R v Tower Hamlets London Borough Council, ex parte Chetnik Developments Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE |
| Judgment Date | 13 February 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0213-6 |
| Docket Number | 87/0123 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 February 1987 |
[1987] EWCA Civ J0213-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE MANN)
Royal Courts of Justice
Lord Justice Slade
Lord Justice Parker
Lord Justice Mustill
87/0123
MR. JOHN TAYLOR Q.C. and MR. JOHN HOWELL (instructed by Messrs. Lovell White & King) appeared for the Applicants.
MR. BARRY PAYTON and MR. SIMON GAULT (instructed by H. D. Cook, Esq., Town Hall, Patriot Square, London, E2) appeared for the Respondents.
This is the judgment of the court.
By a judgment delivered on 3 April 1985 (now reported at (1985) H. & V.R. 86) Mann J. dismissed an application by Chetnik Developments Limited ("the applicants") for judicial review. The respondent to the application was the Council of the London Borough of Tower Hamlets ("the Council"). The relief sought was an order of certiorari to quash a decision made by the Council on 26 October 1983 that rates paid by the applicants in respect of the period from 16 November 1976 to 31 March 1979 should not be refunded, and an order of mandamus directing the Council to hear and determine according to law an application by the applicants for the refund of such rates. The applicants now appeal to this court from Mann J.'s order.
The application for repayment was dated 5 August 1982 and related to an amount of £51,396.92. It was made under section 9(1) of the General Rate Act 1967. That section provides:
"9. (1) Without prejudice to sections 7(4)(b) and 18(4) of this Act, but subject to subsection (2) of this section, where it is shown to the satisfaction of a rating authority that any amount paid in respect of rates, and not recoverable apart from this section, could properly be refunded on the ground that—
(a) the amount of any entry in the valuation list was excessive; or
(b) a rate was levied otherwise than in accordance with the valuation list; or
(c) any exemption or relief to which a person was entitled was not allowed; or
(d) the hereditament was unoccupied during any period; or
(e) the person who made a payment in respect of rates was not liable to make that payment,
the rating authority may refund that amount or a part thereof.
(2) No amount shall be refunded under subsection (1) of this section—
(a) unless application therefor was made before the end of the sixth year after that in which the amount was paid; or
(b) if the amount paid was charged on the basis, or in accordance with the practice, generally prevailing at the time when the payment was demanded.
(3) Before determining whether a refund should be made under subsection (1) of this section—
(a) in a case falling within paragraph (a) of that subsection; or
(b) in a case falling within paragraph (c) of that subsection where the exemption or relief was one which ought to have appeared in the valuation list,
the rating authority shall obtain a certificate from the valuation officer as to the manner in which in his opinion the hereditament in question should have been treated for the purposes of the valuation list, and the certificate shall be binding on the authority."
The ground for repayment relied on was ground (e).
The circumstances which gave rise to the application and its refusal are common ground and were summarised clearly and concisely by the learned judge. We gratefully adopt his summary:
"The applicant is a property development company. In 1975 and 1976 the applicant developed a site at 7 Ditchburn Street, London E14. The development provided two warehouse units each of which has ancillary accommodation. The applicant secured the requisite consents to the development, including an approval given by the Greater London Council in the exercise of its powers under the London Building Acts 1930 to 1939. That approval was dated the 13th November 1975 and contained 45 conditions, amongst which was one (number 43) which provided that 'no part of the building shall be occupied until the consent of the [GLC] had been obtained to the proposed user'. A contravention of the condition would have been a criminal offence (see London Building Acts (Amendment) Act 1939, s. 148(2) (xiii)). The condition could not be satisfied until a tenant was identified for until then the usage would be unknown. The applicant tried its best to let the warehouses but it was not until dates in 1978 that a tenant for unit 1 was found, the user was approved and his occupancy commenced. In the case of unit 2 those events did not occur until 1980.
"Section 17 of the 1967 Act grants a power to a rating authority (such as is the respondent) to apply the provisions of sch 1 with respect to the rating of unoccupied property to their area. The council exercised that power before 1976. The provisions of the schedule allow the owner of a hereditament to be rated in respect of that hereditament if it is unoccupied for a continuous period exceeding three months (para 1). Where a new building is erected the rating authority may serve on the owner of that building a completion notice stating the date on which the building is to be treated as completed (para 8(1)). There is a procedure whereby the date may be challenged (para 8 (4)), but if there is no successful challenge then if on the stated date the building is unoccupied it is deemed to have become unoccupied on that date (para 7). An owner cannot, however, be rated in respect of an unoccupied hereditament if he is 'prohibited by law from occupying the hereditament or allowing it to be occupied' (para 2 (a)).
"On the 20th July 1976 the rating authority served two notices upon the applicant stating that 16th August 1976 was to be the date on which units 1 and 2 were to be treated as having been completed. There was no challenge to the date. As from 16th November 1976 the applicant was rated as the owner of unoccupied property. It was so rated until the dates on which tenants took occupation of the units. The applicant paid rates in the total sum of £51,396.92 for the period the 16th November 1976 to the 31st March 1979. The applicant then declined to pay any further rates in respect of the period in respect of which unit 2 remained without an identified tenant. The rating authority sought the issue of a warrant of distress under s. 97 of the Act of 1967, but on the 3rd April 1981 a stipendiary magistrate refused to issue a warrant on the ground that the applicant could not have been rated in respect of unit 2 because the company was prohibited by law from occupying the hereditament or allowing it to be occupied. The prohibition was held to be by reason of condition 42 in the approval of the 13th November 1975. There was no appeal to the Crown Court against the magistrate's decision. In the light of that decision, the applicant applied for a refund of what it had previously paid whilst trying its best to find tenants for units 1 and 2 and latterly a tenant for unit 2. The application was made on the 5th August 1982 and was refused by the council's finance committee in the exercise of delegated powers on the 26th October 1983. It is that decision which is impugned. The application was first before the committee on the 28th September 1983. The minute for that day is: ' Item 4.9—7a Ditchburn Street—Application for rates refund under s. 9 or the General Hate Act 1967. Details or the decision made by a stipendiary magistrate at Thames Magistrates' Court in refusing the council's application for a distress warrant in respect of this case were tabled. The representatives of the solicitor to the council referred to the counsel's opinion which had been obtained on the application for rates refund made by Chetnik Developments Ltd. and indicated that, as this was a discretionary power, the committee would have to make a decision independent of any officer's recommendation. Councillor Charters felt that, in view of the complexity of the application, and the additional tabled information (which had only been received by the solicitor at 4.30 pm on the day of the meeting), the matter be deferred so that members could give adequate consideration to all aspects of the application. Resolved—That the item be deferred until the next meeting.'
"The minute for the 26th October is: ' Item 4.6—7a Ditchburn Street—Application for refund of rates under s. 9, General Rate Act 1967. The representative of the solicitor to the council (Mr. A. Tobias, principal legal assistant) reiterated the comments made at the meeting held on the 28th September 1983, in that it was for the committee to exercise its reasonable discretion on the application, without recommendations from any officer. The members of the committee then entered into a comprehensive discussion on the merits of the application as presented. It was unanimously Resolved—That the application be refused.'"
On 28 October 1983 the applicants' solicitors asked to be given the reasons for the refusal. They were supplied in a letter dated 8 November 1983 by the Council's solicitor, who said:
"When this matter came before the Finance Committee on. 26th October last, Members had before them all the representations made by you on behalf of your Client Company, together with the Judgment of the Stipendiary Magistrate and the Advice from Counsel. The Committee were strenuously advised that the decision required pursuant to S. 9 of the General Rate Act 1967 was one entirely for their discretion acting fairly in accordance with the principles set out in Counsel's advice. After discussion the Committee decided against a repayment for the following reasons:—
(a) the advice that the payment made by the...
To continue reading
Request your trial
- Menteri Sumber Manusia and Another v Association of Bank Officers, Peninsular Malaysia
-
Trustees of the Dennis Rye Pension Fund and Another v Sheffield City Council
...are intended to make that clear but the nature of the discretion must be considered in the particular statutory context. 40In R v Tower Hamlets LBC ex p Chetnik [1988] AC 858, the House of Lords considered the discretion granted to local authorities under s 9(1) of the General Rate Act 1967......
-
Porter v Magill
... ... Lord Hobhouse of Wood-borough ... Lord Scott of Foscote ... HOUSE OF ... any sum to be due to the Westminster City Council from Dame Shirley Porter and Mr David Weeks and, ... ...
-
R (Hopley) v Liverpool Health Authority and Others
...Law 5 th ed. at 355–356, expanded in later editions, was cited with approval by Lord Bridge in R. v Tower Hamlets London Borough Council ex parte Chetnik Developments Ltd [1988] AC 858, 872B: “Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely-t......