Chilton-Merryweather (Listing Officer) v Hunt
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 18 December 2007 |
| Neutral Citation | [2007] EWHC 3190 (Admin) |
| Date | 18 December 2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7559/2006 |
[2007] EWHC 3190 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
MR JUSTICE COLLINS
CO/7559/2006
Mr Timothy Mould (instructed by Solicitor for HM Revenue & Customs) appeared on behalf of the Appellant
The Defendants did not attend and were not represented
(Approved by the Court)
This is an appeal by the Listing Officer against four decisions of the Manchester North Valuation Tribunal decided on 16th August 2006. The appeals are made pursuant to Regulation 32 of the Council Tax (Alteration of Lists and Appeals) Regulations 1993, SI1993 No 290. Those Regulations, putting it broadly (and I do not think it is necessary for this purpose to look at the detailed provisions), permit an individual council taxpayer to make a proposal that his premises should be put into a lower banding for the purpose of payment of the tax, and he has to establish, in order to achieve that, that there has been a material change. I will shortly come to what that precisely involves because it is central to this appeal.
If he fails to persuade the Listing Officer that he is correct, then he has a right of appeal to the Valuation Tribunal and whatever decision the Valuation Tribunal makes is appealable to this court but only on a point of law. The appeal may be brought either by the Listing Officer or by any of the individuals who sought to have their banding varied.
There are, as is well known by all who have to pay council tax, a number of different bands which depend upon the overall value of the dwelling house in question, and they run from A to H.
The relevant value was laid down on 1st April 1993, and as yet there has been no general revision of the bands. Accordingly, any changes have depended upon an individual being able to show that the provisions of the Act enabling a change have come into effect. It can work the other way round in certain circumstances because changes may result in the Listing Officer being able to say that there has, by whatever change has taken place, been an increase in value so that it should fall into a higher banding.
The relevant section of the Local Government Finance Act 1992, which introduced the council tax following the demise of the so-called poll tax which was not universally popular, to put it mildly, set out for domestic premises the new council tax system. As I say, the lists are based at the moment upon the situation that existed on 1st April 1993. There have been indications by the Government that there is to be a general revision but that has not yet taken place, at least not in England although I gather that the Welsh are ahead of us in that respect.
The relevant section which deals with alteration of the lists is section 24. That provides by subsection (1):
“The Secretary of State may make regulations about the alteration by listing officers of valuation lists which have been compiled under this Chapter…”
Then it applies the following subsections of section 24. Section 24(4) provides, so far as material for the purposes of this appeal:
“The regulations may include provision that no alteration shall be made of a valuation band shown in the list as applicable to any dwelling unless -
(a) since the valuation band was first shown in the list as applicable to the dwelling —…
(ii) there has been a material reduction in the value of the dwelling.”
In order to decide whether there has been a material reduction one has to go to subsection (10), which provides:
“… 'material reduction', in relation to the value of a dwelling, means any reduction which is caused (in whole or in part) by the demolition of any part of the dwelling, any change in the physical state of the dwelling's locality or any adaptation of the dwelling to make it suitable for use by a physically disabled person.”
The circumstances that led to the applications being made by the council taxpayers were these. All four live close to the M61 motorway. That motorway existed and was in use on 1st April 1993. But what the individual taxpayers asserted was that there has been a considerable increase in the volume of traffic using the motorway so that the noise and fumes create a much greater disturbance than was the case in 1993, and so there has been an impact on the value of their dwellings which has resulted in their decrease to such an extent as would justify the change of the band to a lower band than that in which they are now placed.
They have produced evidence that there has indeed been a considerable increase in the noise levels. There were decibel and pollution levels measured which showed, so far as the decibel levels were concerned, that they were considerably above those which would be regarded as normally tolerable. They also had evidence that three similar properties had failed to achieve the prices that had been asked for but there had been considerable reductions in the asking price and that was due to the proximity of the motorway.
The Tribunal decided that the increase in noise and the increase in pollution and the effect that that had had upon the value of the dwellings was capable of falling within the expression “a change in the physical state of the dwellings' locality” and therefore could properly be regarded as the basis for a change of banding, provided that the valuation as a result had indeed changed. Accordingly, they adjourned the hearing of the issue as to whether there had indeed been a change in what the valuation would now be and what band that would mean the various dwellings fell into.
The appeal has been brought on the basis that, as a matter of law, the alleged changes resulting from the increase in noise and pollution are not such as can fall within the expression “change in the physical state of the dwellings' locality” and accordingly the Tribunal erred in law in so finding.
I note that in its decision the Tribunal indicated that what was required from the regulations was that any material reduction in the value of a property must have been caused by a physical change in the state of a dwelling's locality. As I have indicated, from the words of the statute that is not entirely accurate because what is required is a change in the physical state of the dwelling's locality, not a physical change in the state of the locality. Whether that makes any significant difference to the decision I am not sure. But it matters not because what I have to decide is whether the facts which were put forward and accepted by the Tribunal are such as can, as a matter of law, fall within the expression in the Act.
Mr Mould's submission, putting it broadly, is that the expression “change in the physical state”, must mean that there is something done that is visible, there must be some change to something in the locality which creates the effect in question. Thus, the mere increase in traffic levels does not qualify because that is not a change in the physical state of the locality. He accepts that if, for example, a new slip road was constructed in the location and that resulted in greater traffic use, that might come within the expression and that would be because there was a visible effect upon the location in question.
Equally, he would assert that if there were, for example, a change of use in nearby premises which resulted in an increase in noise or pollution of one sort or another that would not qualify unless, in addition do that change of use, there was some adaptation of some sort to the relevant premises.
It all requires, he submits, that something be done that changes a building or a feature in the location in question. Thus the word “physical” in section 24(10) of the Act has a narrower construction than the word itself could if used without any context there. He accepts, for example, that the word “physical” attached, for example, to the word “factor”, as contained in section 1 of the Land Compensation Act 1973, can include such matters as noise, vibration, smell, food, smoke, artificial lighting and discharge onto land.
Effectively, I would suggest that the general approach where the word “physical” is used without any need to narrow it in context is that it is something which has an effect upon the senses of an individual, whether those senses be hearing, feeling, sense of smell or vision. And that, generally, would be, in my view, a proper approach to the construction of the word “physical”.
Mr Mould has drawn my attention to Schedule 6 to the Local Government Finance Act 1988 which deals with non-domestic rating. Paragraph (2) subparagraph (1) of the Schedule provides:
“The ratable value of a non-domestic hereditament … shall be taken to be an amount equal to the rent at which it is estimated the hereditament might reasonably be expected to let from year to year [on three assumptions.”
That of course is the old approach to rating which existed in relation not only tonon-domestic but also domestic before the introduction of the poll tax and later the council tax.
The ratable value by subparagraph (4) was to be determined when there was a question of making an alteration to the list as being the day on which the list came into force. Then subparagraph (6) provide:
“Where the ratable value is determined with a view to making an alteration to a list which has been compiled (whether or not it is still in force) the matters mentioned in sub-paragraph (7) below shall be taken to be as...
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