Rating–Flat in house in ‘appalling state,’ ‘uninhabitable though in fact inhabited’–Occupier’s proposal for nil value–Reductions of value by local valuation court and Lands Tribunal too low, but not nominal figures–Occupier’s appeal to Court of Appeal on points of law–Tribunal held to be in error in not taking account of seriously overcrowded conditions in a groundfloor flat through which occupier of subject flat had to pass to bathroom–Also in error in holding as a matter of law that there could never be a nil value if there was an actual occupier in beneficial occupation–Effect on valuation of breach of statutory obligations discussed, but no decision that ‘illegality’ must produce a nil value–Case remitted to Lands Tribunal to revalue in light of judgments
The appellant,
Mrs Pauline Black, occupier of a first-floor flat at 181 Oxford Gardens, North
Kensington, London W10, appealed to the Court of Appeal on points of law from a
decision of the Lands Tribunal reducing the gross and rateable values of her flat
to £70 and £39 respectively. She claimed that the value should be nil. (The
values in the valuation list had been £260 and £190 and the local valuation
court had reduced them to £100 and £60).
The appellant
appeared in person; Alan Fletcher (instructed by the Solicitor of Inland
Revenue) represented the respondent.
Giving the
first judgment at the invitation of Stephenson LJ, BROWNE LJ said: This is an
appeal by the ratepayer, Mrs Pauline Black, from a decision of the Lands
Tribunal dated October 29 1975 as to the valuation for rating of part of a
house at 181 Oxford Gardens, London W10, which she occupies. The valuation has
to be made in accordance with section 19(2) of the General Rate Act 1967 and
the definition of ‘gross value’ in section 19(6). The hereditament is described
in the decision of the tribunal:
Mrs Pauline
Black is the occupier of a first-floor flat in a two-storey house known as 181
Oxford Gardens, North Kensington, W10, which is situated at the western end of
the thoroughfare close to the junction of Latimer Road. The house was built
about the turn of the century and the appeal flat comprises two bedrooms,
landing, we, living-room with communicating lobby to the kitchen. It is
approached through the street door, hall and staircase near the top of which
there is a door. There is the use of a ground-floor bathroom and a right of
passage through the ground-floor kitchen to the back garden.
In the notice
of appeal the appellant contended that the hereditament was incorrectly
described in the valuation list, but she has rightly abandoned this contention.
In the 1973
valuation list the appellant’s hereditament was assessed at gross value £260,
rateable value £190. On May 6 1974 the appellant made a proposal that ‘the
hereditament should be reassessed as uninhabitable,’ which I understand to mean
that the value should be reduced to nil. On October 10 1974 the local valuation
court reduced the assessment to gross value £100, rateable value £60. The
appellant appealed to the Lands Tribunal, which on October 29 1975 made a
further reduction to gross value £70, rateable value £39. The appellant now
appeals to this court, asking that the value should be reduced to nil.
There is no
doubt that this house is in an appalling state. There are two statements of
agreed facts, a ‘Statement of Facts (General)’ and a ‘Statement of Agreed Facts
relating to the condition of Disrepair.’
I need not refer to these in detail, because they are accurately and
helpfully summarised in the decision of the tribunal:
The parties
agreed a comprehensive schedule of condition as at the date of the proposal.
This indicated that the flat was indeed in an extreme state of dilapidation. It
is unnecessary to describe this in detail but it includes defective windows,
dampness, active wet and dry rot in architraves, floorboards and joists
(including a large hole extending right through from the kitchen lobby to the
kitchen underneath), defective wall and ceiling plaster, no hot water,
collapsed sink (necessitating the use of a hose to fill cooking vessels etc),
broken we cistern, and no electric supply due to the Board’s refusal to connect
owing to unsafe wiring.
Then on page
4:
I have
inspected the appeal flat and the general state of repair of the house. I find
that the condition is as described in the schedule together with further
dilapidation which has taken place naturally over the intervening period. I am
in no doubt that the flat is unfit and dangerous for occupation especially in
regard to the living room and kitchen and we area in the back addition, and the
shared bathroom is quite unusable. But it is not within the jurisdiction of the
Tribunal to procure a closing order.
The first
point we have to consider is the effect, if any, on the rateable value of the
‘harassment’ of the appellant by people living in the ground floor of the
house. On January 16 1973, when I understand that the ground floor was empty,
though there had previously been people living there, the Kensington Borough
Council made a ‘direction’ under section 19 of the Housing Act 1961, as amended
by the Housing Act 1969, directing that the maximum number of households for
the house (ie the whole house) should be one. That section provides as follows:
19.–(1) A local authority may, for the purpose of
preventing the occurrence of, or remedying, a state of affairs calling for the
service of a notice or a further notice under section 15 of this Act, fix as a
limit for the house what is in their opinion the highest number of individuals
or households or both who should, having regard to the considerations set out
in subsection (1) of that section, occupy the house in its existing condition,
and give a direction applying that limit to the house.
(2) A direction under the foregoing subsection
shall have effect so as to make it the duty of the occupier for the time being
of the house not to permit the number of individuals or households occupying
the house to increase to a number of individuals or households occupying the
house to increase to a number above the limit specified in the direction and,
if it is for the time being above that number, not to permit it to increase
further.
(10) If any person knowingly fails to comply with
the requirements imposed on him by subsection (2) of this section or furnishes
a statement which to his knowledge is false in any material particular, he
shall be guilty of an offence under this subsection.
(11) A person committing an offence under the last
foregoing subsection of this section shall be liable on summary conviction–
(a) where he
has not previously been convicted of an offence under that subsection or
section 90 of the principal Act, to a fine not exceeding one hundred pounds,
and
(b) where he has previously been convicted of an
offence under that subsection or the said section 90, to imprisonment for a
term
to both.
In spite of
this direction, two families of Nigerians, totalling 13 people, moved into the
ground floor in August 1973 and stayed there till March 1975, which covered the
date of the proposal in May 1974. As I have said, the letting to the appellant
included the shared use of a bathroom on the ground floor. It looks from the
plan as if the ground floor consists, besides the bathroom, of three rooms and
a kitchen.
The Lands
Tribunal dealt with this point as follows: Ground (4) of the appellant’s appeal
to the tribunal was:
that at the
material date she was subjected to harassment by a family living temporarily in
the ground-floor flat in overcrowded conditions.
The tribunal
said:
With
reference to Ground 4 it is understood that the family who lived in the ground
floor were rehoused in March 1975 at which date the Kensington Council made and
posted a limitation order under section 19 of the Housing Act 1961, which
prevents reoccupation of the ground floor as a separate household as long as
she resides upstairs.
Pausing there,
as I have said, it was not in March 1975 that the section 19 order was made but
in January 1973. The tribunal went on:
Harassment is
an offence for which remedy lies elsewhere.
In my
judgment, the tribunal is saying in the last sentence I have quoted that what
was happening on the ground floor was not relevant to the valuation for rating
of the appellant’s hereditament on the first floor and could not be taken into
account in the valuation. I think this is made clear by paragraph 4(c) of the
case stated:
The questions
upon which the decision of the Honourable Court is desired are:
(c) whether harassment was an offence for which
remedy lay elsewhere or whether in any event it is grounds for a reduction in
assessment.
I have no
doubt that the tribunal was wrong in so holding, and that this was an error of
law. The case must therefore go back to the tribunal for rehearing. What weight
the tribunal gives to this factor and what effect it has on the valuation is a
matter for them. I entirely agree with Mr Fletcher that in the ordinary way the
Lands Tribunal ought not to be required to decide neighbourly disputes about whose
children make the most noise and who makes the most mess in a shared kitchen,
and in the ordinary way I see no reason to disagree with what was said by the
tribunal in Hyde v Arden (VO) (1972) RVR 306 at p 307:
Inconsiderate
neighbours (as the tribunal has also remarked before now) cannot of themselves
be deemed to depress the rateable value of a property.
It is a
question of fact and degree. In the present case, it seems to me obvious that
as a matter of commonsense the conditions on the ground floor at the relevant
date (May 1974), especially having regard to the shared bathroom, were
something which must affect the rent which any tenant would be prepared to pay
for the first floor. In my judgment, it is in law something which can and ought
to be taken into account in the rating valuation.
But, although
I think that the case must in any event go back to the tribunal on this point,
we must also deal with the main question raised in the appeal. Mrs Black says
that, apart from the harassment point, the value should be reduced to ‘nil’,
and even if this is wrong we should try to give guidance to the tribunal about
how it should consider this other question on the rehearing. This question
raises two points:
(1) Was the tribunal right in holding that
because Mrs Black was in beneficial occupation the value could not be nil?
(2) What is the effect of the borough council’s
‘direction’ under section 19 of the Housing Act 1961; in particular, what is
the effect on value if the occupation of the hereditament in question is
‘illegal’?
As to (1), the
tribunal dealt with the point as follows:
Nevertheless
the flat is occupied by the appellant and this occupation contains the four
essential ingredients: there is actual possession, it is exclusive, it is
beneficial, and it is permanent (ie not transient). As regards ‘beneficial’ it
is clear that the occupation is of value to the tenant.
I agree with
Mr Oliver that the hypothetical tenant postulated in section 19(6) of the
General Rate Act 1967 would include the present occupier. I cannot therefore
find that the assessment should be nil; and I must have regard to the rent of
£3.30 per week inclusive being paid (or proffered because there is some doubt
in my mind whether it had at all times been accepted by the landlord in view of
certain proceedings for possession which I understand had been instituted). But
as an indication of annual value of the flat in its present condition I think
that this rent is suspect for the following reasons:
(a) the appellant, who told me that she had lived
there for twenty-five years, was anxious to retain the advantage of protection
under the Rent Acts and
(b) she had a strong motive in preserving her
occupation in the expectation of being qualified for rehousing if and when a
closing order was made.
Furthermore,
a prospective tenant for the flat in its present condition would take account
of the likelihood of a closing order within a short time and the disturbance to
his occupation in consequence; he would I believe reduce his rental offer to quite
a low figure (see Dawkins (Valuation Officer) v Ash Brothers
& Heaton Ltd.)
The reference
should be corrected, the reference is [1969] 2 AC 366. The tribunal then went
on:
What then is
the annual value? I have been given no
other figures than those contended for by the parties. Making the best I can of
the evidence and my inspection, I put this figure at £2 per week inclusive
which I calculate in terms of gross value would be equivalent to £70.
He then gave
the corresponding rateable value. The appellant, as I understand, was
contending for a nil figure. The tribunal’s reasoning is:
(a) the actual occupier, Mrs Black, is in
beneficial occupation of the hereditament, that is the occupation is of value
to her;
(b) the actual occupier must be taken into
account as one of the possible hypothetical tenants;
(c) therefore the value cannot be nil.
Mr Fletcher
supported this reasoning. He submitted that whenever there is an actual
occupier in beneficial occupation of a hereditament it necessarily follows that
the hereditament is not incapable of beneficial occupation and therefore the
hypothetical tenant would pay some rent for it. In such a case, therefore,
there can never be a nil value.
I have no doubt
that the tribunal’s decision on this point, and Mr Fletcher’s submission, raise
a question of law, and a question of law of great importance. Although, of
course, Mr Fletcher put before us all the relevant authorities and was of the
greatest help to us, I am sorry that we have to decide this question (and also
the question of law on point (2)) without the advantage of full argument by
counsel on the other side.
Mr Fletcher
submits that the fiction that the hereditament is vacant and to let on the date
when the valuation is to be made ‘is only a mode of ascertaining the existing
value of the occupation to the existing occupier’ (that is a quotation of Lord
Denman C J delivering the judgment of the Court of Queen’s Bench in R v The
Grand Junction Railway Co (1844) 4 QB 18 at p 43). I think this proposition
may be misleading. It is clear that the actual occupier must be taken into
account as one of the hypothetical tenants, but it is also clear that (anyhow
in the case of a dwelling-house) factors purely personal to the actual
occupier, which increase the value to him but would not increase it o any other
hypothetical tenant, must be disregarded–see, for example, Lord Buckmaster in Poplar
Assessment Committee v Roberts [1922] 2 AC 93 at p 103 and Lord
Pearce in Dawkins (Valuation Officer) v Ash Brothers and
Heaton Ltd [1969] 2 AC 366 at p 382 C-D. For example, if the actual
occupier has lived in the house all his or her life and has a strong
sentimental attachment to it, this must be disregarded in the valuation. As I
understand, it was for this reason that the tribunal in the present case
rightly disregarded in the valuation the facts that Mrs Black had lived in the
flat for 25 years, was anxious to retain the
rehousing if and when a closing order was made.
If the
tribunal of fact (the local valuation court or the Lands Tribunal) comes to the
conclusion that if factors personal to the actual occupier are disregarded no
one would give any rent for the hereditament, there is in my judgment no reason
in law why it should not find a nil value. I find it very difficult to imagine
that anyone who had not Mrs Black’s personal reasons for wanting to stay there
would give any rent for this hereditament.
In the Grimsby
Docks case (British Transport Commission v Hingley (Valuation
Officer) [1961] 2 QB 16) the British Transport Commission was plainly in
beneficial occupation of the docks, but the Lands Tribunal found a nil value
and their decision was upheld by this court. Mr Fletcher submits that that case
is distinguishable because–(a) the valuation in that case was on the profits
basis; and (b) because in that case the valuation had to be made direct to net
annual value under the provision then corresponding to section 19 (3) of the
General Rate Act 1967 (that is on the assumption that the tenant would bear the
cost of repairs etc), whereas in the present case the value to be ascertained
is the gross value (that is on the assumption that the landlord would bear the
cost of repairs etc). He also, I think, reserved the right to argue that that
case was wrongly decided.
It is true
that the Grimsby Docks were a hereditament to which as a matter of practice,
and possibly as a matter of law, the profits basis had in those days to be
applied. But the Lands Tribunal did not rely only on the consideration that the
profits basis produced a nil value. They found as a fact that although a tenant
might be found for the docks he would not be willing to pay any rent for them
(see [1961] 2 QB at p 22 and the judgment at p 43). The difference between a
valuation to gross value and a valuation direct to net annual value is
obviously a factor relevant to a decision on the facts whether or not the
hereditament could be let at any rent, but I cannot see that it creates any
valid distinction in law. In my judgment, that case is an authority which
supports what I think is the right answer in principle–namely, that there is no
reason in law why in proper circumstances there should not be a nil value even
though the actual occupier is in beneficial occupation.
I am therefore
of the opinion that the Lands Tribunal was wrong in holding that as a matter of
law there could not be a nil value in this case. Whether or not there should in
fact be a nil value is for the tribunal to consider on the rehearing.
As to (2)
‘illegality,’ the appellant says that the borough council and the landlord were
in breach of various statutory obligations under the Public Health Act 1936 and
the Housing Acts and that therefore the value should be nil. She says that a
demolition order or a closing order under section 17 of the Housing Act 1957 or
a prohibition order under section 94 (2) of the Public Health Act 1936 ought to
have been made. It seems clear that no closing order or demolition order has in
fact been made under the Housing Act 1957. According to a letter of October 22
1970 from the borough solicitor to the appellant, an abatement notice under the
Public Health Act 1936 (presumably under section 93) had been served and had
expired, and ‘proceedings under the above Act (presumably in the magistrates’
court under section 94) will shortly be made by the council.’ However, in a letter dated September 17 1975
from the borough environmental health officer to the valuation officer it is
said that ‘there are no notices outstanding at the above premises under the
Public Health Acts.’ What had happened
between 1970 and 1975 is wrapped in mystery, but there is no evidence that a
prohibition order under section 94 (2) of the Public Health Act 1936 has been
made. But the direction under section 19 of the Housing Act 1961, to which I
have already referred, was in force at the material time (May 1974).
Mr Fletcher
accepted that if Mrs Black’s flat had been vacant and to let in May 1974 it
would in the real world have been unlawful to let it because of the direction
and of the two families in the ground floor. But he submitted that in the
hypothetical world of rating it should be assumed that a hereditament could be
let for the purposes of the actual use made of it by the existing occupier,
whether or not in the real world that use would be unlawful. He told us that in
his experience hereditaments are always valued on their actual use, whether or
not it is lawful. There are no doubt many hereditaments of which the existing
use is ‘unlawful,’ in the sense that proceedings could be taken to stop it, for
example premises being used in breach of planning control or as an unlicensed
caravan site–and it would be odd if an occupier could reduce his rateable value
by saying that his use was unlawful. For reasons which will appear later, I do
not think that in this case we have to decide the important and difficult
question of the principles to be applied to the valuation of such
hereditaments.
But I cannot
accept Mr Fletcher’s general proposition. He told us that he cannot find any
direct authority on this point, the nearest being Lord Atkinson’s speech in the
Poplar case [1922] 2 AC 93 at p 106 and the following pages, and a
reference by Lord Parker of Waddington in Metropolitan Water Board v Chertsey
Assessment Committee [1916] 1 AC 337 at p 361, to ‘every purpose for which
(the hereditament) can legitimately be used’ (my italics). But Lord
Atkinson was not considering the problem raised by Mr Fletcher’s proposition;
he was dealing with the quite different problem which arises where the actual
occupier is prohibited by a statute or trust from letting the hereditament or
taking a tenancy of it, and with the authorities which establish that in such
cases the actual occupier must still be taken to be a possible hypothetical
tenant. It is clear that any prohibition or restriction on the use of a
hereditament imposed by statute which would bind any and every occupier must be
taken into account in valuation. ‘Now, if land is ‘struck with sterility in any
and everybody’s hands,’ whether by law or by its inherent condition, so that
its occupation is, and would be, of no value to any one, I should quite agree
that it cannot be rated to the relief of the poor’ (Lord Herschell L C in LCC
v Erith and East Ham [1893] AC 562 at p 591). ‘The actual hereditament
of which the hypothetical tenant is to be determined must be the particular
hereditament as it stands, with all its privileges, opportunities, and
disabilities created or imposed either by its natural position or by the
artificial conditions of an Act of Parliament’ (Lord Buckmaster in Port of
London Authority v Orsett Union [1920] AC 273 at p 305). See also
cases on public parks etc, dealt with in Chapter 15 of Ryde on Rating,
13th Ed p 311 and the following pages.
But this is
not the situation here. The hereditament to be valued is the first-floor flat.
The ‘direction’ does not directly apply to the first-floor flat. The
‘direction’ does not directly apply to
the first floor, but to the house as a whole. When the ‘direction’ was made in
January 1973 the ground floor was empty and it did not make the occupation of
the first floor illegal. When the two families moved into the ground floor in
August 1973 this did not make the occupation of the first floor illegal, though
it may have made the landlord liable to prosecution under section 19(1) of the
1961 Act. The continued occupation of the first floor was not illegal at the
date of the proposal in May 1974. But if it had been vacant and to let in May
1974 it would have been a breach of the direction and of section 19 to permit
anyone to occupy it so long as both or either of the families were still in the
ground floor. Mr Fletcher points out that if the ground floor had had to be
valued at any time after the direction was made, and was assumed to be vacant
or to let, it would also have been ‘illegal’ to let an occupier into the ground
floor because Mrs Black was on the first floor. The logical result seems to be
that the value of both the ground floor and the first floor was nil, although
one household is permitted to live in one or the other. If one ignores the
other deplorable features of this hereditament, this seems to me absurd. The fiction
that the hereditament is vacant and to let is only a means of arriving at its
value. I am not prepared to carry this fiction to its logical conclusion in
order to produce this absurdity. I am therefore not prepared to hold that for
this reason the value of the first floor must be nil.
possibility that a closing order would be made, as the Lands Tribunal rightly
thought (see Dawkins (Valuation Officer) v Ash Brothers and
Heaton Ltd [1969] 2 AC 366) and in considering this possibility he would
take into account the direction.
On all the
facts of this case, I am very nearly prepared to hold that the only reasonable
conclusion is that the value of Mrs Black’s hereditament is nil, but on the
whole I feel that this would be too great an encroachment on the functions of
the tribunal of fact. I would, therefore, allow the appeal and remit the case
to the Lands Tribunal for reconsideration in the light of the judgments of this
court.
Agreeing,
WALLER LJ said: The Lands Tribunal has found that the occupation of the flat by
the appellant contains the four essential ingredients of beneficial occupation
and therefore concludes that the occupation is of value to the tenant. But is
it of value to the hypothetical tenant envisaged in section 19(6) of the
General Rate Act 1967? What is the ‘rent
at which the hereditament might reasonably be expected to let from year to
year.’ The flat is ‘unfit and dangerous
for occupation’ and, in my view, it is unlikely that anybody except Mrs Black
would wish to live in it. She has lived there for 25 years, she wishes to
retain the advantage of the protection of the Rent Acts and she has an
expectation of being qualified for rehousing if a closing order is made. None
of these considerations would apply if the flat were vacant. The flat, if it
has any value at all, has value to Mrs Black solely because she has the
prospect of being rehoused having lived in this flat for so long. The
difficulty in Mrs Black’s way in arguing for a nil valuation is that the Lands
Tribunal has taken these factors into account in arriving at its valuation.
In my opinion,
however, there is one fact found by the Lands Tribunal which has not been taken
into consideration in arriving at the valuation. On January 16 1973 the local
authority made an order under section 19(1) of the Housing Act 1961, as
amended, limiting the number of households in 181 Oxford Gardens to one. In
August 1973 the ground floor through which Mrs Black had to walk to reach her
bathroom was occupied by 13 Nigerians consisting of two families. They were
there from August 1973 to March 1975, and in particular were there in May 1974,
the relevant date for the purposes of this assessment. The Lands Tribunal did
not take the presence of these 13 people in the ground floor into
consideration. Mr Fletcher has submitted that the Lands Tribunal was correct in
ignoring this because it was of a transient nature. In my view that is an
over-simplification of the facts. It would seem that if one assumes that Mrs
Black’s flat was vacant and the question arises as to what rent the
hereditament might reasonably be expected to be let from year to year one would
come to the conclusion that it is in the highest degree unlikely that anybody
would become a tenant of the hereditament because to do so would be unlawful;
furthermore, even if somebody was found who was prepared to risk the
unlawfulness of the occupation, it is in the highest degree unlikely that
anybody would wish to become a tenant of the flat in the condition found by the
Lands Tribunal, when it is borne in mind that the ground floor was occupied by
13 people and that access to the bathroom and back garden involved going
through the ground-floor flat. When these facts are taken into consideration I
find it difficult to believe that anybody would pay any rent for the
hereditament with which this case is concerned.
Mr Fletcher
has submitted that it is only in the case of a valuation made on a profits
basis that it is possible to have a nil valuation. Without deciding whether
this is right or not I can assume that if there is beneficial occupation there
must be some value in the hereditament. My own view in this case, however,
would be that when these other factors which the Lands Tribunal did not take
into account are taken into account the valuation must be nominal. An
additional factor which would, I think, merit inquiry is the action of the
local authority if the flat were empty. To allow a new tenant into a house
which was unfit for human habitation might involve taking an additional person
into the list of those who have to be rehoused. I suspect that the local
authority would make a closing order on the house as soon as it was vacated
and, therefore, there would be no prospect of letting the hereditament. I
mention this, because Mrs Black is appearing in person, as something that the
Lands Tribunal might also consider.
I would,
therefore, agree that the appeal should be allowed and the case remitted to the
Lands Tribunal to revalue.
Also agreeing,
STEPHENSON LJ said: At what rent might this hereditament, uninhabitable though
in fact inhabited and shortlived though allowed to survive longer than it
should have been, reasonably be expected to let from year to year if the tenant
and landlord undertook the things set out in the definition of ‘gross value’ to
be found in section 19(6) of the General Rate Act 1967? Or what rent would a hypothetical tenant pay
for this hereditament, supposing it were vacant and to let? The natural answer to either question seems
to be a plain ‘nothing.’ Nobody but Mrs
Black would pay anything to live there, and she only does so for reasons
personal to her.
I am unwilling
to assent to Mr Fletcher’s argument that that negative can never be the answer
where the hereditament is a dwelling actually occupied because such occupation
must be of some value to the tenant and, therefore, beneficial. The decision of
this court in British Transport Commission v Hingley (Valuation
Officer) [1961] 2 QB 16, suggests, if it does not decide, the contrary. But
I think that such a dwelling must usually have some rateable value.
I am also of
opinion that a dwelling in the insanitary and dangerous condition of Mrs
Black’s flat, which is the subject of an unenforced abatement notice under
section 93 of the Public Health Act 1936, which was at the material time
occupied in contravention of an unenforced direction under section 19 of the
Housing Act 1961 and which will, it is to be hoped and expected, be made the
subject of a demolition or closing order under section 17 of the Housing Act
1957 in the near future, must have a rateable value approaching nil if it has
any rateable value at all. For all those three matters calling for the
execution of statutory powers are, in my judgment, just as much matters to be
taken into account in assessing the gross and rateable value of the
hereditament as its physical condition.
I am unwilling
to go so far as to hold (in the absence of any direct authority and of legal
argument on both sides, though Mrs Black in person has done her best) that if
the hereditament cannot be let without a breach of statutory duty its value for
rating purposes must be nil. That would appear to be contrary to the decisions
collected in the speech of Lord Atkinson in Poplar Assessment Committee
v Roberts [1922] 2 AC 93 at p 107-113 and what the learned Lord says
about them. However, I agree with Browne LJ, for the reasons which he gives,
that we do not have to decide the question whether, when the law prohibits an
actual tenant, or an actual tenant who pays rent, there may still
(paradoxically) be a hypothetical tenant reasonably expected to pay some rent.
But, being of
the opinion that all these matters are to be taken into account in assessing
the benefit of Mrs Black’s occupation to her and the rent at which her flat
could reasonably be expected to let to a hypothetical tenant, and that not all
of them were taken into account by the Lands Tribunal in assessing the gross
value of the flat at £70, I agree that the appeal must be allowed and the case
remitted to the Lands Tribunal to revalue the hereditament as low as may be in
accordance with our judgments.
Appeal allowed
with costs in the Court of Appeal. Case remitted to the Lands Tribunal to
revalue the hereditament in the light of the judgments of the court. An
application on behalf of the respondent for leave to appeal to the House of
Lords was adjourned. In stating the details of the court’s order, STEPHENSON LJ
said that the judgments ‘make it plain that it is open to them (the Lands
Tribunal) to reach a nil valuation, but
these premises very highly or as high as they have done.’
