DECISION
Introduction
1. The Appellant appeals to the Lands Tribunal from the decision of the Nottinghamshire Valuation Tribunal (“NVT”) dated 4 November 2005 whereby it decided that various properties, comprising district heating systems (“DHSs”), each constituted domestic property within section 66(1)(b) of the Local Government Finance Act 1988. The DHSs fall within the areas of Bassetlaw District Council (“Bassetlaw”) as regards the first two DHSs mentioned above and within the area of Mansfield District Council (“Mansfield”) as regards the remaining DHSs. Proposals to alter the rating list for 2000 were made by Wilks Head & Eve on behalf of Bassetlaw dated 30 March 2005 and were made by King Sturge on behalf of Mansfield dated 8 June 2005. In each case the proposal was made in reliance on Regulation 4 of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 on the basis that the authorities were of the opinion that by reason of a decision of the Lands Tribunal (in the case of Head v Tower Hamlets LBC [2005] RA 177) the entry in the rating list for 2000 was wrong in that none of the DHSs should have been included at all because the DHSs were each domestic property and consequently not to be included in the non-domestic rating list.
2. NVT concluded that all of the twelve DHSs with which the present appeal is concerned were indeed domestic property and should be removed from the 2000 non-domestic rating list. The NVT concluded that the case of Head covered each such DHS. NVT also found of significance the fact that the Appellant had agreed to treat as domestic property two other DHSs, namely a DHS, at
3. A Reply has been served apparently on behalf of both the Respondents by King Sturge dated 5 April 2007 arguing that the case of Head covers the present cases and indicates that each of the relevant DHSs was appurtenant to a housing estate and was for that reason domestic property for the purposes of the 1988 act. The Reply also stated that if, which was denied, any of the DHSs was rateable, then the Respondents did not contest the values shown in the respective entries attached as Appendix B to the Appellant’s Statement of Case. That Reply having been served, a letter was written to the Lands Tribunal by Wilks Head & Eve on behalf of Bassetlaw, dated 31 July 2007 stating that Bassetlaw did not wish to proceed with the present appeal and they would not be serving any evidence or pursuing the matter before this Tribunal. So far as concerns Mansfield, who were represented by King Sturge, it is puzzling to find that Mansfield submitted no evidence to the Tribunal and were not represented before it notwithstanding that no formal communication from King Sturge on behalf of Mansfield had been received to the effect that Mansfield would not participate in the appeal. However it is clear that
4. At the hearing before me the Appellant himself gave sworn evidence. He presented two separate ring binders, one for the Bassetlaw DHSs and one for the Mansfield DHSs. These ring binders were divided into sections, one section dealing with each DHS and containing a detailed plan showing the location of the DHS and showing the housing served by that DHS and including photographs of the DHS and a plan of the layout of the DHS. This information was further supplemented by oral evidence from the Appellant, which he had helpfully also provided in writing and which was handed in in two documents headed “Summary of Physical Characteristics Bassetlaw” and “Summary of Physical Characteristics Mansfield”. He also produced further photographs in relation to each DHS.
5. In agreement with the matter raised by the Respondents in their Reply, the Appellant indicated that if the Appellant were to succeed in this appeal in relation to any DHS, then in relation to such a DHS the DHS should be restored to the list with a value as shown for that DHS in Appendix B to the Appellant’s Statement of Case (pages 8 and 9 of the trial bundle).
Facts
6. I am grateful to Mr Allen for the care with which he produced the two ring binders giving particulars of each DHS and for the detail contained therein and in his evidence. He made it clear that the material therein contained was based upon the material which formed agreed documentation before NVT. Thus although he was unable to lay these two ring binders before me as being formally agreed by the Respondents for the purposes of this hearing, he verified himself the truth thereof and he indicated that he had no reason to believe that the Respondents would in any way dissent from the facts therein contained. He confirmed that the relevant date for considering the facts is 1 April 2000 and that the facts as described by him were, unless he expressly stated otherwise (which he did on certain minor points not presently relevant) the same as the facts that existed on 1 April 2000. Having regard to the level of detail provided by Mr Allen in his documents and evidence I conclude I can properly decide these appeals without needing to view the sites. I was not invited to undertake a view.
7. This case concerns twelve separate DHSs. I will describe in a little detail three of them, namely (i) the DHS in respect of which Mr Kolinsky submitted his arguments were most clearly correct (although by making this point he was not to be taken as indicating any lack of confidence on any of the other DHSs); (ii) the DHS which Mr Kolinsky accepted was the DHS which might be said, of all twelve of them, to come closest to constituting domestic property (although Mr Kolinsky stressed that it did not do so); and (iii) one of the DHSs (there being two in total in this category) which served not merely residential properties but also a community centre. As regards the other nine DHSs I set out a description of these in the Appendix to this decision.
8. The clearest case, Mr Kolinsky submitted, could be found at
9. The DHS referred to in paragraph 7(ii) above is
10. As regards
11. Mr Allen also gave evidence regarding the two other DHSs which NVT found of significance. As regards that at
The Law
12. Section 42 of the Local Government Finance Act, 1988 requires that a local non-domestic rating list must show each hereditament which fulfils various conditions including being “a relevant non-domestic hereditament”. Section 64(8) provides that a hereditament is non-domestic if either (a) it consists entirely of property which is not domestic, or (b) it is a composite hereditament. A hereditament is composite if part only of it consists of domestic property (section 64(9)).
13. Section 66 of the Act provides that, subject to certain subsections (not presently relevant):
“…property is domestic if –
(a) it is used wholly for the purposes of living accommodation,
(b) it is a yard, garden, outhouse or other appurtenance belonging to or enjoyed with property falling within paragraph (a) above,
(c) …
(d) …”
14. Section 66(1)(b) was considered by the President of the Lands Tribunal in Martin v Hewitt (Valuation Officer) [2003] RA 275. This case concerned the question of whether certain boathouses on the shores of
“So in the end, in my judgment, the crux of the problem becomes: Is this within the curtilage? The word ‘curtilage’ is defined in the Shorter Oxford English Dictionary, 3rd edn (1973) as ‘A small court, yard, or piece of ground attached to a dwelling house and forming one enclosure with it.’ Note 7 in Stroud’s Judicial Dictionary, 4th edn (1971) p.663 suggests that it may be wider than that. We have looked at some of the cases cited in Stroud, but I do not think they afford us any assistance. What is within the curtilage is a question of fact in each case, and for myself I cannot feel that this comparatively extensive piece of pasture ought to be so regarded, particularly where, as here, it was clearly divided off physically from the house and garden right from the start and certainly at all material times.”
The Tribunal also cited from the judgment in that case of Buckley LJ at p.542-3 which includes the following passage:
“In my judgment, for one corporeal hereditament to fall within the curtilage of another, the former must be so intimately associated with the latter as to lead to the conclusion that the former in truth forms part and parcel of the latter.”
These cases make clear that the question of whether one building or piece of land falls within the curtilage of another is a matter of fact and degree in every case.
15. In Head (Valuation Officer) v Tower Hamlets LBC the President of the Lands Tribunal considered the cases of eight separate DHSs which are described in paragraphs 9 to 16 of the decision. The Tribunal accepted that the expression “appurtenance” in section 66(1)(b) embraced property that would pass with the principal subject matter of a conveyance without the need for express mention and was confined to the curtilage of the building in question. The Tribunal rejected the argument that it was necessary to show that some individual tenant was able to claim to be entitled to the DHS. In paragraph 23 the Tribunal stated as follows:
“23. I can see no difficulty in concluding that the district heating systems in the present case fall within para (b). To take the case of Glenkerry House, perhaps the clearest example, the boiler house is an integral part of the 13 storey building, being situated on the top of the lift/stair block. The accommodation in the building is wholly residential. The purpose of the district heating system is to provide heating and hot water to the residential accommodation. The building is owned by the council, and it is plain that the boiler house and the associated pipework within the building would pass on any conveyance of the building. The district heating system can properly be said, therefore, to be appurtenant to the residential accommodation and to belong to it. I see no reason to think that different considerations would apply where the pipework extends so as to serve other adjacent buildings in the council’s ownership, nor do I think that the very small extent to which, in some cases, non domestic premises are also supplied would take any of the district heating systems outside the definition of domestic property. Indeed counsel for the valuation officer said that distinctions should not be drawn between any of the district heating systems in the present case if the conclusion was that any one of them was within the definition.”
16. The Lands Tribunal had to consider the situation regarding certain sewage treatment works in
“23. In our judgment the short but decisive answer to solicitor for the ratepayer council’s submission is that, as a matter of fact and degree, we do not find that either sewage treatment works falls within the curtilage of any of the dwellings that it serves. It may well be true that the “right to use” the sewage treatment works would pass on a conveyance. However, even if it were useful to talk of such an incorporeal right as being “within the curtilage” of the dwelling it serves, which we doubt, that is nothing to the point. It is the physical hereditament comprising the sewage treatment works that must be within the curtilage of the dwelling (or dwellings), if it is to be appurtenant to it (or them).
24. We find that the dwellings in St Andrew’s Green are, as the maps and photographs show, modest semi detached houses, on their own plots, surrounded by their own gardens with their boundaries marked with hedges and fences. Each one stands in its own curtilage. The freehold of six of these dwellings has been sold by the ratepayer council. However, it does not seem to us that it matters whether the houses are held by virtue of individual freeholds or are occupied under a tenancy from one landlord, in the circumstances of these dwellings. A house on its own plot with its own boundaries will be very likely to have its own curtilage although it is held on a tenancy from the same landlord as the houses on either side of it. Even though the sewage treatment works at St Andrew’s Green appears to adjoin the curtilage of 1 St Andrew’s Green, and thus a continuous red line could be drawn around both of them, they are not in the same curtilage any more than no 1 St Andrew’s Green is in the same curtilage as 2 St Andrew’s Green, which it also adjoins.
25. The factual situation at
Submissions
17. As already noted the Respondents, prior to deciding to play no part in the present appeal, served a Reply. In this they submitted that the present cases fell within Head v Tower Hamlets LBC and that the relevant DHSs were appurtenant in each case to a housing estate and accordingly were domestic property for the purposes of the 1988 Act.
18. On behalf of the Appellant Mr Kolinsky acknowledged certain difficulties arising from the decision in Head so far as concerns at least one of the DHSs with which that case was concerned, i.e. other than the DHS in Glenkerry House which was expressly considered by the President in paragraph 23 of the decision. In particular he accepted that the facts recorded regarding the
“The
Mr Kolinsky pointed out that the Tribunal did not give separate analysis in respect of each of the DHSs in that case because of the express concession by counsel for the valuation officer that distinctions should not be drawn as between any of the DHSs in that case if the conclusion was that any one of them was within the definition of appurtenance within section 66(1)(b). Mr Kolinsky stated that insofar as it was necessary for him to do so he argued that this concession was wrongly made. Mr Kolinsky also drew attention to the fact that it was not entirely clear as to where the property which was not used for living accommodation was situated in the various separate cases in Head.
19. Mr Kolinsky did not seek in any way to challenge the correctness of the decision in Head so far as concerns Glenkerry House or properties such as that. He argued that the proper analysis of the decision in Head is that a DHS constitutes an appurtenance within section 66(1)(b) if:
(1) it is possible to identify a principal building; and
(2) this principal building is used wholly for the purposes of living accommodation; and
(3) the DHS in question is within the curtilage within this principal building and belongs to or is enjoyed with that property.
In these circumstances section 66(1)(b) will be satisfied because the DHS will constitute an appurtenance belonging to or enjoyed with property which is used wholly for the purposes of living accommodation (namely the principal building). This factual situation will not be displaced by reason of the DHS also serving other property (whether living accommodation or otherwise, such as commercial property) which is situated outside the principal building.
19. Mr Kolinsky argued that, on the basis that the forgoing analysis of Head is correct, it is necessary to identify a principal building (being a building used wholly for the purposes of living accommodation) with a curtilage and to find that the DHS is within this curtilage. As regards the question of whether a DHS serving a single block containing a hundred flats would be within section 66(1)(b) but a DHS serving two identical blocks, close together, each of fifty flats, would not (for want of a principal building) Mr Kolinsky accepted that it was not essential to have a single principal building. Section 66(1)(b) could be satisfied provided that the two (or more) buildings could properly be said to possess a curtilage which included the DHS. However he submitted that it is a matter fact and degree and that the more separate buildings there are the less likely it is that one will be able to find a sensibly defined and coherent curtilage within which the DHS is situated.
20. Where a DHS serves what is in effect a housing estate, namely a large number of separate units (whether each such unit be a bungalow or a house or block of flats or block of sheltered accommodation), then Mr Kolinsky argued:
(1) that such a housing estate cannot have a curtilage for the purposes of section 66(1)(b) and the DHS therefore cannot be domestic property; alternatively
(2) while it remains theoretically possible as a matter of fact and degree for a housing estate to have a relevant curtilage for the purposes of section 66(1)(b), one is unlikely in such circumstances to be able to find either any one principal building or any congregation of buildings which together can sensibly be said to possess a coherent curtilage within which the DHS can be found to be situated for the purposes of section 66(1)(b).
21. Mr Kolinsky accepted that certain substantial buildings, e.g. country estates such as Woburn Abbey, could have very extensive curtilages embracing many buildings. However that was very different from the case of a local authority housing estate. In the former case the major residence was an identifiable principal building to which much else was in a sense subservient, whereas a housing estate constituted a large number of separate units of habitation each of co-equal status.
22. Mr Kolinsky further argued that insofar as there had been a fragmentation of ownership, in the sense that the estate was no longer wholly owned by a local authority but had as regards certain plots been purchased through enfranchisement or other sales off, then this diversification of ownership further compounded the difficulty of finding a congregation of buildings which together can sensibly be said to possess a coherent curtilage within which the DHS can be found to be situated.
23. Mr Kolinsky relied upon the
24. Addressing the facts of the Perlethorpe Avenue case (see paragraph 9 above) which was taken by way of example as being the case where any difficulties for Mr Kolinsky’s arguments (which he did not accept) would be the strongest, he contended that the DHS could not be said to be within the grounds of Melville Court. The DHS was separated from
25. Mr Kolinsky further argued, in case his main argument was wrong such that some of the present DHSs were capable of constituting domestic property within section 66(1)(b), that:
(1) As regards the two DHSs which serve not only residential property but also a community centre, namely Dundee Drive, Mansfield Woodhouse and also Larwood, Worksop, these DHSs could not fall within section 66(1)(b) because if, contrary to his argument, they were within a curtilage of other property, then they were within the curtilage of property which included not merely dwellings but also a community centre and accordingly the property within whose curtilage they were to be found did not fall within section 66(1)(a).
(2) As regards
Conclusions
26. It is necessary if a DHS is to constitute domestic property that the DHS constitutes an appurtenance belonging to or enjoyed with property falling within section 66(1)(a) – i.e. an appurtenance belonging to or enjoyed with property which is used wholly for the purposes of living accommodation. I accept that for a DHS to be an appurtenance of such property the DHS must be contained within the curtilage of such property, see paragraph 14 above. The question of whether a DHS falls within such a curtilage will be a matter of fact and degree in every case.
27. So far as concerns the decision in Head v Tower Hamlets LBC I have no difficulty in respectfully accepting and agreeing with the learned President’s analysis in paragraph 23 in relation to Glenkerry House which the Tribunal took as the clearest example. I accept Mr Kolinsky’s argument that the proper analysis of the Head case is that a DHS will be domestic property where it is possible to identify a building (or I would add buildings) which possesses (or possess) an identifiable curtilage within which the DHS is situated and which is (or are) used wholly for the purposes of living accommodation and to which the DHS belongs or with which it is enjoyed. If these conditions are satisfied then section 66(1)(b) will be satisfied – and this provision will not cease to be satisfied merely because the DHS also serves other dwellings or other property (being something other than living accommodation) situated outside the property within whose curtilage the DHS lies.
28. I am unable to accept that necessarily, as a matter of law, it is not possible for a congregation of buildings in the nature of a housing estate to have a curtilage for the purposes of section 66(1)(b) within which a DHS can lie. This is because the question of whether a building or piece of land falls within the curtilage of another building (or other buildings) is always a matter of fact and degree. It might be possible to construct hypothetical facts in which something which could properly be described as a housing estate did possess its own coherent and sensibly identified curtilage and for there to be a DHS within that curtilage.
29. However on the facts of the present case I reach the clear conclusion that none of the twelve DHSs with which I am concerned falls within the curtilage of any dwelling or of any dwellings. The case is very different from that in Glenkerry House in the Head case where the heating system was on the fourteenth floor of a principal building comprising residential accommodation. The closest any of the present cases come to having any principal building (being used wholly for the purposes of living accommodation) within whose curtilage the DHS might be argued to be situated is the case of
30. The cases found significant by the NVT at
31. I have reached the foregoing conclusion without taking into account the fact that on some of the estates there has been fragmentation of ownership through sales off, through enfranchisement or otherwise. I was asked by Mr Kolinsky to give a judgment on the extent to which this aspect of the matter could affect the question of whether section 66(1)(b) would be satisfied – i.e. whether fragmentation of ownership of the property served by the DHS would be relevant. Bearing in mind it is not necessary for me to reach a conclusion on this point and bearing also in mind the fact that I have heard argument from only one side in the present case, I conclude that it is not appropriate for me to say anything more on this point save that I provisionally respectfully agree with the obiter remarks of the Tribunal in paragraph 26 of Winchester v Handcock.
32. Also, bearing in mind the conclusion I have reached on Mr Kolinsky’s principal point, it is not necessary for me to consider the two alternative points raised by Mr Kolinsky and recorded in paragraph 25 above. I can simply state that I can see substantial force in the point recorded in paragraph 25(1) above, but I do not think it appropriate to make any comment in relation to the point in paragraph 25(2).
33. In the result I allow the Appellant’s appeal in the case of each of the twelve separate DHSs. I order that the relevant non-domestic rating lists be amended as shown on pages 8 and 9 of the bundle before me under the heading “Decision requested by the Valuation Officer”. This involves either the reinstatement of the previously existing rateable value, alternatively the entry of a rateable value as proposed by the Appellant (the Appellant only makes such a proposal where his valuation is lower than the previous figure – where his valuation is higher he merely seeks the reinstatement of the previous figure).
34. The foregoing concludes my determination of the substantive issues in this case. It will take effect as a decision when the question of costs is decided and at that point, but not before, the provisions relating to the rights of appeal in section 3(4) of the Lands Tribunal Act, 1949 and in the Civil Procedure Rules will come into operation. Any submissions on costs should be made in writing no later than 21 days after the date of this decision.
Dated 11 July 2008
His Honour Judge Huskinson
Appendix to the decision in RA/60-69/2005 and RA/71-72/2005
Description of the other 9 DHSs, being those DHSs not described in paragraphs 8,9 and 10 of the decision.
(2) Jubilee Way South,
(6) Benington Walk,
(8) Coverdale, Worksop. Stand alone boiler house and enclosed yard. It serves 57 dwellings of which none are owner occupied. Bounded to the east by a brick wall then agricultural land and on all other sides by public highway. The dwellings served are predominantly a mixture of detached, semi detached and terraced bungalows, each property having their own plots, surrounded by their own gardens with their boundaries marked by walls and fences.
(9) Larwood, Worksop. Semi detached boiler house and enclosed yard situated in one small corner of the Kilton Forest Community Centre. It serves 132 dwellings of which none are owner occupied. Kilton Forest Community Centre is in the Non-Domestic rating list as a Community Centre and Premises, Rateable Value £8,700. To the south the adjacent dwellings to the boiler house each have their own plots, urrounded by their own gardens with their boundaries marked by walls and fences. To the north and east the property is semi detached to the community centre, and to the west is a communal car park for the community centre and health centre. The dwellings served are a mix of terraced and semi detached houses and bungalows. The DHS also serves Larwood House a sheltered accommodation complex. Generally speaking the front gardens are open with the rear gardens enclosed by fences and walls. Larwood House is open.
Dated 11 July 2008
His Honour Judge Huskinson
