UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2014] UKUT 333 (LC)

UTLC Case Number: RA/59/2012

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

RATING – hereditament – proposal to remove from rating list – beneficial occupation – whether lack of beneficial occupation causes removal from list – whether ratepayer confined to grounds of appeal on proposal form – nominal valuation – whether works repair or improvement – appeal dismissed

IN THE MATTER OF AN APPEAL AGAINST A DECISION

OF THE VALUATION TRIBUNAL FOR ENGLAND

BETWEEN R3 PRODUCTS LTD Claimant

and

JAMES R SALT Respondent

(Valuation Officer)

 

 Re: Premises at

 Station Road,

 Ecclesfield,

 Sheffield,

 S35 9YR

 

 

Before: P D McCrea FRICS

 

 

Sitting at: 45 Bedford Square, London, WC1

 

On

 

29 May 2014

 

 

Mr Paul Sapsford, Finance Director, for the Appellant

Mathew Donmall, instructed by HMRC solicitor, for the Respondent

 

 

 

 

 

The following cases are referred to in this decision:

 

J Laing and Sons Ltd v Kingswood Assessment Committee [1949] KB 344

Spears Brothers v Rushmoor Borough Council [2006] RA 86

Post Office v Nottingham City Council [1976] 1 WLR

London Borough of Hounslow v Rank Audio Visual Ltd and Bryant (VO) [1970] RA 535

O’Brien v Clark (VO) RA 39 2005

Morcom v Campbell-Johnson [1955] 1 QB 106

Monk v Newbigin (VO) RA 62 2012

Easiwork Homes Ltd v Redbridge London Borough Council [1970] 2 QB 406

Ravenseft Properties Ltd v Newham LBC [1976] QB 464 [1975] RA 410 (CA)

Pepper v Hart [1993] AC 593

Leda Properties Ltd v Howells (VO) RA/62/2006

John Townend v Gott (VO) RA 22 2010

VTE Decision in respect of Vodafone (034014986634/165N05) of 17 November 2009

DECISION

Introduction

1.             This is an appeal by the ratepayer, R3 Products Ltd (the appellant) against a decision of the Valuation Tribunal for England (the VTE) dated 3 October 2012 in respect of the rateable value of premises at Station Road, Ecclesfield, Sheffield, S35 9YR (the appeal property).  In that decision the VTE dismissed the ratepayer’s proposal that the appeal property should be removed from the rating list for the period of 15 June 2011 to 3 January 2012 and then reintroduced to the rating list on a phased basis.  The appeal property was the subject of an earlier VTE decision dated 18 July 2012, in which its rateable value was reduced to £102,000. That decision has not been appealed to this Tribunal.

2.             The respondent applied for a case management hearing to clarify the nature of the appellant’s proposal.  By a letter of 16 September 2013, the Registrar rejected that application on the basis that he considered it to be:

“…perfectly clear what the proposal in question was.  It is identified as the removal of the hereditament from the rating list for the period 15 June 2011 to 3 January 2012, and its phased reintroduction to the list for the period 4 January 2012 to 15 August 2012, at varying rates, then full reinstatement from 16 August onwards.  This appears to be the proposal the VTE dealt with (as recorded in paragraph 7 of its decision) and which the appellant asks the Tribunal to consider (see paragraph 2(b) of its statement of case prepared for this Tribunal).  It is that proposal, and that proposal alone, that this Tribunal will concern itself with.”

3.             Mr Paul Sapsford, the Finance Director of R3 Products Ltd, appeared for the appellant.  Mr Matthew Donmall of counsel appeared for the respondent valuation officer (VO). He called the VO, Mr James R Salt BSc (Hons) IRRV (Hons) to give expert evidence. The parties agreed that I would not be assisted by an inspection of the appeal property.

Issues

4.             The issues in this case can be summarised as follows. First, whether there was beneficial occupation of the appeal property by the appellant during the execution of the works that the appellant carried out. Secondly, if not, whether the appeal property was incapable of beneficial occupation during that period and if so whether this should justify the assessment’s deletion from the rating list. Thirdly, whether the appellant is entitled to rely upon an alternative approach, of nominal valuation. Fourthly, if so, whether the appellant’s nominal valuation case has any merit.  Finally, if successful on either alternative basis of appeal, whether there is any legal basis for the appellant’s contention that the appeal property be reintroduced to (or, on the alternative basis, re-increased in value within) the rating list.

 

 

 

Facts

5.             In the light of the statement of agreed facts and the evidence, I find the following facts.

6.             The appeal property is situated approximately 5.5 miles north-west of Sheffield city centre, within a mile of junction 35 of the M1. It was originally built as a warehouse and was described as such in the 1973 rating list. It had been the subject of a number of planning permissions, the last of which in 1997 was for a “single storey extension to factory”.

7.             It has a total gross internal area of 3,838.98 m².  The principal part is of steel portal frame construction, having an eaves height of 9.25 m, with a concrete floor, concrete block and sheet metal clad elevations and a sheet metal clad roof incorporating translucent roof panels. There is a rear lean-to factory extension, and a brick and flat roofed office element. To the front of the building is a forecourt area providing access and car parking, and a second access serves a loading bay and rear storage yard.

8.             The first electrical distribution board after the incoming power supply to the main space is located within the store/transformer room that is adjacent to a YEB substation.

9.             The appellant took a lease of the appeal property for 10 years from 14 June 2011 at a rent of £100,000 per annum exclusive with a three month rent free period.

10.         At the time of the lease commencement, the high voltage electricity supply had been cut off (although there remained a “domestic” supply) and high voltage cabling had been removed.  On 16 August 2011 the high voltage electricity supply was restored, at which point the appellant commenced a refurbishment programme (“the works”). This was over three phases, at a total cost of £254,672.93. It comprised both the reinstallation of the cabling and the replacement of the factory lighting, which it was discovered did not comply with health and safety legislation. 

11.         Phase 1 of the works, which was completed by 3 January 2012, cost £89,801.24 on electrical work including £32,108.66 on lighting. Phase 2, completed on 24 May 2012, cost £67,027.94, all of which was in respect of electrical work. Phase 3, completed on 15 August 2012, cost £97,843.50, in respect of upgrading the low voltage distribution board and upgrading the transformer from 750 kVA to 2000 kVA.

12.         On 26 October 2011, the appellant received a business rates demand from the billing authority, Sheffield City Council, for the period 20 June 2011 to 31 March 2012. Upon querying this, Mr Sapsford was referred to the Valuation Office Agency (VOA).  Following an entry via the VOA website (to which Mr Sapsford received an automated acknowledgement although the VO has no record of this), Mr Sapsford made a formal appeal using the standard proposal form with a covering letter dated 20 December 2011 in which he indicated that the appeal property was undergoing major refurbishment and in the absence of high voltage cabling and factory lighting, it had not been possible to use the factory for manufacturing purposes.  He proposed that the rateable value should be £100,000 with effect from 1 January 2012.

13.         On 21 February 2012 Mr Simon White of the VOA wrote to the appellant indicating that the appeal property should remain in the rating list during major refurbishment.  In the absence of agreement that the rating list should be altered, the ratepayer’s proposal was referred to the VTE as an appeal against the VO’s refusal to alter the list.

The VTE’s Decision

14.         In its decision of 3 October 2012, the VTE found that, vacant and to let, the appeal property had been capable of beneficial occupation.  Owing to the appellant’s particular requirements it had not been suitable for occupation by the appellant before the reinstallation of high voltage cabling.  However it had been capable of being used by a different non-specialist occupier.

15.         Under the statutory definition of rateable value, restoring a power supply and lighting would have fallen under the landlord’s repairing liability and were less relevant to the principal issue.

16.         The VTE was not satisfied that the appeal property had ceased to be a hereditament, nor that it was derelict nor that it was incapable of beneficial occupation.  The appeal was therefore dismissed.

 

The Statutory Provisions

17.         Sub-paragraph 2(1) of Schedule 6 to the Local Government Finance Act 1988 (the 1988 Act), as amended by section 1(2) of the Rating (Valuation) Act 1999 provides as follows:

"The rateable value of a non-domestic hereditament none of which consists of domestic property and none of which is exempt from local non-domestic rating shall be taken to be an amount equal to the rent at which it is estimated the hereditament might reasonably be expected to let from year to year on these three assumptions –

(a)   the first assumption is that the tenancy begins on the day by reference to which the determination is to be made;

(b)   the second assumption is that immediately before the tenancy begins the hereditament is in a state of reasonable repair, but excluding from this assumption any repairs which a reasonable landlord would consider uneconomic;

(c)   the third assumption is that the tenant undertakes to pay all usual tenant's rates and taxes and to bear the cost of the repairs and insurance and the other expenses (if any) necessary to maintain the hereditament in a state to command the rent mentioned above.”

18.         The Valuation for Rating (Plant and Machinery) (England) Regulations 2000 (SI 2000 No 540) (“the regulations”) provides (at 2A(1)) as follows:

“(a)  in relation to a hereditament in or on which there is plant or machinery which belongs to any of the classes set out in the Schedule to these Regulations, the prescribed assumptions are that—

(i)        any such plant or machinery is part of the hereditament; and

(ii)      the value of any other plant and machinery has no effect on the rent to be estimated as required…”

19.  The Schedule to the Regulations confirms that the class of plant and machinery to be assumed to be part of the hereditament (and therefore valued) includes:

 “all transmission of power from the generating plant or point of supply in or on the hereditament up to and including… in the case of electrical power, the first distribution board”.

Case for the appellant

20.         Mr Sapsford explained the nature of the appellant’s business, converting mixed waste plastic, using plastic moulding techniques, to products for the construction industry such as permeable paving. This process consumes substantial electricity.

21.         Following a search across South Yorkshire, the appellant agreed terms to take a lease of the appeal property. Many other properties were available, but the need for a high voltage power supply governed the appellant’s choice of the appeal property. After terms had been agreed, but before the lease had been completed, it was discovered that the high voltage electricity supply to the appeal property had been cut off owing to the previous occupier being in arrears, and high voltage cabling had been removed. By that point, although the lease had not been completed, effectively the appellant was committed to the property. The landlord rejected the appellant’s request to reinstall the cabling as the landlord considered that it was a tenant’s fit-out issue. Instead, a three-month rent free period was agreed.

22.         The essence of the appellant’s case to this Tribunal is that during Phase 1 of the works the appeal property was incapable of beneficial occupation and it should be removed from the rating list. In the alternative, that the appeal property should be reduced to a nominal value for this period. Then, during phases 2 and 3, the appeal property should be gradually reintroduced into the rating list on a proportionate basis dependent upon the amount of the property that was usable during those phases (the appellant said 25% and 50% respectively).

23.         There were eight original grounds of appeal.  At the hearing Mr Sapsford agreed that those that related to procedural matters before the VTE were irrelevant to this Tribunal.  The parties also agreed that a dispute regarding the Material Day was also irrelevant as the VO accepted that, should I find in favour of the appellant in relation to the deletion from the rating list, that deletion would take effect from 14 June 2011. 

24.         Following those concessions, the appellant’s case can therefore be fairly summarised as follows:

a)      That the hereditament should be removed from the rating list for the period of the Phase 1 works because it was incapable of beneficial occupation.  The decision of the VTE was contrary to J Laing and Sons Ltd v Kingswood Assessment Committee [1949] KB 344 and other subsequent leading case law in this respect.  The VTE incorrectly dismissed the relevance of the decision in Spears Brothers v Rushmoor Borough Council [2006] RA 86.

b)      In the alternative, the rateable value should be reduced to a nominal amount.  In this respect, the VO did not follow the guidance of the rating manual and thus failed to recognise that the works were clearly not repair.  The VTE’s decision was contrary to case law on this point.

25.         In respect of the VTE’s failure to apply the law in respect of beneficial occupation. Mr Sapsford cited a number of authorities in support of his case, many of which came from brief extracts from the VOA rating manual.

26.         J Laing and Sons Ltd v Kingswood Assessment Committee [1949] KB 344 set out four necessary ingredients of rateable occupation, of which Mr Sapsford relied upon the second - that (the actual occupation) must be exclusively for the particular purposes of the possessor; and the third - that the possession must be of some value or benefit to the possessor. Mr Sapsford said that during Phase 1 possession of the appeal property was not of value or benefit to the appellant.  He submitted that the VTE erred in law in respect of beneficial occupation.

27.         He referred to Post Office v Nottingham City Council [1976] 1 WLR, in which the question of whether a telephone exchange was complete was considered. The equipment in dispute comprised electrical wiring, a transformer, and telephone exchange equipment. Mr Sapsford said that the VO’s rating manual noted that “… being complete did not mean that it should be capable of immediate use as a telephone exchange, but rather it should be capable of occupation as a telephone exchange even though it could not actually be used as such until further equipment had been installed”. Mr Sapsford considered that this mirrored the circumstances of the subject appeal, in that the appellant installed electrical wiring and a transformer, but did not account for the later installation of specialist plastic moulding equipment.

28.         In London Borough of Hounslow v Rank Audio Visual Ltd and Bryant (VO) [1970] RA 535, it was held that the lessee of a factory that was undergoing major structural work (lasting over a year) was not in beneficial occupation of it, as it was not being enjoyed “according to its nature” as a factory, and the assessment was reduced to nil.  Mr Sapsford said that the appeal property was clearly a factory, notwithstanding its description in the rating list as a warehouse, and during Phase 1 it was not being enjoyed according to its nature as a factory.

29.         Mr Sapsford referred to a speech in the House of Lords on 5 May 1999 in which  Baroness Farrington said:

“The current position is that if a property is incapable of beneficial occupation, in other words it is unusable, it will be removed from the rating list altogether and no rates will be payable. If only part of the property is rendered incapable of beneficial occupation, it has generally been the practice of valuation officers to reduce the rateable value of the premises for the period during which the... part of the property cannot be used.”

30.         He submitted that this speech was commended by the VOA rating manual, yet in this case the VO had not complied with it.

31.         Mr Sapsford referred to a November 2009 VTE decision (034014986634/165N05) in respect of office premises occupied by Vodafone at Astor House and Benyon House, Newbury Business Park.  Vodafone had exercised a break clause and in order to comply with the conditions attached to it had undertaken substantial dilapidation works – to return each building to its original open plan condition. The VTE was satisfied that these works, which included the stripping out of plumbing, electrics and partitioning, would render the buildings incapable of beneficial occupation.  Noting the speech of Baroness Farrington, the VTE deleted the assessment from the rating list for the period of the work.

32.         Mr Sapsford cited an extract from the rating manual that referred to a decision of the Lands Tribunal (Mr N J Rose FRICS) in Spears Brothers v Rushmoor Borough Council [2006] RA 86.  Mr Sapsford considered to be flawed the VTE’s finding that Spears provided little assistance on the basis that it was in respect of a completion notice.  He said that the lack of electrical wiring and the absence of a fire alarm system mirrored the circumstances of the appeal property, and that the VTE’s dismissal of the case was unsatisfactory.

33.         Mr Sapsford pleaded in the alternative that the rateable value should be reduced to a nominal amount.  He referred to his original proposal and letter to the VOA, in which he was effectively saying to the VO “here is my problem – how do I resolve it?”  Mr Sapsford considered that he had been “corralled” into the removal option by subsequent events, and that the nominal value argument should remain open to him. 

34.         In this respect he relied upon the determination of a preliminary issue by the Tribunal in O’Brien v Clark (VO) RA/39/2005, in which the President said that as he understood it, Form VO 7012 (2000) [the 2010 version of which Mr Sapsford was requested to complete] was not provided for by the regulations and that there was no statutory requirement that it should be used. The President commented that the use of the form made the advancement of arguments in the alternative on two separate grounds difficult and went on to say that:

“it is hard not to feel sympathy for a ratepayer who does his best to complete the form and is then met with a contention before the VT that a particular argument cannot be advanced because of the provisions of regulations of which he may have no knowledge”.

35.         Mr Sapsford referred to section 4.2 of the rating manual: “What is repair”.  This advised that:

“In order to determine what the works are and consequently the valuation approach to be taken, it is important to follow a clear methodology:

·       Go and look at it - inspect asap and take detailed notes and photographs

·       Decide what works are needed to the property comprising the hereditament

·       Categorise between those that are repairs and those that are not

·       Consider if the works of repair are economically reasonable

·       Consider, if the economically reasonable repair works are undertaken, whether the property is capable of beneficial occupation”

 

36.         He submitted that had the VO complied with this it would have inspected the appeal property upon receiving his proposal form and letter and would have realised that the works were not ones of repair.  Instead, Mr White had dismissed the proposal without inspecting. At the VTE, both Mr White and Mr Salt had blamed workload pressures and target timetables for not inspecting promptly.

37.         Mr Sapsford considered that the works within Phases 1-3 should not have been categorised as repairs. He referred to Morcom v Campbell-Johnson [1955] 1 QB 106, in which the Court of Appeal considered the difference between repairs and improvements.  Denning MR said that the test was that:

“if the work which is done is the provision of something new for the benefit of the occupier, that is, properly speaking, an improvement; but if it is only the replacement of something already there, which has become dilapidated and worn out, then albeit a replacement by its modern equivalent, it comes within the category of repairs….”

38.         Mr Sapsford submitted that it was clear from Morcom that the works should not have been categorised as repairs, and the fact that they had been carried out for the benefit of the occupier added to, rather than detracted from, his argument.

39.         Mr Sapsford referred to the recent decision of the Tribunal (Mr A J Trott FRICS) in Monk v Newbigin (VO) RA 62 2012 in which it was held that the Rateable Value of an office building should be reduced to a nominal amount.  The Tribunal considered that at the material day the hereditament was not capable of beneficial occupation due to its actual physical state – stripped out to such an extent that to replace major building elements such as an entire electrical circuit…would go beyond the meaning of repair, regardless of whether the works were economic.  The Tribunal directed that the hereditament should be entered into the rating list at a rateable value of £1 with a description of “building undergoing reconstruction” with effect from 1 April 2010.

40.         Mr Sapsford said that in the current case the high voltage cabling had been stripped out, and the factory lighting system had been replaced to comply with health and safety standards.  He considered the difference between the office building in Monk and the subject factory was of less relevance than that the fact that in both cases the electrical circuitry had been removed.

Case for the Valuation Officer

Mr James R Salt

41.         Mr Salt is a professional member of the Institute of Revenues Rating and Valuation. He has been employed by the VOA since March 2003 at the Sheffield office, and for the last ten years has worked as a non-domestic rating caseworker. He now specialises in industrial property.

42.         Mr Salt outlined the history of the appeal which did not differ markedly from that of Mr Sapsford. He said that when Mr White of the VOA inspected the property on 15 March 2012, high voltage power had been restored to the appeal property, the lighting complied with health and safety requirements, and the appeal property was operational. Mr Salt inspected the appeal property himself on 19 February 2013.

43.         The VOA survey of the property noted that it was originally built for warehousing, hence the description in the valuation list of warehouse and premises. In any event the VOA did not make any valuation distinction between warehouses and factories.

44.         Mr Salt considered the valuation of the appeal property on four dates.  At 14 June 2011, the commencement date of the lease, there was a limited power supply to the hereditament as the high-voltage supply had been disconnected; there was no high voltage cabling beyond the first distribution board; and lighting units did not comply with current health and safety requirements as they lacked shatterproof screens.

45.         However the hereditament did exist at this date. It had not been merged with any other hereditament, it was not split into different hereditaments nor had it been destroyed. In Mr Salt’s opinion therefore, the hereditament should not be deleted from the list at this date.

46.         On the statutory basis, having regard to the mode or category of its existing use, Mr Salt valued the property as a factory, but not any particular type of factory. The high voltage cabling beyond the first distribution board would not prevent the unit being occupied by a user whose process did not require high-voltage power. Further, the lack of cabling beyond the first distribution board was irrelevant as it was non-rateable. Accordingly, Mr Salt could only consider the cost of reconnecting the power supply and replacing the light fittings as being relevant to his valuation. Since the cost of this work was approximately £31,000 net of VAT this would be considered an economic repair by the hypothetical landlord. However even if the high-voltage cabling was relevant, the cost of three process control panels would still be considered by the hypothetical landlord to be reasonable in order to achieve a rent of £102,000 for 10 years. Accordingly, Mr Salt valued the appeal property, in its condition at 14 June 2011, at RV £102,000 with effect from 1 April 2010.

47.         At 4 January 2012, the commencement of the Phase 2 work, the lights had been replaced, the energy supply reconnected, and there was some high-voltage cabling installed beyond the first distribution board. Mr Salt made no allowance for these in line with the VO’s practice, and his valuation remained RV £102,000.

48.         At 25 May 2012, the commencement of Phase 3, further high-voltage cabling beyond the first distribution board and three control panels had been installed. Neither were relevant to the rateable value and Mr Salt’s opinion of rateable value remained at RV £102,000.

49.         At 16 August 2012, the completion of Phase 3, the works had been completed, including the upgrading of the power capacity from 750 kVA to 1900 kVA. In Mr Salt’s opinion this would only increase the valuation (although he did not submit that it should).

50.         In conclusion, Mr Salt considered that at all material times the hereditament continued to exist, and did not fall to be deleted from 14 June 2011, nor at any point after. There was no legal mechanism for it being gradually introduced into the list. To the extent that I should consider the rateable value of the hereditament, rather than its existence, it should remain at £102,000 throughout the period.

Submissions from Counsel for the Respondent

51.         Mr Donmall dealt first with the assertion that the appellant was not in beneficial occupation of the appeal property during the first phase of the works, submitting that this was a question of occupation, not of the existence of the hereditament per se, or its rateable value. The appellant’s deletion proposal was an assertion that there was in fact no hereditament at all during that phase.

52.         He submitted that the appellant’s inability to commence manufacturing during Phase 1 did not preclude beneficial occupation. The appellant’s occupation of the property had a value to the appellant during the first (and later) phases because it enabled the appellant to undertake the necessary work to prepare for the commencement of manufacturing. This was underlined by the fact that the appellant sought to characterise the work as being for its particular benefit, rather than repairs to the building.

53.         The contention that the appeal property should have a gradual reintroduction into the rating list was without substantive merit. There was no possibility of a hereditament to be partially in the rating list - either a hereditament existed or it did not. This was a separate question to that of whether the appellant was in beneficial occupation.  The question of occupancy and whether such occupation was complete or partial, was a matter for the billing authority, which had exercised its discretion under section 44A of the 1988 Act to grant relief.

54.         Mr Donmall submitted that a property would only cease to be a hereditament if it no longer existed by either being physically destroyed; subsumed or merged into another hereditament; split into different hereditaments, or a combination of all three.  It would not cease to be a hereditament if incapable of beneficial occupation. This was established by section 46A of the 1988 Act, and by case law.

55.         In Easiwork Homes Ltd v Redbridge London Borough Council [1970] 2 QB 406 a block of flats was undergoing modernisation. Each flat was incapable of occupation as plumbing work had been removed; toilet fittings, water supplies, gas appliances, electrical wiring were all being renewed, and flooring re-laid.  It was argued that liability to pay rates could not apply as the flats were de facto unoccupied but also in a condition which rendered them incapable of occupation.  It was held that if a hereditament continued to exist notwithstanding structural alterations to make a new building, liability to pay rates must attach in respect of unoccupied property during the carrying out of less radical alterations and improvements. Easiwork was noted expressly by the Court of Appeal in Ravenseft Properties Ltd v Newham LBC [1976] QB 464 [1975] RA 410 (CA).

56.         Relying on those cases Mr Donmall submitted that even if established, which was denied, the absence of beneficial occupation would not mean that the appeal hereditament ceased to exist or fell to be removed from the rating list.  The appellant’s reliance on Laing was therefore misconceived.  Before the General Rate Act 1967, when there was no question of rates being paid for unoccupied property, case law focused on what constituted rateable occupation - of which beneficial occupation was an element.  The 1967 Act gave power to rating authorities to resolve that rates may apply to unoccupied property, and from its enactment there was no materiality in the fact of an unoccupied property being on the rating list. Neither Easiwork nor Ravenseft addressed the liability to rates by reference to Laing, to “rateable occupation” or to beneficial occupation. 

57.          In respect of Spears, Mr Donmall considered Mr Sapsford’s argument to be misconceived. That case related to an appeal against the issue of a completion notice to a new building. Mr Sapsford did not suggest that the property was a new hereditament or a different hereditament prior to occupation. In fact the reverse was the case in that the appellant sought to emphasise the continuity of the hereditament and its use by previous occupiers. The appeal property was already in the rating list and the deletion proposal was predicated on a distinct argument that it should be deleted from the list - because during the first phase it was no longer a hereditament at all.

58.         In respect of Post Office, another case regarding completion of a new hereditament, there was in any event a distinction between the completion of the building as a building, and the completion as a telephone exchange.

59.         Therefore the reliance upon Spears and Post Office was misconceived because both cases related to distinct factual scenarios of completion notices in respect of new buildings.

60.         Mr Donmall submitted that Baroness Farrington’s speech had no legal authority.  It was a speech in the House of Lords, in respect of what was at that point a Bill rather than an Act of Parliament.  Reference to parliamentary material could be an aid to statutory construction where there was ambiguity and the conditions in Pepper v Hart [1993] AC 593 were satisfied, but that was not the case here.

61.         Even if, which was not accepted, the appellant was not itself in beneficial occupation for some or all of the period, this did not mean that the property was itself incapable of beneficial occupation. The appeal property was described in the local list as “warehouse and premises”, with a special category code “factories, workshops and warehouses (inc bakeries and dairies)”. The appeal property could have been used as a warehouse throughout. The appellant had conceded this at the VTE (although Mr Sapsford did not accept this before me). There was domestic electricity to the office space.  The reconnection of the electricity per se was not a matter in respect of the hereditament at all but a matter relating to the provision of power by the utility company following an earlier disconnection.

62.         The majority of cabling and related work undertaken in Phase 1 was beyond the first distribution board and was irrelevant to the nature or rateable value of the hereditament. It was part of the appellant’s internal fitting out - as the landlord concluded in the negotiations immediately prior to the lease being completed.

63.         If there was any refitting of the first distribution board and cabling up to that point, such work may have constituted repair, along with the replacement of the lighting. However the cost of such repair was a small proportion of the total cost of £76,087 for the electrical work undertaken in Phase 1. Even if all of the electrical work in Phase 1 could be categorised as repair, at the full cost of some £76,000 together with an additional lighting cost of £13,700, that cost would be economic relative to the rental income of the property of £100,000 per annum for 10 years.

64.         Schedule 6 to the 1988 Act presupposed that there could be beneficial occupation whilst economic repairs were undertaken, otherwise the provision would be redundant. If there could not be a hereditament in existence whilst economic repairs were undertaken, there would be no need to consider the rateable value of such.

65.         In Leda Properties Ltd v Howells (VO) RA/62/2006 the ratepayer sought the deletion of a property from the list during a period when the buildings were unoccupied. The appeal was dismissed as the Tribunal accepted the VO’s opinion that the property was physically capable of use at the date of the proposal. Mr Donmall accepted that this decision gave some assistance to Mr Sapsford’s case but submitted that it was inconsistent with Easiworks.

66.         In John Townend v Gott (VO) RA 22 2010, the ratepayer appealed against a VTE decision that rejected a proposal to delete the assessment of an office building from the 2005 rating list on the basis that repair works had made the building unusable until it was completed. The works included but were not limited to the installation of a more substantial fire escape, new lighting, work in the roof of the fire escape, tanking and plastering to the basement. The Tribunal (Mr N J Rose FRICS) held that it was quite possible that some if not all of these works were undertaken, but there was no evidence to show that the building had become incapable of occupation as a result.

67.         In respect of the decision in Vodafone Mr Donmall submitted that as a VTE decision this was not binding upon me. In any event it was distinct on the facts in that Vodafone had vacated the buildings and were undertaking remedial work required to exercise a break clause. In the present case the appellant was undertaking work as part of setting up manufacturing operations.

68.         The VTE’s decision in Vodafone was to delete the property from the rating list with effect from 5 January 2009.  That decision was appealed to this Tribunal by the VO, and settled by consent. During the hearing Mr Donmall submitted a copy of the consent order, within which the hereditament was reinstated in the rating list with effect from that date – effectively quashing the VTE decision. This was subject to further submissions from the parties following the hearing which I refer to below.

69.         Mr Donmall submitted that in the subject case the VTE was correct to conclude that the appeal property was neither derelict nor incapable of beneficial occupation and had not ceased to be a hereditament.

70.         In respect of the issue of a nominal or zero rateable value, Mr Donmall submitted that such an argument was beyond the scope of this appeal, which was limited to the deletion proposal.  The appellant specifically asserted that it was not disputing the earlier VTE decision that the rateable value of the appeal property was £102,000.

71.         However, the nominal valuation argument was in any event without merit.  The statutory hypothesis for rating, and the regulations concerning the rating of plant and machinery, would nullify any nominal value argument.

72.         Mr Donmall submitted that the Tribunal’s decision in Monk was wrong in law, but even judged on the basis of Monk a nominal valuation would not accrue.  The facts were different because in Monk the property concerned was an office building, which had been stripped out of its fittings (floor, suspended ceiling, air conditioning, electrical lighting and power, and existing sanitary accommodation), whereas in the subject case the appellant was paying £100,000 per year, after a rent free period of three months, and the work in Phase 1, save as to lighting, was non-rateable plant.

Discussion

73.         A feature of this appeal was the submission of evidence having a wide variation of relevance to the issues to be determined. I have distilled these into five distinct issues. First, whether there was beneficial occupation by the appellant during Phase 1 of the works. Secondly, if not, whether the appeal property was incapable of beneficial occupation and if so whether this should cause the assessment to be deleted from the rating list. Thirdly, whether the appellant is entitled to rely upon his alternative approach as a matter of principle. Fourthly, if so, whether the appellant’s nominal valuation case has any merit.  Finally, if successful on either alternative basis of appeal, whether there is any legal basis for the appellant’s contention that the appeal property be reintroduced to (or, on the alternative basis, re-increased in value within) the rating list.

74.         Was there beneficial occupation of the appeal property during Phase 1?  

75.         There is force in Mr Donmall’s submission that the appellant completed the lease, with only a three month rent free period, in the full knowledge that the appeal property had been stripped of high power cabling, and that the high voltage electricity supply had been cut off.  The appellant contends that effectively there was no turning back at that point.  I do not accept that.  The fact remains that the lease was completed in any event, with the appellant committing to a rent of £100,000 per annum after the expiry of a three month rent free period.

76.         The works were carried out once the lease had been completed, and the appellant had taken possession.  There was no evidence before me that the landlord would have allowed the works to be carried out unless the appellant signed the lease.  Whilst manufacturing may not have occurred until a later date, it was necessary for the appellant to have access to the appeal property in order to carry out the works.  I accept the respondent’s submissions on this point.

77.         I can understand why Mr Sapsford considered that the speech of Baroness Farrington might be relevant in the case, but I accept Mr Donmall’s submission that only in very limited circumstances can parliamentary speeches be useful in the interpretation of statute.  I derive no assistance from it.   

78.         Mr Sapsford cited two cases that concerned completion notices under schedule 4A to the 1988 Act in respect of new hereditaments – those that had not previously been in the rating list. 

79.         In Spears Brothers, the Tribunal found (para 17):

“…By the time the completion notice was served it was clear that there was no prospect that an independent electricity supply would be made available to serve the appeal property as an independent unit. Only two 100 amp supplies were available for the entire development and they had been taken up by other units. Although Mr Perkins considered that electrical wiring was fitted inside the unit, I am satisfied in the light of my inspection that that is not the case. In particular, there is no wiring for a lighting system. That fact, together with the absence of any prospect of an independent electricity supply being provided to the appeal property within the statutory three months period, is in my view conclusive. Both the appeal property and unit 21 – which immediately adjoins both it and the workshop used by the appellant for its business – have been vacant for several years and there was no suggestion that the appellant ever had an operational requirement for them. In the absence of such a requirement, or the possibility of a market letting without an independent supply of electricity, there is no reason to suppose that the necessary wiring would have been provided within the three months’ time-scale or at all. In my view, a building without electric lighting is incapable of occupation as a workshop.”

80.         The Member went on (para 18):

“Mr Spears also suggested that the appeal property could not be occupied without a fire alarm system. Mr Gear did not challenge that suggestion and I accept it. As in the case of the lighting system, I find that it could not reasonably have been expected that a fire alarm would be provided by the owner. That is a further reason why I consider the completion notice to be defective.”

81.         Whilst on the face of it there were similarities to the subject appeal, it is clear that the decision in Spears Brothers turned on the fact that there was no available remaining amperage left to supply the appeal property.  It was the absence of that available electricity that caused the Member to conclude that lighting and a fire alarm system would not be installed within the three month period necessary for a completion notice to be valid, rather than their absence per se.  That is different from the subject scenario, where the power supply was available but was simply not reconnected until the electricity company was ready to do so. I do not consider that Spears Brothers assists the appellant, even in the event that I was persuaded (which I am not) that cases concerning completion notices under Schedule 4 are relevant to this case.

82.         Similarly, a closer examination of the decision in Post Office gives a rather different interpretation from that drawn by the appellant.  Mr Sapsford quoted from the VOA rating manual which says (at paragraph 4.4 of Volume 4: Section 2: Part C - The Hereditament):

“The question of whether a telephone exchange was complete was considered. The equipment in dispute included electrical wiring, transformer and the telephone exchange equipment. The Court of Appeal found that being complete did not mean that it should be capable of immediate use as a telephone exchange but rather it should be capable of occupation as a telephone exchange even though it could not actually be used as such until further equipment had been installed. The Lands Tribunal noted that the Court had not found it necessary to introduce into the question of whether a building was capable of occupation for its purpose the highly technical problems of when articles brought onto land do or do not become part of the freehold quoting Browne LJ, ‘I think that in the present case the judge was entitled to find that the building would not be completed until the transformer and electrical wiring had been installed, whether those items in themselves are or are not rateable plant and machinery, because until these had been installed the building, as a building, was not ready for occupation.’”

83.         Mr Sapsford considered that this mirrored the appeal circumstances, in that electrical wiring and a transformer had been installed, but that later installation of actual plastic moulding equipment was not taken into account when assessing beneficial occupation.

84.         In my view the rating manual does not tell the whole story, and in this respect Mr Sapsford can hardly be criticised for relying upon it.  Shortly after the passage quoted above, Browne LJ went on to say;

“The vital distinction, I think, is between the time when the building is ready for occupation as a building, and the subsequent installation in it of equipment or furniture which is necessary for its use for the purpose for which it is intended. The county court judge did not have the advantage of knowing the decision in Ravenseft, but in my view he applied in substance the same test as that laid down by this court in that case. I think that his findings of fact amount to a finding that on August 1 1975 this building, as a building, would be capable of occupation or ready for occupation as a telephone exchange, even though it could not actually be used as a telephone exchange until further equipment had been installed, and that this finding is fully justified by the evidence. I would dismiss this appeal.”

85.         The construction work in the case of the Post Office telephone exchange was in four contracts – the building work itself; the “electricity” (both for the operational purposes of the exchange and for what was termed its domestic purposes); the installation of ventilation equipment necessary for the plant; and finally the installation of the telephone equipment itself.

86.         Applying this to the subject property, the test of completion would be before the work done in Phase 1, 2 or 3, bearing in mind that Phase 1 including the changing the transformer for one that was of a higher rating to suit the appellant’s particular requirements. The key point is Browne LJ’s reference to the time when the building is ready for occupation as a building.  In my judgement the appeal property would be ready for occupation as a building before Phase 1 commenced. Accordingly this case does not assist the appellant, but as with Spears Brothers I am not satisfied in any event that cases involving completion notices under Schedule 4 are relevant to the subject appeal.

87.         As regards the VTE decision in Vodafone, the parties submitted further comment on the circumstances of the consent order before this Tribunal following the VO’s appeal of the VTE decision.  The Appellant did not agree that the VTE decision was “reversed” as such by the consent order, and I note that the consent order reflected a rateable value at a slightly lower figure than that ordered by the VTE.  However, it is clear that the VTE decision was largely overturned by these events, and in any event First Tier decisions are not binding on this Tribunal.  I therefore find Vodafone to be of very little assistance. In any event the facts were different – in that this was an office building that was being stripped out to alleviate dilapidation liability.

88.         I am satisfied on the facts that the appellant was in beneficial occupation of the appeal property from June 2011 for the purpose of undertaking refurbishment work and making it suitable for the appellant’s particular requirements.  It follows from this that the property was capable of beneficial occupation from that time.  Having made that finding, it is not necessary for me to deal with whether the absence of beneficial occupation would justify a deletion from the rating list.

89.         Accordingly, in respect of the first part of the appeal, that the hereditament should be deleted from the rating list as it was incapable of beneficial occupation, I find that the appellant has failed to establish that it was, and the appeal on this ground is dismissed.

90.         I now consider the third issue - whether it is open to the appellant to bring its case on the alternative basis of nominal value.  Mr Sapsford’s statement of case indicated that:

“the key proposal from the Appellant was for the property to be removed from the rating list during the periods in which the property was not capable of beneficial occupation due to the removal of factory electrics and lighting”;

and:

“The Appellant respectfully requests that the Upper Tribunal …..orders the removal from ….the rating list….”.

91.         However, following the President’s determination of the of the preliminary issue in O’Brien, I accept that as a lay person Mr Sapsford could not be expected to differentiate between the removal of the hereditament from the rating list or being it retained in the rating list but at a nominal value.  He was simply seeking to avert liability for rates for the period that he considered appropriate. 

92.         Mr Sapsford’s original communication with the VOA was quoted in its automated acknowledgement of 7 November 2011 as including his submission that “In view of the above points [about the refurbishment work] I believe the rateable value is too high”. His use of the VOA’s proposal form on 19 December 2011 was limited to saying that the circumstances affecting the rateable value of the property changed on 14 June 2011.  His reasons for believing that to be the case were “as detailed in the attached letter”.  That letter, dated 20 December 2011, outlined the background to the proposal and said that the rateable value should be £100,000 per annum (sic) with effect from 1 January 2012.  There was no indication of whether, from 14 June 2011, the property should be removed from the rating list or that it should be reduced to a nominal rateable value.  That is not surprising given that it was Mr Sapsford’s first exposure to the esoteric world of rating and he should not, in my judgement, be penalised for it.  I accept his contention that the course of the appeal centring on deletion was largely influenced by the way the VOA interpreted his appeal. 

93.         There was no appeal against the VTE’s decision in respect of the rateable value, but in my judgement that does not affect his proposal that, in effect, the rateable value should not apply (whatever the method to bring that about) from the period beginning 14 June 2011. The Tribunal’s Rule 5(2) allows me to set aside the Registrar’s direction of 16 September 2013. Having heard submissions from both parties, I am satisfied that it is open to the appellant to submit in the alternative that rateable value should be reduced to a nominal amount. 

94.         I therefore turn to the fourth issue – the appellant’s nominal value argument.

95.         Under the 1988 Act the statutory hypothesis for rating purposes assumes that the hereditament is in a state of reasonable repair, excluding any repairs that a reasonable landlord would consider uneconomic. The only elements of the works that fall to be considered for the purposes of rating are the replacement of the lighting, and any electrical work up to the first distribution board. Using the test laid down in Morcom, the replacement of old lighting to comply with health and safety is clearly a repair.  To re-install electricity to the hereditament is also a repair.  The rest of the works are not required to be assessed for the purpose of assessing rateable value. 

96.         I accept Mr Salt’s evidence that, with the opportunity of a likely letting at something in the order of £100,000 per annum, a reasonable landlord would consider it economic to carry out the works up to the first distribution board and replace the lighting.  It is therefore assumed for the statutory hypothesis that at the valuation date the lighting had been replaced to comply with legislation and the power supply had been reconnected.

97.          The appellant did complete the lease and carried out these, as part of the works, itself.  A three month rent free period was agreed, but I do not find that to be unusually long nor one which the hypothetical, competent and advised tenant would not have achieved in normal market conditions.  It follows that, on the statutory assumption that the lighting had been replaced and the power supply reconnected, the rent would not have been less than that that was agreed to be paid when these were actually paid for by the tenant. The appellant accepts that the rateable value is £102,000. 

98.         I therefore find that there is no merit in the appellant’s nominal value submission, and I do not uphold this ground of appeal.

99.         Having made those findings, it is not necessary for me to deal with the fifth issue - the reintroduction of the hereditament into the rating list on a phased basis.  However I would comment that Mr Donmall was correct that there is no basis in the legislation for that to be brought about.  The appellant wished to limit its business rates liability to the area of the hereditament that was, in its contention, usable during phases 2 and 3. The way to effect this was for the billing authority to exercise its discretion under s44 of the 1988 Act – which occurred in this instance. The appellant is therefore not disadvantaged by my rejection of this part of its proposal.

100.     In conclusion, in my judgement the appellant has not succeeded on either alternative basis. The appeal is therefore dismissed.

101.     However, I would conclude by expressing some sympathy for lay ratepayer appellants in circumstances such as this. It is understandable that Mr Sapsford pursued his appeal to this Tribunal, where in essence his honest and genuine attempt to regularise a situation that he considered unfair (and he was quite prepared to pay rates for those elements of the appeal property that he considered to be viable) was rebuffed by the VOA without an inspection being carried out.  Mr Donmall indicated that the VO’s non-compliance with its own manual was a matter of process, not of substance.  I agree with that, but it is easy to see why Mr Sapsford considered he had a valid case to pursue and he presented his case, including citing authorities, with a commendable determination.

102.     This decision is final on all matters other than costs.  The parties may now make submissions in writing on the issue of costs and a letter containing further directions accompanies this decision.

Dated: 7^th August 2014

 

 

 

 

P D McCrea FRICS

Addendum on Costs

103.     I have now received submissions upon costs.  Neither party relies upon a Calderbank offer.

104.     The respondent VO makes an application for his costs.  This is on the basis that the VO was successful in the appeal and the general rule that the successful party ought to receive its costs should apply.  Other than the fact that the appellant was unrepresented, there was nothing unusual about the case, and nothing in the way in which the VO defended the appeal or which the litigation was conducted which should cause me to depart from the general rule.  Throughout all of the dealings with the VOA and HMRC solicitor’s office, the parties conducted the litigation in a professional and business-like manner.

105.     The VO and his colleague Mrs Mellors met with Mr Sapsford on 19 February 2013 when Mrs Mellors went through each of Mr Sapsford’s areas of contention and explained why the VO was bound to reach the conclusion that he did.  Following that meeting, Mrs Mellors made revised arrangements for the certificates of value to be forwarded to the billing authority in order that the appellant could receive the correct discretionary relief from rates under section 44A of the 1988 Act.  In addition, at that meeting Mr Sapsford was encouraged to seek independent legal advice from a rating surveyor or lawyer.  Had he done so he would have realised that his appeal could not succeed.

106.     The respondent contends that it has incurred costs in defending this appeal, which it is fairly entitled to recover from the appellant. 

107.     The appellant rejects the respondent’s application on the basis that the need for the hearing before me was solely as a result of the VO’s failure to comply with process, including the requirements of the practice statement, the lack of response to the VOA website entry by the appellant, and the VO’s failure to follow the advice of the rating manual in respect of inspecting the appeal property.

108.     The statement of case presented by the VO at the VT hearing was entirely different to that previously issued to the appellant, and the VO introduced an entirely new argument at the VT hearing which had not been included in the respondent’s statements of case. There was a fundamental difference between the VO’s case presented at the VT and that presented by Mr Donmall before me.

109.     The inspection by Mr Salt and Mrs Mellors on 19 February was for the benefit of the VO in preparing its statement of case rather than an attempt to resolve outstanding issues.

110.     Mrs Mellors’ subsequent letter to the appellant referred to the VO’s duty to maintain and “defend” the valuation list whereas the actual duty of the VO is set out in the HMRC Charter which both Mr White and Mr Salt clearly ignored, and their actions contravened public guidance.

111.     In conclusion the appellant believes the conduct of the VOA has been unsatisfactory ranging from inability to follow its own website acknowledgement, non-compliance with its own manual, disregard for the practice statement and setting out an entirely different and far more substantial case before me than it had at the VT hearing.  Noting my comments in paragraph 101, the appellant submitted that to award the VO costs in this case would confirm to the VOA that they were at liberty to abuse process with impunity, whilst relying on its ability to access public funds in order to mount a better case before me than previously presented at the VT.

112.     The respondent made a brief response to the appellant’s submissions, to the effect that none of the arguments were sufficiently compelling to cause me to depart from the general rule. It submitted a copy of the letter from Mrs Mellors to Mr Sapsford of 20 February 2013 referred to above.

113.     In considering costs I start from the basis that, since the appeal was dismissed, the respondent was the successful party.  In order to resist costs being awarded against it, the appellant would need to show that there were circumstances or actions of the respondent which would cause me to depart from the general rule.  I have been critical of some of the actions of the VO but as I explained above these were in respect of process not substance.  The appellant did not succeed in either its argument that the appeal property was incapable of beneficial occupation, or on the alternative basis that it should have a nominal value.

114.     The appeal was heard by way of a re-hearing, and the appellant’s contentions regarding the VT hearing, and the differences in the respondent’s case, have no bearing on the costs in these proceedings. Each side was entitled to argue their case afresh.

115.     I found the contents of Mrs Mellor’s letter to Mr Sapsford of 20 February 2013 to be relevant, in that her advice was largely consistent with my conclusions, including in relation to the hypothetical tenancy, uneconomic repair, that the majority of the electrical work would not be rated, and the reliefs available under section 44A.  I find nothing unusual or prejudicial to the defendant from Mrs Mellor’s explanation that the VO is obliged to maintain and defend the valuation list.

116.     Accordingly, whilst as I have indicated above I have some sympathy for the appellant, I find no reason to depart from the general rule and therefore determine that the appellant shall pay the respondent’s costs of the appeal on the standard basis, such costs if not agreed to be the  subject of  detailed assessment by the Registrar.

 

 

Dated: 3 September 2014

 

 

P D McCrea FRICS