England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LANDS TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd July 2004

The Vice-Chancellor :

Introduction
1. The Local Government Finance Act 1988 ("the 1988 Act") introduced a new system for rating non-domestic properties. In essence it provided, by s.41(1), for the compilation and maintenance by the valuation officer of quinquennial local non-domestic rating lists, the first of such lists to be compiled on 1st April 1990. The 1988 Act made provision both for alterations to the list and for transitional relief. The interaction of these alternatives was such that for the years 1990 to 1992 it could be more beneficial for a ratepayer to obtain the transitional relief than a reduction in value.
2. National Car Parks Ltd was the owner of car parks at Watson Street, Manchester ("the Manchester Property") and 380/386 Kensington High Street, London ("the Kensington Property"). In August 1990 it proposed alterations to the lists so as to reduce the values of those properties to £1 each. In January and April 1994 NCP agreed with the respective valuation officers that the values to be shown on the list should be £260,000 for the Manchester Property and £18,600 for the Kensington Property. On 9th July 1994 the regulations which governed the date on which such alterations would take effect were amended. Accordingly the alterations when made in late July and August 1994 took effect from 1st April 1990, as opposed to 1st April 1992. The consequence was that transitional relief for the years 1990 to 1992 was not available in respect of either the Manchester Property or the Kensington Property.
3. In November 1994 NCP proposed a further alteration to the respective non-domestic rating lists so as to show the date from which the alterations as to value took effect as 1st April 1992. The valuation officers did not agree. The appeals of NCP to the respective valuation tribunals were dismissed in April and September 1996. NCP appealed to the Lands Tribunal. On 21st August 2003 the President of the Lands Tribunal (Mr George Bartlett QC) dismissed those appeals. NCP now appeals to this court. It seeks an order, in effect, requiring the lists to be altered with effect from 1st April 1992, rather than 1st April 1990, notwithstanding the provisions of the amended regulations. It contends that (1) the respective valuation officers were bound by s.41(1) of the 1988 Act to alter the lists in accordance with the agreements as to value reached in January and April 1994 in accordance with the regulations then in force, ie with effect from 1st April 1992, (2) NCP had a legitimate expectation that the valuation officers would do so, and (3) the amendment to the regulations effected on 9th July 1994 did not defeat the right of NCP corresponding to the valuation officers' duty or the legitimate expectation of NCP because of both the presumption against retrospectivity and the provisions of s.16 and 23 Interpretation Act 1978. I will deal with these and other submissions made to this court in due course but first it is necessary to explain the statutory framework in some detail and the facts of the individual cases.
The Statutory Framework
4. The 1988 Act introduced a new system of property taxation. It divided all property into two categories, domestic and non-domestic. Domestic property was valued in accordance with bands for the purposes of the council tax and later the community charge. The liability of the occupant is arrived at by multiplying the value of the band by the rate of the community charge set and declared by the relevant local authority. The proceeds of that rate are collected by the local authority and retained for its own use. By contrast the non-domestic rate is arrived at by applying to its annual rental value, as shown on the list, a national multiplier set by central government. The product is collected by the local authority and accounted for to central government. This appeal concerns the non-domestic rating system.
5. By s.41 of the 1988 Act the Local Valuation Officer is required to compile and then maintain lists to be called non-domestic rating lists. The first list was to be compiled on 1st April 1990 and subsequent lists on 1st April in every subsequent fifth year. The list so compiled comes into force on the day on which it is compiled and remains in force until the next one is compiled five years later. S.42 prescribes what the list must show for each day in each financial year for each relevant non-domestic property. S.43 imposes the liability on the occupant. The list is open to inspection by the public in accordance with the provisions of Schedule 9 para 8.
6. S.55 makes provision for the alteration of lists. It authorises the Secretary of State to make regulations about the alteration by valuation officers of lists which have been compiled under that part of the Act whether or not still in force. Subsections (3) to (7) apply for the purposes of subsection (2) so as specifically to authorise regulations of a particular nature. Specific matters so dealt with include the conditions under which a valuation officer may alter the list (ss. (3)), who may make proposals for an alteration, how and when (ss. (4)) and for appeals to a valuation tribunal in case of disagreement (ss. (5)). Sub-section (6) provides

"The regulations may include—

(a) provision as to the period for which or day from which an alteration of a list is to have effect (including provision that it is to have retrospective effect);

(b) provision requiring the list to be altered so as to indicate the effect (retrospective or otherwise) of the alteration;

[(c)..

 (d)]"

7. S.57 provided that Schedule 7A, which contained special provisions for the years 1990 to 1995, should have effect. The Non-Domestic Rating (Transitional Period) Regulations 1990 SI 1990 No:608, made under para 10 of that schedule contain the details of the transitional relief for the years 1990 to 1995 which, depending on the figures, might give rise to a lower liability than a reduction in value. They were clearly explained by Sullivan J in R v Valuation Office Agency, ex parte Corus UK Ltd [2002] RA 1 paras 1 to 16 but are not material for the purposes of this appeal.
8. As indicated in s.55 detailed provisions with regard to alterations to the lists were made in regulations promulgated by the Secretary of State in exercise of the power conferred on him by that section. The relevant regulations for the purposes of this appeal are The Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 SI 1993 No: 291 ("the 1993 Regulations") and The Non-Domestic Rating (Alteration of Lists and Appeals) (Amendment) Regulations 1994 SI 1994 No: 1809 ("the 1994 Regulations"). Nevertheless it is necessary to note some provisions of the earlier regulations, namely The Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1990 SI 1990 No: 582, the Non-Domestic Rating (Alteration of Lists and Appeals) (Amendment) Regulations 1990 SI 1990 No: 769, the Non-Domestic Rating (Alteration of Lists and Appeals) (Amendment) (No 2) Regulations 1990 SI 1990 No: 1822, the Non-Domestic Rating (Alteration of Lists and Appeals) (Amendment) (No 3) Regulations 1990 SI 1990 No: 2025 and the Non-Domestic Rating (Alteration of Lists and Appeals) (Amendment) Regulations 1992 SI 1992 No: 611.
9. The 1990 Regulations in regulation 4 prescribed the time from which an alteration to the list was to take effect in a number of circumstances; but it made no provision for determining when an alteration to the list, made to correct an inaccuracy in the list on the date on which it was compiled, should take effect. The omission was evidently discovered in time to make the (Amendment) Regulations 1990, which came into force on the same day as the principal regulations, 1 April 1990. So far as relevant regulation 2 of the (Amendment) Regulations 1990 provided:

"(2) In regulation 4 (time from which alteration to have effect), after paragraph (6) there shall be added -

"(6A) An alteration made to correct an inaccuracy in a list on the day it was compiled shall have effect from that day."

[(6B)...]"

This provision was, however, subject to regulation 6 of the 1990 Regulations, which provided:

"Limit to start of year

6. No alteration such as is described in regulation 4 other than -

(a) an alteration in pursuance of a proposal disputing the accuracy of a previous alteration,

(b) an alteration to enter a completion day determined under Schedule 4A to the Act, or

(c) an alteration required by order of a tribunal under Part V of these Regulations,

shall have effect from a day earlier than the first day in the year in which the alteration is made."

10. As the President observed in paragraph 8 of his decision where a ratepayer made a proposal to reduce the value shown in the list for his hereditament, or if the Valuation Officer altered the list so as to reduce such value, the alteration would only take effect on the first day of the year in which the alteration was made, notwithstanding that it was made in order to correct an inaccuracy in the list on the day it was compiled. The only relevant exceptions to this were an alteration in pursuance of a proposal disputing the accuracy of a previous alteration (para (a)) or an alteration required by order of a VT on appeal (para (c)).
11. Regulation 4 of the (Amendment) (No.2) Regulations 1990, which came into force on 27 September 1990, replaced regulation 6 of the original regulations. The new regulation 6 provided:

"6.- (1) No alteration such as is described in regulation 4 other than an alteration -

(a) in pursuance of paragraphs (3) and (4) (completion notices) (c), or

(b) made in pursuance of the order of a tribunal under Part V of these Regulations

shall have effect from a day earlier than the first day in the relevant year.

(2) Where the alteration is made in pursuance of a proposal other than a proposal disputing the accuracy of a previous alteration to the list, the relevant year is the year in which the proposal was made.

(3) Where the alteration is made in pursuance of a proposal disputing the accuracy of a previous alteration to the list, the relevant year is the year in which the disputed alteration was made.

(4) In any other case, the relevant year is the year in which the alteration is made."

12. As the President observed in paragraph 10 of his decision an alteration made to correct an inaccuracy in the list on the day it was compiled, if made by the Valuation Officer under his general power to maintain the list, would take effect on the first day of the year in which the alteration was made; but an alteration made in pursuance of a proposal (other than one disputing the accuracy of a previous alteration) would take effect on the first day of the year in which the proposal was made.
13. The replaced regulation 6 was itself replaced by regulation 4 of the (Amendment) Regulations 1992 with effect from 1st April 1992. As nothing turns on the terms of the amendment I will not refer to them further.
14. The 1990 Regulations as so amended were replaced by the 1993 Regulations. Regulation 2 contained definitions of, amongst other words or expressions "interested person", "proposal" and "relevant authority". Regulation 3 provided that "alteration" means "alteration of a list in relation to a particular hereditament, and 'alter' shall be construed accordingly". Regulation 4 set out in some detail who might make a proposal for an alteration to the list, when and how. Regulation 5 specified the form of such a proposal, regulation 6 required the valuation officer to acknowledge its receipt and, by regulation 7, to give notice if he considered it to be invalid. Regulation 8 prescribed the procedure then to be observed. Regulation 9 dealt with what was to be done if the valuation officer agreed with the proposal. In that event the valuation officer is to serve notice on the proposer, and the ratepayer if different, that he proposes to alter the list accordingly and to do so within 6 weeks of giving such notice.
15. Regulation 10 enables a proposer, subject to conditions, to withdraw his proposal. Paragraph 11 deals with the case where all persons interested, including the proposer and the valuation officer,

"..agree on an alteration of the list in accordance with this Part in terms other than those contained in the proposal, and that agreement is signified in writing.."

In such a case the valuation officer is obliged within the next six weeks to alter the list to give effect to the agreement and the proposal is treated as having been withdrawn.

16. Regulation 12 provides that where the valuation officer does not agree with the proposal, the proposal is not withdrawn and there is no agreement as provided in regulation 11 then the disagreement must be referred by the valuation officer to the relevant valuation tribunal as an appeal by the proposer against his refusal to alter the list. Such referral is to be made within six months from service of the proposal on the valuation officer.
17. Regulations 13, 15 and 16, replacing respectively regulations 4, 6A and 6B of the 1990 Regulations, deal with the time from which the alteration is to have effect. So far as relevant they provide

"13.– (1) This regulation has effect subject to regulations 15,...and 44...

[(2)-(6)]

(7) An alteration made to correct an inaccuracy in a list on the day it was compiled shall have effect from that day.

(8) An alteration made to correct an inaccuracy in a list (other than an alteration which falls to take effect as provided in the foregoing provisions of this regulation) shall have effect from the day on which the list became inaccurate...

15.– (1) Where, in relation to an alteration that falls to be made on or after 1st April 1992, other than an alteration –

[(a), (b)]

(c) made in pursuance of the order of a tribunal under Part VI of these Regulations,

the day determined in accordance with regulation 13 as the day from which it has effect precedes 1st April 1992, the alteration shall have effect, subject to paragraph (2), from 1st April 1992.

(2) Where the alteration –

(a) is made in consequence of a proposal made before 1st April 1992, and

(b) would have had effect, had the former regulation 6 continued in force, from a day earlier than 1st April 1992,

the alteration shall have effect from that earlier day.

[(3)..]

(4) In this regulation and regulation 16 below, "the former regulation 6" refers to regulation 6 of the 1990 Regulations before the substitution made by regulation 4 of the Non-Domestic Rating (Alteration of Lists and Appeals) (Amendment) Regulations 1992."

The "former regulation 6" is that which I have quoted in paragraph 11 above. Regulation 17 provided that where an alteration is made "the list shall show the day from which the alteration is to have effect in pursuance of this part".

18. As the President observed in paragraph 14 of his decision, since it is clear that the object of these regulations is to make the same provision as the equivalent regulations in the 1990 Regulations as amended, it is necessary to read into regulation 15(2)(b), after the reference to the former regulation 6 continuing in force, the additional words: "and if this regulation [ie regulation 15] had not been made and if in the former regulation 6 the reference to regulation 4 was a reference to regulation 13 of these Regulations." The President continued

"The effect of regulations 13 and 15 in each of the present cases, before the 1994 (Amendment) Regulations, therefore, was that, if the VO had altered the list so as to give effect to the agreed assessment, the alteration would have taken effect on 1 April 1992 (under regulation 13(7) and regulation 15(1)); and, if the list had been altered in consequence of the appellant's proposal of 23 (or 5) August 1990, the alteration would have taken effect on 1 April 1990 (under regulation 13(7) and regulation 15(2))."

19. Part VI of the Regulations deals with appeals to valuation tribunals. Regulation 34 provides that an appeal may be withdrawn by the valuation officer but only with the written consent of all the other parties to it. By regulation 34(4) an appeal is deemed to have been withdrawn where after its referral the valuation officer alters the list in accordance with the proposal or there is an agreement within regulation 11. Regulation 44(1) provides that the tribunal may, subject to conditions not material to this appeal, require a valuation officer, in accordance with their decision, by order to alter a list in accordance with any provision made by or under the Act. In that event the valuation officer is obliged, by subsection (3), to comply within six weeks of the order. By regulation 45 a tribunal may on certain specified grounds review or set aside its own decision. By regulation 47 provision is made for an appeal against an order of the tribunal on appeal under regulation 12 to be made to the Lands Tribunal. Paragraph (5) entitles the Lands Tribunal to confirm, vary, set aside, revoke or remit the decision or order of the tribunal and to make any other order which the tribunal might have made.
20. Thus under the 1993 Regulations there were four methods by which the list might be altered, namely (i) acceptance of a proposal under regulation 9, (ii) to give effect to a written agreement in accordance with regulation 11, (iii) pursuant to an order of the Valuation Tribunal or the Lands Tribunal on appeal under regulations 44(1) or 47(5), and (iv) by the valuation officer on his own initiative pursuant to s.41(1). In the first three cases the time prescribed as the time from which the alteration was effective was 1st April 1990 in cases (i) and (ii) in accordance with regulations 13(7) and 15(2) and in case (iii) in accordance with regulations 13(7) and 15(1)(c). In the fourth case the effective date of the alteration was 1st April 1992 because of the combined effects of regulations 13(7), 15(1) and former regulation 6.
21. The Non-Domestic Rating (Alteration of Lists and Appeals)(Amendment) Regulations 1994 SI 1994 No: 1809 were made on 7th July 1994 and came into force two days later on 9th July 1994. They provided for the amendment of regulations 13 and 15 of the 1993 Regulations. The relevant amendments are those made to regulation 15. The 1994 Regulations, so far as material, provided that

"Amendments to regulation 15

3. (1) Regulation 15 of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 shall be amended in accordance with the following paragraphs.

(2) After paragraph (1) (c), insert –"or

(d) an alteration to which paragraph (3E) applies (a "relevant alteration"),".

[(3)....]

(4) After paragraph (3), insert

"[(3A)-(3D)]

(3E) This paragraph applies to an alteration made –

(a) so as –

(i) to reduce the rateable value shown in a list for a hereditament; or

[(ii)-(iv)] or

[(b)...]

22. The effect of these amendments, as helpfully summarised by the President in paragraph 16 of his decision, was

"[to extend] the exclusions in regulation 15(1) from the 1 April 1992 rule .....to include (d), alterations falling within a new paragraph, (3E). One of the alterations referred to in (3E) was an alteration made so as to reduce the rateable value shown in the list for a hereditament (paragraph (3E)(a)(i)). From 9 July 1994 on, therefore, where the VO made an alteration to correct an inaccuracy in the 1990 list on the day it was compiled and the alteration reduced the rateable value as shown in the list, the alteration took effect, pursuant to regulation 13(7), on 1 April 1990."

The Facts The Manchester Property
23. As the President recorded, there was no dispute as to primary fact. In relation to the Manchester Property they are set out in paragraphs 19 to 22 in the following terms:

"19. The Manchester hereditament was entered in the rating list that came into force on 1 April 1990 as "Car Park, Former Warehouse and Railway Land, Watson Street, Manchester M2" with an assessment of £343,500 RV. It comprised the converted lower floors of a multi-storey warehouse together with an extensive area of open land to the rear, all occupied as a public car park. On 23 August 1990 J Trevor & Sons served on the VO a proposal to alter the entry in the list by reducing the assessment to £1.

20. The appeal resulting from this proposal was due to be heard by the Manchester South Valuation Tribunal on 31 January 1994. Negotiations with a view to a resolution of the appeal took place between Mr Lilley [ of J.Trevor & Sons, the agent for NCP] and Mr Todd [the valuation officer] during December 1993 and January 1994, and a meeting between them took place in Manchester on 17 January 1994. On 26 January 1994 Mr Todd and Mr Steven Cooper of J Trevor & Sons had a meeting at the subject premises and agreed that the useable capacity of the public car park was 1042 spaces. The next day 27 January 1994 Mr Lilley and Mr Todd spoke on the telephone and agreed that the proper assessment was £260,000 RV. Mr Lilley's agreement to this figure was subject to the approval of his client, and later that day Mr Lilley spoke to Mr Birks and received his instructions to accept the reduction, subject to the operation of the transitional relief provisions. Mr Lilley carried out the necessary calculations and these showed that it would be financially beneficial if the August 1990 proposal were to be withdrawn and he were to request the VO to alter the assessment in the list to £260,000 with effect from 1 April 1992. Mr Lilley then telephoned the clerk to the VT to notify him of his instructions to withdraw the appeal.

21. Despite Mr Lilley's attempted withdrawal of the appeal, the VT on 31 January 1994 considered it. On 3 February 1994 it issued a decision determining that the assessment should be reduced to £260,000 with effect from 1 April 1990. On 18 and 23 February 1994 Mr Lilley wrote to the clerk of the VT asking that the decision be set aside under regulation 45 of the 1993 Regulations. Since there was no objection to this from the VO the VT issued a certificate on 8 March 1994 setting aside the decision. On 10 March 1994 J Trevor and Webster (as the firm was now called) wrote to the VO formally withdrawing the appeal and requesting him to alter the list to show an assessment of £260,000 with effect from 1 April 1992. On 22 April 1994 Mr Todd left the Manchester office to take up new duties in the City of London. Before leaving he had made arrangements for the list to be altered in accordance with the request in the letter of 10 March 1994. On 28 April 1994 the VO gave his notice to the VT withdrawing the appeal.

22. The VO did not in fact alter the list to show the agreed assessment of £260,000 until 30 August 1994. By that time the 1994 (Amendment) Regulations had been made and had come into force (on 9 July 1994), so that the alteration showed as the effective date, in accordance with the amended regulations, 1 April 1990. What had happened following Mr Todd's departure was that the VO's clerical staff had on 9 May 1994 prepared a form, form VO 7001 (referred to as a "pink"), in relation to the appeal hereditament, annotating it with the remark "Please review as per SDT [ie Mr Todd]". Mr Brankin, who had assumed Mr Todd's responsibilities for car parks, did not feel that he could simply accept Mr Todd's valuation despite the fact that it had been agreed with Mr Lilley. He considered that he needed to familiarise himself with the type of property concerned, the local level of rateable values, VT decisions and the history of the case. He could not do this immediately and it was not until 5 August 1994 that, having done the necessary research, he authorised the reduction to the agreed figure of £260,000. The clerical staff made the alteration on 30 August 1994."

24. In summary, the value of the Manchester Properties was agreed on 27th January 1994. If that agreement had been in writing, as envisaged in regulation 11, then the appeal would have been deemed to have been withdrawn (Reg.34(4)), the original proposal would be treated as having been withdrawn (Reg.11(1)(b)) and the valuation officer would have been obliged to make the alteration not later than 10th March 1994. An alteration within that period would have taken effect from 1st April 1990 in accordance with regulations 13(7) and 15(2). But an alteration made by the valuation officer of his own initiative at any time before 9th July 1994 would have taken effect from 1st April 1992 in accordance with regulation 15(1). The effect of the amendment made by the 1994 regulations was to alter the latter date to 1st April 1990.
The Kensington Property
25. The details with regard to the Kensington Property are set out in paragraphs 24 and 25 of the decision of the President in the following terms

"24. The hereditament in the Kensington and Chelsea appeal was included in the rating list that came into force on 1 April 1990 as "Car Park and premises, Bst 380-386 Kensington High Street, London W14 8NL" with an assessment of £60,000 RV. On 5 August 1990 Montagu Evans, as agents for the appellant, served on the VO a proposal to alter the entry by reducing the assessment to £1. The appeal relating to this proposal was due to be heard by the London (South West) Valuation Tribunal on 13 April 1994. Discussions between Mr Mason [of Montagu Evans] and Mr Maudsley [a senior valuer] took place between 11 March and 8 April 1994, and on the latter date they reached agreement that the assessment should be reduced to £18,600. They also reached agreement on the assessments of other NCP car parks, and following their discussion Mr Maudsley faxed to Mr Mason agreement (or, where appropriate, withdrawal) forms.

25. On 12 April 1994 Mr Mason wrote to the VO enclosing signed withdrawal forms in respect of three of the NCP car parks. He also invited him to treat the letter itself as notice of withdrawal of the appeals on the subject hereditament and five other NCP car parks and to "serve Notices at the figures agreed between us retrospective to 1 April 1992". The appeal relating to the subject hereditament was withdrawn on 6 May 1994 by notice given by the VO to the clerk of the VT. On 27 July 1994 (by which time the 1994 (Amendment) Regulations were operative) the VO issued a notice stating that he had altered the list by reducing the assessment of the subject hereditament to £18,600 with effect from 1 April 1990. This alteration was challenged by a proposal served on 17 November 1994, which contended that the effective date should be amended to 1 April 1992. The appeal was heard by the VT, which dismissed it on 16 September 1996, and the appellant now appeals against the VT's decision."

26. As in the case of the Manchester Property, if the agreement as to value had been signified in writing as envisaged by regulation 11 then the appeal and the proposal would have been deemed to be withdrawn and the valuation officer would have been obliged to alter the list in accordance with that agreement on or before 20th May 1994. Such an alteration would have taken effect from 1st April 1990 pursuant to regulations 13(7) and 15(2). But, as before, an alteration made by the valuation officer of his own initiative at any time before 9th July 1994 would have taken effect from 1st April 1992 in accordance with regulation 15(1) but at any time thereafter with effect from 1st April 1990 as required by the 1994 regulations.
In respect of both Properties
27. In paragraph 26 of his decision the President set out the evidence as to what was required administratively for an alteration to be made. As there is no suggestion that the court should recognise or deem an alteration at any time before those in fact made on 5th August and 27th July 1994 respectively it is not necessary to refer to that evidence further. But in paragraph 27 the President observed:

"There was no dispute as to the facts that I have set out. There was, however, dispute as to whether in each case, as the appellant claimed, these facts showed that there was an understanding that the VO would alter the list so as to show the agreed value with effect from 1 April 1992 and that he would do so within a reasonable time. I return to this matter later."

28. The President returned to that matter in paragraph 40 of his decision where he found that:

"It is, of course, clear that in each case the VO was aware of why it was that the appellant's agents wished to pursue the course of withdrawing the proposals and looking to the VO to make alterations at the assessments agreed under his general statutory power. It is also clear that the VO, with whom agreement had been reached on value, was happy to go along with this procedure. The evidence does not, however, show in either case that there was any agreement or understanding between the parties that the VO would alter the list to show the assessment that had been agreed with effect from 1 April 1992, whether or not that remained the correct date under the applicable regulations when the alteration was made."

29. In paragraph 43 the President considered the evidence of Mr Maudsley in relation to the Kensington Property that the choice of effective date was dictated by the legislation then in force and the common understanding that 1st April 1992 was the correct date for any alteration made by the valuation officer of his own motion. He found that a similar understanding informed the dealings between the agent for NCP and the valuation officer in the case of the Manchester Property too. The President added:

"The nature of the procedure that the appellant was looking to the VO to carry out was to alter the list to the agreed assessment in the exercise of his general duty to maintain the list and in accordance with the regulations. Amendment of the regulations was by then a not infrequent occurrence, and it seems to me inconceivable that the VO could be taken to be undertaking to alter the list with effect from 1 April 1992 even if, at the time he altered it, the regulations as then existing required him to apply some other effective date."

30. The appeal to this court from the decision of the President lies on a point of law only, see Lands Tribunal Act 1949 s.3(4). Accordingly this appeal must be considered in the context that the only agreement or understanding was that any alteration made by the valuation officer would take effect from the day prescribed by the regulations in force at the time it was made.
The President's Decision
31. In paragraphs 45 to 51 the President considered whether the valuation officer was under any duty to alter the list. In paragraph 47 he rejected the suggestion that any such duty arose under regulation 9. In paragraph 49 he rejected the contention that the general duty contained in s.41(1) could be treated as the statutory foundation for specific duties and rights in relation to the alteration of the lists. He considered that that function was performed by s.55 and the regulations made thereunder. In paragraph 50 the President pointed out that NCP had abandoned its rights under the regulations by withdrawing its appeals and thereby sought to have an incorrect assessment kept in the list in order to secure an adventitious benefit.
32. The conclusion of the President on this part of the case is expressed in paragraph 51 in these terms:

"There is, in any event, a further objection to [NCP's counsel]'s contention. It was not his case that there was an agreement between the parties that the VO would alter the list to show the agreed assessment with effect from 1 April 1992. He said rather that there was an understanding that this would be done, and that the appellant had a right that it would be done that accrued on the withdrawal of the appeal. But whether it is expressed as an agreement or an understanding giving rise to rights and obligations, there is, in my view, a fundamental objection to the argument. The VO's duty under section 41(1) to maintain an accurate list is a duty owed not to an individual ratepayer but to the public at large. It is a duty, therefore, that cannot be qualified by any agreement or arrangement or understanding between the VO and a ratepayer. The agreement on value could not give rise to any duty on the VO's part to alter the list to show that value. It could only provide evidence of what the correct value was; so that if, for instance, before the VO altered the list, further evidence became available that suggested that some other value was correct, the VO would not be obliged – indeed he would not be entitled – to ignore this further evidence."

33. The President had earlier rejected the submission that any such obligation had to be performed within a reasonable time. In paragraph 44 he said:

"I cannot accept the submission that the VO was under any duty or obligation to alter the list within a reasonable time. Such a requirement cannot, in my judgment, be read into the very general terms of his duty under section 41 to maintain the list, and there is no basis for importing some contractual obligation to qualify his statutory duty. It is possible that he could not delay so long in making the alteration that it would be "conspicuously unfair" and thus an abuse of power (see Corus [2002] RA 1 at para 54), but it seems to me impossible to say that a delay of the number of months that occurred in these cases could be characterised as an abuse of power. It is only because the regulations had been amended in a way that was adverse to the appellant before the alterations were made that they now complain. It is not suggested, however, that either VO deliberately delayed so that the 1994 (Amendment) Regulations might be made and might come into force before the alterations were made."

34. In paragraph 52 the President pointed out that as he had rejected the submission that the valuation officer was under an obligation capable of giving rise to a co-relative right in NCP the issue of retrospectivity and the effect of ss. 16 and 23 of the Interpretation Act 1978 did not arise. In paragraph 53 he rejected the contention that NCP had any legitimate expectation that the list would be altered with effect from 1st April 1992 irrespective of what the regulations required on the grounds that there was no such expectation and if there had been it was not legitimate. Finally, in paragraph 54 he referred to a contention of the valuation officer based on the provisions of regulation 44 of the 1993 Regulations and the decision of this court in Marks & Spencer plc v Fernley [1999] RA 409. He expressed no final view on it because it was not necessary to do so in the light of the provisions of regulation 13(7).
The Arguments
35. Counsel for NCP submits that a valuation officer is under a duty, imposed by s.41(1), to maintain accurate non-domestic rating lists. When the valuation officer becomes aware of some inaccuracy then he is bound to alter the list and there is a general expectation that he will. Counsel submits that this duty and expectation give rise to a co-relative right to any person with a sufficient interest such that he should not be deprived of it by a subsequent alteration in the law in the absence of a clear intention to do so.
36. Further or alternatively counsel for NCP submits that the valuation officer was under a duty to alter the list within a reasonable time of becoming aware of its inaccuracy and neither the Valuation Tribunal, nor the Lands Tribunal nor this Court has power to defeat the claim of NCP based on the common understanding of the parties.
37. In relation to the facts of these cases he submits that the agreements as to value made between the agents for NCP and the valuation officers demonstrated that the rating lists were inaccurate so that the valuation officers were obliged to alter them so as to show the agreed values. He contends that this obligation arose when the appeals and proposals were withdrawn and that there was a general practice and expectation that the valuation officers would do so. The 1994 regulations were not intended to have retrospective effect so as to qualify or change the date from which the alteration the valuation officer was obliged to make was effective. Accordingly, so counsel submits, the date 1st April 1990, specified by the valuation officer when he made the alterations in late July or August 1994 is wrong and should be altered to 1st April 1992.
38. He emphasises that ratepayers are to be taxed according to clear words, not by reference to any presumed intendment of the law. He points out that ratepayers in general and NCP in particular are entitled to arrange their affairs to avoid or reduce their liabilities. For both propositions he relies on the well-known decision of the House of Lords in W.T.Ramsay v IRC [1982] AC 300. He uses these principles to criticise the President when he referred to the 1993 Regulations as anomalous and the benefit NCP sought to derive from them as adventitious.
39. Counsel for the valuation officers did not challenge either of these principles but maintained that the President's comments were justified. Nor did he challenge the general proposition that the valuation officers have a continuing duty to maintain an accurate rating list. He accepted that in appropriate cases the valuation officer might alter the list otherwise than in response to a proposal made in accordance with s.55 and the regulations made thereunder but he did not accept that the valuation officer was under any duty to alter the list at any particular time or with effect from any date other than that prescribed by law at the time the alteration was made.
40. Basing himself on the last mentioned proposition he contended that it was essential for NCP to establish some temporal element or requirement as to when the alteration had to be made. He pointed out that a requirement that the alteration had to be made at the time the appeals/proposals were withdrawn or within a reasonable time thereafter were both contrary to the provisions of the 1988 Act and the regulations made thereunder. He submitted that even if some such temporal element or requirement could be found then it might found an action for damages for breach of a statutory duty; what it could not achieve would be a right to have the list altered otherwise than in accordance with the law at the time of the alteration. Counsel for the valuation officers submitted that even if NCP had the right for which it contended the 1994 Regulations could and did abrogate it.
41. Other points were raised in argument to which I shall refer later if necessary.
Conclusions
42. There is no doubt that the valuation officers are under a statutory duty to maintain accurate rating lists. That is what s.41(1) provides. But, as s.41(1) also provides, that duty is to be performed in accordance with part III of the 1988 Act. Part III includes s.55 and the Regulations made thereunder and those regulations, as prescribed by regulation 3, apply to any alteration whether effected pursuant to a proposal or by the valuation officer on his own initiative. Specifically, regulation 13 prescribes the time from which an alteration is to take effect whether or not made pursuant to a proposal. In my view the President was correct when, in paragraph 49 of his decision, he rejected the suggestion that s.41(1), as opposed to s.55 and the regulations, was the statutory foundation for specific duties and rights.
43. No doubt, as the parties agreed, a valuation officer is amenable to judicial review to compel him to perform his duties. If he abuses his powers or exercises them in an irrational or unfair manner or refuses to exercise them at all then any person with a sufficient interest may obtain an order by way of judicial review setting aside what he has done or requiring him to do what he ought to do. None of those grounds is alleged in this case. I do not suggest that it is impossible for a ratepayer for whom the remedy by way of proposal and agreement or appeal, as prescribed by regulations 4 to 12, is available to enforce such duties by way of judicial review. But the 1988 Act provides for a remedy by way of proposal and agreement or appeal. Further the remedy of judicial review is discretionary. A ratepayer who, having followed the route of proposal and appeal, deliberately abandons his appeal and refrains from recording the agreed values in writing eschews the specific rights afforded to him by regulations 11 and 12. I consider that it is most unlikely that the court would permit such a ratepayer to bypass the specific provisions of the 1988 Act and the regulations and make an order by way of judicial review requiring the valuation officer to alter the list in accordance with the oral agreement; in particular where the purpose of seeking the order of the court is to maintain on the list for the period 1st April 1990 to 31st March 1992 what is agreed to be a wrong value. It is noticeable that NCP did not try; instead it made a further proposal for an alteration as to the date and then appealed as permitted by regulation 12.
44. NCP does not contend that the valuation officer was contractually bound to alter the list in accordance with the agreements. As the President pointed out in paragraph 48 of his decision the agreements were only evidence of value. The valuation officer would, in performance of his duty to ratepayers generally, be obliged to consider any other evidence brought to his attention from time to time. It is, in my view, impossible to imply into the general duty prescribed by s.41(1) a specific obligation to alter the list at the time of the withdrawal by the valuation officer under regulation 34 of an appeal pending in accordance with regulation 12 or at any other time by reference to such a withdrawal. Such an implication would be inconsistent with the public and continuing nature of the valuation officer's duty and the purpose and terms of s.55 and the regulations made thereunder.
45. For similar reasons I am unable to see any justification for the implication of an obligation to alter the list within a reasonable time of the agreements or the withdrawal of the appeals. NCP had no statutory or contractual entitlement to any alteration because the remedies provided by regulations 11 and 12 were deliberately foregone. The valuation officer was, in the performance of his public and continuing duty, obliged to have regard to all evidence and the interests of all ratepayers and the public generally.
46. Accordingly I would accept the submission of counsel for the valuation officers that it is not possible to graft on to the obligation to maintain an accurate list any temporal element or requirement as to when it must be altered. It follows that NCP was not entitled to an alteration of the list at any particular time, or, as I think, at all. Nor could it be entitled to an alteration with effect from some date different from the date prescribed by the regulations at the time the alteration was actually made. It is not suggested that the alterations should be deemed to have been made at any earlier time than they were in fact made.
47. In all these circumstances NCP cannot establish any right to an alteration of the list before 9th July 1994 or any right to insist that the alterations made after 9th July 1994 should have effect from any date other than that prescribed by the 1993 regulations as amended by the 1994 regulations then in force. Nor, in my view, can NCP establish any expectation to either effect. There is no finding of any expectation that the alteration would be made at any particular time or that when made it would be effective from any date other than that prescribed by the regulations then in force.
48. In the light of these conclusions NCP had no right, accrued or otherwise, capable of being abrogated by the 1994 regulations. Accordingly no questions of retrospectivity or of the application of ss 16 and 23 Interpretation Act 1978 arise. Nor is it necessary to deal with the other points on which one or other party relied. But the consequence is that NCP has no right to have the rating list altered by the insertion of the date 1st April 1992 for the date 1st April 1990 as shown. It follows that, in my view, the decision of the President was correct and this appeal should be dismissed.

Lord Justice Clarke:

49. I agree that the appeal should be dismissed. I agree with both the Vice-Chancellor and Dyson LJ that the valuation officers were not in breach of their duty under section 41 of the 1988 Act. In particular I agree with them that they were not under a duty to amend the list within a reasonable time, either by the express terms of the Act or by necessary implication from them.
50. I also agree with them that the appellants had no legitimate expectation that he would alter the list before 9^th July 1994. In so far as it might be said that the understanding gave rise to a legitimate expectation that the valuation officer would alter the list in the light of it, I agree that they had no legitimate expectation that he would alter the list otherwise than in accordance with the law at the date of the alteration. I do not think that the appellants have shown that they had any such expectation in fact and, even if they had such an expectation, it would not to my mind have been a legitimate expectation.
51. It does seem to me on the facts found that there would or might have come a time when the valuation officer in each case would have been in breach of his duty to maintain an accurate list if he had not altered it. Thus, if he had been asked to alter the list in the light of the understanding which had been reached and had refused to do so without adequate reasons, he would have been in breach of duty. Alternatively, if he had simply done nothing, his failure to act would at some stage have amounted to a breach of his duty to maintain an accurate list.
52. I agree with Dyson LJ that the problem is how to decide when that moment would have come. I also agree with him that all depends upon the circumstances. The precise formulation of the test is a matter of some difficulty. I agree with Dyson LJ's general approach, although fortunately it is not necessary to formulate a precise test on the facts of this case because it seems to me that, for the reasons given by him, there was no such delay as to amount to a breach of duty on the facts found here. The points which have particularly struck me in this regard are that there was no obvious urgency in altering the list. The appellants did not press the valuation officer to do so, no doubt because it did not occur to them at the time that there was any urgency. No-one contemplated that the law would be altered as it was. It might, I suppose, equally have been altered the other way. The alteration was simply an administrative matter to be attended to in due course which would have retrospective effect in accordance with the law as it happened to be at the date of the alteration.
53. In all the circumstances I agree that the delays were not such as to amount to a breach of duty by whatever test might be adopted. There was no unfairness on the part of the valuation officers, let alone conspicuous unfairness in the sense touched upon by Sullivan J. in R v (on the application of Corus K Ltd) v Valuation Office Agency [2002] RA 1 at paras 53 and 54. There was certainly no abuse of power.
54. In my opinion, however, the case is put there was no breach of duty on the part of either valuation officer and the appeal should be dismissed. I would only add by way of postscript that, given those conclusions, it has not been necessary to consider what remedies might have been available to the appellants if there had been a relevant breach of duty.

Lord Justice Dyson:

55. The issue that arises on these appeals is whether the valuation officer in each case acted unlawfully in failing to correct the rating list before 9 July 1994, and whether, therefore, the President of the Lands Tribunal should have allowed the appeals and held that the effective date for the alterations was 1 April 1992, and not 1 April 1990.
56. I agree that the President was right to reject the appeal in so far as it was based on legitimate expectation. As he said (para 53), there was no express promise by either valuation officer that the list would be altered as agreed with effect from 1 April 1992 even though the regulations might be altered to prescribe a different date, and any regular practice on the part of valuation officers in altering lists could on the facts of these cases only be a practice to make alterations in accordance with the law.
57. I wish only to add a few words of my own on the question whether the valuation officers acted in breach of statutory duty in failing to alter the rating list in either case until after the 1994 Regulations came into force on 9 July 1994. The starting point is that section 41(1) provides that valuation officers are under a duty to compile and then maintain rating lists. Section 41(4) provides that "before a list is compiled the valuation officer must take such steps as are reasonably practicable to ensure that it is accurately compiled on 1 April concerned". The duty is therefore to compile and maintain an accurate list. The issue that arises is whether on the facts of these two cases the valuation officer was in breach of that duty, and, if so, whether the breach occurred before 9 July 1994.
58. A statute may, expressly or by necessary implication, prescribe the time when a duty must be performed. But what is the position where a statute does not so prescribe the time for performing a duty? In my view, comparisons with the law of contract are inappropriate. Where a party undertakes by contract to do an act, the performance of which depends entirely on himself, and the contract is silent as to the time of performance, the law will imply a term that the act should be performed within a reasonable time: see Chitty on Contracts 29th edition para 21-020. Such a term will be implied because it represents the unexpressed intention of the parties or is necessary to give business efficacy to the contract. But contracts are fundamentally different from statutes, and no proper analogy can be drawn between implying a term into a contract and interpreting a statute. No authority was cited to us in support of the general proposition that where a statute imposes a duty on a person, but is silent as to when the duty should be performed, it should be interpreted as meaning that the duty will be performed within a reasonable time, and I would not accept this proposition as being correct in law.
59. It is a well-established principle of public law that it is unlawful to exercise a statutory power (or to refuse to exercise a statutory power) in circumstances of unfairness amounting to an abuse of power: see, for example, R v Inland Revenue Commissioners ex p Preston [1985] AC 835. Where unlawfulness of this kind occurs, the court will go on to consider whether in the exercise of its discretion it should grant judicial review. But where the issue is whether there has been a failure to perform a statutory duty, I think that it is by no means always relevant to ask whether the failure involves unfairness amounting to an abuse of power, or indeed whether the failure is unreasonable in the Wednesbury sense. Two examples will suffice to demonstrate this point. First, if a person says that he or she will not perform the statutory duty at all, it is obviously unnecessary to show that there has been unfairness amounting to an abuse of power in order to establish that the failure to perform the duty is a breach of duty. Secondly, if a statute imposes a duty to do X on a specific date, it is clear that failure to do X on that date is a breach of statutory duty, and it is neither necessary nor apt to consider whether such failure involves unfairness amounting to abuse of power.
60. On the other hand, if the statute imposes a duty to do X, but does not specify expressly or by necessary implication when X must be done, then the court has to decide whether the statute allows any, and if so what, flexibility or margin of appreciation to the person charged with the statutory duty as to the time when or within which he or she may do X. If the statute is interpreted as allowing some time for the performance of the duty, then in determining whether the time taken has been so long as to give rise to a breach of the duty, it may be helpful to consider whether the delay has involved unfairness amounting to an abuse of power. Delay which has that effect will almost certainly be a sufficient condition for a breach of statutory duty, but in my view it should not be regarded as being a necessary condition.
61. Rather than asking the broad question whether a failure to perform a statutory duty involves unfairness amounting to an abuse of power, I consider that a more structured approach should be applied. In my view, there is no simple answer to the question how the court should determine whether a failure to perform a statutory duty is unlawful where the statute is silent as to when the duty should be performed. The answer will depend on all the circumstances of the case. Relevant factors will at least include (i) the subject-matter of the duty and the context in which it falls to be performed, (ii) the length of time taken to perform the duty, (iii) the reasons for any delay, and (iv) any prejudice that is, or may be, caused by the delay.
62. The subject-matter of the duty and the context in which it falls to be performed are very important. If the duty concerns life or limb and/or the liberty of the subject, the court will be reluctant to allow substantial delay for the performance of the duty. In particular, the court is unlikely to be sympathetic in such a case to the argument that the failure to perform the duty is justifiable (and therefore not unlawful) on grounds of lack of resources. Thus, for example, in R (Noorkoiv) v Secretary of State for the Home Department [2002] EWCA Civ 770, [2002] 1 WLR 3284, it was held that there could be no reliance on administrative necessity or lack of resources to excuse a failure to perform the obligation in Article 5(4) of the ECHR to avoid delay in the determination of a person's detention. In such cases, the subject-matter of the duty is so important that the court will expect the duty to be performed expeditiously if the statute is silent as to when it should be performed. But where the duty only concerns property or other economic interests, then the court may be willing to allow more time for performance of the duty before it characterises a failure to perform as a breach of duty and, therefore, unlawful.
63. The relevance of length of delay is obvious. Even in a case which only affects property interests, and where little or no prejudice can be shown, there is likely to come a time when the failure to perform the duty is a breach of duty and unlawful.
64. The reasons for the delay must also be taken into account. If the duty has not been performed simply through oversight, the court is more likely to decide that there has been a breach of duty than where rational reasons are advanced to explain the delay. Lack of resources may in some circumstances be regarded as a good reason for delay so as to defeat an allegation of breach of duty. As a general rule, however, lack of resources may not be treated as a relevant reason for failing to perform a statutory duty expressed in objective terms which allow no discretion: see, for example, R v East Sussex County Council ex p Tandy [1998] AC 714, where it was held that a local authority was not permitted to avoid performing the duty to arrange for "suitable education" on the ground that it preferred to use its available resources for other purposes. But lack of resources may be a sufficient reason in other circumstances. With particular reference to the duty in the valuation officer to compile and maintain an accurate rating list, Sullivan J pointed out in R (on the application of Corus K Ltd) v Valuation Office Agency [2002] RA 1 (para 47):

"That duty has to be discharged in the real world, where there are finite resources, and only 24 hours in the valuation officer's day. He may have to give priority to certain known inaccuracies, and defer consideration of other matters which possibly require alteration."

65. Prejudice is related to, but distinct from, the subject-matter of the duty. The court is less likely to treat the failure to perform a duty with expedition as a breach of duty where the delay causes little or no prejudice than where it causes serious prejudice. It is self-evident that delay in performing a duty which affects liberty or life and limb is always likely (at least potentially) to cause serious prejudice. The prejudice likely to be caused by delay which only affects property or other economic interests will vary from case to case. Where the prejudice is or may be serious, the court will expect the duty to be performed more expeditiously than in circumstances where delay in unlikely to cause any significant prejudice.
66. So much for the general approach. The statutory regime with which these appeals are concerned does not, in circumstances such as occurred in these cases, prescribe the time for altering a rating list once it has ceased to be accurate. There is no relevant express provision, nor in my view does any such provision arise by necessary implication. I agree with the Vice-Chancellor that it is not possible to graft on to the statutory obligation to maintain an accurate list any temporal element or requirement as to when the duty should be performed. It follows that the question that arises is how the general approach that I have described should be applied to the facts of the present cases.
67. The subject-matter is one which does not of itself demand the expeditious performance of the duty. It concerns property interests and not life and limb or the liberty of the subject.
68. As regards the length of the delay, it is important to bear in mind that valuation is an art, not a science, and often raises complex and difficult questions which may take time for the valuation officer to resolve. The valuation officer must have regard to the need for consistency when dealing with the list. A decision which relates to one hereditament will have implications for other hereditaments. These factors must be taken into account when the court considers whether the valuation officer has acted unlawfully in failing to act with sufficient expedition to alter the list.
69. The President dealt briefly with the issue of delay at para 44 of his Decision which the Vice-Chancellor has cited at para 33 above. He set out the relevant facts at paras 19-22 (Manchester) and 24-25 (Kensington). The delay in relation to Kensington and Chelsea was from 6 May 1994 (the date of the withdrawal of the appeal) until 27 July 1994. In relation to Manchester, the delay was from 10 March 1994 (the date of the withdrawal of the appeal) until 30 August 1994. Mr Village QC submits that in each case the delay was "inordinate". He says that there is no explanation for the delay at Kensington and Chelsea. In relation to the delay at Manchester, he submits that it was unreasonable for Mr Brankin not simply to accept what had been agreed by Mr Todd with Mr Lilley, so that the explanation for the delay is unacceptable.
70. I acknowledge that there were considerable delays in both cases, and that if the length of delay is looked at in isolation and without regard to the other factors, NCP have advanced a cogent case for holding that a breach of duty had occurred by 9 July 1994 in both cases. If the subject-matter of the duty had concerned the life or limb or the liberty of the subject, or there was an obvious risk that delay would cause significant prejudice to NCP, then it would have been difficult not to conclude that the delays were greater than contemplated by the legislation, even allowing a reasonable margin of appreciation to the valuation officers in each case. In the circumstances of Kensington and Chelsea, there is no explanation for the delay at all. As regards Manchester, if the circumstances had demanded urgent attention, it is strongly arguable that notwithstanding the departure of Mr Todd, Mr Brankin should have acted with considerably greater expedition than he did.
71. I turn finally to the question of prejudice. It is important to note that NCP does not assert that, apart from the effect of the introduction of the 1994 Regulations, the delay caused it or anyone else to suffer prejudice. Although the President found that amendment of the regulations was by 1994 a "not infrequent occurrence" (para 43), there is no evidence to suggest that the 1994 Regulations were in the contemplation of any of the parties during the relevant period. It is a striking feature of this case that after the withdrawal of the two appeals, NCP did not press either of the two valuation officers to alter the lists. This was because, apart from the effect of the unforeseen 1994 Regulations, the alteration of the lists was of no immediate or urgent fiscal significance to NCP. It was not reasonably foreseeable that a delay in the performance of the statutory duty such as occurred in these two cases would cause prejudice to NCP.
72. Taking all these factors into account, I am in no doubt that there was no breach of statutory duty in either of these cases. In reaching this conclusion, I would emphasise in particular the fact that the subject-matter of the duty only affects economic interests, and that it was not in the reasonable contemplation of the valuation officers or NCP that failure to alter the lists before 9 July 1994 would cause NCP, or anyone else, to suffer prejudice. In these circumstances, it is reasonable to allow the valuation officers a fairly generous margin of time for the performance of their duty. Having regard to the two paramount factors to which I have referred, but also to the fact that there are always many demands on the resources available to valuation officers, I do not consider that the delays that occurred were so great as to give rise to a breach of duty in either case.
73. I would also give a negative answer to the question: did the failure to alter the lists by 9 July 1994 involve unfairness amounting to an abuse of power? This serves to reinforce the conclusion that I have reached for the reasons that I have given.
74. I too would dismiss the appeal.