitting as a deputy High Court judge. The issue before the judge was whether the decision of the Bedfordshire Valuation Tribunal of 2nd July 2002, that Mr Bennett had his sole or main residence at a property which he owned, known as Woodville Cottage, Beck Green, Distington, Cumbria, for the purposes of section 6(2) (a) of the Local Government Finance Act 1992 was correct.
The 1992 Act sets out the conditions under which persons were liable to pay council tax in respect of any chargeable dwelling. Section 6 provides as follows:
"(1) The person who is liable to pay council tax in respect of any chargeable dwelling and any day is the person who falls within the first paragraph of subsection (2) below to apply, taking paragraph (a) of that subsection first, paragraph (b) next, and so on.
(2) A person falls within this subsection in relation to any chargeable dwelling and any day if, on that day—
(a) he is a resident of the dwelling and has a freehold interest in the whole or any part of it;
(b) he is such a resident and has a leasehold interest in the whole or any part of the dwelling which is not inferior to another such interest held by another such resident;
(c) he is both such a resident and a statutory, secure or introductory tenant of the whole or any part of the dwelling;
(d) he is such a resident and has a contractual licence to occupy the whole or any part of the dwelling;
(e) he is such a resident; or
(f) he is the owner of the dwelling.
(3) Where, in relation to any chargeable dwelling and any day, two or more persons fall within the first paragraph of subsection (2) above to apply, they shall each be jointly and severally liable to pay the council tax in respect of the dwelling and that day.
(4)…
(5) In this Part, unless the context otherwise requires—
'owner', in relation to any dwelling, means the person as regards whom the following conditions are fulfilled—
(a) he has a material interest in the whole or any part of the dwelling; and
(b) at least part of the dwelling or, as the case may be, of the part concerned is not subject to a material interest inferior to his interest;
'resident', in relation to any dwelling, means an individual who has attained the age of 18 years and has his sole or main residence in the dwelling."
Section 11 of the 1992 Act makes provision for discounts in respect of the liability to pay council tax in respect of any chargeable dwelling, and by subsection (2) a discount effectively equal to 50 per cent is permitted where either:
"(a) there is no resident of the dwelling; or
(b) there are one or more residents of the dwelling and each of them falls to be disregarded for the purposes of discount."
It was Mr Bennett's case before the Tribunal in his challenge to his liability to pay council tax on the property that:
"… I do not live at the property, I live in Bedfordshire, and the house was rented out to tenants and by law they are responsible for paying the council tax."
As for those tenants, the Tribunal found that because there was no formal lease they did not have exclusive possession of the property. That finding is still challenged on this appeal, but, for reasons which will become obvious in this judgment, I do not believe that it is necessary to reach that issue at all.
The Tribunal made the following findings in respect to Mr Bennett's case that he did not live at the property in Cumbria. It said:
"In the subject case, the Tribunal noted that Mr Bennett resided in various places depending on his work commitments. These varied from staying with friends and relatives to B&B's and compounds on the work sites. Although it was acknowledged that Mr Bennett rarely returned to the appeal property, he did retain a legal freehold interest and was able to return, should he wish to do so, at any time.
With regard to the time spent at the subject property, the Tribunal accepted that Mr Bennett made only occasional visits, probably no more than once per month, to collect post and check the condition of the property etc.
…
It is clear from the evidence presented that Mr Bennett lives a fairly 'nomadic life' staying with friends and relatives, on work sites and in B&B's often only for a few days at a time. From this, it was found that no other property could be considered to be Mr Bennett's sole or main residence. Therefore, the Tribunal concluded that the subject property must be held to be the sole or main residence of Mr Bennett. It is the only property where he has a financial interest, it is the only property where he has a right to return, it is the property to which he could return were it not for his work commitments. It is also the property to which (in the fullness of time) he intends to retire to."
The Tribunal had previously referred to a number of decisions which had been put before them and to which I will make further reference in this judgment. Apart from reciting the names of those decisions, the Tribunal did not enter into their facts or holdings. But it did say this with regard to them:
"The decisions of the High Court quoted in evidence make it clear that it is not necessary to reside in the subject property for it to be treated as your sole or main residence, it is the interest in and other connections with the property that count."
The Tribunal's decision was appealed by Mr Bennett to the judge, who upheld the Tribunal's decision. The judgment recited Mr Bennett's case on appeal as follows (at paragraph 3) :
"In summary the case for the Appellant is that he bought the property for investment purposes. He did not live there. The property was rented out to tenants. He lived in another property at 24 Moor Lane, Bedford and that was his sole or main residence."
The judge, having recited relevant factual findings made by the Tribunal covering the same passages as I have already set out, turned to what he described as the four leading cases relied upon before him. Those cases were Frost (IT) v Feltham [1981] 1 WLR 452; Bradford Metropolitan City Council v Anderton [1991] 89 LGR 681; R (Navabi) v Chester Le Street District Council [2001] EWHC Admin 796; and Ward v Kingston upon Hull City Council [1993] RA 71. On the basis of those cases, the judge reasoned as follows (at paragraph 13) :
"Ms Patry, on behalf of the Appellant, and Mr Bennett himself submitted that the principal distinguishing feature between the authorities referred to and the present case was that he had never lived at the property at all, whereas in all other cases the person had lived there. It is correct that the Tribunal made no such finding of fact and accordingly there is this distinguishing feature on the facts between the present case and the authorities referred to. However in my judgment the fact that the Appellant did not live at the property is just one factor that must be taken into account. Other factors, which result in findings of fact made by the Tribunal, which are of particular relevance in this connection, are that the Appellant had a legal freehold in the property; there is no other property in which he had a financial interest; it is the only property where he has a right to return; he visited the property (albeit occasionally) probably no more than once per month, to collect post and check the condition of the property etc; it is the property to which he could return were it not for his work commitments and it was the property to which he intended to retire to. In my judgment all these factors are relevant and are entitled to consideration together with the fact that the Appellant did not live at the property when deciding whether the property was his sole or main residence."
In that paragraph the judge clearly accepted the submission that the proper way to read the findings of fact of the Tribunal was that, despite Mr Bennett's occasional visits to the property as set out in the Tribunal's findings, he had never lived at the property at all and did not live there.
In these circumstances, and having regard to those other factors which the judge listed in that paragraph and having dismissed Mr Bennett's attempt to show that his tenants had exclusive possession of the premises, the judge briefly concluded (at paragraph 19) that Mr Bennett had failed to show any error of law in the decision of the Tribunal and continued:
"The Tribunal asked itself the correct question, adopted the proper approach to the issue, referred to the relevant authorities and made findings of fact that are not susceptible to challenge on grounds of perversity."
Since that decision on appeal by the learned deputy judge, and indeed since permission to appeal was given in this case, an important new authority has emerged from this court, R (Williams) v Horsham...
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Gethin Parry v Derbyshire Dales District Council
...if it is the property at which he mainly resides. See too the judgment of the Court of Appeal in Bennett v Copeland Borough Council [2004] EWCA Civ 672, in which Rix LJ said, at [33]: "… actual residence is critical to an understanding of the relevant statutory provisions." 14 That there mu......