RGM Properties Ltd v Speight (Listing Officer) HMRC

Under regulation 43 of the Valuation Tribunal for England Council Tax and Rating Appeals Procedure Regulations 2009, an appeal lies to the High Court on a question of law arising out of a decision or order which is made or given by the Valuation Tribunal for England (VTE) on an appeal under section 16 of the 1992 Act. This is such an appeal.

The issues which arise are first whether the Valuation Tribunal was entitled to uphold a listing officer's decision that four flats were dwellings, that is “hereditaments” within the meaning of the General Rating Act 1967, and second whether the VTE did so by a procedure which was fair to the appellant.

The issues relate to flats 6, 8, 9 and 10 of The Hollins, Whitehaven in Cumbria. On 24th August 2010 the VTE decided that those flats fell to be placed in the list. A consequence was that they would be assessed for council tax purposes with effect from 1st March 2008.

Underlying this appeal is what is said by Mrs Woodman, who though a farmer, appears with the authority of the appellant company, namely that the decision is liable to have a crippling effect financially.

The flats in question had been part of a late Victorian building which had been used as offices but which fell into disrepair. It was bought in 2000, by the appellant, whom I shall call RGM, in order to convert the building into flats. The conversion process went slowly. It was complicated, so it appears, by problems in particular with damp affecting the walls and the roof.

By March 2008 Flat 4 was in actual occupation. That was deliberate: to give the appearance that the building had someone living in it for security reasons.

Notices were given in July 2009, to alter the valuation list, to show the flats to which I have referred as listed with the listing being in Band B with effect from the 20th March 2008. That date appears to have been chosen because it was the date when Katie Rowlinson (Valuation Officer) went in the company of Rosemary Ronaldson of the Copeland Borough Council, the local authority, to visit and inspect The Hollins.

The issues of law which are said to arise are, first, that is contended by Mrs Woodman for RGM that the flats were not as a matter of law "dwellings" within the appropriate legislation, as they were not occupied and furnished and still required some work in order to complete them. She maintains the building was structurally unsound. The Tribunal was in error to find to the contrary. Secondly, she contends that a new dwelling, which includes a flat formed by the conversion of a former building, such as this, cannot be entered into the valuation list unless and until the local billing authority has served a completion notice under section 17 of the Local Government Finance Act 1992, and Schedule 4A of the 1988 Act, and it had not in this case done so. Therefore, the VTE should not have accepted jurisdiction to determine the issues before it.

Thirdly, she maintains that the hearing before the VTE was procedurally unfair. She put this on two bases, the first of which has not materially been pursued before me today, which was that she received the evidence from the listing officer late; it did not arrive until the day of the hearing. It had been sent to her but had not been stamped correctly, and being underpaid she did not receive it in time. But second, and more substantially, an issue arose, during the course of the hearing, which resulted in the VTE deciding it would have a further hearing in August 2010. At that hearing Mrs Woodman complains she was not entitled to adduce further evidence which was relevant to the purpose for which that further hearing was convened.

For council tax purposes the Local Government Finance Act section 1 provides:

That section of course is directed to the billing authority. That is in effect the local authority, which will be the recipient of council tax when paid

It needs to be borne in mind that that is a separate authority from the valuation office, which is responsible for compiling the lists of those properties which may be subject to council tax.

In either case, however, section 3 provides for the meaning of "dwelling". Subsection (1) reads:

Thus, what is a dwelling which is liable to council tax is defined by a route leading through the General Rate Act 1967. That provision has been considered by authority. In Ravenseft Properties v Newham LBC [1976] 1 QB 464, the Court of Appeal, presided over by Lord Denning MR, set out the test as being whether a building was ready for occupation (see 474H and 475G to H).

In the subsequent case of Post Office v Nottingham City Council, in the Court of Appeal [1976] 1 WLR 624, Browne LJ, at 635H said this in respect of the question of whether a building is or would be completed for the purposes of the schedule 1 of the provisions he was then considering:

He drew a distinction which he thought was vital (see 636B to C) between the time a building was ready for occupation as a building and the subsequent installation in it of equipment or furniture, which was necessary for its use for the purpose for which it was intended. Cairns LJ agreed with that judgment as did Sir Gordon Willmer.

In the more recent case, before the Upper Tribunal Lands Chamber, of Porter v The Trustees of Gladman Sipps [2011] UKUT 204 (LC) the judgment examined the authorities and considered Ravenseft v Nottingham City Council. At paragraph 66 the judgment says:

It should be noted that the wording there replaces "capable of occupation" with the words "ready for" occupation. If anything turns upon that distinction, I prefer the expression "capable of" which has the support of the Court of Appeal. Otherwise, this seems an uncontroversial summary of that which the cases showed.

A reference to the "completion notice procedure” takes one to section 17 of the Local Government Finance Act 1992. That provides under the heading "Completion of new dwellings":

The schedule to which section 17 makes reference provides, by paragraph 1:

A "completion notice" means a notice under this paragraph (see subparagraph (6))

The first subparagraph therefore obliges a building authority, such as Copeland Council in the present case, to serve a notice on a building owner if it comes to the notice of that authority that the building can reasonably be expected to be completed within 3 months. Plainly the building concerned is one which is not as yet completed. Subparagraph (2) deals with the possibility that a new building has been completed but the local authority has not had that come to its notice so as to be subject to the duty in subparagraph (1). There the authority has a discretion but not an obligation to serve a notice.

Finally, in my review of the statutory provisions section 22 of the Local Government Finance Act 1992 headed "Compilation and Maintenance of lists" provides by subsection (1):

As it seems to me, the purpose of section 17 coupled with Schedule 4A is to provide that a property which is not in fact complete in the sense that it is then capable of occupation for the intended purpose is to be deemed to be so complete after the expiry of 3 months. It is in effect a provision which would be relied upon if, for instance, it were thought that the developer of a property were dragging his heels as to completion of that property and thereby depriving the local council of tax revenue which it might otherwise have.

The provision in section 17 and Schedule 4A is not expressed to be the only basis upon which a new property may enter the valuation list. I am told by Miss Helena Ward, who appears for the listing officer, respondent in the present case, that it is the general though not universal practice of councils in England and Wales not to serve completion notices when new properties are in fact ready for occupation, but to proceed to levy council tax upon them.

It is not in accordance with the statutory provisions a necessary precondition of entry into a list, as I interpret the section, that there should first have been a completion notice served.

With that summary of the legal provisions, I turn to the decision of the Valuation Tribunal in the present case.

The VTE set out an introduction to its decision in which it recited that the listing officer had relied upon photographic evidence to show the interior of some of the flats and had stated during the hearing on Monday the 14th June, that those photographs had been taken by an officer of Copeland Borough Council in March 2008.

It recorded that Mrs Woodman had not received a copy of the listing officer's evidence before the hearing, for the reasons which I have recounted, but had confirmed that she was happy nonetheless to proceed with the hearing.

After that hearing, there had been an exchange of emails in which she had challenged the date of the photographic evidence. The emails suggest that she said that they had taken in May 2009. When the listing officer reviewed the evidence it was confirmed that although the external photographs had been taken in March 2008, which was not in dispute, the internal photographs were likely to have been taken during May 2009. Thus, it might be thought that the position between the parties as to the dates of the photographs had been agreed.

At paragraph 6 the VTE said this:

In the light of the apparent agreement by email as to the date on which the photographs were taken, it is not obvious what factual matters remained to be clarified. But, at paragraph 7, this is said:

The Tribunal then set out the case for the appellant company, which had been advanced over both hearings but primarily at the first one, following a description of the case made by the listing officer, before turning to its decision and reasons.

This reveals that essentially Mrs Woodman was arguing that the property was not capable of occupation as a dwelling. That was because (see paragraph 17) the electricity supply was only temporary, as of March 2008, steps needed to be taken to remedy damp problems- work needed to be done to the roof, in particular, to corroded down pipes which needed replacing and to lead flashing - and the fire alarm system remained outstanding.

The listing officer's case was that notwithstanding work which had to be done the property was capable of occupation as a dwelling. The listing officer did however submit (see paragraph 29) that with regards to the damp problem, one of the statutory assumptions within the council tax legislation required the listing officer to assume that a property was in a reasonable state of repair. That assumption was always made unless the repairs were uneconomic to do. If this was intended to be a submission directed towards listing as a hereditament then it was misplaced. The assumption as to reasonable state of repair, applies, as Miss Ward accepts, only if a building is already accepted as a hereditament: it then applies when the listing officer considers what Band the property should be placed within. It is not relevant to determining that a property which is plainly uninhabitable but could be made habitable by reasonable repair is in some magical way capable of occupation so as to be a hereditament. The proposition is obvious: a barn without a roof which might be converted into a dwelling is not capable of occupation for purposes of a dwelling, merely because it could be repaired to reach that state. Once it is however put into position as being capable of being a dwelling, the fact that there may be elements of disrepair about and around it do not affect the banding within which the council then places it.

Mrs Woodman complains that the Tribunal too readily accepted submissions such as that, which were not accurate and proper. She also complains that the listing officer put forward photographs selectively. A number of photographs had been taken, she says, but only some were shown. Those were that were not were those which demonstrated that the property was in a poor state of disrepair. Those that were exhibited focussed upon the parts of the Hollins which were in good repair. This, she complains, was in breach of a professional's duty as an expert witness to the Tribunal.

I must make it clear that my approach to this appeal must be to ask to whether the VTE was in error of law. That question cannot be answered by showing that an advocate before the VTE had erred, that the or evidence before the VTE could and should have been different from that which it was. I have to focus upon the decision of the Tribunal and nothing else, though I am entitled to place it in context.

What then was the decision of the Tribunal?

The nub of the Tribunal's decision is contained in three paragraphs, 33 to 35. I shall quote them in full:

The reference to "Band A" is a reference to the band which it was agreed the properties would fall into if they were indeed dwellings. Originally, the proposal had been that these four flats should be listed within Band B, which was disputed by Mrs. Woodman, but that battle was resolved before the VTE sat.

Given that decision, I turn to the arguments that the Panel were in error of law. There was an error of fact but, in my view, an immaterial one, in respect of the observation about two of the flats being occupied. As at March 2008, flat No 4, not one of the four flats with which the Tribunal was directly concerned, was occupied by Mrs Woodman's daughter and son-in-law. It was only after March 2008 that Flat 9, which was one of the flats concerned became occupied by a housekeeper. The reference therefore is in error. However, the Panel addressed itself to the right legal test.

Mrs Woodman argues that the test should be one of capability of occupation for the commercial purposes of letting as a dwelling. Her argument focuses upon the intention of the landlord, rather than the use to which a tenant might put the premises. In my view, the relevant purpose is the purpose for which the premises will be used. It is not in this context realistic to speak of use as part of commercial letting stock, when in my view the use is for the purposes of a dwelling as opposed to occupation for commercial office use or, as it may be, industrial or other uses for which a bui9lding might be occupied. In my view, therefore, the Panel applied the proper test.

Mrs Woodman objects that the Panel could not fairly come to the conclusion it did. I shall deal with her points on procedural fairness later in this judgment. This point, however, depends upon the Tribunal having accepted her argument that the property was, as she put it, not structurally sound. The lack of structural soundness it appears is attributable, in her view, to serious damp problems which could not easily be resolved and have, she points out, resulted in the flats being un-let to this day. She argues that if the Tribunal had been minded to come to the conclusion it did, it could and should have sought a structural survey which would have confirmed the views she expressed. In effect, she is arguing that the Panel was perverse to come to the conclusion it did.

It is not an error of law for a Tribunal to come to a conclusion in favour of one party, where two parties are in conflict before it. It is the job of such a Tribunal to decide who should win and who should lose. The disappointed party cannot complain that a Tribunal has decided, as it might not have done, against their case unless its decision is one to which no reasonable Tribunal could come. To do so it has to fall within that rare and exceptional class of cases in which a decision can properly be characterised as perverse. The test is whether the decision is one which is wholly impermissible: one as to which any right thinking member of the public would be inclined to say: good gracious, how could they possibly reach that decision? Unless it is, it is not perverse.

Here, the Panel confessed it lacked much evidence, but it did have material before it. It had evidence from Mrs Woodman. It had the evidence, which it plainly regarded as significant, of the photographs. The conclusion to which it came, that the flats as was demonstrated by those photographs had kitchens, floor coverings, plasterwork, electricity, decoration all in place together with newly fitted kitchens and bathrooms, was one open to it, and this demonstrates that the Panel was fully entitled to come to the conclusion that these flats were flats which were capable of occupation as dwellings. Accordingly, I can see no argument here which is capable of success on the first ground.

The second is that the listing officer or the council was bound to serve a completion notice giving a 3-month period before entering the property into the list. Mrs Woodman complains that the council, having inspected the property in March 2008, should if it really thought the properties were then complete have ensured they entered the list at that date instead of waiting until July 2009 to claim that that was their position.

I have already indicated my view of the law. The argument here can only succeed if on a proper reading of the provisions of section 17 and schedule 4A of the Local Government Finance Act 1992 and 1988 respectively, prior service of a completion notice provides the only means by which a property can, if it is new, enter the valuation list.

I am satisfied that section 17 is, as I have indicated, a deeming provision, to enable a local rating authority to secure tax from a project which might otherwise have been delayed by the developer responsible for it.

There is no absolute requirement in law for there to be a completion notice in circumstances in which the listing officer concludes that property is complete and is already a hereditament under section 3 and so that the duty in section 22 may be performed. Accordingly this argument, as it seems to me, is misplaced.

I turn then to the third argument. This is that it was procedurally unfair of the Panel to have a second day of hearing in August, and at that hearing prevent Mrs Woodman from putting before the Panel photographs as she would have wished. The photographs which she would have wished to put before the VTE are at pages 122 to 131 of the bundle before me(since there are two bundles before me, these reference are to the hearing bundle prepared by the respondent). They show damp patches in Flat 1, a state of general disrepair in Flat 3. They show aspects of Flat 4, all these as at August 2010. There are photographs of Flat 5 and Flat 6, which does not show any significant damp on the poor photocopies I have, in the same way as do the photographs of the other flats, Flat 7 (which is not material to the present appeals directly), photographs of the roof and lobby area and then Flat 8 and Flat 10.

The Tribunal's rules of procedure under the 2009 Regulations permit the VTE to give directions (see regulation 17) as to the issues on which requires evidence or submissions and as to the nature of the evidence or submissions it requires. Implicitly therefore this regulation allows the VTE not to require evidence or submissions. It provides, 17.2, that although the VTE may admit evidence whether or not the evidence would be admissible in a civil trial in England, it may (see 17.2(b)) exclude evidence that would otherwise be admissible where the evidence was not provided within the time allowed by direction, (ii) the evidence was otherwise provided in a manner that did not comply with a direction or (iii) it would otherwise be unfair to admit the evidence.

Miss Ward points to the fact that within the regulations are provisions to the effect that the VTE is in general terms master of its own procedure. She argues that there was no unfairness here, in the Tribunal (having realised that there was an issue about the date upon which important photographs were taken) putting consideration of that one matter, on its own, over to a later date and not widening the discussion at all beyond that single point. That is plainly what the Panel did.

In my view, a Tribunal cannot simply rely upon rules that provide that it should be master of its own procedure, if the result is unfairness to a party before it. Such rules as it has, for example regulation 17, or more generally a general power to direct its procedure, must be exercised with a view to fairness, to the judicial exercise of any power and to advance the purposes for which the Tribunal is established.

Here the Panel plainly took the view that the photographs with which it had been supplied by the listing officer were of critical importance. Much of paragraph 33 relies upon that which they showed, albeit informed by other evidence too. The purpose of adjourning and reconvening was, it is said, to enable the parties to comment on the reliability of the photographic evidence.

The Panel seem to have taken a narrow view of that which was in issue. The relevance of the photographs did not arise in isolation. The importance was whether or not what they showed could be relied upon as an accurate representation of the condition of the flats at the relevant time. The reliability of the photographs thus had to be considered from that point of view. There could be no other.

Mrs Woodman complains that she was not permitted to challenge the reliability of that photographic evidence by producing photographs of her own. If what was in issue at the adjourned hearing was, as it seems to me to have been, the weight and the reliability to be placed upon photographs taken by the local authority, it seems to me to be unduly narrow a focus to concentrate upon the date on which they were taken rather than their reliability in the broader and more general sense which appears to have been the reason for the Panel reconvening.

One way of considering the reliability of that which (see paragraph 6) was regarded as crucial evidence would be to see how far it fitted with other evidence, whether taken in May 2009 as the listing officer's photographs had been, or at some other date, which might shed light upon what was likely to have been the true state of the premises as at March 2008.

In my view the Panel's approach here has to be judged by common law standards of fairness. Fairness is for this court to assess. In my view, the VTE did not deal fairly with RGM's case in taking the approach it did. It should have permitted Mrs Woodman to put before the Panel those photographs which she wished to advance in order to make the more general submission that that council's photographic evidence could not be relied upon as giving a faithful account of the true condition of the premises which had to be established if the VTE were to determine whether the premises were or were not truly capable of occupation as a dwelling.

Thus, I would be inclined here to hold that the decision of the Tribunal was flawed. However, I have also to consider the second submission made by Miss Ward, recognising that the court might be hostile to her first position as to procedural unfairness. That is to direct my attention to the photographs which Mrs Woodman would in fact have put before the Tribunal and to ask whether, on any realistic viewing of those photographs, and anything that might reasonably have been said about them, the Tribunal would have come to any other view than that which it did. In other words, was the mistake, though unfair, materially so in the circumstances of the present case. It is only material unfairness which can operate as a ground of appeal?

Having reviewed those photographs, in so far as they relate to the focus of my decision, that is flats 6, 8, 9 and 10, I have come to the conclusion that they are not capable of showing a state materially different from that which is shown by the poor quality photographs from the council upon which the Panel relied, bearing in mind the other evidence which it had.

Although, in my view, the Tribunal should have given the opportunity to Mrs Woodman to advance the photographs and her arguments based upon them, I cannot on any realistically arguable view of those facts conclude that it would have made a difference. It follows that in consequence, sympathetic though I would otherwise have been to her appeal, it must be and is rejected on this third ground too. Though it was unfair not to allow her to advance the photographs she wished to put forward, the hearing was not unfair as a result, since it is plain those photographs could not have made a difference.

There is only one further point raised in the course of this appeal with which I shall deal. Mrs Woodman complains (and complained in response as she did at the outset of her submission) that the VTE here should have realised that there was a real issue as to habitability of the premises. She submits that they could have required a structural survey. During the course of submissions, I have considered whether points that she had made also about fire regulations, in which she relied upon statements in correspondence to her which seemed to suggest that the premises might not properly be occupied without fire alarms being properly installed, might support a case that although physically the premises might be capable of occupation, there might be some legal objection to an occupant being present within the property. I am satisfied that there is no force in either of these two points, which I mention for the sake of completeness bearing in mind Mrs Woodman's lack of familiarity with proceedings such as this. As to the first of these, the appeal is that of RGM Properties. The appeal is plainly based upon the fact that the property was said to be a dwelling. The test was clearly: was it capable of occupation? If RGM thought that it was not, it could have produced the evidence and had the opportunity to do so, to show that that was not the case.

It may be a misfortune for the company that Mrs Woodman expected the Tribunal simply to accept her say so as to that. Understandable as that expectation may be, it does not amount to an error of law for the Tribunal not to live up to it. As to the second, I am assured by Miss Ward that her best researches and the information, which she has from those who instruct her is to the effect that so far as she is aware there is no legal bar to occupation in circumstances where a situation such as the present might occur. If there were a breach of planning control (for instance) or a failure to comply with building regulations, that might cause legal difficulty for the building owner, but it would not legally proscribe occupation by an occupant.

Accordingly, there is no force in either of those points which, as I say, I mention purely for the sake of completeness.

In the event, this appeal must be and is dismissed.