Josephine Coll (Listing Officer) v Dolores Mooney
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang DBE,Mrs Justice Lang |
| Judgment Date | 15 March 2016 |
| Neutral Citation | [2016] EWHC 485 (Admin) |
| Docket Number | Case No: CO/4473/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 March 2016 |
[2016] EWHC 485 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/4473/2015
Matthew Donmall (instructed by HM Revenue & Customs) for the Appellant
Luke Wilcox (instructed by Streeter Marshall) for the Respondent
Hearing date: 1 March 2016
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is a statutory appeal by the Appellant Listing Officer against the decision of the Valuation Tribunal for England ("VTE") dated 21 August 2015 in which it ordered the Listing Officer to alter the valuation list for the entry in respect of 9 – 11 Ebenezer Road, Hastings, East Sussex TN34 3BS to show one entry for the property, instead of two.
Facts
The property known as no. 9 – 11 Ebenezer Road was constructed in around 1790, in the historic old town of Hastings, in a conservation area. It is Grade II listed. It was built as one dwelling, on three floors. However, at some point in the past, the property was converted into two dwellings.
It was listed as two separate units of property (hereditaments) when the valuation list for council tax was drawn up in 1993. At that date, there was an entry for no. 9 Ebenezer Road, which comprised all the rooms on the lower ground floor (consisting of a kitchen, bathroom, sitting room and dining room) plus two bedrooms on the ground floor, accessed by a staircase from a hallway on the lower ground floor. The entrance to no. 9 was solely from the lower ground floor external door; the internal access was blocked off. The entry for no. 11 Ebenezer Road comprised the remainder of the ground floor (consisting of a kitchen, dining room, bathroom and shower room, with external door and hall) and the first floor (consisting of a sitting room, two bedrooms and a study/bedroom and WC). The two units were in different tax bands: no. 9 was in band B and no. 11 was in band D.
In 2014, the Respondent and her husband (Mr and Mrs Mooney) purchased the entirety of no. 9 – 11 Ebenezer Road, with the intention of converting it back into a single dwelling. They obtained planning permission and listed building consent for a change of use from two dwellings to a single dwelling, together with alterations and extensions. However, there were severe restrictions on the changes they could make to the building because of its status as a listed building. They had hoped to open up the lower ground floor to create a kitchen/dining room but found that there was insufficient space for them to do so, because they were refused permission to remove the existing staircase and to block up the external entrance to the hall in the lower ground floor. Instead, they installed a laundry/utility room on the lower ground floor, in place of the previous kitchen and bathroom, and created a new staircase running from just outside the utility room to just outside the ground floor kitchen, to improve the access between the two rooms. They demolished a small modern extension; installed a new bathroom; and converted the sitting room into a bedroom. The original staircase to the ground floor was retained but the partition wall was removed so that there was open access into the ground floor.
Upon completion of the works, the ground floor comprised a kitchen, a sitting area, dining room, two bedrooms and a shower room, and a hall leading to the main external entrance to the house. The first floor comprised a drawing room, study, bedroom and bathroom with dressing area.
Mrs Mooney applied to the Valuation Office Agency Listing Officer to alter the valuation list to remove the two entries for 9 and 11 Ebenezer Road and to replace them with one entry for the entire property at 9 – 11 Ebenezer Road, to reflect the fact that the property had been restored to one dwelling.
In a decision dated 4 December 2014, later reviewed on 9 March 2015, the Listing Officer removed the two entries for 9 and 11 Ebenezer Road and replaced them with two new entries. One entry was for 9–11 Ebenezer Road, in band D, comprising the ground and first floors. The other entry was for the lower ground floor only (called Lower Ground Floor, 9, Ebenezer Road), in band A. The reason for the decision was that, in the view of the Listing Officer, the lower ground floor was a self-contained unit.
The decision of the VTE
Mrs Mooney appealed to the VTE, which held an oral hearing on 24 July 2015. In its written decision, dated 21 August 2015, it found that the lower ground floor was not a separate unit of accommodation, and allowed the appeal. It held, at Decision ("D") [14] – [17]:
"14. The Panel, having heard and considered the evidence and having been advised on matters of law, concluded that the lower ground floor was not a separate unit of accommodation. In reaching this decision, the Panel disregarded the intentions of the appellants and focussed on the application of the objective 'bricks and mortar' test.
15. In terms of this test, the determination as to whether the lower ground floor was capable of being used as a separate unit of accommodation, turned on the status of the utility room. It was clear that the utility room had the capability of being used for the preparation of food. It was however also the case that the utility room was the laundry room for the whole house and that the room was not therefore available for separate and exclusive use. It followed from this that the utility room did not constitute a room that was part of a separate self-contained unit.
16. In arriving at their decision, the Panel were also mindful of the physical characteristics of the dwelling. The property was a Grade II listed building that had severe restrictions placed upon how it might be re-configured by the appellants. This had a major impact on the layout of the property. The Panel were of the view that the character of the building could not be ignored in applying the 'bricks and mortar' test. In relation to the appeal property, its character was that of a Grade II listing building that could not be adapted for use as conventional living accommodation.
17. Therefore having regard to the legislative definition of 'self-contained unit', case law and considering the physical characterises of the whole of 9–11 Ebenezer Road the Panel were not persuaded that the dwelling contained two separate self-contained units. The Panel concluded that 9–11 Ebenezer Road consisted of one hereditament."
Grounds of appeal
Ground 1: impermissible reliance on actual use.
The Listing Officer submitted that the VTE erred in law at D [15] because it determined that the lower ground floor was not a self-contained unit on the basis that the utility room " was the laundry room for the whole house", thereby impermissibly relying on the use to which that room was actually put, i.e. its use as a laundry.
Before the VTE, the Listing Officer argued that the utility room had a butler sink in it and room for either a microwave or benchtop cooker and so could be classed as a kitchen, and so the lower ground floor had all the ingredients of a self-contained unit (at D [13]). The VTE agreed with the Listing Officer that the utility room " had the capability of being used for the preparation of food" (at D [15]). By agreeing that the utility room could be used as a kitchen, the VTE had effectively found that the objective physical characteristics of the lower ground floor were such as to render it capable of use as separate living accommodation. On the 'bricks and mortar' principle, that was in itself sufficient to determine the question.
Yet the VTE departed from this conclusion because " the utility room was the laundry room for the whole house and the room was not therefore available for separate and exclusive use" D [15]. This was a reference to the actual use that was presently being made of that room, which was an impermissible basis for its decision.
The correct approach was to adopt an objective or "bricks and mortar" approach and consider what had physically been constructed, and whether it was capable of use as separate living accommodation. The manner in which the building was being used by particular occupiers was not relevant.
Ground 2: listed building status
The Listing Officer submitted that the VTE erred in law because it relied upon the fact the building was "a Grade II listing building that could not be adapted for use as conventional living accommodation" (D [16]). The VTE was impermissibly considering as relevant the reason why the building (and its constituent parts) was constructed in that manner. However, the reason was irrelevant. It was the result of the building work — the objective nature of the building — which mattered.
Statutory framework
Under the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009, regulation 43(1), an appeal lies to the High Court on a question of law arising out of a decision or order which is given or made by the VTE on an appeal under the Council Tax Regulations. Sub-section 43(4) provides that the High Court may confirm, vary, set aside, revoke or remit the decision or order, and may make any order the VTE could have made.
Under the Local Government Finance Act 1992, sections 1 and 4, council tax is payable in respect of dwellings (other than exempt dwellings). Listing Officers must...
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Salisbury and Another v Valuation Tribunal of England
...be determinative without considering the other physical aspects of the building. 28 Finally there is Coll (Listing Officer) v Mooney [2016] EWHC 485 (Admin), [2016] RA 125. As with Corkish, this was an appeal by a listing officer. It involved a Grade II listed house which had been built as......