Rating of unoccupied property–Technical points taken under General Rate Act 1967, section 17 and Schedule 1 as amended by Local Government Act 1974, section 15–Resolution of rating authority attacked on the ground that it referred to section 17 as amended, which confers the general power to rate unoccupied property, but did not refer to Schedule 1, which the authority ought to resolve to apply in order to bring the provisions into operation–Held that the resolution was sufficiently clear and unambiguous and that appellant was not misled–Other technical objections mentioned but not considered as they had not been taken in the court below–Point about reduction or remittance on ground of hardship, taken in court below, but more appropriately dealt with in other proceedings–Appeal from magistrates’ decision to issue distress warrant dismissed
This was an
appeal by Graylaw Investments Ltd, raised by case stated, from a decision of
the Essex magistrates sitting at Harlow, that a distress warrant should issue
against the company on the ground of non-payment of rates in respect of
Westgate House, Harlow. The rates were alleged to be payable under the
provisions for the rating of unoccupied property.
C S Lewsley
(instructed by Radcliffes & Co) appeared on behalf of the appellant
company; R Campbell (instructed by Wedlake, Bell, agents for K J Morton, Town
Hall, Harlow) represented the respondent council.
Giving the
judgment of the court at the invitation of Geoffrey Lane LJ, ACKNER J said:
This is an appeal by way of case stated by the justices of the County of Essex
sitting at Harlow. Their adjudication was on December 15 1978 and what they
decided was simply this. A distress warrant should issue against the appellant
company in respect of rates in the reduced sum (the figure was reduced in the
course of the trial) of £173,745.77. The appeal arises in these circumstances.
On October 31 1978 a complaint was preferred by the respondent council against
the appellant company that it, being duly rated and assessed by the said
council in rates made in respect of Westgate House, Harlow, had not paid the
said sum or any part, and the sum claimed was £208,710.98. The appellant
company was at all material times the owner of an office block known as
Westgate House, Harlow, erected as offices in 1976. It was agreed in writing
between the appellant company and the respondent council in May 1977, after a
completion notice had been served, that the erection of Westgate House was to
be treated for the purposes of Schedule 1 to the General Rate Act 1967 as
completed on December 14 1976. No part of the building was occupied on the date
so determined.
On February 20
1975 the Finance and Policy Coordination Committee of the Harlow District
Council made a recommendation, the clear intention of which was to rate
unoccupied premises. I will refer in detail to the terms of the recommendation
when I deal with the grounds of appeal. By a resolution passed on March 4 1975
the district council as rating authority approved and adopted that
recommendation, and notice of such resolution was published in the London
Gazette and a local newspaper.
Westgate House
is entered in the valuation list in two parts: the ground floor and the second
part, which is the first to the eleventh floors. The ground floor was
unoccupied from December 14 1976 to July 20 1978; and the other part–the first
to the eleventh floors–was unoccupied from December 14 1976 to the date of
complaint and thereafter until November 26 1978. The case sets out–and I do not
need to refer to it–what was the amount of the rate in the pound, and it goes
on to deal with the rateable value of the ground floor of Westgate House and
also the rateable value of the second part of the premises (the first to the
eleventh floors). It provides the relevant figures. Demand notes were in fact
issued and received after issue within a few days by the appellant company in
respect of all the claims which were made by the council.
There are a
few further facts to which I should refer. The gross and rateable values of the
two parts were agreed and entered in the valuation list in June 1978. At the
trial the demands upon which the claim was based were produced, and they had
been made by post on dates as issued.
The essential
contention was that Schedule 1 to the General Rate Act 1967 had not been
lawfully adopted by the respondents. It is therefore necessary to look straight
away at section 17 of the General Rate Act 1967, because it is under those
powers that the respondents purported to act in order to rate these unoccupied
office premises.
Section 17 (1)
of the Act of 1967 provides as follows:
A rating
authority may resolve that the provisions of Schedule 1 to this Act with
respect to the rating of unoccupied property–(a) shall apply, or (b) if they for
the time being apply, shall cease to apply, to their area, and in that case
those provisions shall come into operation, or, as the case may be, cease to be
in operation, in that area on such day as may be specified in the resolution.
I now turn to
the terms of the recommendation upon which the main points in this appeal, if
not the only point, centre. It reads as follows:
RECOMMENDED
that from April 1 1975 the provisions of section 17 of the General Rate Act
1967 (as amended by section 15 of the Local Government Act 1974) be applied in
respect of all hereditaments in the Valuation List within the following
categories and analysis codes.
Then it refers
specifically to code 2030, which is ‘Offices (including Banks in Office
Areas),’ and thus includes the appellants’ premises. Then at the foot of the
recommendation are these words, which we consider are of some importance: ‘The
specified proportion of General Rate payable by an owner under subparagraph 2
of paragraph 1 of Schedule 1 of the General Rate Act 1967 (as amended) shall be
100 per cent.’ That subparagraph of
paragraph 1, which is referred to, reads as amended as follows:
Subject to
the provisions of this Schedule, the amount of any rates payable by an owner in
respect of a hereditament by virtue of this paragraph shall be the specified
proportion of the amount which would be payable if he were in occupation of the
hereditament; and no reduction shall be made under section 48 of this Act in
respect of any rates so payable.
The submission
which was made in the court below and which was made here simply amounts to
this. The section says that a rating authority may resolve that the provisions
of the schedule shall apply or shall not apply, and what the recommendation
does is not to refer to the provisions of the schedule but merely to the
section under which the power exists to apply those provisions, because the
recommendation reads ‘that from April 1 1975 the provisions of section 17 of
the General Rate Act 1967 . . . be applied.’
The question, reduced in its simple proportions, appears to us to be
this: did the resolution as ultimately passed make it sufficiently clear that
the appellants’ unoccupied premises were to be rated? There is no obligation in the exercise of the
powers under section 17 to make any reference in terms to the Schedule to the
Act, although of course by making specific reference to it one avoids the risk
of the point which has been taken today being taken. But it did contain the
reference to subparagraph 2 of paragraph 1 of Schedule 1 and that the specified
proportion should be 100 per cent.
There was no
suggestion in the case itself and no suggestion made in the court below that
the appellant had in any way been misled or in any way looked upon the
publication of the resolution as being equivocal. Since Sheffield City
Council v Graingers Wines Ltd [1978] 2 All ER 70 makes it clear that
in considering this type of problem it is wrong to construe the resolution or
the recommendation formally, we think that there was made known with sufficient
clarity the intention of the council to rate those premises, including the
appellants’ premises, 100 per cent as specified despite the fact that they were
unoccupied.
There was also
taken in the court below and mentioned specifically in the case another matter,
and that was that the respondent council was alleged not lawfully to have
considered, and thus to have refused, the appellant company’s application for
relief or remittance on the grounds of hardship. That is operating the
provisions of the schedule under paragraph 3A. It was mentioned to us at the
outset of this appeal that both parties consider that this point is one which
is much more appropriately dealt with by way of proceedings in the High Court,
no doubt for relief by way of an application for a declaration, than for the
matter to be argued before this court. Accordingly, we are not concerned with
that point which was taken in the court below and which was, as I have
indicated, referred to specifically in the case stated.
Before the
magistrates two other points were taken. One was that the correct sum had not
been lawfully demanded. Before us Mr Lewsley has mounted an interesting and
stimulating argument of a highly technical kind, devoid of merit, but from a
forensic point of view no doubt none the worse for that, saying that, although
the demands were produced, there was not also produced those documents that
customarily go with the demands giving that mass of information which the Act
and the rules made under the Act oblige the local authority to provide. He,
accordingly, says that for that reason the correct sum had not been lawfully
demanded. The trouble with that point is–and it deprives us of the stimulating
task of determining its validity–that it was never taken in the court below.
The demands were produced, and no point has been raised in the case stated. Mr
Campbell, who appeared before the magistrates (Mr Lewsley did not), has
confirmed that there was no complaint made that the authority had not complied
with its statutory obligations. The other point taken was that the appellants
had not been lawfully rated. That was based upon a technical point of equal
interest but suffering, I fear, from the same defect, the point being that no
rate had been produced and no formal documents had been produced showing that
the company and the property were included by amendment or otherwise in the
rate itself.
That indeed
might have given rise to submissions and arguments if it had been taken before
the magistrates. We have little doubt that, if that point had been taken before
the magistrates or the previous one to which I have referred, there would have
been documents produced or an adjournment sought for the production of the
necessary documents.
As Mr Lewsley,
I think, accepts, this court cannot entertain on a case stated points of law of
this kind which were never taken in the court below. Accordingly, on the one
point which is open to argument in this case we reach the conclusion that the
magistrates were right in the decision which they made, and accordingly this
appeal must be dismissed.
GEOFFREY LANE
LJ expressed his agreement with the judgment delivered by Ackner J.
The appeal was dismissed. Leave to appeal further was
refused.
