Jersey Unreported Judgments

"The members of the Board hearing an appeal shall, after consultation with the Supervisory Committee, have power to obtain expert advice in cases in which they consider it to be necessary and the Parish in which the land to which the appeal relates is situated, shall defray any expenses so incurred, unless the Supervisory Committee shall otherwise determine."

"The Board shall have power to confirm or alter any matter in the draft list which relates to the land in respect of which the appeal shall have been made and its decision shall be final."

"The principles which govern judicial review are well-known. They were set out in B.H. Rowland -v- Finance & Econ. Cttee. (7) (1981 J J at 173). Following these principles, we have asked ourselves three questions: (a) were the decisions of the Assessment Committees and the Supervisory Committee ones which they could lawfully make under the Law?; (b) were the proceedings of the Assessment Committees and the Supervisory Committee in general sufficient and satisfactory?; and (c) were the decisions of the Assessment Committees and the Supervisory Committee ones to which they could reasonably have come, having regard to all the circumstances? If the answers to all three questions are in the affirmative then we have a clear duty to maintain the decisions."

"By ‘illegality’ as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

By ‘irrationality’ I mean what can now be succinctly referred to as ‘Wednesbury unreasonableness’ (see Associated Provincial Picture Houses Ltd. -v- Wednesbury Corp. [1947] 2 All ER 680, [1948] 1 KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court’s exercise of this role, resort I think is today no longer needed to Viscount Radcliffes ingenious explanation in Edwards (Inspector of Taxes) -v- Bairstow [1953] 3 All E.R. 48, [1956] AC 14 of irrationality as a ground for a court’s reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. ‘Irrationality’ by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review.

I have described the third head as ‘procedural impropriety rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all."

"The Constable shall, as soon as may be after the delivery of the returns made in pursuance of Article 10 of this Law transmit them to the appropriate Assessment Committee."

1. (1)The rental value of land which is not let shall be the amount which it might reasonably be expected to command as rent if it were let from year to year with the tenant undertaking to pay the usual tenant’s rates and the landlord undertaking to bear the costs of repairs and insurance and any other expenses necessary to maintain the land in a state to command that rent.

(2)Subject to sub-paragraphs (3) and (4) of this paragraph, in the case of land let at a rent, the rental value of the land shall be whichever is the greater of

a) the rent, or

b) the rental value of the land assessed in accordance with sub-paragraph (1) of this paragraph.

(3)Where separate parcels of land are let to the same person at separate rents, the assessment of those parcels shall be made on the basis of the total of those rents instead of on the basis of the individual rents at which they are let.

(4)In the case of any land let at a rent, if it appears to the Assessment Committee that the rent represents more than the rental value assessed in accordance with sub-paragraph (1) of this paragraph, the committee may, for the purposes of occupiers rate, assess the rental value of that land in accordance with that sub-paragraph.

2.Where, in the return made in respect of any land in pursuance of a notice served under paragraph (1) of Article 10 of this Law, a declaration has been made of the amount of the annual interest of the rentes charged on that land from which a deduction is not authorised under paragraph (6) of Article 3 of this Law, there shall be deducted from the rental value of that land, for the purposes of foncier rate, an amount equal to five per centum of such annual interest.

3. (1)Subject to the provisions of this paragraph, a rental value of one pound shall be computed as a rateable value of one quarter.

(2)In the case of agricultural land, a rental value of two pounds shall be computed as a rateable value of one quarter -

(3)For the purposes of occupiers rate, the rateable value of houses and building of which the rental value has been assessed at under two hundred pounds shall be computed in accordance with the scale set out in the Third Schedule to this Law.

(4)In computing rateable value, a fraction of one quarter shall be reckoned as one quarter.

4.Reductions from the rateable value of houses and buildings shall be made as follows-

"All parties agreed that if it were possible, Assessment Committees should have regard to similar properties in the Parish for the purpose of assessing the rental, which need not be the actual or declared rental. In other words, there has to be a hypothetical exercise in each case. The difficulty lies in the fact that there are 12 autonomous Assessment Committees in the Island. Is the uniformity prescribed by Art.8 of the Law meant to ensure that Assessment Committees carry out their functions, so to speak, in watertight compartments, or should they look at the level of assessments in other Parishes for similar properties? From the evidence we heard, it is clear that not every three-bedroomed house, for example, is assessed identically in every Parish. It is obvious that a house of this size in a busy and noisy part of St. Helier would not command the same rent as one in a quiet rural area. The same qualification, however, cannot apply to a reservoir. Its rental value does not vary with its location. A gas or electricity plant, by contrast, may, for example, if it is close to the docks. It is unlikely that there would be any variation in the siting of a power station. It seems to us, therefore, that where, as in this case, a public utility company has undertakings all over the Island, the Assessment Committees of the Parishes must have regard to the practice in the other Parishes.

But the problem here is that no one seems to know upon what basis the other Parishes, apart from Grouville and St. Ouen, have worked. Even in the case of St. Ouen, although the Constable was able to tell Mrs. Dawkins the amount of the rates and, by inference, the assessed rental, the Constable of St. John believed that the original method had been lost in the sands of time and all that had been done had been to increase the amount in with inflation. Thus any comparison with Val de la Mare without knowing the basis of assessment was worthless. In passing, we note that on the whole (Grouville is one exception), the Assessment Committees do not appear to keep comprehensive records which, had they been available, might have been of great help not only to us but also to the Supervisory Committee."

The rent at which it might reasonably be expected to let from year to year if the tenant undertook to bear the usual tenant’s rates and if the landlord undertook to pay the costs of repairs and insurance and any other expenses necessary to maintain the land in the state to command that rent."

5.The property was not double glazed but it was centrally heated

6.The general condition (exterior and interior) was good

7.The overall floor area was approximately 6,000 square feet

8.There were country views from the main rooms

9.The property was built pre-1939 (this is probably correct, although the Representor had substantially rebuilt it)

10.It was built of stone

11.It had electricity but no mains water, main drains nor gas

"there was no market in Jersey for properties suitable for occupation by persons qualifying under Regulation 1(1) (k) of the Housing (Jersey) Law 1949."

"The capital valuation of the property (even though this was not a consideration) (our underlining] was £420,000 purchase price (taking into account the substantial repairs required) and approximately (our underlining] £800,000 had been spent on rehabilitation/rebuilding/restoration work."

"In terms of the capital value Mr Fields accepted that the Assessment Committee was faced with a dilemma as the property had been rebuilt as a luxury property to a high specification and the Committee had been seeking to establish a rental value where there was no market. However, having regard to other properties in the Island, Lowlands had been assessed at more than 50% of the value for St. Ouen’s Manor and 70% of Vinchelez de Haut Manor and this was not reflective of either the comparative worth of desirability of the properties. To conclude, whilst Mr Fields wanted to be fair to the Parish, he believed an assessed rental value of £15-£16,000 to be fair for Lowlands."

"The Board having recalled that in paragraph 2/96/4 of 16 February 1996, the Solicitor General had advised that the Law Officers of the Crown would not be able to advise the Board, and that it would not be appropriate to seek legal advice from a Parish lawyer as that lawyer might be called upon to represent the Parish, agreed that Advocate Jeune should consider possible firms from whom advice might be sought and agreed that, in particular, the advice received concerning the rateability of plant and equipment (Paragraph 3/96/5 of 26 March 1996 refers) should be confirmed and that it required advice as to how the rental market value should be established for a property that had no rental market (in this connection the Board noted that a stately house in the United Kingdom might be comparable). It was possible that the advice might best be obtained from a United Kingdom firm of lawyers if reference to United Kingdom law was required."

"(1)There shall be a Supervisory Committee for the Island, consisting of the twelve Constables.

(2)The Supervisory Committee shall take such steps as it thinks fit for promoting uniformity in the principles and practice of rating and for assisting Assessment Committees in the performance of their functions under this Law, and, for this purpose, the Supervisory Committee shall have power to hold conferences with persons representing Assessment Committees and to bring to the notice of any Constable or Assessment Committee any conclusions arrived at or recommendation made by the Supervisory Committee or at any such conference.

(3)The Supervisory Committee may, in the performance of its function under this Law, obtain the advice and assistance of competent persons and may make payments for the services of those persons.

(4)Any expenses incurred under this Law by the Supervisory Committee shall be charged on all the Parishes in proportions to be determined by that committee.

(5)The provisions of the First Schedule to this Law, in so far as they are applicable, shall have effect with respect to the Supervisory Committee."

"The principle of assessing a rental value for a property for which there was no rental market as persons qualifying under Regulation 1(1) (k) of the Housing Law were not permitted to rent property, only to purchase property. The decision reached would provide a benchmark for determining properties in other Parishes in future and it was suggested such properties might be compared with stately homes in the United Kingdom."

"These properties therefore have a rental value based upon their potential occupation by other approved occupiers being persons qualifying under Regulation 1 (1) (a-j) inclusive."

"the peculiar nature of 1(1) (k) properties results in the "Contractor’s Method" providing the only viable means for their rate assessment."

"The "Contractors Method" says Rees, op. cit. is often described as the "method of last resort" and is "based upon the premise that cost approximately equates to value". He continues. "If a hereditament were not available to rent, then a prospective tenant would have to construct one. The land would need to be acquired and the building constructed. The occupier would have to borrow the capital in order to construct the building and pay interest on this loan. The amount of the annual interest payable would be equivalent to the rent" (page 374). Lord Parker put the matter more concisely in Metropolitan Water Board v Chertsey Union Assessment Committee [1916] 1 A.C. 337."

"If the company is owner as well as occupier, then, inasmuch as it is by reason of its occupation out of pocket to the extent, at least, of interest on its capital expenditure in acquiring and building on the land it occupies, the amount of such interest is good evidence of what the company would be willing to pay by the year for the privilege of continuing its occupation."

"The Parish Rate Appeal Board advises you that the reasons for the above decision, as recorded in the minutes of the meeting held on 23 September 1996, are as follows -

"having regard to the assessment of other properties in the Parish indicated by the Assessors the Board (had) concluded that the assessment was a fair one."

"the capital value leaving out of account expenditure on unnecessary ornamentation or accumulation surplus to requirements, and after allowing, if necessary, for age and obsolescence".

"Every Assessment Committee and every Constable shall furnish to the Supervisory Committee or the Board respectively all information which it may require for the due discharge of its functions under this Law and which it is in the power of the Assessment Committee or Constable to furnish."

"7. In my view, Mr Bridle is entirely wrong, as a matter of law, (our underlining] to reject the use of the Contractors Method as a primary method of determining rental value, given that the hypothetical tenant may be deemed to include the actual occupier, the question of being how much would they be prepared to pay in rental to live in the house they have actually bought? The capital cost method is a very good starting point."

1."1(1)(k) properties" were now to be referred to as "substantial properties". That is, in our view, a remarkable alteration.

2.The Parish Rate (Administration) (Jersey) Law 1946 as amended had not been properly applied over the years but if the appellant produced evidence of market rental, as opposed to assessed rental, this would be considered.

3.That, in the absence of any evidence from either the Respondent or the Assessors (both had declined to reply to the Boards request) the Board would base its decision on a remark made by the Representor at the meeting of the Board on the 11 June 1996.

1.The view of Mr Syvret

2.The reasoning of the Board

"1.26/97/45. Mr Syvret confirmed that the Contractors Method had not been used to assess properties in St. Ouen and the Assessors were not aware of the category under which properties in the Parish were purchased. Assessments of properties had been developed over a period of time and were based on comparison with other properties. The Assessors were in the same position as the Board as these properties did not command a rent being generally owner occupied. When the Assessors visited Lowland the facade of the original building, the gates and cottage remained intact. Following its rebuilding it was compared with other properties and in particular with ‘La Rocque Envoy’ which M and Mrs Fields had considered purchasing before deciding that Lowlands would make a superior residence. An assessed rental value had therefore been used rather than an actual rent or the Contractors Method. There was no given formula for assessing rentals but it could be described as an art rather than a science although it was not guess work. Lowlands had not been singled out by the Assessors in their assessment of properties. The 1996 assessment had been maintained in 1997 as it was considered that it would have been presumptuous to apply another method when the Board’s decision on the 1996 appeal was the subject of an appeal to the Royal Court. Lowlands was a newly built, architect designed house with an increased area of some 10% over the previous building on the site compared to Vinchelez de Bas Manor which had had very little alteration. The assessed rental value for the main house was £32,760 which, together with the cottage and a small field, gave a total assessed rental value of £36,100 for Lowlands.

2.26/97/47. The Board having considered the information available, and in the absence of evidence from either the appellant or Assessors of effective capital value as requested, recalled that it had been stated that the purchase price of Lowlands was £420,000 and approximately £800,000 had been spent on rehabilitation/rebuilding/restoration work (paragraph 5/96/25 of the minutes of 11th June, 1996 refers). The Board accordingly decided that the only available evidence of capital value was this sum of £1,220,000 and agreed that this should be discounted by 10% to allow for unnecessary ornamentation and accommodation (in line with the definition of effective capital value received by the Supervisory Committee from Advocate S A Pearmain). Applying the Contractors Method to this sum and considering that a reasonable net return on capital was 4% (in line with its decision when applying the Contractor’s Method to other assessments in 1997) the Board accordingly decided that the assessed rental value for Lowlands, Ville au Bas, St. Ouen (comprising house, cottage and small field) should be raised to £43,920 (the foncier to 22,010 quarters and the occupiers rate of 43,820 quarters which reflected the small field let at an annual rent of £100) having considered -

"The 4% was arrived at as a consensus among the five Board members determining the appeal as the lowest capital return a landlord would be prepared to accept as a return on his money, given the compensation of capital appreciation on the property." (According to the Minute of the 6 November only four members of the Board were present for the decision].

"The Supervisory Committee and Chairmen of Assessment Committees had also decided that 1(1)(k) properties would continue to be assessed as any other house and no change would be made in the current practice of assessment. In particular, concern had been expressed at the possible assessment for manor houses if the legal opinion was followed and the assessment based on the capital value of the property. Mr Crapp reminded the Committee that to continue with the existing method of assessment would be contrary to the legal opinion received and, in the event of an appeal against the assessment for such a property and having advised the Committee as to how such an assessment should be made, the Board would have to consider applying the Contractor’s Method. The Board recognised the difficult job with which the Assessors were faced but the Connêtables also had the right to appeal against an assessment and it could be said that owners of substantial properties were being subsidised if the property was under assessed in comparison with smaller properties."

"The assessment was fair given that the property was now one of the most desirable within the Parish compared with other properties in this category, namely:

La Landelle(total ARV £24,014)

La Rocque Onvoy(ARV £25,554)

Cherry Trees(ARV £25,556)

La Cache(ARV £29,383)

Le Breton Farm and Lodge(total ARV £37,850)."

"was to be fair to the Respondent because it maintained uniformity not to increase the assessment (as the Board believed they were entitled to do) but to allow the Respondent one years grace whilst it sought to encourage the Assessment Committee to apply the Contractors Method in future years so as to combine uniformity with correctness of method."

1.Was the decision of the Rate Appeal Board one which it could lawfully make under the Law?

3.Was the decision of the Rate Appeal Board one to which it could reasonably come, having regard to all the circumstances?

"119 Evidence of assessments of comparable hereditaments. Evidence my be given of the assessments of comparable hereditaments. To be of use the comparable hereditaments should normally be drawn from the same areas as the hereditament under review, although this limitation does not apply if the purpose of referring to the comparable hereditaments is to establish valuation practice and method. However, statements as to the basis of assessment by the valuation officer who is not party to the proceedings are not admissible. An assessment under appeal is normally excluded from consideration. A valuation officer will not be allowed to impugn his own list."

"Market rental evidence when it is available is to be preferred as being the most direct evidence and hence rental comparison is the usual valuation method for the majority of hereditaments."

"This method of valuation (the cost of construction) has been applied, for insurance, to the indirectly productive parts of public utility undertakings (such as waterworks), to municipal property (such as schools, former sewage systems, a town hall, a fire station, a swimming pool and public conveniences) to colleges and university buildings, public schools, a geological museum, a lighthouse, an old people’s home, coke ovens, a football stadium, a cricket ground, a factory and broiler house, a car park, a nursing home, a community centre and an indoor bowling stadium and to plant and machinery."

"The availability of substantial properties outside the financial reach of the vast majority of local residents is an important issue in the administration of this Regulation."

"Appropriate advice should be sought from a professional familiar with this method."

"2. That to increase the assessment of Lowlands, based on the legal advice received, would lead to inconsistencies within the Parish (the Board referred to advice given by the Solicitor General in Minute 2/96/2).

3. That having regard to the assessments of other properties in the Parish indicated by the Assessors, the Board concluded that the assessment was a fair one."

"Mr Crapp asked how the Board was to judge an appeal, whether on the evidence given or on the basis of its own judgement, and the Solicitor General replied that whilst the provisions of the Law relating to the Board were new, and therefore had not yet been interpreted by the Court, paragraph (9) of Article 14A stated that the Board could "call and examine witnesses". Having asked whether the Board could increase the rate of a property the Board was told that Article 15(1) gave the Board "power to confirm or alter any matters in the draft list.....". Whilst the Solicitor General could not give the Board a Court ruling on this, as it was a new Law, generally if the Law wished to limit a person it would be specific on the matter but in this case the Law said "confirm or alter". However, the Law did not say the Board had to alter, only that it might alter, a rate and therefore if, by increasing to the true rate for the property, glaring inconsistencies resulted with respect to other properties the Board did not have to make an alteration."

"was entitled to and did consider some evidence that was put to the Board and the Board was bound to and did make an assessment according with the Law."

"The Parish Rate law requires the rental value of land/property to be assessed and this is the figure shown in the column headed Rental Value £.

In recent years many assessed rental values have fallen behind current market rents. Properties which have been under-assessed in the past will notice an increase, which may be substantial, in the rental value assessed. This may be the case with your assessment but it may only result in a small change in your actual rates bill."

1)The Board based its decision on a legal conclusion that 1(1)(k) properties (of which Lowlands was one) could only be assessed on the Contractor’s Method because it had no rental value.

3)It changed its decision from the basis of "1(1)(k)" properties to "substantial" properties

4)It ignored the Second Schedule of the Law

5)It failed to take "appropriate advice" from a professional familiar with the Contractor’s Method as counselled by its lawyers

6)It based its conclusions as to the capital cost of Lowlands on a passing remark made by the owner and assessed returns without evidence in support