UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2013] UKUT 166 (LC)

UTLC Case Number: RA/7/2011

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

RATING – non-domestic hereditament – concierge room in development of 15 houses – whether domestic property – Local Government Finance Act 1988 s.66(1) – held concierge room lay within the curtilage of property used wholly for the purposes of living accommodation and was an “other appurtenance” – domestic property

 

 

 

IN THE MATTER OF AN APPEAL AGAINST A DECISION

OF THE VALUATION TRIBUNAL FOR ENGLAND

 

BETWEEN THE COLLECTION (MANAGEMENT) LIMITED Appellant

 

and

DAVID JOHN JACKSON Respondent

(Valuation Officer)

 

 

Re: “Office and premises (concierge room)”,

11 Bolton Road,

London NW8 ORJ

 

 

 

 

Before: Her Honour Judge Alice Robinson

 

Sitting at: 45 Bedford Square, London WC1B 3DN

on 8 March 2013

 

 

Elena Butterfield of Harrods Estates Limited for the Appellant

Sarabjit Singh instructed by HM Revenue and Customs for the Respondent

 

 

 

The following cases are referred to in this decision:

 

Martin v Hewitt [2003] RA 275

Trim v Sturminster RDC [1938] 2 KB 508

Methuen-Campbell v Walters [1979] QB 525

Head v London Borough of Tower Hamlets [2005] RA 177

Winchester City Council v Handcock [2006] RA 265

Allen v Mansfield District Council [2008] RA 338

Tully v Jorgensen [2003] RA 233

Clymo v Shell-Mex & BP Limited [1963] RA 191

Westminster City Council v Southern Railway Co [1936] AC 511

Clayton v Good, Havercroft & Co Limited [1961] RVR 6

Laing & Son Ltd v Kingswood Assessment Area Committee [1949] 1 KB 344

North Eastern Railway Co v Railway Assessment Authority and John Gardner (London) Ltd (1945) 16 DRA 147

 

 

The following further cases were referred to in argument:

 

Bell v Rycroft [2000] RA 103

 

DECISION

Introduction

1.           This is an appeal from a decision of the Valuation Tribunal for England (“VT”) dated 17  December 2011 by The Collection (Management) Limited (“the Appellant”) which is the freehold owner of land and buildings known as The Collection, 98a Boundary Road, London NW8 0RH. In its decision the VT upheld an entry in the 2005 rating list of property described as “office and premises (concierge room)” with a rateable value of £1,225 effective from 1 February 2008 (“the concierge room”). In this decision ‘The Collection’ means all the land and buildings owned by the Appellant.

2.           The Appellant seeks deletion of the entry for the concierge room on the grounds that it is domestic property for the purposes of s.66(1) of the Local Government Finance Act 1988 (“the 1988 Act”) and is not therefore rateable. The Appellant’s case is that the concierge room is an appurtenance to The Collection being within the curtilage of The Collection and property which would pass on conveyance of The Collection without express mention. The Collection is a wholly residential development of 15 houses and the concierge room both belongs to The Collection terms of ownership and is enjoyed with The Collection by virtue of the fact that the concierges exist only to serve their residents.

3.           The Valuation Officer (“VO”) submits that the relevant premises used wholly for living accommodation are the individual houses not The Collection as a whole and the concierge room cannot be regarded as appurtenant to any of the houses. Further, it cannot be appurtenant to The Collection because it is occupied by Harrods Estates Limited for the purpose of its business as managing agents of The Collection and the activities of the concierge go beyond what could reasonably be described as ‘domestic help.’ For the same reason the concierge room is not enjoyed with The Collection because it is not used as part of the residents’ enjoyment of the occupation of their houses.

Facts

4.           The parties had largely agreed a Statement of Agreed Facts although there were tracked changes made by the Appellant indicating the areas of disagreement. On behalf of the Appellant I heard oral evidence on oath from Heidi Stephenson LLB MSc AIRPM, Associate Director (Services) of Harrods Estates Limited, who spoke to a witness statement dated 27 April 2012 made by James Snell, the estate manager of The Collection and her immediate subordinate. The Appellant also relied upon a written witness statement dated 30 April 2012 from Patrick Taylor BSc Dip Surv ARICS Managing Director of Blenheims Estate and Asset Management Limited. On behalf of the VO I heard oral evidence from David John Jackson BSc MRICS, Manager of the Complex Case and Appeals Unit, who spoke to his witness statement dated 24 February 2012. On 12^th March 2013 I inspected the concierge room and The Collection. As a result and with the agreement of the parties I heard limited further evidence on site from Mr Kem Rashica the building manager. On the basis of all the evidence I find the following facts.

5.           The Collection is an exclusive development of 15 houses on the site of the former Saatchi gallery and each house is named after an artist who exhibited at the gallery. It is located between St John’s wood to the east, Maida Vale to the south and Hampstead to the north. The houses rise from basement to second floor level and houses 2 to 14 incorporate an integral double garage at basement level. The garages have shutter doors and are accessed via a gate on Bolton Road onto a ramp with a traffic light system which leads down to the basement driveway area. The driveway incorporates 8 parking spaces as houses 1 and 15 do not have a garage. The driveway give access to an electricity substation, a plant room containing pumps and water tanks serving all the houses (one for drinking water for the houses and one rainwater for use in the gardens), an electrical switch room, a plant room containing chiller equipment for cooling the houses and a control panel for sewage pumps for the houses. It also contains two staircases leading to ground floor level which give onto communal landscaped gardens above the basement driveway from which there are doors into each of the houses. House number 1 is accessed only from a ground floor door via the communal gardens. House number 15 is accessed via its own front door directly from Bolton Road. There is a pedestrian gate to the left of the vehicular gate in Bolton Road. There is also ground floor access to the communal gardens from Boundary Road in the north eastern corner of the development for pedestrians and a vehicular access for emergency vehicles and removals vans only.

6.           The concierge room lies in the south western corner of The Collection close to the gates onto Bolton Road. It is on the ground floor within the building envelope and immediately on the left inside the Bolton Road gates. The Collection was not originally designed to contain a porter’s lodge and the concierge room was carved out of house number 15 but constructed at the same time as the rest of the development. It is bounded on two sides by that house which lies to the left. To the right wall of the concierge room lies the access ramp from the gate to the basement garages and the remaining narrow wall fronts onto Bolton Road. Both these walls contain a window looking out onto the ramp and street respectively. Above the concierge room lies the first floor accommodation of house number 15. Access to the concierge room is gained by a door adjacent to the access ramp. The door to the concierge room may be locked though in practice it rarely is because the concierge is always present.

7.           A specimen lease shows that the houses in The Collection are demised by Vanderbilt (Boundary Road) Limited as Landlord for a term of 999 years from 1 January 2007 at a peppercorn rent subject to a service charge. The Appellant is also a party to the lease as the Company with responsibility for management/maintenance and collection of the service charge. On 22 February 2010 Vanderbilt (Boundary Road) Limited transferred the freehold to the Appellant. Since that date the rights and obligations of the Landlord and the Company under the lease have merged into the Appellant. Each resident has a share in the Appellant which is a dormant company, a vehicle for holding the freehold.

8.           The lease contains a covenant on the part of the lessee not to use the demised premises for any trade or business and to use them as a self contained high class private residential property in the occupation of one private household only (Fourth Schedule Part II paragraph 15). The common parts which the residents have a right to use by virtue of the Included Rights in the Second Schedule are defined in clause 1 of the lease as follows:

“all those parts of the Estate that are provided by the Landlord from time to time for common use and enjoyment solely by the tenants and occupiers of the Units and all persons expressly or by implication authorised by them including the roads pathways hallways lightwells entrances lobbies landings passages staircases fire escapes stores storage cupboards service ducts and vents plant and equipment and also the gardens and terraces notwithstanding that the tenants and occupiers have no right to use the same (but not those gardens and roof terraces demised to individual tenants)”

9.           In addition to covenanting to pay the service charge the lessee covenants to pay a fair and proper contribution towards the cost of metered water and gas supplies to the ‘Estate’ which is defined on a plan so as to equate to The Collection (Fourth Schedule Part II paragraph 5). The service charge is defined as the cost of the services and facilities provided in accordance with the Sixth Schedule. The Company covenants, amongst other things, to repair and operate the security equipment, pumps, chillers and other equipment servicing the Estate and the door entry system and any communal alarms (Sixth Schedule Part II paragraph 1) and to provide and maintain any fire alarm system, gates, barriers, means of surveillance, fencing, video access and lighting and security services for the basement (Sixth Schedule Part III paragraphs 19 and 20). In addition, the Company covenants, for the purpose of performing its covenants:

“to employ on such terms and conditions as the Company shall think fit one or more concierges caretakers porters maintenance staff gardeners cleaners or such other persons as the Landlord may from time to time consider necessary including providing maintaining repairing decorating heating and lighting any accommodation and facilities for such people and all outgoings in respect thereof and providing such materials and equipment as shall be required from time to time for the proper performance of their duties” (Sixth Schedule Part II paragraph 4 and Part III paragraph 10)

10.        On 7 February 2007 the Appellant entered into a Property Management Agreement with Harrods Estates Limited (“HE”) appointing them managing agents of The Collection. HE is paid a fee comprising a flat fee plus a percentage of the value of service charge expenditure and in some cases an hourly rate. By clause 2.3 the Appellant granted HE authority “to occupy as bare licensee such part or parts of the Property [defined so as to equate to The Collection] as are necessary to enable it to perform its duties hereunder but excluding…” the houses. Clause 3.2 requires the Appellant to enter into certain agreements negotiated by HE within 10 working days of being requested to do so but this does not include the employment of any person only maintenance agreements.

11.        Clause 5 contains HE’s obligations:

“[HE] shall carry out the Management in a diligent orderly and businesslike manner and shall exercise the standard of skill and care appropriate to a high quality property manager competent and experienced in providing the Services and Management to a high class residential development and in accordance with the principles of good estate management and the [Appellant’s] lawful and reasonable written instructions from time to time and without prejudice to the generality of the foregoing [HE] undertakes:

5.1 General Management

To carry out or to procure the carrying out of the general duties of a managing agent in respect of the Property including…

5.1.1 the administration and/or provision of all services which the [Appellant] is obliged to provide under the terms of the Occupational Leases and such other discretionary services as the [Appellant] is entitled to recover the cost of by way of Service Charge;

5.1.2 the administration and overseeing of building services and all on-site contract work; and

5.1.3 the recruitment and management of all requisite on-site staff.

…..

5.18 Employees

To employ and supervise all persons necessary in [HE’s] reasonable opinion to carry out the Management and to ensure that such persons are not and do not become employees of the [Appellant] and to be responsible for and to ensure that the [Appellant] is not responsible for any National Insurance Contributions taxes pension fund payments and other payments and taxes or assessments in connection with the employment of such persons.”

12.        The brochure prepared for the purposes of selling the long leases of the houses describes them as “exceptional contemporary homes”, “innovatively designed” and which have “comfort cooling and underheated stone and oak floors”. Under the heading “Taking care of you” the brochure states:

“The Concierge/Security staff for The Collection will co-ordinate the Concierge Service.  The aim of this service is to offer a hotel-style facility ensuring that service and assistance is never more than a call away.  The aspiration is to ease the burden of modern life whilst enriching the experience of living in one of the most vibrant parts of London.

These services will be provided by Harrods Estates, whose commitment to service and its position within the Harrods Group allows it to provide a greater range of additional services than an ordinary managing agent.

Subject to certain procedures, your Concierge will:

·       Hold keys – letting people you allow enter your apartment in your absence

·       Take deliveries – safely storing items or placing then inside your home.

·       Carry parcels & shopping

·       Hail cabs

·       Greet, screen and escort visitors

·       Make reservations for restaurants etc in your name

The Concierge can arrange on your behalf the following services; payment will be due to the organisations providing the service.

·      Maid Service

·      Dry Cleaning and Laundry

·      Car Services – Taxi, Limousines etc

·      Car Cleaning

·      Courier and Messenger Services

·      Home Shopping Services

·      Interior Designers

·      Insurance

·      Maintenance Services

·      Secretarial Services

·      Theatre Tickets

·      Travel Arrangements”

13.        The concierge room is a small space, only 9.58 square metres, some of which is taken up with a separate lavatory and washbasin. It has a tiled floor, plastered walls and ceiling, lighting and heating. It contains a desk and chair along the wall facing the vehicle ramp with a computer, printer, a wall mounted flat screen TV, a CCTV monitor and a monitor/control for the front gate and telephone. Security is an important feature of The Collection and access can only be gained using biometric fingerprint entry, electronic in-car security tag or through the concierge who provides 24 hour security. CCTV monitors the garages, communal gardens and entrance gates and is controlled from the concierge room. On the wall above the desk are two control panels, one for the gates including traffic light control and one for the centralised chillers for air conditioning, water supplies and sewage pump. The concierge also monitors an intruder and fire alarm system for all of the houses.  Underneath the desk is an electrical box containing intercom equipment enabling residents to contact the concierge from the houses. The end wall facing the street has a small sink, microwave and kettle with a small fridge under the desk at that end. There are some shelves containing in trays for each concierge for messages etc, files marked site log, deliveries, contractors etc and stationary.

14.        There is a dispute as to the extent of the services performed by the concierge for the residents. Mr Snell’s statement says that the concierge arranges typical services on behalf of the residents and these are predominantly carried out by local businesses. Miss Stephenson said that the sales brochure included marketing spin to assist the sales and the concierge only undertakes basic domestic servant type activities: opens and closes the gates, looks after keys, accepts post, fetches and carries for residents, holds dry cleaning, monitors the CCTV, patrols the site and helps residents. Because a concierge is there 24 hours a day the room provides a basic level of comfort, the toilet and kitchenette and the facility to watch the internet or a film at night to help keep them awake. The computer has no access to HE’s systems and the concierge has a separate e-mail address and telephone land line. The printer is there so they can type out notes to residents or e.g. an out of order notice for something. The files are there to enable them to keep a record of what happens every day and contain the concierge’s records of e.g. holidays, sick leave. The concierge could arrange for other services such as booking theatre tickets but in practice she said the residents had their own personal assistants who would do that. The concierges generate no income and no business is carried out by them, if they arrange for services such as dry cleaning the contract is between the resident and cleaning company. Miss Stephenson’s evidence is that the concierge does not carry out any of HE’s activities as managing agent. She saw their role as providing services to the residents rather than managing The Collection.

15.        Mr Rashica said he is in charge of the concierges who all report to him and he is also in charge of contractors. He reports to HE. If there are any problems he either fixes them or arranges for them to be fixed. By way of example he said that the day before he spent the day sorting out a leak in one of the houses and on the day of the site visit he was expecting a delivery of bark and would then be doing some work on the landscaped gardens. He fulfils the role of concierge as well if one of them has to leave the concierge room for any reason to attend elsewhere on the site or is on holiday. After the parties were given an opportunity to comment on Mr Rashica’s evidence Miss Stephenson informed the tribunal that Mr Rashica’s role was temporary. He was the original head concierge and had moved on. At present he is helping out between working at other properties.

16.        Mr Jackson’s statement says the concierge performs three functions:

“a. Providing security and controlling access to the site

b. Monitoring and maintaining the utilities to the site

c. Providing additional services to the occupiers of the dwellings.”

He considered that the range of additional services offered by the concierge to residents as described in the sales brochure listed in paragraph 12 above went beyond domestic service and was more akin to that which would be provided by a hotel. However, the only services he was personally aware of being carried out by the concierge were calling a cab and booking a restaurant. He did not dispute that a porter could in principle offer services which would be domestic but thought this would be confined to access and security, the first function referred to above.

17.        Mr Jackson’s statement says that the concierge room is also used by HE when necessary in connection with the activities of a managing agent: insurance, external maintenance and painting, servicing and replacement of equipment, cleaning and gardening, preparing accounts and collecting the service charge. However, in oral evidence he clarified that he did not have any evidence that HE had in fact used the concierge room and what he meant was that the concierge occupies on behalf of HE which has the right and opportunity to use the concierge room to carry out its activities as managing agent. Mr Jackson suggested that a person could work anywhere with their Blackberry phone; that may be true but it does not mean HE occupy the concierge room any more than their employees occupy any other premises where they happen to get their Blackberry out during the course of a working day. He considered that HE receive a significant reward as managing agents from, amongst other things, occupation of the concierge room.

18.        Miss Stephenson said that she was involved in setting up the scheme at the outset and she has never worked in the concierge room; she doubted that Mr Snell had either. She said that it would not be possible to do any work there: neither the phone or computer are linked to HE’s systems and no one at HE could enter the site using biometric fingerprint access. HE has its own office with 30 staff, now in Hammersmith Road, from where it carries out the traditional activities of a managing agent: preparing accounts, collecting service charges, arranging for maintenance and cleaning of the common areas. She said it was not necessary for HE to have a presence on site in order to manage The Collection and even if the concierge room was empty the building would be managed from HE’s office in Hammersmith Road.

19.        In the light of all the evidence I find that while the concierges carry out the functions in the first part of the list contained in the sales brochure set out in paragraph 12 above, there is no evidence they carry out any of the activities in the second part of the list other than fetching and carrying dry cleaning (and possibly arranging the service although this was unclear). Further, there is no evidence that any of HE’s functions as managing agent are carried out by the concierges or by any of HE’s staff in the concierge room. To the extent that he occupies the concierge room Mr Rashica’s role is best characterised as head concierge and in any event is only temporary.

20.        Although Mr Snell’s statement says that the concierge is not employed by HE which is the Appellant’s agent Miss Stephenson that they are contractually employed by HE, albeit that HE act as agent for the Appellant and that the salary is recouped through the service charge. Clause 5.18 of the Management Agreement states clearly that HE employs persons necessary to carry out ‘Management’ of The Collection. Management is defined in clause 1 as “the management of [The Collection] pursuant to this Agreement including…  the duties specified in Clause 5” which include “the provision of all services which the [Appellant] is obliged to provide under the terms of the Occupational Leases” and “the recruitment and management of all on site staff”, clause 5.1. Further, clause 4.3.1 entitles HE to arrange for payment from the service charge account of “the cost of employing staff at [The Collection] which shall be recoverable by [HE] from the Client Account”. Having said that, the concierge is employed wholly for the purposes of The Collection; Miss Stephenson said if HE lost the account (the Management Agreement may be terminated by either party on 3 months written notice), unless the concierge transferred to the new managing agent they would be made redundant.

21.        In theory residents could enter the concierge room but there is no evidence any of them do. Miss Stephenson’s evidence is that if a resident needs something the concierge goes to the house for that purpose e.g. to collect items for dry cleaning. Mr Jackson did not consider that the residents were in occupation of or had a right to use the concierge room. He said it fell outside the definition of common parts in the lease.

22.        The concierge room was entered in the 2005 rating list for the Camden Billing Authority with a rateable value of £1,225 with effect from 1 February 2008. The Appellant appealed to the VT which upheld that entry. The VT’s reasoning is set out in the following paragraphs of its’ decision:

“18. The panel noted all the evidence that had been placed before it, both orally and in writing by both parties.  It noted the definition of a domestic property as contained in section 66 of The Local Government Finance Act 1988 and that the office was occupied by a property manager in connection with the provision of a concierge service to the occupiers of the dwellings.  In addition, it noted the cases that had been referred to by both parties and the use made of the decisions by the parties in support of their respective submissions.

19. Regarding Ms Butterfield’s submission, the Panel noted the office was linked with The Collection in the following ways; it was physically connected to; built at the same time; was in the same curtilage; shared the same facilities and existed to serve The Collection.  Regarding the transfer of the freehold title, the Panel noted Ms Butterfield’s comment that  listing the office in the transfer document would be as absurd as listing the communal gardens and car park ramp.  However, in the lease agreement between the landlord and the tenants, among other items listed under ‘common parts’. ‘roads, pathways, gardens and terraces’ were listed, whereas the ‘office’ was not listed under common parts.

20. The Panel accepted the office was within the curtilage and subsidiary to The Collection.  In addition, that when determining whether something is an ‘other appurtenance’ within section 66(1)(b) the subject clearly has to be within the curtilage of the living accommodation.  The Panel, when considering the question, ‘what would pass by virtue of a conveyance naming only the principal subject’ (i.e. the main dwelling) accepted that this is effectively answered ‘as everything within its curtilage that is capable of being conveyed by the owner’.  However, the Panel considered the question of curtilage may not be a sufficient condition or the only condition necessary to satisfy section 66(1)(b).

21. The Panel were aware the statutory definition in section 66(1)(b) is not ‘or appurtenance’ but ‘or other appurtenance’.  Consequently, it was not sufficient simply to consider the meaning of ‘appurtenance’, which the Panel interpreted as meaning, ‘belonging, appendage, accessory’.  It was necessary also, to consider the meaning of ‘yard’, ‘garden’ and ‘outhouse’ and the likeness that use of such words create.  The Panel considered that in the context of the regulation the word ’appurtenance’ carries a narrow and generally restrictive meaning rather than a broad one and that this therefore implied an ‘intimate association’ between ‘the subsidiary property’ and the ‘principal property’.

22. Regarding Mr Hossain’s submission, the Panel noted that he considered the office to be a separate rateable hereditament having satisfied the four conditions of rateable occupation.  However, the Panel considered the first matter it had to determine was whether the office could be regarded as ‘an other appurtenance’ within the confined wording of section 66(1)(b).

23. Having considered all the evidence which included recognition that the office only existed in connection with the provision of a concierge service to the dwellings and, in particular, the restrictive wording in section 66(1)(b), the Panel determined the office was not akin to a, ‘yard, garden or outhouse or other appurtenance belonging to or enjoyed with property falling within paragraph (a)’ and therefore had no alternative but to dismiss the appeal.  In addition, the Panel determined that the office qualified to be regarded as a rateable hereditament and should therefore be shown in the non-domestic rating list.”

23.        At the VT hearing the VO considered that the concierge room had been under assessed and its value should be £1,700. That was not disputed by the Appellant however the VT considered that the appropriate course was for the VO to subsequently serve notice altering the rateable value and it was not suggested before me that any alternative course should be followed if I dismissed the appeal.

Law

24.        By virtue of s.42(1) of the 1988 Act the rating list must show a relevant non-domestic hereditament. Section 66 of the 1988 Act provides that, subject to certain subsections (not presently relevant):

“(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) …

(d) …”

25.        This provision has been considered by the Lands Tribunal in a number of cases. In Martin v Hewitt [2003] RA 275 the President George Bartlett QC held (paragraph 21) that to be an “appurtenance” for the purposes of s.66(1)(b), land had to lie within the curtilage of the principal hereditament, relying on a decision of the Court of Appeal in Trim v Sturminster RDC [1938] 2 KB 508. That case concerned s.188(1) of the Housing Act 1936 which provided:

“‘House’ – includes any yard, garden, outhouses and appurtenances belonging thereto or usually enjoyed therewith.”

26.        In Trim v Sturminster Slesser LJ said this:

“In the definition to which I have referred certain specific matters are mentioned, that is to say, any yard, garden and outhouses, and then follows the word "appurtenances." That word has had applied to it, through a long series of cases mostly dealing with the meaning of the word in demises, a certain limited meaning, and it is now beyond question that, broadly speaking, nothing will pass, under a demise, by the word "appurtenances" which would not equally pass under a conveyance of the principal subject-matter without the addition of that word, that is to say, as pointed out in the early case of Bryan v. Wetherhead that the word "appurtenances" will pass with the house, the orchard, yard, curtilage and gardens, but not the land. That view, as far as I understand the authorities, has never been departed from, except that in certain cases it has been held that the word "appurtenances" may also be competent to pass incorporeal hereditaments. Certainly no case has been cited to us in which the word "appurtenance" has ever been extended to include land, as meaning a corporeal hereditament, which does not fall within the curtilage of the yard of the house itself, that is, not within the parcel of the demise of the house.” p.515

27.        Methuen-Campbell v Walters [1979] QB 525 considered whether a paddock was “any garage, outhouse, garden, yard and appurtenances which at the relevant time are let to him with the house and are occupied with and used for the purposes of the house” for the purposes of s.2(3) of the Leasehold Reform Act 1967. Referring to Trim v Sturminster the Court of Appeal held that appurtenances were confined to land within the curtilage of the house.  As to curtilage, the majority treated it as a mixed question of fact and law and Buckley LJ said this:

“In my judgment, for one corporeal hereditament to fall within the curtilage of another, the former must be so intimately associated with the latter as to lead to the conclusion that the former in truth forms part and parcel of the latter. There can be very few houses indeed that do not have associated with them at least some few square yards of land, constituting a yard or a basement area or passageway or something of the kind, owned and enjoyed with the house, which on a reasonable view could only be regarded as part of the message and such small pieces of land would be held to fall within the curtilage of the message. This may extend to ancillary buildings, structures or areas such as outhouses, a garage, a driveway, a garden and so forth. How far it is appropriate to regard this identity as parts of one message or parcel of land as extending must depend on the character and the circumstances of the items under consideration. To the extent that it is reasonable to regard them as constituting one message or parcel of land, they will be properly regarded as all falling within one curtilage; they constitute an integral whole. The conveyance of that message or parcel by general description without reference to metes or bounds, or to the several component parts of it, will pass all those component parts sub silentio.” pp.543-544

28.        In Head v London Borough of Tower Hamlets [2005] RA 177 the President considered whether certain district heating systems were domestic property as defined in s.66(1) of the 1988 Act. The particular DHS to which the decision relates (Glenkerry House) was situated on the 14^th floor of a block of flats and lay above the lift and stairs on the outside of the building. Having referred to Martin v Hewitt, paragraphs 22 and 23 of the decision continue:

“22…. I accept Mr Mould’s submission that in this statutory context [an appurtenance] embraces property that will pass with the principal subject matter of a conveyance without the need for express mention and is confined to the curtilage of the building in question. However, I reject his submission that, because no individual tenant can claim to be entitled to a particular DHS, none of the DHS’s can be an appurtenance for the purposes of s.66(1)(b). There might, it seems to me, be force in that submission if the definition were so worded that, to be an appurtenance, property must appertain to a particular hereditament. If that had been what the provision had said one might have been constrained to look at each unit of occupation, each individual hereditament, and to ask whether the property was appurtenant to any such unit. But the definition of domestic property is not confined in that way. There is no reference to “hereditament” in subsection (1). Moreover paragraph (b) refers to an appurtenance “belonging to or enjoyed with” property falling within paragraph (a). While “enjoyed with” would imply considerations related to occupation, “belonging to” is apt to embrace considerations of ownership.

23. I can see no difficulty in concluding that the district heating systems in the present case fall within para (b). To take the case of Glenkerry House, perhaps the clearest example, the boiler house is an integral part of the 13 storey building, being situated on the top of the lift/stair block. The accommodation in the building is wholly residential. The purpose of the district heating system is to provide heating and hot water to the residential accommodation. The building is owned by the council, and it is plain that the boiler house and the associated pipework within the building would pass on any conveyance of the building. The district heating system can properly be said, therefore, to be appurtenant to the residential accommodation and to belong to it…”

29.        In Winchester City Council v Handcock [2006] RA 265 sewage treatment works were held not to be domestic property for the purposes of s.66(1). In their decision His Honour Judge Mole, QC and Norman Rose, FRICS said this:

“23. In our judgment the short but decisive answer to solicitor for the ratepayer council's submission is that, as a matter of fact and degree, we do not find that either sewage treatment works falls within the curtilage of any of the dwellings that it serves. It may well be true that the “right to use” the sewage treatment works would pass on a conveyance. However, even if it were useful to talk of such an incorporeal right as being “within the curtilage” of the dwelling it serves, which we doubt, that is nothing to the point. It is the physical hereditament comprising the sewage treatment works that must be within the curtilage of the dwelling (or dwellings), if it is to be appurtenant to it (or them).

24. We find that the dwellings in St Andrew's Green are, as the maps and photographs show, modest semi detached houses, on their own plots, surrounded by their own gardens with their boundaries marked with hedges and fences. Each one stands in its own curtilage. The freehold of six of these dwellings has been sold by the ratepayer council. However, it does not seem to us that it matters whether the houses are held by virtue of individual freeholds or are occupied under a tenancy from one landlord, in the circumstances of these dwellings. A house on its own plot with its own boundaries will be very likely to have its own curtilage although it is held on a tenancy from the same landlord as the houses on either side of it. Even though the sewage treatment works at St Andrew's Green appears to adjoin the curtilage of 1 St Andrew's Green, and thus a continuous red line could be drawn around both of them, they are not in the same curtilage any more than no 1 St Andrew's Green is in the same curtilage as 2 St Andrew's Green, which it also adjoins.”

30.        Most recently, in Allen v Mansfield District Council [2008] RA 338 the tribunal again had to consider the rateability of district heating systems. Having said that whether a DHS falls within the curtilage of property used wholly for the purposes of living accommodation will be a matter of fact and degree in every case, His Honour Judge Huskinson continued:

“28…. I accept Mr Kolinsky’s argument that the proper analysis of the Head case is that a DHS will be domestic property where it is possible to identify a building (or I would add buildings) which possesses (or possess) an identifiable curtilage within which the DHS is situate and which is (or are) used wholly for the purposes of living accommodation and to which the DHS belongs or with which it is enjoyed. If these conditions are satisfied then section 66(1)(b) will be satisfied – and this provision will not cease to be satisfied merely because the DHS also serves other dwellings or other property (being something other than living accommodation) situated outside the property within whose curtilage the DHS lies.

29. I am unable to accept that necessarily, as a matter of law, it is not possible for a congregation of buildings in the nature of a housing estate to have a curtilage for the purposes of s.66(1)(b) within which a DHS can lie. This is because the question of whether a building or piece of land falls within the curtilage of another building (or buildings) is always a matter of fact and degree. It might be possible to construct hypothetical facts in which something which could properly be described as a housing estate did possess its own coherent and sensibly identified curtilage and for there to be a DHS within that curtilage.”

However, on the facts of the case the tribunal held that none of the DHS’s fell within the curtilage of a housing estate, the nearest DHS being separated from the housing estate it served by public highways or footpaths and being closer to other dwellings and property not served by it. 

Submissions

31.        Both parties submitted that the appeal gives rise to three questions, although their formulation of the first question differed:

(1) To what property used wholly for the purpose of living accommodation must the concierge room be appurtenant for the purposes of s.66(1)(b), The Collection or an individual house?

(2) Is the concierge room an “other appurtenance” to such property?

(3) Does the concierge room belong to or is it enjoyed with such property?

Although it is helpful to break down the issues into these questions, there is a considerable overlap between them.

32.        The Appellant submitted that The Collection was clearly a residential development and the VT correctly held that the concierge room lies within its curtilage. As a matter of fact it did pass without mention in the transfer of the freehold of The Collection to the Appellant in 2010 and the concierge room is so intimately associated with The Collection that in truth it forms part and parcel of the latter. It was also submitted that it is irrelevant that it is not appurtenant to any individual house. The definition of domestic property in s.66(1) is not so worded that, to be appurtenant, property must appertain to a particular hereditament. If the definition was confined in that way then other parts of The Collection which serve the houses such as access ways and gardens would be non-domestic property because they are not appurtenant to an individual house.

33.        The Appellant went on to submit that the concierge room is therefore an “other appurtenance” because it is used for wholly domestic purposes and is ancillary to the houses it serves. It is not used for running any form of business or for trading, the functions of managing agent are carried out at HE’s Hammersmith Road office. The concierge salaries are paid by the residents out of service charges and if HE’s contract is terminated they would remain. The role of the concierges is akin to that of a domestic servant, they hold keys, carry shopping, greet visitors, are responsible for security, record deliveries and visitors all of which is incidental to the residential use of The Collection. Everything they do is for and on behalf of the residents to heighten their enjoyment of their homes, the only link with HE is that HE recruits them. HE’s duties are completely different from that of the concierge. The room itself is also a comfort area for the concierge, they have no proprietary right to occupy it.  Further, it was submitted that the concierge room belongs to The Collection because it is in the same ownership and though the houses are held on long leases the residents all have a share in the freehold. For the reasons already given it was submitted that the concierge room is also enjoyed with The Collection.

34.        Finally, the Appellant drew attention to the fact that the VO could point to no other concierge room or porter’s lodge which is rated as non-domestic accommodation which supported the argument that it falls within s.66(1).

35.        The VO did not dispute that, if the correct principal property to consider is The Collection, then the concierge room is within its curtilage. However, it was submitted that each of the 15 houses has its own curtilage and in those circumstances any concierge room must be appurtenant to an individual house not The Collection as a whole. Reliance was place on the passage in paragraph 24 of Handcock that “A house on its own plot with its own boundaries will be very likely to have its own curtilage” and the decision there that sewage works which physically adjoined the curtilage of one house are not within the curtilage of the others. The decision in Head was sought to be distinguished on the basis that there the tribunal held that it was possible as a matter for law for the DHS to be appurtenant to more than one dwelling but the tribunal never considered whether the individual dwellings had their own curtilage. In a case such as Handcock where it is possible to identify the curtilage of individual dwellings, the premises under consideration must be appurtenant to the individual dwelling even if there is a larger area which can be said to be used wholly for the purposes of living accommodation. It was also pointed out that all the value was in the houses and that the freehold was worth very little so it is artificial to look at the transfer of the freehold.

36.        If that argument is wrong it was submitted that the concierge room is not appurtenant to The Collection, even if it lies within the curtilage of it. It is common ground that the words “other appurtenance” have to be construed in accordance with the ejusdem generis rule. It was submitted that a yard, garden or outhouse in this context has three characteristics: a domestic use related to the running of the home, normally occupation by the same person and in any event, no occupation by a third party. The concierge room has none of these because it does not form part of the living accommodation of any house nor is it occupied by the residents for any recreational or leisure purpose. Moreover the tasks carried out by the concierge go beyond domestic help. It is occupied by an employee of the managing agents for a business purpose. Clause 5.18 of the Management Agreement provides that HE is to employ the concierge not the Appellant. Occupation by HE as a licensee is sufficient to establish rateable occupation which is separate from occupation of the houses. Unlike Tully v Jorgensen [2003] RA 233 where the Lands Tribunal held that a house was wholly used for the purposes of living accommodation for the purposes of s.66(1)(a) even though the occupier worked from home, the concierge room is separate from the houses not used as part of a functioning home and contains expensive security equipment more usually found in an office.

37.        As to the requirement that the appurtenance belong to or be enjoyed with the principal property, the VO accepted that the concierge room belongs to The Collection because they are in common ownership and that this suffices, it is not necessary to prove in addition that it is enjoyed with The Collection. However, it was submitted that the latter test is not met because the houses are occupied by the residents and the concierge room by employees of the managing agents.

Decision

38.        In this case there is no doubt that each house in The Collection is used wholly for the purposes of living accommodation. Further, it is clear that other land within The Collection but outside the houses is used for purposes which are wholly ancillary to occupation of the houses as living accommodation and serves them, for example the vehicular access ramp, communal gardens and plant room containing water tanks and pumps supplying water to the houses. That other land is a “yard, garden, outhouse or other appurtenance” which belongs to or is enjoyed with the residential accommodation comprising the houses and is therefore domestic property for the purposes of s.66(1). The VO, rightly, did not suggest otherwise. It must follow that, to take the vehicular access ramp as but an example, it lies within the curtilage of the 15 houses collectively. It would not make sense to say that the vehicular access ramp lies within the curtilage of any individual house. Thus the fact that each house may have its own curtilage in the sense that each is bounded by four walls, or, in the case of house numbers 9 to 14, by the walls of the house and walls enclosing a small private courtyard, does not prevent the vehicular access ramp from lying within the curtilage of the 15 houses collectively.

39.        Once this analysis of the existing, undisputed, position is understood, the correct approach to the VO’s submission on the first question identified by the parties becomes clear. The concierge room may, if it satisfies the rest of s.66(1), be appurtenant to the 15 houses collectively if it lies within the curtilage of the 15 houses collectively notwithstanding that each house may also have its own curtilage. In these circumstances the concierge room would be appurtenant to “property used wholly for the purposes of living accommodation.”

40.        In my judgment this approach is entirely consistent with the authorities. As the tribunal held in paragraph 22 of Head, the definition of appurtenances in s.66(1)(b) is not confined to land which is appurtenant to an individual hereditament but includes land appurtenant to any “property used wholly for the purposes of living accommodation.” Further, although the President was dealing with a submission that the DHS could not be an appurtenance because it could not be claimed by any individual tenant, he recognised that each unit of occupation was its’ own hereditament (as it would have been prior to the introduction of domestic council tax) because he says “If that had been what the provision had said one might have been constrained to look at each unit of occupation, each individual hereditament, and to ask whether the property was appurtenant to any such unit” (paragraph 22).

41.        Further, although the remarks were obiter, in paragraph 29 of Allen, the tribunal specifically envisaged that a group of buildings in the nature of a housing estate may collectively have a curtilage for the purposes of s.66(1)(b) and in each case this will be a question of fact and degree. In my judgment the tribunal in Handcock was doing no more than recognising that a semi-detached house with a front and rear garden will have its own curtilage and that on the facts of that case, the sewage treatment works could not be said to be within a collective curtilage of the 10 such houses in that case. That does not mean that, on different facts, land cannot be appurtenant to a group of houses with a collective curtilage for the purposes of s.66(1)(b). I also note that in the last sentence of paragraph 23 of Handcock, the tribunal refers to the possibility of the sewage treatment works being within the curtilage of more than one dwelling, recognising that this is a legal possibility.

42.        On the facts of this case the question as to whether the concierge room lies within the curtilage of the 15 houses collectively admits of only one answer, as the VO recognised. Physically The Collection is a coherent whole bounded by the walls of the houses on one side, the walls of the communal gardens on the other side, at the northern end the walls of the gardens and access gates to Boundary Road and at the southern end by the walls of house number 15 and the gates to Bolton Road. Within this physical boundary lie land and facilities which wholly serve the residential accommodation including centralised utility services for the provision of water, air cooling and foul drainage. The concierge room lies entirely within the physical boundary I have identified being surrounded by house number 15 and adjacent to the access ramp within the gates to Bolton Road. It is a small room, subservient in size terms to the residential accommodation and its use, to put it neutrally for the present, relates to the residential accommodation. Moreover, on any transfer of the freehold of The Collection, it would pass without mention with the rest of the land and buildings as indeed it did on transfer to the Appellants in 2010. The concierge room is undoubtedly within the curtilage of the 15 houses collectively.

43.        However, the fact that the concierge room lies within this curtilage is not sufficient for it to be a “yard, garden outhouse or other appurtenance” for the purpose of s.66(1)(b). For example, a utility company may exercise statutory powers to locate a structure in the corner of the garden of a dwelling which it uses for the purposes of its statutory undertaking. No one would suggest that such a structure is appurtenant to the dwelling even though it lies within the curtilage of the dwelling. What then are the further requirements that must be satisfied for land or buildings to be appurtenant to land used wholly for the purposes of living accommodation?

44.        Unfortunately little assistance is to be gained from the authorities which are almost all concerned with whether the structure in issue physically lies within the curtilage of the principal hereditament. However, in Clymo v Shell-Mex & BP Limited [1963] RA 191 the Court of Appeal did consider functional issues. The question was whether land within a petroleum storage depot was appurtenant to the buildings within the depot as being “buildings with or without a garden, yard, court, forecourt, outhouse or other appurtenance belonging thereto” for the purpose of s.22(1)(a) of the Rating and Valuation Act 1925. Upjohn LJ who gave the judgment of the court said this at page 197:

“The word “appurtenance” is one of the oldest words in use in the history of English law and we would not attempt to define it in any way; whether land is properly described as an appurtenance to one or more buildings must depend very much on the particular facts and circumstances of each case, and it does not seem possible to try to lay down any tests to determine whether land ought to be regarded as an appurtenance to one or more buildings… Each case must be decided entirely on its own facts…”

He went on to say that the land was appurtenant to the depot buildings as prima facie it would pass on a conveyance of them and it was being used for the purpose of the business being carried on in the buildings, page 201.

45.        However, Upjohn LJ also said that it is not necessary for the land to be occupied by the occupier of the principal buildings and that:

“…if the occupier had no particular use for these small open spaces and chose to permit some neighbour to use them as hen runs during the occupiers pleasure, we cannot see that they ceased to be appurtenances, though not used in connection with any buildings or any business carried on on the hereditament.”

Later he said that he did not agree with a statement in another Lands Tribunal case Clayton v Good, Havercroft & Co Limited [1961] RVR 6 that an appurtenance must be used in connection with existing buildings at the material date, see page 202. Further, he went on to say that a number of concepts used in other cases should not be regarded as tests to apply. There is no requirement that the land in question be subservient to the principal buildings or that the land be necessary for enjoyment of the principal buildings.

46.        It follows from Clymo that it is not necessary for the concierge room to be occupied by the occupiers of the residential accommodation. Indeed this is self evident for were it otherwise the rest of the land within The Collection would not be appurtenant to the 15 houses. For example, even if the water plant room falls within the definition of “Common Parts” in the lease being ‘plant and equipment’ ‘provided for common use and enjoyment solely by the tenants and occupiers of the units’ which they have a right to use by virtue of paragraph 5 of the Included Rights in the Second Schedule to the lease, none of the residents could be said to occupy the plant room. Further, if there were a requirement that the property in question be occupied by the occupier of the living accommodation no property could ever be appurtenant to more than one separate hereditament which would be contrary to the decision in Head. I therefore reject this part of the VO’s submissions.

47.        In my judgment, in order to decide whether the concierge room is appurtenant to the living accommodation it is necessary to consider who if anyone is or would be in rateable occupation of the concierge room and for what purpose. The four tests of rateable occupation are actual occupation, exclusive to the possessor, occupation must be beneficial and not too transient, see Laing & Son Ltd v Kingswood Assessment Area Committee [1949] 1 KB 344.

48.        Although the concierges individually are in actual occupation, plainly they do not occupy on their own behalf. A number of them work there on a shift basis and their occupation is as the servant or employee of another. As Miss Stephenson conceded, the concierges are employed and managed by HE, see clauses 5.1 and 5.18 of the Management Agreement. As a matter of fact, the concierges occupy the room all of the time in shifts. There is no evidence that anyone else employed by HE occupies the room or occupies it for the purposes of its function as managing agent as opposed to the function of concierge, whatever that is.

49.        The concierges right to occupy their room as employees of HE is by virtue of the grant of a bare license to occupy such parts of The Collection as are necessary to enable HE to perform its duties, clause 2.3 of the Management Agreement. There is no doubt that occupation pursuant to a licence may be sufficient to constitute rateable occupation, see Westminster City Council v Southern Railway Co [1936] AC 511, HL. However, occupation of the concierge room by the concierge and through them HE is precarious. The Appellant is the owner of The Collection, including the concierge room, and is the person entitled to legal possession. It would be entitled to give 3 months notice to terminate HE’s appointment as managing agent or terminate HE’s license to occupy granted by clause 2.3 of the Management Agreement.

50.        More importantly, in my judgment it is clear that the Appellant has complete control over use of the concierge room. The Management Agreement does not specify exactly what services HE should provide on site, simply to manage The Collection as a high class residential development, clause 5 of the Management Agreement. In practice the services provided by the concierge are determined and paid for by the Appellant i.e. the residents of the living accommodation. Miss Stephenson gave unchallenged evidence that if the Appellant wished to do so it could change the arrangement so as to require only a 12 hour a day presence by the concierges or indeed no presence at all. The goods and equipment in the concierge room belong not to HE but to the Appellant and are there to better enable the concierges to serve the residents and the Appellant. If HE’s instructions as managing agent were terminated there is no evidence they would be entitled to remove any of the contents of the room which would be there for the next concierge.

51.        As to the functions being carried out by the concierge, I consider the most helpful summary of the functions of the concierge is set out in paragraph 12 of Mr Jackson’s statement:

“a. Providing security and controlling access to the site

b. Monitoring and maintaining the utilities to the site

c. Providing additional services to the occupiers of the dwellings.”

With the exception of maintenance of utilities all of these functions can only be performed by someone on site. Further, they all serve the living accommodation. Mr Jackson conceded that the functions of a porter described in paragraph a. above would be domestic for these purposes. In my judgment monitoring centralised utilities is not dissimilar and if the provision of the centralised utilities themselves is appurtenant to the living accommodation it is difficult to see why on-site monitoring of their function would not be. Although maintenance of utilities can be arranged by HE from its offices and does not require a presence on site, apart from routine cyclical maintenance, on-site monitoring is necessary to alert HE to the need for any work, a function carried out by the concierges. 

52.        The additional services referred to in paragraph c. certainly go beyond that which most residents enjoy, but the use of living accommodation is not confined to the satisfaction of basic bodily needs and can include working from home, see Tully v Jorgensen [2003] RA 233. Further, the standard of accommodation and services which a dwelling enjoys will inevitably vary depending on its character. The Collection is a very exclusive development in a high class neighbourhood. A concierge who collects post, takes deliveries, carries shopping and makes restaurant reservations as described in the evidence is akin to the army of domestic servants which a grand country house might have enjoyed in the past. The fact that the concierge room houses electronic and computer equipment such as one might see in an office is no more than a reflection of the fact that the high class services are being provided in the 21^st century rather than the 19^th century. By contrast, none of the activities carried out by the concierges could be described as activities of a managing agent nor does HE carry out any such activities from the concierge room.

53.        In my judgment all these facts are quite inconsistent with actual or exclusive occupation by HE of the concierge room let alone occupation for its own benefit and in my judgment the paramount occupation of the concierge room is that of the Appellant not HE. The occupation of the concierges is quite unlike the occupation of a trader for the purposes of his business even subject to stringent restrictions such as the station shops in Westminster City Council v Southern Railway Co. An example of the application of the principle in Westminster in a not dissimilar case to the present is London and North Eastern Railway Co v Railway Assessment Authority and John Gardner (London) Ltd (1945) 16 DRA 147 where a company employed caterers to serve canteens provided by the company for its employees. It was held that the company not the caterers were in occupation:

“Broadly speaking, the caterers were given the same freedom and subjected to the same restrictions as a wise housekeeper gives to a cook and the kitchen staff. There was not of course the same power of control as the master of the house retains over those who live in his household. But the relationship is one impossible to reconcile – in our view- with the occupation by the caterers in a rating sense…” per Wrottesley J at p.165.

54.        Returning to the tests of rateable occupation, although the concierge are in actual occupation of the concierge room as employees of HE, the benefit of that occupation is all for those they serve namely the Appellant and residents not HE itself, the third test of rateable occupation.

55.        Thus the concierges are carrying out their functions under the supervision of HE but at the direction of the Appellant (and through it the residents) which is, or would be if it was a non-domestic hereditament, in rateable occupation of the concierge room.

56.        In all these circumstances I have no hesitation in concluding that the concierge room is appurtenant to the living accommodation at The Collection.

57.        Turning to the last question identified in paragraph 31 above, whether the concierge room belongs to or is enjoyed with the living accommodation, as already indicated, the VO conceded that the concierge room “belongs to” The Collection in terms of ownership just as the district heating system and Glenkerry block of flats in Head were owned by the local authority. It is therefore not necessary to decide whether the concierge room is also enjoyed with the living accommodation although for the reasons already given I consider that this test is also satisfied.

58.        For all these reasons this appeal is allowed and the entry relating to the concierge room shall be deleted from the non-domestic rating list.

59.        A letter concerning costs accompanies this decision, which will become final when the question of costs is determined.

 

Dated 17 April 2013

 

Her Honour Judge Alice Robinson

 

Costs Addendum

60. The Appellant states in a letter dated 1^st May 2013 that it was agreed with the VO in advance of the hearing that each party would be responsible for its own costs. However, the letter goes on to say it would appreciate consideration being given for reimbursement of two hearing fees of £350 and £850. In its response dated 4^th May 2013 the VO resists that request on the grounds of the prior agreement that each party would be responsible for its own costs. A copy of that letter was sent to the Appellant who has not responded.

61. In my judgment, as there appears to have been an agreement between the parties that they would each bear their own costs of the appeal, it would be inappropriate for any order for costs to be made.

62. Finally, I have made corrections to paragraphs 14 and 54 of the decision pursuant to rule 53 of The Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010 (SI 2010 No. 2600) following a request from the VO dated 22^nd April 2013. The change sought to paragraph 45 was already in the decision.

Dated 16 May 2013

 

 

Her Honour Judge Alice Robinson