Rating — Application for judicial review following previous tangled procedure — The question which gave rise to present proceedings was whether the correct method of rating a ‘shopping city’ or mall was to rate the individual units as separate hereditaments or to rate the shopping mall as a single hereditament — A local valuation court held that the units
As mentioned in
the judgment of the Master of the Rolls, the present proceedings were treated
as an application by Electricity Supply Nominees Ltd for judicial review, leave
to apply having been refused by Parker LJ, sitting as a judge of the Queen’s
Bench Division, but granted by the Court of Appeal. The proceedings before the
Court of Appeal were originally in the form of an appeal by case stated from
the decision of the Lands Tribunal, the appellants being Electricity Supply
Nominees Ltd, the first respondent the valuation officer (J C N Sharma), and
the second respondents the rating authority, the London Borough of Haringey.
The premises concerned were a shopping complex at Wood Green.
Matthew Horton
(instructed by Jaques & Lewis) appeared on behalf of Electricity Supply
Nominees Ltd; David Mole (instructed by the Solicitor of Inland Revenue)
represented the valuation officer; Susan Hamilton (instructed by the solicitor,
London Borough of Haringey) represented the rating authority.
Giving
judgment, SIR JOHN DONALDSON MR said: The London Borough of Haringey and the
Electricity Supply Nominees Ltd jointly developed a shopping complex at Wood
Green. It consisted of a number of units, and the units together provided a
‘shopping city’ or mall. When the development was completed, it was necessary
to consider the question of rating it. The valuation officer proposed that the
individual units should be rated as separate hereditaments and he suggested
values for each unit.
The
Electricity Supply Nominees (ESN) took the view that the proper method of
rating was to rate the shopping mall as a whole; and the London Borough of
Haringey, as the rating authority, took the same view. Haringey submitted a
proposal that it be rated with a rateable value of £100,000.
These
proposals and counterproposals went before a local valuation court, which
upheld the view that the units should be rated separately. ESN then gave notice
of appeal, claiming that the mall should be rated as a single hereditament but
disagreeing with the figure which had been put forward by Haringey.
The time came
when it occurred to ESN that if they withdrew their appeal and if the appeal of
the individual shopowners succeeded on the basis that there should properly
have been a rating of the shopping mall as a whole, they would be in the
delightful situation that there would be no rates leviable on the individual
units and no rates leviable on the shopping mall as a whole, because that had
been rejected by the local valuation court and there had been no appeal.
Accordingly they indicated that they would withdraw their appeal. This must
have come as something of a shock to the London Borough of Haringey, which was
faced with the prospect of not getting any rates at all. They therefore applied
to the Lands Tribunal, to whom any appeal would lie, for an extension of time
in which to appeal. It was at that stage that ESN took the point that the
borough was not entitled to appeal because, as they said, they had never
appeared before the local valuation court.
This
controversy was resolved by the Lands Tribunal ruling that Haringey had
appeared and was therefore entitled to appeal, subject to getting an extension
of time, and the Lands Tribunal did extend the time. ESN, being dissatisfied
with that determination, called upon the president of the Lands Tribunal to
state a case for the opinion of the Court of Appeal. There was a certain amount
of to-ing and froing, into which I need not go, but suffice it to say that
eventually, though reluctantly, the president did state a case for this court.
When the
matter came on for hearing, the point was taken that there might be no right of
appeal from an interlocutory decision, it being said that this was an
interlocutory decision. We came to the conclusion that the true view was that
there was no appeal from this sort of decision by way of case stated. However,
the Lands Tribunal being an inferior tribunal, such a decision is susceptible
of judicial review, and this was the route which should have been followed. It
was clearly undesirable that these proceedings should be abortive and that new
proceedings should be begun by way of judicial review. Therefore an application
was made to Parker LJ, sitting as an additional judge of the Queen’s Bench
Division, for leave to bring proceedings for judicial review. He refused that
application and it was then possible for the application to be renewed before
this court, where it was granted. So the position was then reached where we
were concerned with judicial review proceedings in relation to the decision of
the Lands Tribunal that Haringey is entitled to appeal against its decision.
This turns on
sections 76 and 77 of the General Rate Act 1967. Section 76(4) provides:
On the hearing
of an appeal to a local valuation court —
(a) the appellant; and
(b) the valuation officer, when he is not the
appellant; and
(c) the owner or occupier of the hereditament to
which the appeal relates, when he is not the appellant; and
(d) the rating authority for the rating area in
which the hereditament in question is situated, when that authority are not the
appellant; and
(e) the objector, where he is not one of the
persons aforesaid,
shall be
entitled to appear and be heard as parties to the appeal and examine any
witness before the court and to call witnesses.
Before going
on to the next section, I would like to draw attention to the fact that his
entitlement is to do more than one thing: he does not have to do them all. He
can appear; if he does appear he can further be heard as a party to the appeal;
and, if he is heard as a party to the appeal, he may also, if he wishes,
examine any witness and call any witness.
Now I can go
on to section 77, which provides:
Any person
who in pursuance of section 76 of this Act appears before a local valuation
court on the hearing of an appeal and is aggrieved by the decision of the court
thereon may, within such period as may be prescribed by rules made by the Lord
Chancellor under section 3 of the Lands Tribunal Act 1949, appeal to the Lands
Tribunal . . .
What is said
in this case is that while the London Borough of Haringey would be able to
appeal in the ordinary course of events, that right of appeal is contingent
upon its being possible to find as a fact that it had exercised its right to
appear before the local valuation court — not, be it noted, to be heard.
So I turn to
what happened before the local valuation court. A Mrs Eldridge was employed by
the local authority as a rating and incomes assistant. She had no professional
qualifications, but she had 10 years’ experience. She has sworn an affidavit
saying:
Before the
proceedings began I presented myself to the clerk of the court and informed him
that I represented the rating authority. I further informed him that I did not
intend to give evidence at the hearing but merely wished to observe the
proceedings.
I omit a
reference to where she sat because that was the subject-matter of
cross-examination. She said:
The clerk of
the court called the case and introduced the parties.
It would
appear from the evidence and from the findings of the Registrar of the Lands
Tribunal that she, having had that conversation with the clerk, did not in fact
sit at the table which was
successfully concealed herself in the background that one party at least was
not aware that she was present. It would undoubtedly have been desirable that
the chairman or the clerk should have announced publicly — because this was a
public hearing — who it was that was appearing; but, if that was done, it
cannot have been done in any emphatic form. At all events, she was not
intending to take any part in the proceedings. In a sense she was an observer,
but she had notified the clerk that she was attending officially. She listened
to the proceedings until the luncheon adjournment, and then she went away.
Very
significantly, to my mind, we find at p 9 of the bundle that the chairman or
the clerk of the court endorsed the court record in his own hand, reading:
Parties:- V/o
Mr Scrafton, Solr, Mr Sharma. Richard Ellis
the surveyors
representing ESN
Mr Bennett.
Rating Authority — Mrs Eldridge.
On that state
of facts the registrar found that Haringey had appeared in the person of Mrs
Eldridge.
It is said by
Mr Horton on behalf of ESN that that really is quite insufficient: there should
have been some formal entry of appearance. The fact is that the rules do not
provide for a formal entry of appearance. It may be desirable that they should
do so, but they do not. There is force in his submission that there must be
something on the facts which distinguishes the case of Mrs Eldridge having an
overweaning interest in rating affairs and attending a local valuation court
out of pure personal curiosity and that of Mrs Eldridge attending a local
valuation court as a representative of Haringey. But, in my judgment, the fact
that she went and saw the clerk beforehand indicated that she was attending in
a representative capacity. Even more important is the fact that the court got
the message that she was attending in a representative capacity. What is more,
since a local authority cannot really attend a hearing, she must have been
appearing, otherwise there would have been no point in her telling the clerk
that she represented the rating authority. To my mind, the fact that her
presence is recorded as an appearance makes it quite impossible for us to say,
as we would have to say if we were going to quash the decision of the Lands
Tribunal, that no reasonable tribunal on that evidence could hold that Haringey
had appeared. Indeed, on that evidence, I would have held that it did appear.
As the borough
appeared, it is entitled to appeal, subject to the extension of time. Various
arguments have been addressed to us about whether the Lands Tribunal was right
to extend the time. For my part, I do not think it necessary to rehearse them.
Suffice it to say that this was supremely a matter within the discretion of the
Lands Tribunal, and I have heard no argument to suggest that they went wrong in
principle. Accordingly I do not think that there are any grounds for
intervening on that limb of the argument. I come back therefore to the fact
that we are being asked to give a remedy by way of a judicial review, and for
my part I would refuse it.
Agreeing,
PARKER LJ said: I would add two matters. First, under section 76(5) of the
General Rate Act 1967 it is provided as follows:
Subject to
the provisions of this Act, after hearing the persons mentioned in subsection
(4) of this section, or such of them as desire to be heard, the local valuation
court shall give such directions . . .
It is therefore
plainly contemplated that some of the persons who were entitled to appear might
not desire to be heard. Mrs Eldridge, having made her presence known to the
clerk as a party entitled to appear under subsection (4), also made it
perfectly clear to the clerk, on the evidence, that she did not desire to be
heard. In those circumstances, it appears to me to be irrelevant where she sat
or what happened thereafter; she had appeared and made her presence known and
also indicated, as she was entitled to do under subsection (5), that she did
not desire to be heard.
The other
matter which I should mention in passing is this, that the proposal by the
rating authority, which appears at p 1 of the bundle, states that it is made in
accordance with section 69(3) of the General Rate Act 1967. Section 69(3)
empowers the rating authority to make proposals when certain conditions are
satisfied. Whether or not those conditions were satisfied does not now arise,
although it is possible that it may do in the future. But section 69(5)
provides:
Every proposal
under this section must –
(a) . . .
(b) specify the grounds on which the proposed
alteration is supported.
The grounds
specified in the rating authority’s proposal are merely ‘in accordance with
section 69(3) of the General Rate Act’. It appears to me that that is a matter
which may not possibly comply with the subsection.
Third, I would
mention this. Section 77 provides that any person who is aggrieved by the
decision of the court may appeal. In one sense it is farcical to suggest that
the rating authority were in any way aggrieved, for the outcome of the
proceedings before the local valuation court was precisely what they had wanted
from the very start. But should it later be suggested that in such
circumstances nobody can appeal under section 77, I for my part would make it
clear that it cannot be right; and indeed there can be no doubt, and nobody has
suggested to the contrary, that had the local authority plainly appeared and
appealed they would have been entitled to do so. They were contingently
aggrieved and that, in my view, is enough. I would agree with the order
proposed.
There is one
final matter, which is perhaps worth observing, and that is this. Had the ESN
succeeded in obtaining from this court a ruling that the rating authority had
not appeared, the result might well have been, pursuant to regulation 7 of the
Rating Appeals (Local Valuation Courts) Regulations 1956, that the dismissal of
the appeal had been made without jurisdiction and would also have to be
quashed. That result would have led to this, that having succeeded in step 1
the ESN had also succeeded in restoring to the position of a live proposal the
proposal which these proceedings are designed to kill; and that, had it arisen,
might not have been a wholly unjust result.
BALCOMBE LJ
also agreed and did not add anything.
The
application for judicial review was refused with costs in the Court of Appeal
and below.
