Michael Stanuszek v Dawn Bunyan (Listing Officer)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henshaw |
| Judgment Date | 20 December 2023 |
| Neutral Citation | [2023] EWHC 3275 (Admin) |
| Year | 2023 |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-001598 |
[2023] EWHC 3275 (Admin)
BEFORE THE HONOURABLE Mr Justice Henshaw
Case No: AC-2023-LON-001598
CO/1884/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Carter (instructed by Streathers Solicitors LLP) for the Appellant
Luke Wilcox (instructed by HM Revenue and Customs Solicitor's Office) for the Respondent
Hearing date: 14 November 2023 Draft Judgment circulated to the parties: 12 December 2023
APPROVED JUDGMENT
| (A) INTRODUCTION | 2 |
| (B) FACTS | 2 |
| (C) THE VTE'S REASONING | 3 |
| (D) GROUNDS OF APPEAL | 5 |
| (E) LAW | 5 |
| (F) ANALYSIS | 18 |
| (1) Ground 1: test for identification of a hereditament | 18 |
| (2) Ground 2: application of the Mazars tests | 20 |
| (G) CONCLUSION | 22 |
(A) INTRODUCTION
This appeal concerns the number of ‘dwellings’ that make up a property in Twyford Abbey Road, Park Royal, London NW10 7HG (“ the Property”), for the purposes of section 3 of the Local Government Finance Act 1992 (“ the 1992 Act”): in effect, for council tax purposes.
The Appellant contends that the whole of the Property should be assessed as a single dwelling. The Listing Officer's view is that, when the law is properly understood and applied, the Property comprises six dwellings: one for each of the six rooms (“ the Rooms”) contained within the Property. In a decision dated 14 April 2023 (“ the Decision”), the Valuation Tribunal for England (“ the VTE”) agreed with the Listing Officer, and dismissed the Appellant's appeal. This is the Appellant's appeal against that decision.
(B) FACTS
The Appellant is the freehold owner of the Property. The Property was listed from 1 April 1993 as a single dwelling until, based on information received from the local authority, the Listing Officer proposed to assess the Rooms as individual dwellings. The Appellant opposed that, proposing that the Property remain assessed as a single dwelling, one result of which would be that he, rather than his tenants, would be liable for council tax. The Listing Officer did not accept that proposal, and the case was appealed to the VTE.
The VTE recorded the Appellant's factual case as follows:
“The appellant stated that 6 Twyford Abbey Road, London NW10 7HG was licensed as a house in multiple occupancy (HMO) and contained six rooms which had been separately entered into the valuation list. Each room contained a bathroom. Any occupier of the rooms had exclusive possession of their own room and shared use of the communal areas. Access to each room was through those communal areas. None of the rooms contained cooking facilities or sufficient space for hanging laundry. Each room contained a lockable door and was let pursuant to an assured shorthold tenancy agreement. The landlord granted each tenant quiet enjoyment of both the room and communal areas.” (§ 13)
The Appellant adds that the only bathrooms/toilets in the Property are those in the Rooms, a point that was made to the VTE at the hearing and which is not understood to be disputed.
The bundle included a sample tenancy agreement, which provides inter alia that:
“1. The Landlord lets to the Tenants the Designated Room, with the right to share the use of the Shared Parts with such other persons as the Landlord grants or has granted the right to use those Shared Parts, for the Term …
…
The Landlord agrees:
Quiet Enjoyment
11.1 To allow the Tenant to quietly hold and enjoy the Designated Room and Shared Parts during the tenancy without any unlawful interruption by the Landlord or any person rightfully claiming on behalf of the Landlord.”
The “Shared Parts” are defined as:
“The communal areas of the Premises which are not currently or intended to be the private Designated Rooms of other occupants. The Shared Partys typically include garden(s), kitchen(s), bathroom(s), reception room(s) and any hallways and corridors linking them.”
The Appellant presented the case to the VTE on the basis that the tenancy agreements gave exclusive possession of the Rooms and a licence to access the rest of the premises.
(C) THE VTE'S REASONING
The VTE identified the issue as being “whether or not the property which comprised six separate council tax assessments fell to be assessed as a single entry”.
Under the heading “Relevant law”, the VTE identified the main statutory provisions (considered in part (E) below) and said:
“11. Thus, under the statutory scheme, in appeals of this nature, the first step was to determine whether separate hereditaments existed. The essential elements of rateable occupation which have to be met in order for a hereditament to exist have been considered by the courts in a number of different statutory contexts.
12. In John Laing & Son Limited, Tucker LJ said at 350:
“Mr. Rowe has said that there are four necessary ingredients in rateable occupation, and I do not think there is any controversy with regard to those ingredients. First, there must be actual occupation; secondly, that it must be exclusive for the particular purposes of the possessor; thirdly, that the possession must be of some value or benefit to the possessor; and, fourthly, the possession must not be for too transient a period….”
The core of the VTE's reasoning was as follows:
“24. The panel was not satisfied that the appellant's contentions regarding the geographical and functional tests with regards to hereditaments as stated in Mazars were of assistance when considering the facts of the subject appeal. The Mazars case concerned whether distinct spaces under common occupation, in that case being different floors in an office block, formed a single hereditament. Factually, the rooms in the subject appeal were individually distinct spaces within the property as demonstrated by the provided floor plans. Each room was accessible through a common part of the building and there was sufficient evidence that each room had been let separately. The panel therefore found that it was not correct to apply the tests in Mazars as the respondent was clearly contending that the rooms in the subject appeal were not in a common rateable occupation but in fact in separate rateable occupation by their residents.
…
26. … the panel ascertained whether the rooms constituted separate hereditaments under section 3 of the Act. The panel considered the four ingredients to constitute rateable occupation in John Laing & Son Limited and upheld the respondent's determination that each room constituted a hereditament and was therefore a dwelling in its own right.
27. The panel found that all four ingredients were satisfied for each of the six rooms. The rooms were capable of actual and beneficial occupation, as evidenced by the rooms being occupied by tenants who used them as places to live, sleep, reside and rent was being charged for the use of the rooms. The appellant stated that occupation of the rooms was exclusive, and locks were present on each of them. The tenancies stipulated that the term of occupation was for one year. The panel was aware that there was no fixed definition of transience in law, however, it considered that a period of one year was sufficient to satisfy that occupation of the rooms was not too transient.
28. The panel noted that the rooms did not have cooking facilities or provision to hang laundry. Those were undertaken in the communal areas. However, it did not consider that to be a determinative factor as to whether the rooms constituted hereditaments. In forming that view, the panel referred to the Lands Tribunal decision of James v Williams in which a number of flats were held to be separate hereditaments even though they shared some facilities.
29. Reference had been given to various case law by the appellant regarding self-contained units. However, as the panel had determined the rooms to be dwellings in accordance with section 3 of the Act, consideration of the rooms as self-contained units in accordance with the Order was not required.
30. The panel understood that the respondent had discretion to aggregate multiple hereditaments into a single dwelling in accordance with Article 4 of the Order. The panel was aware that the respondent had chosen not to do so in this instance and following the Vice-President of the VTE's decision in Burtfield Estates, it did not have jurisdiction over the respondent's exercise of that discretion under the Order.
31. In view of the foregoing, the panel was satisfied that the appeal properties were individual hereditaments and the council tax valuation list correctly showed six dwellings in respect of each one.”
(D) GROUNDS OF APPEAL
The Appellant appeals on the grounds that:
i) the VTE erred in treating the test for rateable occupation as determinative of the number of dwellings contained in the Property; and
ii) the VTE failed to apply the geographical and functional tests to the Property as set out in Mazars.
(E) LAW
The law relating to council tax is set out in the 1992 Act and secondary legislation made under it. Council tax was introduced on 1 April 1993 to replace the community charge (commonly known as the ‘poll tax’), and the community charge had itself replaced domestic rates as the primary local government tax on residential property. Some of the key concepts used in the 1992 Act are derived from rating law.
The unit of property in respect of which council tax is payable is the “ dwelling”, which is defined by section 3 of the 1992 Act:
“(1) This section has effect for determining what is a dwelling for the purposes of this Part.
(2) Subject to the following provisions of this section, a dwelling is any property which—
(a) by virtue of the definition of hereditament in section 115(1) of the General Rate Act 1967, would have been a hereditament...
To continue reading
Request your trial