Rating – Non-domestic rates – Alteration of list – Effective date – Appellant appealing against decision of Valuation Tribunal for England in respect of alteration of valuation of business premises in 2010 rating list – Whether appellant’s property rights under Human Rights Convention breached by time limit in regulation 14(2) of Non-Domestic Rating (Alteration of Lists and Appeals) England Regulations 2009 – Appeal dismissed
The Old Harbour Station, Dover, was a Grade II listed building. It was used as a railway station until 1927. It was then used variously as a bonded warehouse, a morgue, and as a training centre for P&O Ferries, from whom it was purchased by the appellant ratepayer in May 2013. By that time much of the building was in a dilapidated condition and the appellant undertook substantial works to restore the building and convert it for use as a number of small office units. On 20 April 2015 the appellant informed the respondent valuation officer that works were being undertaken and requesting information about business rates exemption on the grounds that the building was listed and unoccupied.
The appellant appealed against a decision of the Valuation Tribunal for England (VTE) in respect of her proposal that the rateable value of part of the building should be reduced in the 2010 rating list from £15,000 to nil by reason of its condition. The effect of regulation 14(2)(c) of the Non-Domestic Rating (Alteration of Lists and Appeals) England Regulations 2009 was that an alteration to give effect to a proposal served on or after 1 April 2015 could only take effect from that date even where the circumstances giving rise to the proposed alteration first occurred before that date.
The appellant submitted that the respondent’s conduct of the matter had breached her rights under article 1 of the First Protocol (A1P1) to the European Convention on Human Rights by which every person was entitled to the peaceful enjoyment of their possessions; and that both the VTE and the tribunal were, in effect, obliged to treat regulation 14(2) of the 2009 Regulations (which limited the time from which an alteration in the rating list would have effect) as if it permitted an alteration to take effect from an earlier date in order to avoid acting incompatibly with the appellant’s Convention rights.
Held: The appeal was dismissed.
(1) The appellant’s primary case in relation to the compatibility of regulation 14(2) of the 2009 Regulations was that there was no obligation on a court or tribunal to give effect to a provision of secondary legislation which was ultra vires and that it was within the jurisdiction of the appeal tribunal to determine that a decision giving effect to such a regulation was erroneous in a point of law. However, the Upper Tribunal only had jurisdiction to determine any challenge to the vires of secondary legislation as being beyond the scope of the enabling power in primary legislation whenever it was necessary to do so in determining whether a decision under appeal was erroneous in point of law. If the tribunal was persuaded that the application of regulation 14 in this case was incompatible with the appellant’s Convention rights under A1P1, it would be limited to making a declaration of incompatibility under section 8(1) of the Human Rights Act 1998. It could not disregard the provision or apply it in a manner inconsistent with any permissible interpretation of its meaning and effect: Chief Adjudication Officer v Foster [1993] AC 754 distinguished; Secretary of State for Work and Pensions v Carmichael [2018] 1 WLR 3429 followed.
(2) Article 1 of the ECHR prohibited interference with a person’s “peaceful enjoyment of his possessions”. The concept of “possessions” was not limited to the ownership of material goods but extended to other rights and interests constituting assets of an individual. They could either be “existing possessions” or assets or claims in respect of which an applicant could argue that he had at least a legitimate expectation of their being obtained or realised. The classification of assets as “possessions” for that purpose was independent of their recognition as such in domestic law. In each case the issue that needed to be examined was whether the circumstances of the case, considered as a whole, conferred on the applicant entitled a substantive interest protected by A1P1. The appellant’s argument overlooked the fact that in January 2018 she had been relieved of liability for almost the entirety of the rates payable in respect of the period before 1 April 2015 with which the appeal was concerned. In judging whether there had been any interference in the appellant’s Convention rights by her subjection to the assessment and appeal process, it was necessary to consider the rating regime and her experience of it as a whole, including the provisions allowing relief in respect of empty property or, on a discretionary basis, in cases of hardship. The appellant had benefited from both those aspects of the rating legislation and had not been required to meet a liability in respect of the period in dispute. That was a complete answer to the suggestion that there had been any interference with her possessions by interference with the value of the couple’s pensions by the imposition of an unwarranted expense in the form of business rates. Regulation 14(2) did not breach the appellant’s property rights under A1P1.
(3) The appellant’s submission was rejected that, as the appeal property was a prominent one in Dover, such that its dilapidated condition would have been readily apparent to anyone observing it from the road, it was incumbent on the valuation officer to investigate whether any alteration was required to the list to reflect that condition from time to time. The valuation officer was under a duty to maintain an accurate list but that duty had to be discharged in the real world, where there were finite resources, and only 24 hours in the valuation officer’s day. He might have to give priority to certain known inaccuracies, and defer consideration of other matters which possibly required alteration. The valuation officer’s duty to act fairly was therefore discharged if he did his best to compile and thereafter maintained an accurate list, making such alterations as were necessary for that purpose. It was not possible to graft onto the obligation to maintain an accurate list any temporal element or requirement as to when it had to be altered. It followed that the valuation officer was not in breach of duty if, for reasons unknown to him or her connected with the occupation of a hereditament or its condition, the rating list was for the time being inaccurate.: R (Corus UK Ltd) v The Valuation Office Agency [2001] EWHC Admin 1108 and National Car Parks Ltd v Baird (VO) [2004] EWCA Civ 967; [2004] PLSCS 188 followed.
The appellant appeared in person; Jacqueline Lean (instructed by HMRC Solicitor’s Office) appeared for the respondent.
Eileen O’Grady, barrister
