Genevieve Macattram v London Borough of Camden
| Jurisdiction | England & Wales |
| Judge | THE DEPUTY JUDGE |
| Judgment Date | 02 April 2012 |
| Neutral Citation | [2012] EWHC 1033 (Admin) |
| Docket Number | CO/5055/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 April 2012 |
[2012] EWHC 1033 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Her Honour Judge Robinson
(Sitting as a Deputy High Court Judge)
CO/5055/2010
The Appellant appeared in person
The Respondent did not attend and was not represented
(As Approved)
This is a statutory appeal on a question of law from a decision of the Valuation Tribunal ("the Tribunal") brought under Regulation 51 of the Valuation and Charge Tribunals Regulations 1989. The decision in issue was made on 30 March 2010 and related to a property at Flat 3, 32 Croftdown Road London NW5 1EN ("the Property"), of which the appellant is the leasehold owner.
The appellant appealed to the tribunal against assessment for council tax for the period 5 June 2007 to 9 November 2008 on the basis that another was liable for the tax during that period and not her, namely the London Borough of Camden ("Camden"). The appellant has appeared in person on this appeal and put this case very well, with the benefit of a helpful skeleton argument. The respondent put in written submissions but did not appear.
It was the appellant's case that during the period in question Camden was the tenant of the property and liable to pay council tax. The appellant leased the Property to Camden for 3 years from 23 June 2003. On expiry of the lease, Camden failed to give up possession. It had been using the Property to house homeless persons and the occupier had not moved out. Several months later, the precise date does not matter, the occupier moved out and henceforth the Property remained vacant. However, Camden refused to give up vacant possession after the occupier moved out and it continued to pay the rent payable under the lease.
On 31 October 2006, Camden produced a schedule of dilapidations and a meeting was arranged at the Property on 23 November 2006 for the appellant to inspect it with her surveyor. It appeared to the appellant that the Property was in a much worse state than Camden's schedule indicated, and in July 2007 she served her own schedule of dilapidations. There were fruitless negotiations and, as I understand it, the issue of damages for dilapidations has not yet been resolved.
In the meantime, Camden ceased paying rent in January 2007, and on 5 June 2011 they said that they wrote to the appellant by recorded delivery post, returning the keys and indicating that the tenancy was at an end. On that date they regarded their liability to pay council tax in respect of the Property to be at an end. The appellant accepted liability for council tax from 10 November 2008 but said between 5 June 2007 and 9 November 2008 Camden remained tenants of the Property and liable to pay council tax.
Liability to pay council tax is to be determined having regard to the provisions of section 6 of the Local Government Finance Act 1992 ("the 1992 Act"). So far as material, these provide 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 or 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.
…
(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;
…
(6)In this section—…
'material interest' means a freehold interest or a leasehold interest which was granted for a term of six months or more."
The Tribunal dealt with a number of matters in its decision but so far as section 6 of the 1992 Act is concerned, the Tribunal held:
After the lease expired a periodic monthly tenancy arose by implication from the payment and acceptance of rent.
That was a "leasehold interest" for the purposes of section 6(6) of the 1992 Act.
However, it was not a leasehold interest which was granted for a term of 6 months or more and was therefore not a "material interest" for the purposes of that provision.
If that was wrong and it was a material interest, the returning of the keys amounted to a surrender by operation of law.
The appellant's grounds of appeal raise eight points, which I summarise as follows:
The Tribunal erred in law when concluding that (i) Camden's monthly periodic tenancy was not a material interest in the Property; and (ii) there was a surrender by operation of law when Camden returned the keys on 5 June 2007.
The hearing was unfair to the appellant because (i) the Chairman of the Tribunal insisted that the appellant alter part of her case; (ii) the Tribunal introduced material that was not part of her case or Camden's case; and (iii) the Tribunal prevented the appellant from making submissions on what I will refer to as the jurisdiction issue.
The Tribunal's reasons were flawed because (i) they did not accurately reflect the evidence; and (ii) the reasons given in paragraph 61 were inadequate.
I deal with those grounds in turn. In my judgment, the first ground deals with the critical issues on which this appeal turns. The appellant submits that the Tribunal fell into error when deciding that Camden did not have a material interest in the property during the relevant period for a number of reasons. Before addressing those submissions, I should set out the Tribunal's conclusions on that issue:
"51. In considering ownership for the purposes of Section 6 of the Act, liability therefore falls to be determined under Section 6(2)(f) of the 1992 Act: who was the owner of the flat within the meaning of that sub-section? This is defined by further sub-sections of Section 6, which so far as material provide:
'(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.
(6) In this section-
…
"material interest means a freehold
interest or a leasehold interest which was granted for a term of six months or more;
…
… '
"52. The Panel considers that the ultimate issue to be decided is whether the BA was a person having a 'material interest' from 5 June 2007. The BA accepts that it held over after the term of the lease expired until that date and concedes that it therefore had that material interest since the original leasehold interest had been granted for a term of six months or more. Ms MacAttram has disputed this in the past on the basis that she did not give her consent but she did accept rent at the rate due under the expired lease until January 2007.
"53. From paragraph 44 of A2, Ms MacAttram argues to the conclusion at paragraph 51:
'The lease entered into by the parties on 23 June 2003 came to an end on 22 June 2006
… however another Lease on precisely the
same terms as the original came into
operation by law, it was the later
agreement between the parties that remained
in operation during the operative period'.
"54. The panel understands the law to be that where a tenant holds over after the expiry of the lease and pays, or expressly agrees to pay, any subsequent rent, at the previous yearly rate, a new tenancy may be created upon the same terms and conditions as those contained in the expired lease, so far as applicable to and not inconsistent with a yearly tenancy: see the judgement of Maugham J in Ladies Hosiery and Underwear v Parker [1930] 1 Ch 304. However, the rent under the expired lease in issue is, by schedule 1 part 2 payable monthly in advance at a weekly rent of £260 per week. Therefore, only a weekly or monthly tenancy should be presumed: Adler v Blackman [1953] 1 QB 146.
"55. Those two cases, as opposed to the principle they decide, were not referred to or considered during the hearing. Accordingly, on 18 February 2010, the Panel directed that the reports of those cases be sent to the parties with an invitation to make any submissions in writing. In response, the Tribunal has received and considered:
(a) A letter dated 4 March 2010 on behalf of the Head of Legal Services of the BA
(b) Two emails of 5 March 2010 from Ms MacAttram with attachments.
"56. The BA submits that a tenancy at will, not a new weekly periodic tenancy, arose after 5 June 2007.
"57. Ms MacAttram submits that the correct legal view is that the parties...
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