UT Neutral citation number: [2011] UKUT 418 (LC)

UTLC Case Number: RA/28/2010

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

RATING – rateable property – domestic premises – riverside garden with summer-house – remote from occupiers’ dwellings Local Government Finance Act 1988 s 66(1)(a), (b) and (d) – held no part of the property fell within any of these paras – appeal dismissed

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE

LONDON VALUATION TRIBUNAL

BETWEEN GRAHAM JOHN AYLETT Appellant

and

TIMOTHY FRANCIS O’HARA Respondent

(Valuation Officer)

Re: River Gardens,

Bridle Way,

Goring,

Reading

RG8 OLD

Before: The President

Sitting at 43-45 Bedford Square, London, WC1B 3AS

on 12 October 2011

The appellant in person

Galina Ward instructed by HMRC Solicitor for the respondent

The following cases are referred to in this decision:

Lewis v Christchurch Borough Council [1996 RA 229]

Turner v Coleman (VO) [1992] RA 228

The following further case was referred to in argument:

Martin v Hewitt (VO) [2003] RA 275

DECISION

1. This appeal arises from a proposal by the appellant seeking the deletion from the rating list for South Oxfordshire District Council of an entry with the description “Mooring and Premises”, the address “River Gardens, Bridle Way, Goring, Reading. RG8 OLD” and an assessment of £1,250 rateable value.  Following an appeal hearing the Oxfordshire Valuation Tribunal on 29 October 2010 refused to delete the entry, but directed that the description be altered to “River Garden and Premises”.  The issue in the case is whether the property is, as the appellant claims, a domestic property and therefore wrongly included in the rating list.

2. There is no dispute as to the facts.  The property is an area of open land bordering the River Thames at Goring, bounded by fences on three sides.  It has a 50ft frontage to the river and a slipway for the use of skiffs and canoes.  It is reached by means of steps from a bridle path that runs above it on the landward side.  The land is owned and occupied by the appellant and his three co-owners and they use it, together with their families and friends, for recreation.  All the owners live some distance from the property, the appellant Mr Aylett in Aylesbury.  A small wooden summer-house has been placed on the land.  It is used for storing a table and chairs and other articles, including a kettle, crockery and cutlery, a refrigerator and a microwave.  There is an electricity supply to the property but no water supply or sewerage.  It is agreed that the summer-house is not, and could not, be lived in full time.  It is also agreed that the property is not appurtenant to any of the dwelling houses of the joint owners, and neither the summer-house nor the small shed, which stands close to it, is normally used for the private storage of domestic items in connection with the occupation of any of those houses.

3. The appellant’s contention is that the property is domestic property within the meaning of section 66 of the Local Government Finance Act 1988.  Section 66(1), so far as material, provides as follows:

“(1)… property is domestic if –

(a)         it is used wholly for the purposes of living accommodation,

(b)        it is a yard, garden, outhouse or other appurtenance belonging to or enjoyed with property falling within paragraph (a) above,

(c)         it is a private garage…, or

(d)        it is private storage premises used wholly or mainly for the storage of articles of domestic use.”

4.           In his proposal the appellant said that the riverside garden should be regarded as domestic because it fell under paragraph (b), that is to say as a garden enjoyed with property, the property being the homes of the four co-owners.  This was the case that he advanced before the valuation tribunal.  The tribunal’s decision records the following:

“26. Mr Aylett explained to the Panel that the subject hereditament is a river garden which he, and three other members of the Thames Traditional Boat Society, own.  It is used solely for their private enjoyment…

28. The only building in the garden is a small wooden summerhouse, which allows for the storage of chairs and other articles of domestic use.  This enhances the owners’ enjoyment of the garden and avoids the need for domestic items, such as crockery, cutlery, a kettle etc having to be carried to and fro from the garden by the owners.  The garden is solely used for the private enjoyment of the owners so is solely domestic in character.

29. Mr Aylett contended that while the subject property is not used wholly or partly for living accommodation, it is, nonetheless, domestic property as defined in paragraph (b) and (d) of Section 66(1) of the LGFA 1988.”

5. The valuation tribunal said (at paragraph 41) that it was satisfied that the subject hereditament was not used for living accommodation.  It rejected Mr Aylett’s contention that it fell within paragraph (b).  Its conclusion was:

“45…In the Panel’s view the garden is not enjoyed with the living accommodation of the appellant and his co-owners.  It is enjoyed entirely separately to their living accommodation.”

6. The appellant’s case is no longer the one that he advanced in his proposal and before the valuation tribunal.  His contention now is that the summer-house falls within paragraph (a) since, he says, it is living accommodation, although not a dwelling, that the garden enjoyed with the summer-house falls within paragraph (b) and that the storage shed falls within paragraph (d).

7. For his contention that the summer-house falls within paragraph (a) Mr Aylett relies on Lewis v Christchurch Borough Council [1996] RA 229, a decision of the High Court (Jowitt J in Queens Bench Division), in which it was held that 341 beach huts, each sitting on its own plot of land, were dwellings (within the meaning of section 3(2) of the Local Government Finance Act 1992) and were used wholly for the purposes of living accommodation within paragraph (a) of section 66(1) of the 1988 Act.  At 223 the judge said:

“I note that that definition of domestic does not require that the hereditament is used for all the purposes which might be said to be the purposes of living accommodation.  On the facts as found by the Tribunal, these beach huts were domestic since they were used wholly for purposes of living accommodation.  There are certainly in some of the beach huts bunk beds, but it does not follow that in order to be used for living accommodation a property has to be slept in.  There are many other aspects of living than sleeping.  The definition does not require that the property fulfils all the purposes which living accommodation might be called upon to meet.”

8. The facts in that case contrast, it seems to me, very obviously with those in the present case.  There is nothing in the facts as agreed to suggest that the principal use of the summer-house is other than storage.  No doubt it can be used for shelter but it is clearly not used in any significant way for activities that would constitute the principal activities in living accommodation.  The valuation tribunal found that it was not used for living accommodation, and it was in my view plainly right to do so.  Moreover, unlike the beach huts in Lewis, the summer-house is part of a larger unit of occupation and is ancillary to the open area, the riverside garden that is used for the purpose of recreation.  The summer-house is enjoyed for the purposes of that recreational use.  Its use is simply part of the recreational use of the river garden.

8. Since the summer-house is not within paragraph (a) Mr Aylett’s contention that the open land falls within paragraph (b) as a garden enjoyed with living accommodation necessarily fails also. 

9. It is to be noted that in Turner v Coleman (VO) [1992] RA 228 the Lands Tribunal (V G Wellings QC, President) had to consider the application of section 66(1) to premises that consisted of a mooring and land with frontage to the River Thames at Remenham, Henley-on-Thames.  There was a concrete hard standing along the north western boundary of the land, which provided a car parking area and access to a concrete slipway at the south western corner.  Facing the river there was a timber and felt roofed chalet.  There was a grassed area in front of the chalet and a small garden shed at the rear of the plot.  In the chalet there were stored garden chairs, tables, a refrigerator (with food), glasses, cups and saucers and bits and pieces for the appellant’s cruiser.  There was also a sink.  The land was used as a garden, lawn, flower beds and vegetable beds.  The shed was used for the storage of garden implements.  Electricity was connected and mains water was available from a standpipe.  The appellant’s house was about 1.25 miles away.  The Tribunal rejected the contention on behalf of the ratepayer that the hereditament fell within sub-paragraph (b) in the definition in section 66(1).  The President said that the appeal hereditament was a riverside garden, but that it was a garden to which there was attached the right to moor a boat.  In his opinion it was not a garden enjoyed with the ratepayer’s house, and paragraph (b) therefore did not apply.

10. In Turner it was conceded by the VO that the chalet fell to be treated as domestic property because it was used for the storage of articles of a domestic nature.  It was not part of Mr Aylett’s case that the summer-house in the present case fell within paragraph (d) as “private storage premises used wholly or mainly for the storage of articles of domestic use.”  The VO for his part said that the concession in Turner is not binding, that the facts were different, and in any event that there would be no significant effect on value if the summer-house were held to be non-rateable.  In my judgment premises used for storing articles of a domestic nature do not fall within paragraph (d) where they are part of a hereditament that is otherwise non-domestic and where the storage use is ancillary to the non-domestic use.  For this reason the summer-house would not fall within paragraph (d), and the same would go for the small shed.

11. Thus, in my judgment the contentions by the appellant that the summer-house falls within paragraph (a) as being used wholly for the purposes of living accommodation, that the garden land falls within paragraph (b) as being a garden enjoyed with the summer-house and the shed falls within paragraph (d) are all to be rejected.  The reality is that the property consists of a riverside garden which is used for recreational purposes, and the use of the summer-house is ancillary to that recreational use.  None of the paragraphs of section 66(1) apply.  The appeal is dismissed. 

12. The parties are now invited to make submissions on costs.  A letter about this accompanies this decision, which will become final when the question of costs has been determined.

Dated 19 October 2011

George Bartlett QC, President