Chris Haley v Valuation Tribunal for England & Ors

I am concerned with a statutory appeal pursuant to the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 (hereafter “the 2009 Regulations”). The appellant, Mr Chris Haley, appeals against the decision of the Valuation Tribunal for England (hereafter, “the Tribunal”) of 10 October 2024. On that date, the Tribunal dismissed the appellant’s appeal against the decision of the second respondent billing authority, Huntingdonshire District Council, that he was not entitled to an annexe related discount under the Council Tax (Reduction for Annexes) Regulations 2013 (hereafter “the 2013 Regulations”) on the site that was the subject of the appeal, Stibbington Hall, Church Lane, Stibbington.

The appellant is represented by Mr Julian Hunt of counsel. The first and second respondents are not represented. The third respondent Valuation Office Agency provided written submissions to the court pursuant to the order of Thornton J dated 3 June 2025. On 31 March 2026, the Valuation Office Agency was abolished and its functions subsumed into The Commissioners for His Majesty’s Revenue and Customs (hereafter “HMRC”). In light of the order of Thornton J of 3 June 2025, HMRC attended the hearing represented by Mr Charles Forrest of counsel.

Both the appellant and HMRC submitted that the appeal should be allowed and the matter remitted to the Tribunal for re-hearing, with a direction that the matter be determined in accordance with the legal approach set out in this judgment. In light of the point of statutory interpretation raised by this appeal, I reserved judgment and now set out my conclusions and my reasons for reaching them.

On 18 March 2019, the appellant completed his purchase of Stibbington Hall. Within the grounds of Stibbington Hall are two additional properties, known as the Coach House and the Cottage. In circumstances where each of the three properties is a chargeable dwelling, the appellant accordingly owned three properties on which he was liable for paying council tax. To reduce this liability, the appellant made an application for an annexe related discount in respect of the Coach House and the Cottage with effect from 18 March 2019. That application was refused by the second respondent billing authority.

The appellant appealed the decision of the billing authority to the Tribunal. Following a hearing on 16 July 2024, the two members of the Tribunal were unable to agree. In accordance with the business arrangements for the Tribunal, the appeal was required to be heard afresh. The Tribunal heard the appeal on 24 September 2024, in accordance with s.16 of the Local Government Finance Act 1992 (hereafter “the 1992 Act”).

On appeal, certain facts were admitted or found proved before the Tribunal. Namely:

Accordingly, it was not disputed before the Tribunal that, prior to the appellant’s purchase of the site, the previous owner had let out the Coach House and the Cottage to separate tenants and that, as Stibbington Hall, the Coach House and the Cottage were previously in separate rateable occupation, each was valued as a separate hereditament by the Listing Officer and, as I have noted, listed as a separate hereditament in the council tax Valuation List.

Before the Tribunal, the appellant argued that the Coach House and the Cottage “forms part of a single property” for the purposes of r.3(2)(a) of 2013 Regulations, both the Coach House and the Cottage being, geographically, in the grounds of the main property, Stibbington Hall. The appellant relied in support of that contention on the test set out by the Supreme Court in Woolway (Valuation Officer) v Mazars LLP [2015] UKSC 53, [2015] AC 1862 and the decision of the Upper Tribunal in FC Brown Steel Equipment v Hopkins (Valuation Officer) [2022] UKUT 51 (LC).

Against this, the second respondent contended that neither the Coach House nor the Cottage qualified for an annexe related discount pursuant to the 2013 Regulations because each had been valued and listed in the Valuation List as a separate hereditament. The appellant submitted, in turn, that this approach was erroneous as the Valuation List contains details of all chargeable dwellings in the billing authorities area but does not differentiate between hereditaments for the purposes of s.3 of the 1992 Act and single properties containing more than one separate self-contained unit for the purposes of the Council Tax (Chargeable Dwellings) Order 1992 (hereafter “the 1992 Order”). The appellant contended that the respondent’s approach would mean no chargeable dwelling as defined in the 1992 Order that meets the criteria set out in r.3 of the 2013 Regulations could qualify for an annexe related discount.

In its decision, the Tribunal cited the relevant law as being s.3 of the 1992 Act defining the meaning of “dwelling”, the conditions prescribed by r.3 of the 2013 Regulations for entitlement to an annexe related discount and the terms of Art 3 of the 1992 Order providing for single properties containing more than one separate self-contained unit to be treated as dwellings. The Tribunal acknowledged the appellant’s submission that the site was now in single rateable occupation and formed a single hereditament. The operative paragraphs of the Tribunal’s decision appear at paragraphs [16] to [20]:

“[16] I accepted that, now that the whole of the appeal site was in a single rateable occupation and formed a single hereditament, the three dwellings could potentially be treated as a single hereditament. However, the appeal before me related to a dispute about the calculation of council tax liability, in this case an application for discount(s). The tribunal’s jurisdiction was thus restricted to whether the prescribed conditions to qualify for discount(s) had been met. The tribunal’s jurisdiction did not extend to encompass whether it was now appropriate to re-value the appeal site as a single hereditament and having regard to Article 3 of the Council Tax (Chargeable Dwellings) Order 1992. The responsibility for compilation and the maintenance of the Council Tax Valuation List lay with the Listing Officer, who was not a party to these proceedings. Mrs Warren informed me that her authority had previously advised the Appellant to contact the Listing Officer, if he wanted the accuracy of the list entries to be reviewed.

[17] As a corollary, the insurmountable hurdle which the Appellant was unable to overcome, despite Mr Hunt’s best endeavours, was that neither the Coach House nor the Cottage when they were valued for council tax purposes by the Listing Officer were treated as forming part of a single property. The 1992 Order was thus never engaged. At the time, they were both tenanted and therefore correctly valued as single properties or hereditaments, in their own right. Therefore, the prescribed conditions in Regulation 3 (2) of the 2013 Regulations were not met. For the whole site to be treated as a single property, it had to have been valued as a single hereditament and in this case, it had been valued as three.

[18] I accepted Mr Hunt’s point that when looking at the entries shown in the Valuation List, it was extremely difficult to identify, without any clear marked differential to inform the person inspecting the list, which chargeable dwellings had been valued as hereditaments and which were valued as Article 3 dwellings. The latter being treated as separate self contained units but forming part of a larger property.

[19] In view of the above, neither the Coach House nor the Cottage met the prescribed requirements in Regulation 3 (2) (a) as neither dwelling formed part of a single property. They were valued, albeit historically, as separate hereditaments. Whether that was still correct now was somewhat academic and not a matter for me to decide. The simple fact was that all three dwellings had been valued as separate hereditaments and the valuation list had not been altered, since the Appellant had completed his purchase.

[20] Since the appeal fell at the first hurdle, it was not necessary for me to fully consider whether or not the Coach House and/or the Cottage were being used by the Appellant’s family for residential purposes. The Appellant told me that his daughters played table tennis and made use of the spare rooms for private study. It was not clear, from his evidence, when they started using either dwelling. However, the appeal sought a discount with effect from the date the Appellant purchased the appeal site on 18 March 2019. The information provided within the evidence bundle clearly indicated that both the Coach House and the Cottage were superfluous to his family’s requirements at the time of purchase, as evidenced by the fact that he was considering marketing them as holiday lets. As a corollary, the dwellings would not have qualified for discount, in any event, with effect from 18 March 2019 as neither was being used at that time.”

Accordingly, the key elements of the Tribunal’s reasoning in dismissing the appellant’s appeal were as follows:

The appellant now appeals the decision of the Tribunal on a question of law arising from the Tribunal’s decision. In summary, the appellant’s three grounds of appeal are as follows:

With respect to Ground 1, the appellant argues that the Tribunal misunderstood its task. The appellant contends that the Tribunal was not being asked whether it was now appropriate to re-value the appeal site as a single hereditament. Rather, it was being asked, as with any annex discount appeal to the Tribunal, whether the criteria in r.3 of the 2013 Regulations were made out. Accordingly, the appellant contends that the Tribunal was wrong to state that the question was one for the Listing Officer. The Tribunal ought to have determined the matter by applying the criteria in r.3 of the 2013 Regulations. The appellant acknowledges that the appeal may have failed at that stage if the criteria were not met. However, the appellant submits that it is those criteria, over the application of which the Tribunal did have jurisdiction, that should have been used to determine an appeal.

With respect to Ground 2, the appellant submits that the approach taken by the Valuation Tribunal, in concluding it was “extremely difficult” for an applicant to differentiate between hereditaments and separate self-contained units, failed to address the fact that no chargeable dwelling as defined in the 1992 Order that meets the criteria set out in r.3 of the 2013 Regulations could qualify for an annexe related discount. The appellant submits that, in any event, the Tribunal’s reference to Art 3 is inapposite where the definition of a “single property” in r.3(2)(a) of the 2013 Regulations is given in r.3(3)(a) of those regulations.

With respect to Ground 3, the appellant submits that the Tribunal erred in deciding that it was not necessary to “fully consider” usage, given its conclusion that the case did not come within r.3 of the 2013 regulations, but then making findings regarding usage when usage had never been in issue between the parties. In so far as the Tribunal was attempting to apply the test in r.3 even though it had found the case fell outwith that provision, the appellant submits that the Tribunal applied the wrong test in asking whether it was “being used by the Appellant’s family for residential purposes”. The actual legal test in r.3(2)(b) is whether it was being used by a resident as “as part of their sole or main residence”.

As I have noted, on 31 March 2026 the Valuation Office Agency was abolished and its functions subsumed into HMRC. Pursuant to the order of Thornton J, on 26 August 2025, the Listing Officer confirmed that the Coach House and the Cottage remain correctly listed as separate dwellings, that the Listing Officer does not have jurisdiction to determine eligibility for annexe related discounts, that the Listing Officer cannot disclose whether valuation list entries are the result of the property being a hereditament pursuant to s.3 of the 1992 Act or separate self-contained units pursuant to Art 3 of the 1992 Order, and that the Listing Officer cannot ignore the 1992 Order when determining Valuation List entries.

On behalf of HMRC, and building on the written submissions of the Listing Officer dated 26 August 2025, Mr Forrest submits that the Tribunal misconstrued r.3(2)(a) of the 2013 Regulations and misunderstood the respective roles of the Billing Authority (and the Tribunal on appeal) and the Listing Officer.

Mr Forrest submits that there is nothing in r.3(2)(a) of the 2013 Regulations, or in ss.3 and 10 of the 1992 Act which indicates that, in order to meet the condition in r.3(2)(a), the dwellings in question first have to be formally valued and listed by the Listing Officer as being part of a single hereditament or Art.3 dwellings. Rather, submits Mr Forrest on behalf of HMRC, whether the condition is met is a question of fact for the billing authority applying the legal principles relevant to determining whether a site is a single property. As such Mr Forrest submits that the Tribunal erred legally in dismissing the appellant’s appeal on the basis of the valuation of the site as a single hereditament as the Tribunal had jurisdiction to consider whether all of the conditions under r.3(2) of the 2013 Regulations were met or not.

Mr Forrest further submits that the Valuation List does not distinguish between the two types of chargeable dwelling comprising those that are one dwelling for the purposes of s.3 of the 1992 Act (i.e. a property that would have been a single hereditament) and those that are a single property for the purposes of Art 3 of the 1992 Order (i.e. a property containing more than one self contained unit). In these circumstances, Mr Forrest argues that the approach taken by the Tribunal, requiring a site to have been valued as a single hereditament before it could come within r.3(2)(a) of the 2013 Regulations, would be near impossible to apply in practice where that information is simply not available from the Valuation List. Mr Forrest further contends that, given that the council tax band remains the same in nearly all cases where a dwelling moves from being a separate hereditament to being part of a single hereditament or single property under Art 3, the need for a valuation as a single hereditament before a chargeable dwelling can qualify for an annexe related discount would impose a needless additional administrative burden that results in inefficiency and delay.

Finally, Mr Forrest submits that the Tribunal’s interpretation of r.3(2)(a) as requiring a site to have been valued as a single hereditament before it can come within that provision erroneously turns the “single property” criteria in r.3(2)(a) into a jurisdictional gateway for which the Listing Officer is responsible. Mr Forrest submits that this confuses the role of the Listing Officer who, under ss.20 to 24 of the 1992 Act, is responsible for compiling and maintaining the valuation list, and the Billing Authority, which under Part 1 of the 1992 Act sets, calculates, levies, and collects council tax, including determining council tax discounts pursuant to s.13 of the 1992 Act, under which the 2013 Regulations are made.

The 1992 Act governs the operation of council tax levied on dwellings. Section 4 of the 1992 Act provides as follows with respect to the requirement to pay council tax on dwellings:

“Dwellings chargeable to council tax.

(1)

Council tax shall be payable in respect of any dwelling which is not an exempt dwelling.

(2)

In this Chapter—

“chargeable dwelling” means any dwelling in respect of which council tax is payable;

“exempt dwelling” means any dwelling of a class prescribed by an order made by the Secretary of State.

(3)

For the purposes of subsection (2) above, a class of dwellings may be prescribed by reference to such factors as the Secretary of State sees fit.

(4)

Without prejudice to the generality of subsection (3) above, a class of dwellings may be prescribed by reference to one or more of the following factors—

(a)

the physical characteristics of dwellings;

(b)

the fact that dwellings are unoccupied or are occupied for prescribed purposes or are occupied or owned by persons of prescribed descriptions.”

Section 2 of the 1992 Act provides the basis on which liability to council tax is to be determined:

“2 Liability to tax determined on a daily basis.

(1)

Liability to pay council tax shall be determined on a daily basis.

(2)

For the purposes of determining for any day—

(a)

whether any property is a chargeable dwelling;

(b)

which valuation band is shown in the billing authority’s valuation list as applicable to any chargeable dwelling;

(c)

the person liable to pay council tax in respect of any such dwelling; or

(d)

whether any amount of council tax is subject to a discount and (if so) the amount of the discount,

it shall be assumed that any state of affairs subsisting at the end of the day had subsisted throughout the day.”

With respect to discounts, s. 13 of the 1992 Act provides for reduced amounts of council tax to be payable if certain conditions prescribed by the Secretary of State are fulfilled. Regulation 4(3) of the 2013 Regulations provides as follows with respect to a 50% discount for annexes, subject to certain conditions being met:

“Calculation of amount payable

4.

—(1) Subject to paragraph (3) the amount of council tax payable by a person liable to pay an amount to a billing authority in respect of a dwelling which fulfils either of the conditions prescribed in regulation 3 and each day on which that condition is fulfilled shall be calculated in accordance with the formula in paragraph (2).

(2)

The formula is—

$\frac{\mathrm{A}}{2}$

where A is the amount determined under section 10 of the 1992 Act or under that section read with section 11, 11A or 11B of that Act.

(3)

Where, as regards the person liable to pay, the dwelling in question and a day on which either condition referred to in regulation 3 is fulfilled, regulations under section 13 of the 1992 Act (other than these Regulations) apply, the amount payable shall be calculated in accordance with these Regulations as read with those Regulations.”

The prescribed conditions that must be met for the annexe related discount provided for in r.4 to be applied are set out in r.3 of the 2013 Regulations:

“Prescribed conditions

3.

—(1) The following conditions are prescribed for the purposes of these Regulations.

(2)

The dwelling—

(a)

forms part of a single property which includes at least one other dwelling; and

(b)

is being used by a resident of that other dwelling or, as the case may be, one of those other dwellings, as part of their sole or main residence; or

(c)

is the sole or main residence of a relative of the person who is liable to pay council tax in respect of that other dwelling or, as the case may be, one of those other dwellings.

(3)

For the purposes of paragraph (2)—

(a)

“single property” means a property which would apart from the Council Tax (Chargeable Dwellings) Order 1992 be one dwelling within the meaning of section 3 of the 1992 Act;

(b)

a person (“P”) is to be regarded as the relative of another if P—

(i)

is the spouse or civil partner of that person, or

(ii)

is that person’s parent, child, grandparent, grandchild, brother, sister, uncle or aunt, nephew or niece, great-grandparent, great-grandchild, great-uncle, great-aunt, great-nephew or great-niece, or

(iii)

is that person’s great-great-grandparent, great-great-grandchild, great-great-uncle, great-great-aunt, great-great-nephew or great-great-niece; and

(aa)

a relationship by marriage or civil partnership shall be treated as a relationship by blood;

(bb)

a relationship between two persons living together as if they were a married couple or civil partners shall be treated as a relationship by marriage or civil partnership;

(cc)

the stepchild of a person shall be treated as that person’s child;

(dd)

the child of the civil partner of a person (‘A’) shall be treated as A’s child; and

(c)

“the person who is liable to pay council tax” includes a person who would be so liable if the dwelling were not an exempt dwelling within the meaning of the Council Tax (Administration and Enforcement) Regulations 1992.”

The meaning of ‘dwelling’ for the purposes of Part I of the 1992 Act is provided by s.3 of the Act as follows:

“3 Meaning of “dwelling".

(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 for the purposes of that Act if that Act remained in force; and

(b)

is not for the time being shown or required to be shown in a local or a central non-domestic rating list in force at that time; and

(c)

is not for the time being exempt from local non-domestic rating for the purposes of Part III of the Local Government Finance Act 1988 (“the 1988 Act”);

and in applying paragraphs (b) and (c) above no account shall be taken of any rules as to Crown exemption.

(3)

A hereditament which—

(a)

is a composite hereditament for the purposes of Part III of the 1988 Act; and

(b)

would still be such a hereditament if paragraphs (b) to (d) of section 66(1) of that Act (domestic property) were omitted,

is also, subject to subsection (6) below, a dwelling for the purposes of this Part.

(4)

Subject to subsection (6) below, none of the following property, namely—

(a)

a yard, garden, outhouse or other appurtenance belonging to or enjoyed with property used wholly for the purposes of living accommodation; or

(b)

a private garage which either has a floor area of not more than 25 square metres or is used wholly or mainly for the accommodation of a private motor vehicle; or

(c)

private storage premises used wholly or mainly for the storage of articles of domestic use,

is a dwelling except in so far as it forms part of a larger property which is itself a dwelling by virtue of subsection (2) above.

(4A)

Subject to subsection (6) below, domestic property falling within section 66(1A) of the 1988 Act is not a dwelling except in so far as it forms part of a larger property which is itself a dwelling by virtue of subsection (2) above.

(5)

The Secretary of State may by order provide that in such cases as may be prescribed by or determined under the order—

(a)

anything which would (apart from the order) be one dwelling shall be treated as two or more dwellings; and

(b)

anything which would (apart from the order) be two or more dwellings shall be treated as one dwelling.

(6)

The Secretary of State may by order amend any definition of “dwelling" which is for the time being effective for the purposes of this Part.”

The definition of hereditament in section 115(1) of the General Rate Act 1967 (hereafter, “the 1967 Act”) was as follows:

“"hereditament " means property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item in the valuation list;”

Under s.3(6) of the 1992 Act, the Secretary of State made the 1992 Order. Art 3 of the 1992 Order provides as follows:

“3.

Subject to articles 3A and 3C, where a single property contains more than one self contained unit, for the purposes of Part I of the Act, the property shall be treated as comprising as many dwellings as there are such units included in it and each such unit shall be treated as a dwelling.”

The term “single property” is defined by Art 2 of the 1992 Order as property which would, apart from the 1992 Order, be “one dwelling” within the meaning of s.3 of the 1992 Act. The term “self contained unit” is defined in Art 2 of the 1992 Order as “a building or a part of a building which has been constructed or adapted for use as separate living accommodation.”

Pursuant to s.20(1) of the 1992 Act, a listing officer is appointed by HMRC for each billing authority. Pursuant to s.21(1)(a), HMRC is required to value chargeable dwellings in England and Wales. Pursuant to s.21(1)(b) HMRC provides the information obtained in carrying out those valuations to the Listing Officer. Pursuant to s.22 of the 1992 Act, the listing officer compiles and maintains an accurate valuation list for the billing authority’s area in accordance with Part I, Chapter II of the 1992 Act. Pursuant to s.22(3) and (4), the Listing Officer may undertake valuations to ensure the list is accurately compiled. The content of the Valuation List is prescribed by s.23 of the 1992 Act. Pursuant to s. 23 of the 1992 Act, a valuation list must show each dwelling which is situated in the billing authority’s area and the applicable valuation band, set out in s.5, to each dwelling. Section 23 of the 1992 Act does not contain a requirement for the Listing Officer to indicate whether a given listing is listed by virtue of being a dwelling for the purposes of s.3 of the 1992 Act or by virtue of being a dwelling for the purposes of Art 3 of the 1992 Order.

With respect to the procedure for appealing decisions made by the billing authority, pursuant to section 16 of the 1992 Act the Valuations Tribunal for England has jurisdiction to hear appeals of a billing authority’s decision relating to council tax:

“16 Appeals: general

(1)

A person may appeal to a valuation tribunal if he is aggrieved by—

(a)

any decision of a billing authority that a dwelling is a chargeable dwelling, or that he is liable to pay council tax in respect of such a dwelling; or

(b)

any calculation made by such an authority of an amount which he is liable to pay to the authority in respect of council tax.”

Where a party seeks to appeal the decision of the Valuations Tribunal for England, r.43 of the 2009 Regulations provides for an appeal to the High Court on a question of law:

“43 Appeals to the High Court

(1)

An appeal shall lie to the High Court on a question of law arising out of a decision or order which is given or made by the VTE on an appeal under section 16 of the 1992 Act…

…

(4)

The High Court may confirm, vary, set aside, revoke or remit the decision or order, and may make any order the VTE could have made.”

In Ramdhun v Valuation Tribunal of England [2014] EWHC 946 (Admin), [2015] RVR 89 at [20], Haddon-Cave J (as he then was) said that “absent a patent error of law or findings of fact which simply cannot be justified on the evidence, the High Court will not interfere”. Haddon-Cave J reiterated that particular deference is to be afforded to specialist tribunals. At [29] Haddon-Cave J articulated the task of the High Court as follows:

“The exercise of the court, as Miss McCarthy rightly submitted, is to look first to the tribunal's decision to see whether or not there is any discernible error of law and if so, as Ognall J said, then to consider whether that error was significant.”

I am satisfied that the appeal should be allowed and the matter remitted to a differently constituted Tribunal for determination of the appellant’s appeal. My reasons for so deciding are as follows.

The appellant may obtain an annexe related discount if he can bring himself within the prescribed conditions set out in the 2013 Regulations. In this case, the appellant claimed an annexe related discount on the basis that the Coach House and the Cottage form part of a single property which includes at least one other dwelling, namely Stibbington Hall, for the purposes of r.3(2)(a) and are being used by a resident of Stibbington Hall, namely the appellant, as part of his sole or main residence for the purposes of r.3(2)(b) of the 2013 Regulations.

The Tribunal concluded the appellant could not bring himself within the prescribed conditions as he could not demonstrate that one or other or both of the dwellings in question, namely the Coach House and the Cottage, formed part of a single property including at least one other dwelling for the purposes of r.3(2)(a) of the 2013 Regulations. The foundation for the Tribunal’s conclusion was that as at the date of the appellant’s application for an annexe related discount, Stibbington Hall, the Coach House and the Cottage had been, and remained, valued as separate hereditaments and listed as such in the Valuation List.

There was no dispute before the Tribunal that, prior to the appellant’s purchase of the property on 18 March 2019, Stibbington Hall, the Coach House and the Cottage had been valued for council tax separately and were shown as separate hereditaments on the Valuation List, with band D council tax entries for the Coach House and the Cottage. The appellant’s case before the Tribunal was that the decision of the second respondent to deny the annexe discount was in error because, following his purchase of the site, the Coach House and the Cottage now formed part of a single property that included Stibbington Hall and that, as resident of Stibbington Hall, he was using the Coach House and the Cottage as part of his sole or main residence, satisfying the conditions in r. 3(2)(a) and (b) of the 2013 Regulations.

At the heart of the Tribunal’s decision to reject that submission and to refuse the appellant’s appeal was its conclusion that the fact that, after being valued for council tax purposes in 2010, the Coach House and the Cottage remained listed separately in the Valuation List and that that valuation and listing was determinative:

“[19] In view of the above, neither the Coach House nor the Cottage met the prescribed requirements in Regulation 3 (2) (a) as neither dwelling formed part of a single property. They were valued, albeit historically, as separate hereditaments. Whether that was still correct now was somewhat academic and not a matter for me to decide. The simple fact was that all three dwellings had been valued as separate hereditaments and the valuation list had not been altered, since the Appellant had completed his purchase.”

Thus the Tribunal considered that the historic position as to valuation deprived it of the ability to treat the site as a single property for the purposes of r.3(2)(a) of the 2013 Regulations as at the date of the application, even though the Tribunal itself acknowledged at [16] that the whole of the site was now “in a single rateable occupation and now formed a single hereditament.”

In concluding at [17] that, for the site to be treated as a single property for the purposes of r.3(2)(a) of the 2013 Regulations, the site “had to have been valued as a single hereditament” (emphasis added) I am satisfied that the Tribunal misconstrued the 1992 Act and the 2013 Regulations.

Determining whether a chargeable dwelling meets the prescribed conditions set out in r.3 of the 2013 Regulations first requires a determination of whether the dwelling “forms part of a single property which includes at least one other dwelling”. Whether that criterion is made out turns on the definition of the term “single property” used in r.3(2)(a) of the 2013 Regulations.

Rule 3(3)(a) of the 2013 Regulations provides the definition of the term “single property” used in r.3(2)(a). Namely, “a property which would apart from the Council Tax (Chargeable Dwellings) Order 1992 be one dwelling within the meaning of section 3 of the 1992 Act.” Accordingly, the Coach House and the Cottage come within r.3(2)(a) if they form part of a single property that would be a dwelling pursuant to s.3 of the 1992 Act, regardless of whether they would be treated as more than one self-contained unit under the 1992 Order.

By s.3(2) of the 1992 Act, a property is a dwelling pursuant to s.3 of the 1992 Act if (a) it would have been a hereditament for the purposes of s.115(1) of the 1967 Act, if the 1967 Act remained in force, (b) is not for the time being shown or required to be shown in a local or a central non-domestic rating list in force at that time and (c) is not for exempt from local non-domestic rating for the purposes of Part III of the Local Government Finance Act 1988. A property would have been a hereditament for the purposes of s.115(1) of the 1967 Act if “it is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item in the valuation list” (emphasis added).

Thus, in determining whether the Coach House and the Cottage formed part of a single property which included at least one other dwelling pursuant to r.3(3)(a) of the 2013 Regulations, I am satisfied that the Tribunal needed to consider not only whether the site is shown as a separate item in the valuation list, but also whether the site would fall to be shown as a separate item in the valuation list. Whilst the Tribunal considered the former question, it did not consider the latter question, notwithstanding that the Tribunal itself concluded that that the whole of the site was now “in a single rateable occupation and now formed a single hereditament.”

This interpretation is consistent with the wording of r.3(2)(a) of the 2013 Regulations and ss.3 of the 1992 Act. There is nothing in those provisions to suggest that the past valuation and listing of the site is determinative of the question of whether the site is a single property for the purposes of r.3(2)(a) of the 2013 Regulations. Neither r.3(2)(a) of the 2013 Regulations nor s.3 of the 1992 Act stipulate that a dwelling can form part of a single property which includes at least one other dwelling for the purposes of r.3(2)(a) only if it has already been valued as a single hereditament. Had Parliament intended past valuation as a single hereditament to be determinative of the question of the existence of a “single property” for the purposes of r.3(2)(a), it could have said so. Instead, Parliament chose the wider formulation of “forms part of a single property”. This formulation, drafted in the present tense, is entirely consistent with the term “single property” in r.3(2)(a) of the 2013 Regulations having been defined by reference to s.3 of the 1992 Act, which in turn defines one dwelling by reference to the 1967 Act as a unit of property which is, or would fall to be, shown as a separate item in the valuation list.

I am satisfied that the Tribunal erred in law in concluding that the way in which the site had been valued and listed in the past was determinative of the question of whether it was a “single property” for the purposes of r.3(2)(a) of the 2013 Regulations. This was a discernible error of law and an error that was significant. In circumstances where the meaning of the term “single property” in r.3(2)(a) as defined by r.3(3)(a) is derived from the definition of dwelling in s.3 of the 1992 Act, in deciding whether the site “forms part of a single property” for the purposes of r.3(2)(a) a decision maker is required to consider not only whether the site is shown as a separate item in the valuation list but also whether the site would fall to be shown as a separate item in the valuation list. Where the criterion set out in r.3(2)(a) is satisfied on that basis, the decision maker will, of course, also need to be satisfied that the criteria in r.3(2)(b) or r.3(2)(c) of the 2013 Regulations are met in order for the prescribed conditions to be fulfilled.

In circumstances where the Tribunal erred in law by not taking this approach, I am satisfied that the appeal should be allowed and the matter remitted to the Tribunal for re-hearing, with a direction that the matter be determined in accordance with the legal approach set out in this judgment. I will invite counsel to provide a draft order accordingly for my approval.