Wilson v Josephine Coll (Listing Officer)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SINGH |
| Judgment Date | 13 October 2011 |
| Neutral Citation | [2011] EWHC 2824 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/11155/2010 |
| Date | 13 October 2011 |
[2011] EWHC 2824 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Singh
CO/11155/2010
The Claimant appeared in person assisted by her husband, Fergus Wilson
Miss G Ward and (for judgment only) Miss J Lean (instructed by the Solicitor's Office HMRC) appeared on behalf of the Defendant
(As Approved)
Introduction
This is an appeal under regulation 43 of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009. An appeal to this court under that provision lies on a point of law only. The decision under appeal is that of the Valuation Tribunal for England (VTE), dated 30 September 2010.
The appellant has appeared in person ably assisted by her husband, Mr Wilson. I am grateful both to him and to counsel for the respondent for their helpful submissions in this court.
Material Facts
The essential facts of this case, at least so far as material for present purposes, are not in dispute. The property concerned is a two bedroom semi-detached house dating from the 1930s. It has appeared in the valuation list, to which I will make reference, since its commencement in 1993 and has been valued at band B. That banding is not under challenge in this case if the property is to remain in the list at all.
The property has been vacant since June 2007 and is in a state of disrepair with no work having been carried out to it since it became vacant. So far as appears to be the case for present purposes, it was, for a period after it became unoccupied, designated as an exempt dwelling under what is known as class A of the Exempt Dwellings Order, which is something to which I will return. It is important to note at this juncture that such an exemption may only last for a maximum of 12 months.
Legal Framework
The Listing Officer's primary statutory duty in the present context is imposed by section 22 of the Local Government Finance Act 1992, and is to compile and maintain a valuation list for each local billing authority area. By section 23 of the same Act that list must show, for each day for which it is in force, each dwelling which is situated in the billing authority's area and which of the valuation bands is applicable to that dwelling. A "dwelling" is defined for the purposes of Part 1 of the 1992 Act by section 3. It is any property which, by virtue of the definition of a hereditament in section 115(1) of the General Rate Act 1967, would have been a hereditament for the purposes of that Act if that Act remained in force. Secondly, it is not for the time being required to be shown in a non-domestic rating list. And thirdly, that it is not exempt from non-domestic rating.
It is unnecessary, for present purposes, to go to the underlying definition of hereditament in section 115 of the General Rate Act 1967. It is important, however, to recall an authority which has provided a definition of what is hereditament. That is the decision of the Court of Appeal in Post Office v Nottingham Council [1976] 1 WLR 624.
In the principal judgment, which was given by Browne LJ, there appear the following helpful passages. At page 635B:
"the question is whether the building as a building is so far completed as to be capable of occupation or ready for occupation for the purposes for which it is intended—as a house, shop, office, factory or, in this case, a telephone exchange."
Later at page 635H to 636A Browne LJ returned to this theme and said as follows:
"I think the test is: as a matter of fact and degree, is, or will the building, as a building, be ready for occupation, or capable of occupation, for the purpose for which it is intended?"
Tribunal decision in this case
The decision under appeal in this case was made by the Valuation Tribunal for England sitting at Maidstone. The hearing took place on 17 August 2010 and the decision was promulgated on 30 September 2010. For present purposes it is important to read the part of the tribunal's decision which is headed "Decision and Reasons" in full, at paragraphs 36 to 42:
"36. The issue before the Panel is whether the appeal property should be deleted from the Valuation List, as contended by the appellant, or should remain in the List, as contended by the Listing Officer.
37. The decision revolves around a point of law. The basis of valuation clearly states that it should be assumed that a property is in a reasonable state of repair when valuing a property for Council Tax banding. Unlike the basis of valuation for rating commercial properties, there is no qualification in the legislation to exclude repairs considered to be uneconomic.
38. Having considered both submissions, the Panel cannot find any relevance in the Housing Act 2004 to the present situation.
39. Because the assumption of reasonable repair in the legislation is so absolute, the Panel would only consider that a dwelling could be removed from the Valuation List if it had ceased to be a hereditament.
40. In respect of whether the appeal property is still a hereditament, the Panel are satisfied that it is and was a hereditament. The Panel comes to this decision because the property was occupied at the inception of the valuation list on 1st April 1993 and stayed occupied until 2007. During that period there was no dispute that it was a hereditament. Since it was last occupied there have been no changes to the appeal property or the legislation, which would affect its status as a hereditament. From the evidence it is clear that the Courts and previous Valuation Tribunals have not taken the line that a property ceases to be a hereditament when it is in disrepair; this is a view supported by the decision in R v East Sussex Valuation Tribunal, ex parte Silverstone HC and the evidence in the Valuation Tribunal decisions submitted by the Listing Officer and this Panel cannot disagree with that view.
41. In respect of the key issue, the Panel decides that a dwelling cannot be deleted from the valuation list simply because of disrepair, regardless of the extent of that disrepair. Neither can the banding of a dwelling be reduced because of disrepair.
42. Having examined all the evidence placed before it, both verbally and in writing, the Panel decides that the appeal property must remain in the valuation list at band B."
Accordingly the appeal before the tribunal was dismissed.
The party's essential submissions
For the appellant there was a simple and straightforward submission made both to the tribunal and to this court. It was to the effect, as recorded, for example, at paragraph 35 of the tribunal's decision, that although the property was capable of repair the question was: "At what price?" The appellant submitted that the appeal property was not a hereditament as it was not in reasonable repair.
For the appellant it was submitted that the concept of a hereditament continuing to exist necessarily imports a requirement in law that any repair that may be needed in order to remedy defects in it must be a repair which is economic to carry out. For the appellant it was eloquently submitted that the man on the Clapham omnibus, the reasonable person would surely not embark upon a programme of repairs if it would be uneconomic to do so and, in particular, if it would not enhance the underlying value of the property in a way such as to make the repairs economically worthwhile to undertake.
For the respondent Listing Officer it was submitted that the question of whether a property continues to be a hereditament, according to the relevant legal regime, does not depend on whether any repairs which may be needed can be economically carried out. It was submitted that a dwelling that is capable of repair remains a hereditament even if it would not necessarily be economic to carry out those repairs. In particular, it was drawn to my attention that there are two legislative provisions which would appear not to make sense, unless the existence of a hereditament is taken for granted.
The first of those legislative provisions is regulation 6(2)(e) of the Council Tax (Situation and Valuation of Dwellings) Regulations 1992, which I will abbreviate as "the Valuation Regulations". That provision requires that in conducting a valuation exercise for a relevant property certain assumptions are to be made, and by regulation 6(2)(e) one of those assumptions is "that the dwelling was in a state of reasonable repair."
For the respondent it was observed that this court has previously held that the presumptions in regulation 6 are irrebuttable: see R v East Sussex Valuation Tribunal, ex parte Silverstone [1996] RVR 203 at 205. That is a decision to which I will return.
The other legislative provision upon which the respondent relies, as providing a statutory indication that the legislator has proceeded on the assumption that a hereditament continues to exist, even if repairs to it are required which may not be economic to undertake, is Article 3 of the Council Tax (Exempt Dwellings) Order 1992. This sets out a number of classes which are exempt from liability to pay council tax for a limited period of time of 12 months. Class A, which is material to the present case, provides a follows:
"(1) a dwelling which satisfies the requirement set out in paragraph (2) unless it has been such a dwelling for a continuous period of twelve months or more ending immediately before the day in question;
(2) The requirement referred to in paragraph {1) that the dwelling is vacant...
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