Bunyan (Listing Officer) v Patel [2022] EWHC 1143 (Admin); [2013] PLSCS 32 is a particularly interesting case for landlords and homeowners in general. The High Court has confirmed that when determining whether a property is no longer a dwelling for council tax purposes, regard must be had to the test set out in Wilson v Coll (Listing Officer) [2011] EWHC 2824 (Admin) – namely, for a property to no longer be considered a dwelling for council tax purposes it must be “truly derelict” as to be no longer capable of beneficial occupation.
The respondent was the owner of a residential semi-detached property situated in Edgware, HA8. On 1 April 1993, it entered the council tax valuation list as a “Band E” dwelling. The respondent let the property periodically until 27 August 2019, when she obtained possession of the property.
In July 2020, the respondent applied to the Valuation Office Agency (VOA) to delete the property from the council tax valuation list with effect from 28 August 2019, being the effective date the property became unoccupied. The respondent argued that the property was uninhabitable because of serious rising damp throughout the property.
On 18 August 2020, the respondent was notified of the VOA’s decision to reject her application. The listing officer who made the decision informed the respondent that “a property is only considered uninhabitable for council tax purposes when it has deteriorated to the point when it is incapable of being made habitable again without large-scale works, often including substantial structural repairs. A property in this condition is described as being ‘beyond reasonable repair’… I cannot take into account whether the property is vacant, or the cost of repairs, I can only consider the current state of the property, and the works required to repair it.” The respondent appealed to the Valuation Tribunal (VT).
Following further submissions made by the respondent as to the condition of the property on 23 September 2020, the VOA determined that the property was no longer capable of beneficial occupation once redevelopment works to the property commenced on that date.
The VT issued its notice of decision on 17 September 2021. The VT found that the property was not capable of beneficial occupation on 28 August 2019 and a hereditament did not exist. In so doing, the VT determined that the VOA had failed to take into consideration whether the property was capable of occupation on 28 August 2019 and whether reasonable steps could be taken to make the property habitable. Relying on Tewari v Virk [2020] (appeal M0826076), the VT was critical of the VOA’s reliance on Wilson, in light of legislative changes since that decision was made. The VOA appealed.
In upholding the VOA’s appeal, the High Court found that the VT had erred in not applying the test in Wilson. The test was not only limited to whether a property was “derelict”, but as established in SJ & J Monk (A Firm) v Newbigin (Valuation Officer) [2017] UKSC 14; [2017] EGLR 21 and Jackson (VO) v Canary Wharf Ltd [2019] UKUT 136 (LC); [2019] EGLR 31, a property could also be incapable of beneficial occupation because it was currently undergoing major reconstruction works, or because major reconstruction works would be required before it could be occupied.
Elizabeth Dwomoh is a barrister at Lamb Chambers
