London Borough of Hackney v Messrs A. Mott and D. Fairman
| Jurisdiction | England & Wales |
| Judgment Date | 08 June 1994 |
| Judgment citation (vLex) | [1994] EWHC J0608-4 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1126/93 |
| Date | 08 June 1994 |
[1994] EWHC J0608-4
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Crown Office List
Before: Mr. Justice Auld
CO/1126/93
MR. M. HUMPHRIES (instructed by The Solicitor, London Borough of Hackney) appeared on behalf of the Appellant.
THE RESPONDENTS did not appear and were not represented.
MR.JUSTICE AULD: This is an appeal by the London Borough of Hackney by way of a case stated by Mr. Fingleton, a Metropolitan Stipendiary Magistrate sitting at Thames Magistrates' Court, from his refusal on 9th December 1992 to make a liability order against the respondents under regulation 12 of the Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989, No. 1056, in respect of their failure to pay a non-domestic rate of £12,807.25 for their business premises for the financial year commencing 1st April 1990. The respondents, though duly notified of the appeal, have not appeared.
The facts disclosed by the stated case are as follows. The respondents were the owners and occupiers of business premises known as Mill House, Chapel Yard, Rivington Street, London, EC2, within the rating district of the London Borough of Hackney. The property was of a type which, by virtue of section 41(1) of the Local Government Finance Act 1988, should have been included in the rating list for non-domestic properties from 1st April 1990. Under provisions that I shall mention, it was the responsibility of the valuation officer to compile and notify the Council of that list, and it was for the Council to charge and collect the rate in accordance with the valuation shown and the appropriate national multiplier.
On 1st April 1990 the Council's new rating list under the 1988 Act came into force. Due to an error by the valuation officer, the respondents' property was not included in it. On 25th September 1990 he realised his mistake and altered the list to include the property at a rateable value of £26,807.25, a valuation which, by application of the appropriate multiplier, produced a rate charge for the year of £12,897.25. He duly notified the Council of the alteration, and on 3rd October 1990 it made a corresponding entry in its copy of the list.
By regulation 8(2) of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1990, No. 582, the valuation officer was required to notify the respondents of the alteration within six weeks after making it, so as to give them an opportunity to challenge it, if they wished, under the machinery provided in the regulations. On 12th October 1990 he notified the respondents of the alteration, but in error described it as a deletion of an existing entry rather than the insertion of a new one. No doubt the respondents were pleasantly surprised by the notice. At all events, they did nothing to challenge it.
Due to delays by the Council in establishing and documenting the new system introduced by the 1988 Act, it was not until 29th May 1992 that it first identified the rates for the respondents' property from 1st April 1990 to 31st March 1991 as due and unpaid. Four days later, on 2nd June 1992, it wrote to the respondents demanding payment. The respondents failed to comply with that demand and with a further demand of 30th June 1992 and a letter of reminder of 3rd July 1992.
On 4th August 1992 the Council issued proceedings in the Thames Magistrates' Court for a liability order in respect of the unpaid rates under regulation 12 of the 1989 regulations. Those proceedings were not heard and determined until 9th December 1992. In the meantime, on 27th August 1992, the valuation officer wrote belatedly to the respondents notifying them of the alteration made purportedly under regulation 8 of the 1990 regulations. He told them that the notice of deletion of 12th October 1990 had been a clerical error and that it should have indicated that the property had been entered in the valuation list with effect from 1st April 1990. He referred to the entitlement of the respondents under regulation 9 of the 1990 regulations to make proposals against the alteration, and stated that their time for doing so would be extended and that its effect, if successful, would be back-dated to 1st April 1990. The respondents did not make any such proposals or otherwise seek to challenge the alteration. In the proceedings before the stipendiary magistrate on 9th December 1992 the respondents argued that the entry in the list was invalid, and that the rate was not due, because no notice of the alteration made on 25th September 1990 had been served on them within six weeks after the alteration as required by regulation 8(2) of the 1990 regulations. As part of this argument, the respondents maintained that the notice of 27th August 1992 could not be treated as merely correcting a clerical error as provided for in regulation 8(3) of the 1990 regulations, and that it did not amount to a regulation 8(2) notice.
The Council concedes that its notice of the alteration was out of time. However, it argues that the lack of such timely notice does not affect the validity of the alteration in fact made to the rating list on 25th September 1990, including the respondents' property in it at the valuation mentioned. In addition, the Council argues, as it argued before the magistrate in reliance on regulation 23 of the 1989 regulations, that the respondents' right of appeal under section 55 of the 1988 Act and the 1990 regulations against the alteration of 25th September 1990 notified to them on 27th August 1992 prevents them from raising any issue as to the validity of the entry in enforcement proceedings in a magistrates' court.
The magistrate, in paragraphs 5 and 6 of the stated case, said:
"5. I was of the opinion that the error sought to be corrected by the Valuation Officer was a fundamental, or categorical error and not a clerical error as described in Regulation 8(3) of the 1990 Regulations and that therefore, no proper notice had been given to the respondents pursuant to Regulation 8(2). I therefore, concluded that the entry in the rating list for this property was invalid and I therefore dismissed the complaint.
6. The question for the opinion of the High Court is:-
(a) Whether, and if so in what circumstances, there is jurisdiction in the Magistrates' Court to determine that an entry in a non-domestic rating list is invalid.
(b) Whether it is a defence to the making of a liability order under the Non-Domestic Rating (Collection and Enforcement)(Local List) Regulations 1989 (1058) to rely on the Valuation Officer's failure to supply a proper notice under Regulation 8(2) Non-Domestic Rating (Alteration of List and Appeals) Regulations 1990 (no. 582).
(c) Whether or not the actions of the Valuation Officer constitute a matter which could be the subject of an appeal under Regulations made under section 55 Local Government Finance Act 1988 and are therefore, by virtue of Regulation 23 of the 1989 Regulations matters which may not be relied upon in proceedings under the Non-Domestic Rating (Collection and Enforcement)(Local Lists) Regulations 1989 (no. 1058)."
The first of those questions, whether a magistrates' court has jurisdiction to pronounce on the validity of an entry in a rating list, was not argued before the magistrate. However, it is an important question of law which no further evidence in the case could alter. This court can, therefore, answer it (see Kates v. Jeffery [1914] 3 KB 160 DC).
I am much indebted to Mr. Humphries, who appeared on behalf of the Council, for his helpful guidance on the relevant statutory and case law. The scheme of the 1988 Act, as of the General Rate Act 1967, which in this respect it superseded, is that a valuation officer is responsible for the compilation of a non-domestic rating list for each charging authority, and each charging authority is responsible for the recovery of the rates in accordance with that list.
In the case of alterations to a list by a valuation officer, one difference of form, though not of substance, between the two regimes is that under the 1967 Act the valuation officer proposed an alteration, notified the ratepayer of the proposal and the latter could object, if necessary by way of...
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