England and Wales Lands Tribunal

[2000] EWLands RA_15_1999 (27 June 2000)

RA/15/1999

LANDS TRIBUNAL ACT 1949

Local Government Finance Act, 1988, s.66(2B) - Availability for holiday letting - Restriction on letting to periods totalling less than 140 days - Held property not available - Appeal allowed.

IN THE MATTER of an APPEAL against the DECISION of the

CUMBRIAN VALUATION TRIBUNAL

BETWEEN ROGER STUDLEY GODFREY

and Appellants

LYNDA ANN GODFREY

and

KENNETH GEORGE SIMM Respondent

(Valuation Officer)

Re: Holiday Homes & Premises

5 Loughrigg View

Ambleside

Cumbria LA22 OBB

Before : His Honour Judge Michael Rich QC

Sitting at 48/49 Chancery Lane, London WC1 2JR

on Thursday 22 June 2000

Appearances: Mr R S Godfrey appeared in person and on behalf of his wife.

Mr Jeremy Burrows for the Valuation Officer.


 


DECISION OF THE LANDS TRIBUNAL

1. This is an appeal against the decision of the Cumbria Valuation Tribunal dated 1 April 1999, whereby they added the hereditament known as 5, Loughrigg View, Ambleside to the rating list with effect from 1 April 1993.
2. There is no dispute as to fact. The parties are agreed that on 1 April 1993, which is agreed to be the material date, the appellants' intention was to advertise the property throughout the year for holiday letting at any time but not to grant lettings for periods exceeding 139 days in any year.
3. The Valuation Tribunal held that the property was not a domestic property because it fell within s.66(2B) of the Local Government Finance Act, 1988. The material provision is that a building is not domestic property if

"(a) the relevant person intends that, in the year beginning with the end of the day in relation to which the question is being considered, .. the building .. will be available for letting commercially, as self-catering accommodation, for short periods totalling 140 days or more."

The valuation officer contends that it was so available, because the appellants placed no limitation on the period during which they would accept bookings. Thus it is contended that the property was available for letting throughout the year, even although the lettings granted totalled less than 140 days, and although in one year, when applications for lettings exceeded 139 days, the lettings granted were limited to less than that number.

4. Analogy is drawn with the provisions of s.504(3) of the Income and Corporation Taxes Act, 1988, which treats commercial holiday letting as a trade if

"(a) [accommodation] is available for commercial letting to the public generally as holiday accommodation for periods which amount, in the aggregate, to not less than 140 days;

(b) the periods for which it is so let amount to at least 70 days ..."

Mr Burrows relies on the distinction between availability for letting and actual letting. The test under the Income and Corporation Taxes Act is applied by hindsight after the end of the year, whereas for rating the test is applied prospectively, so that the number of days of actual letting that will be achieved cannot be known.

5. It is not, of course, necessary for me to construe the Income and Corporation Taxes Act, but I accept that the concept of availability for letting is the same as in the Local Government Finance Act, and is different from actual letting. For the purposes of the latter Act it is necessary to determine what were the owners' intentions as to availability for letting during the following year. Mr Burrows says that the owners' intention was to spend 365 days trying to let, whereas to be outside the definition they are allowed only 140 days, or perhaps more accurately 139. Mr Godfrey draws a distinction between availability for booking and availability for actual letting.
6. I think that it is important to keep in mind that the relevant availability is "for letting .. for short periods totalling 140 days or more". If on the material day a would-be tenant had approached the owners with an application to take the property for a fortnight in each of the twelve months of the year, he would have been refused on the ground that they were not willing to let for short periods totalling 140 days or more. He might have a choice of periods throughout the year, but the property was not available for more periods than totalled 139 days.
7. Mr Burrows invited the Tribunal to consider a case where an owner of a small block of ten flats wished to sell 9 but to occupy one himself. If he offered all ten on the market, leaving the choice of his own to that which was left, he would, Mr Burrows suggested, be making all ten "available". That is right in the sense that all are available for choice. But only nine would be available to purchase. A purchaser who responded to the offer of the ten, that he would take the lot, would be refused.
8. The statutory test is availability for letting for short periods totalling 140 days. The owners' intention is agreed to be that they would not grant lettings for periods exceeding 139 days. In my judgment the statutory test is not satisfied, and this appeal must be allowed and the Rating List amended to delete the property.
9. It is agreed that costs should follow the event and accordingly the appellants should have their costs subject to detailed assessment on the standard basis, if not agreed.

Dated: 27 June 2000

(Signed) His Honour Judge Rich QC