England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		SITTING AT CARDIFF COURT CENTRE Strand London WC2
		31st October 2006

1. MR JUSTICE DAVIS: The position now, Mr Aristides, is that I deliver my decision on this case.
2. In practical terms it seems to me that there is rather less to this case than might at first sight meet the eye. Nevertheless, the matter has arisen and must be decided in accordance with the relevant statute and statutory instruments and in accordance with legal principle.
3. This is an appeal brought by the Listing Officer against a decision of the West Wales Valuation Tribunal, sitting in Carmarthen on 17th March 2006. It is not in dispute that the regulations relevant to this appeal are the Council Tax (Alteration of Lists and Appeals) Regulations 1993 as amended. It is clear by regulation 32 that an appeal lies to the High Court on a question of law arising in this context out of decision or order given by a Tribunal. That is to say, this Court can only interfere if an error of law is identified and matters of fact are in the ordinary way solely for the Tribunal itself.
4. The background to this case is that Mr Aristides and his wife acquired a property, which is known as Ty'R Felin, Pontshaen, Llandysul, in 2000. It appears that he and his wife wished to do extensive building works to that property. He and his wife caused to be constructed a structure in the garden of the property, which has variously been called a "games room" or "studio" which is a substantial wooden structure, with a slate roof. It was described in the Tribunal's decision in this way, by reference to the council tax description: "detached chalet, some 50 square metres in area, of timber chalet type construction set in the grounds of Ty'R Felin." It is then stated that the accommodation comprised open plan living room and kitchen area, with fitted units, a shower room, WC and wash basin and a first floor gallery bedroom. It is further stated there that not all the main services were connected and there was no central heating. There was off-street parking.
5. As Mr Aristides has told me today and as he told the Tribunal, the original intention was that the structure be used as a games room and tool room. It then seemed convenient to him and his wife to live there while the building works were going on; and as I gather from him, some modification was then made to the architect's plans. A gallery bedroom was made available, which had beds and a fixed wooden ladder going up there; there was also included in the structure, as indeed the Tribunal recorded, a kitchen area, with kitchen facilities and a sink, and also a wash closet and a shower room.
6. The position was that in 2003 Mr Aristides and his wife removed the cooker and cooking point from the studio -- as I will call it. Having done that, Mr Aristides told me, he then was in contact with the local council. An officer, a Mr Williams attended who then told them that by reason of the removal of the cooking point and cooker the overall position was that the property (that is to say the house itself and studio) should be regarded as one aggregated unit for council tax purposes.
7. Ultimately, however, that position was then corrected by the listing officer. Mr Aristides, I think, feels some sense of grievance that that all arose because someone (or some people) wrote anonymous letters to the council prompting further investigations. But while I have sympathy with Mr Aristides on that ground, I do not really think that can have any impact upon the point that has to be decided. At all events the listing officer did then decide to look at the matter again and, in the event, decided that the studio should be regarded for council tax listing purposes as a self-contained unit. That is the house Ty'R Felin had a listing for council tax purposes and separately the studio also had a listing for council tax purposes. I should add that Mr Aristides today has shown me a letter which may indicate that, because of restrictions with regard to the use of the studio for planning purposes, it may be (they say no more than that) that in fact no extra money will be required from him because of that council tax listing adopted.
8. But while I think Mr Aristides can legitimately ask what on earth is the point of all this complicated litigation, and while it may (possibly) be going to have no financial impact upon him at the end of the day, the fact remains that there are practical implications: and in any event the correctness of the Tribunal decision does still need to be decided by me.
9. To put that background into a little more context, it is necessary to refer to the applicable law. I start with the provisions of the Local Government Finance Act 1992 and in particular section 3. That section provides in subsection (1) that the section has effect in determining what is a dwelling for the purposes of that part of the Act. Then in section 3(5) it is provided as follows:

"(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."

10. On 31st March 1992 there came into force the Council Tax (Chargeable Dwellings) Order 1992 SI 1992/549. That has, I might add, subsequently been amended. In its amended form Article 3 of that order provides as follows:

"Subject to Article 3A 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."

It is then necessary to refer to the definition of "single property" and "self-contained unit" as set out in Article 2 of the amended Order. A "single property" is defined so as to mean property which would apart from this Order be one dwelling within the meaning of section 3 of the Act. Then, and this is crucial for present purposes, a "self-contained unit" is defined so as to mean "a building or part of a building which has been constructed or adapted for use as separate living accommodation."

11. The essential submissions on behalf of the appellant and the respondent come to this. The appellant, the Listing Officer, says that, having regard to the fact of what was constructed at the time, be it in 2000 or as modified in 2003, here the "studio" is to be regarded as "a self-contained unit": and accordingly should be treated as such for the purposes of Article 3 and listing for council tax purposes. Mr Aristides, on the other hand, contends that the reality here is that it is all just one property, that is to say, Ty'R Felin, and should be regarded as a whole. He submits that the studio should be regarded as entirely incidental to the enjoyment of the overall property and accordingly it should be regarded as aggregated for the purposes of council tax listing.
12. I have to consider what the decision of the Tribunal actually was, and whether it was a decision properly open to it in law having regard to its findings of fact.
13. In its decision, which is set out at some length, the Tribunal recorded the various submissions made to them by the Listing Officer on the one hand and Mr Aristides on the other. I should add that Mr Aristides represented himself before the Tribunal as he has done before me on this appeal. I would like to place on record that Mr Aristides has addressed me throughout both cogently and courteously.
14. Reverting to the Tribunal's decision, after a review of the evidence, the Tribunal recorded what was said about the construction of the studio, variously also described as a "chalet" or "games room". It recorded a particular response by Mr Aristides to a question from Mr Davies on behalf of the Listing Officer as follows. When asked whether the chalet was going to be constructed in the garden as a games room, the answer was (as summarised by the Tribunal) to this effect:

"The idea for that came later. Coincidentally when planning permission was granted he was approached by a person wanting to purchase his house in Llandysul. Since this happened quickly he intended to move into a caravan. The climate was not conducive to this move. In discussion with the architect and builder the idea for games room for storage emerged that it had occurred to him that it would be better for him and his wife to live in the studio on a temporary basis as opposed to a caravan."

15. Then the question was asked: "Was the studio constructed at this stage and did it have a shower and toilet?" and Mr Aristides' answer was recorded as being that: "It was built and confirmed at the time of construction [sic], the studio had a shower, toilet, kitchen and living space." He added that a cooker was then purchased for their use whilst they were temporarily living there.
16. It should be added that the Tribunal had before it both photographs of the studio and also various plans relating to its interior.
17. The Tribunal then went on to record the various submissions made and to summarise the evidence. In their reasons, the Tribunal said this:

"Historically, the evidence confirmed that the appellant's original intention was to utilise the Studio as a games room and during the restoration of Ty'r Felin it was to be used as a tool store. It was used as temporary accommodation during the construction period of Mill House was placed in band and Mr Aristides paid accordingly. It was needed as temporary accommodation at relatively short notice because Mr Aristides had sold his home in Llandysul. This reinforces the fact that it had always been the intention for the Studio to be temporarily occupied as living accommodation until such time that the work on Ty'r Felin was completed.

The Tribunal noted that the Listing Officer did not challenge Mr Aristides' evidence with regard to the history of events and construction. The Listing Officer was satisfied that the original intention was the construction/formation of a games room and also that its use whilst Ty'r Felin was undergoing renovation was of a temporary nature. A salient fact is given in the grant of planning permission at the outset.

This led the Tribunal to the conclusion that its use was incidental to the enjoyment of the 'main' house and that it was not used as a separate living unit.

The construction of the Studio building was simple and akin to that of a games room and did not accord to the normal remit of completion in line with building regulations. This would not be the case if it were intended for use as bed and breakfast accommodation or for business purposes as it would fail to qualify. This aspect again, in the Tribunal's opinion, emphasised the appellant's original intention....

With regard to the 'adaptation' for the purposes of the temporary accommodation only, a cooker and point was installed - this was the only adaptation and although the Tribunal agreed with the Listing Officer that it did not change the character of the dwelling, it was considered to be of minor consideration."

The Tribunal then went on to say that it agreed with the original assessment of the Listing Officer (Mr Williams).

18. That then was the reasoning of the Tribunal in agreeing with the case as presented by Mr Aristides and it is that decision against which the appellant appeals.
19. On one reading of Article 3 of the 1992 order, and in particular the definition of "self-contained unit", it might be thought that the phrase "for use as separate living accommodation" reflected some kind of subjective purpose or intention at the time of construction or adaptation as the case may be. But the authorities in this field make it clear that is not the right approach to be adopted. As it happens, most of the cited cases seem to be concerned with the issue of construction for use as a separate living accommodation. As it seems to me, there can be no difference in the meaning of the words "for use as separate living accommodation" when one is talking in the context of adaptation. Quite plainly those words link to all the words "constructed or adapted". It seems to me that the same meaning applies whether or not one is talking about construction or whether or not one is talking about adaptation as the case may be.
20. One very convenient and helpful authority which cites some of the previous authorities in this field is the case of R (On the application of) Williams (Listing Officer) v Royal National Institute for the Blind & Ors [2003] EWCH 1308, a decision of Mitting J. That was a case which ultimately, of course, had to be considered by reference to its own facts: as indeed all these cases have to be considered. But in the course of giving his judgment, Mitting J helpfully summarised previous decisions of the Court and set out in his own decision on matters which either should not be taken into account at all, or matters which simply have no status as being a decisive consideration.
21. Matters which should not be taken into account at all include, first, the use to which a part of the building is actually put; secondly, the impracticability of the sale of part of a building; and thirdly, the subjective intention of the builder or developer. Matters which should not be treated as decisive include, first, the terms of the grant of planning permission, and secondly, the absence of a bath or shower (see paragraph 15 and 16 of the judgment). Mitting J went on to say that the question, here, had to be assessed objectively: and it seems to me that that accords with the other authorities to which he refers and is consistent with the language of the Order itself.
22. Other authorities are to the same effect. For example, in the case of R v On Application of Coleman (Listing Officer) v Rotsztein [2003] EWHC 1057, a decision of Sullivan J, to which decision Mitting J had himself referred, it was held that the Tribunal was in error in taking into account the original intention in constructing the annex and in not basing its decision, as it should have done, upon what had physically been constructed. As Sullivan J further said, referring to a previous decision of his own:

"When looking at Articles 2 and 3 of the 1992 Order, one focuses not upon the use that is actually made of the building, but upon whether it has been constructed for use as separate living accommodation."

23. Further observations about the irrelevance of the question of subjective intention are found in other authorities: in particular, perhaps, in a relatively recent decision in the case of Jorgensen (Listing Officer) v Gomperts [2006] EWCH Admin 1885, a decision of Mr Kenneth Parker QC, sitting as a Deputy High Court Judge. There the judge reaffirmed that intention was irrelevant for the purpose of Article 2. In paragraph 15 of his judgment, he set out very helpfully why it is that intention was irrelevant. As the deputy judge noted, one might think that the words "for use" more naturally import a purposive rather than a resulting consequence approach for the imputed construction or adaptation. He then went on, however, to set out entirely cogent reasons as to why that is not right: to which reasons might be added a further reason advanced by Mr Forsdick, on behalf of the Listing Officer before me today, which was to the effect that in effect such a listing decision runs with the land and if one does indeed have to have regard to the subjective intention or purpose of the relevant constructor, that might, years on, create very great evidential difficulties.
24. It seems to me that the wording of the Order and indeed the various decisions which cast light on the interpretation of that Order, make it clear that the intention of the developer is irrelevant in this context. Further, as Mitting J has pointed out, actual use is likewise irrelevant. One has to focus essentially on the test posed in the definition of the words "self-contained unit".
25. Once one reaches that conclusion as a matter of law, as in my view one must, then it seems to me plain that unfortunately the Valuation Tribunal here has significantly misdirected itself in law: because the aspects of its reasoning which I have quoted stress the emphasis which the Tribunal placed on their finding as to what the original intentions of Mr and Mrs Aristides were at the time. That dictated the outcome of the Tribunal's decision. In my view, that was erroneous and initiated the conclusion in consequence. The Tribunal failed, unfortunately, to apply the objective test enjoined by the Article itself.
26. Mr Aristides has submitted to me that, as from 2000, this was and should have been regarded as all one aggregated unit. That, for the reasons that I have given, is in my view not correct. But, he did submit alternatively that at all events it became so, in 2003, once the cooker and the cooker unit had been removed, which he says was an adaptation.
27. The question of whether or not cooking facilities are or are not crucial in a context such as the present was discussed in the case of Jorgensen v Gomperts (see in particular paragraphs 23 to 24 of the judgment). It seems to me that the judge in that case was correct in saying it all depends on the particular circumstances of the particular case: sometimes it will be of decisive importance perhaps, and sometimes it will not be of decisive importance at all.
28. Likewise, it may be noted that in other cases, for example the case of Clement (Listing Officer) v Bryant & Ors [2003] EWHC Admin 422, it has been held that the existence or lack of existence of shower or bath facilities does not of itself take a property out of the definition of self-contained unit for the purposes of the 1992 Order: see the case of R v London South East Valuation and Neale ex parte Moore (referred to in paragraph 7 of the decision in Clement v Bryant).
29. Mr Aristides would nevertheless say that at all events the property became one aggregated unit in 2003, just because of the removal of the cooker and cooker unit; and he emphasises that was the opinion at the time of the very experienced valuation officer at the time.
30. But it seems to me that that cannot be right. When one has regard to the actual original state of the building, as built in 2000 and as recorded by the Tribunal, that building remained in similar form in 2003 save and save only for the removal of the cooker and cooker unit. Still there was the kitchen area, still there were the shower and cloakroom facilities, still there were the bedroom facilities of the upstairs gallery. But it is unnecessary for me to say anything more than that because that point has, in effect, been decided by this particular Tribunal itself: in that it decided that the removal of the cooker and point have not changed the characteristics of the dwelling: because, as the Tribunal itself found on the facts of this particular case, it was considered to be of "minor consideration".
31. That being so, and taking the view that the decision of this Tribunal was wrong in law, I do not think it necessary or appropriate for me to remit this matter back to the Tribunal for further consideration. The only point outstanding would be the effect of the removal of the cooker and cooker point and this particular Tribunal has found on the facts of this case that that was a matter of minor consideration.
32. It accordingly follows, on the facts as found by the Tribunal, that the only proper decision would have been that here was a self-contained unit. Accordingly the listing should have followed in consequence as the listing officer was contending before the Tribunal.

Therefore it follows this appeal is allowed.

33. MR FORSDICK: I am very grateful, there is one point in my Lord's judgment that I need to draw your Lordship's attention to. A number of points right at the beginning: my Lord referred to the council and Listing Officer interchangeably, it is in fact, the Listing Officer who was making the decisions, and that point was just then in the final sentence repeated. If that can be corrected in the transcript.
34. My Lord, and then becomes the question of the order that my Lord should make. If for these purposes I refer the Court--
35. MR JUSTICE DAVIS: There is no questions of costs here.
36. MR FORSDICK: If my Lord looks at page 79 of the green bundle, my Lord will see the way Sullivan J dealt with this, given the way in which that case, the Coleman case, transpired, and I would ask my Lord to make an order in the same terms, specific--
37. MR JUSTICE DAVIS: Mr Aristides, as you have gathered, I have been against you, and applying my legal mind to this case as best as I can and, of course, there is no question of you having to pay any costs of this. Of course there is no question of that. I am required to draw attention to perhaps the possibility of an appeal but this is the second stage now. Do you want to seek to take this up to the Court of Appeal?
38. THE RESPONDENT: I don't feel -- I have the relevant or understanding to say right now whether--
39. MR JUSTICE DAVIS: The point is, if you want to take it further and it may be you there is really little -- I do not know, it is really up to you -- point in it. You have been exempted anyway but you need to get my permission, and like to hear--
40. MR FORSDICK: It is the second stage appeal, the seven days my Lord, of the Court of Appeal.
41. MR JUSTICE DAVIS: That is what I was thinking. The point is that because -- you won in front of the Tribunal but you have lost here. The point is, two legal bodies have had a bite at this particular cherry, and that means if you want to take it further, you have to apply for permission to appeal to the Court of Appeal in London. You have to do that quite quickly.
42. THE RESPONDENT: Somehow I do not think that is likely.
43. MR JUSTICE DAVIS: I do not think it is a matter for me at all, but all I can say is that my present view is I am afraid I would not myself grant you permission, if that is relevant, because I do not think there is any basis for it, as far as I am concerned. But if you do wish to seek permission to appeal, you need to apply, and quickly, to the Court of Appeal. If the position is indeed that you are exempt from any further, payment of council tax, and I cannot comment on that, you may think you ought to leave it there. That is a matter for you.
44. THE RESPONDENT: Fine, my Lord, thank you.