Rating – Non-domestic rating list – Alteration of list – Removal of domestic heating systems serving housing estates – Valuation tribunal finding district heating systems domestic property – Section 66(1)(b) of Local Government Finance Act 1988 – Whether appurtenances belonging to or enjoyed with property wholly used as living accommodation – Whether within curtilage of such property – Appeal allowed
The respondent local authorities submitted proposals to alter the non-domestic rating list by removing 12 district heating systems (DHSs) on the ground that they constituted domestic property and had been wrongly entered in the non-domestic list. Each of the systems served a housing estate; some comprised a boiler house and yard on a separate defined site, while another was incorporated into a building that also housed a community centre. The respondents argued that the DHSs were domestic hereditaments since they constituted some “other appurtenance belonging to or enjoyed with” living accommodation within the meaning of section 66(1)(b) of the Local Government Finance Act 1988. The local valuation tribunal accepted the proposals and agreed that the 12 DHSs should be removed from the list.
The appellant valuation officer appealed. He contended that the word “appurtenance” was confined to structures within the curtilage of the domestic property in question and that the DHSs did not meet that test, since it was not possible to identify a principal building, or one or more buildings, within the curtilage of which the DHSs fell, to which they belonged and with which they were enjoyed. He submitted that where a DHS served a housing estate consisting of a large number of separate units, whether bungalows, houses, a block of flats or a block comprising sheltered accommodation: (i) such an estate could not have a curtilage for the purposes of section 66(1)(b) and, accordingly, the DHS could not be domestic property; or, alternatively, (ii) even if it were theoretically possible for a housing estate to have a relevant curtilage, it was unlikely that either one principal building or any congregation of buildings would be found that could together sensibly be said to possess a coherent curtilage within which the DHS could be situated for that purpose.
Held: The appeal was allowed.
In order to constitute domestic property, a DHS would have to constitute an appurtenance belonging to or enjoyed with property used wholly for the purposes of living accommodation. To qualify as such it had to be contained within the curtilage of such property; whether it fell within such a curtilage was a matter of fact and degree. It would be necessary to identify a building or buildings that possessed an identifiable curtilage within which the DHS was situated to which it belonged or with which it was enjoyed. If that condition were satisfied, it would not cease to be satisfied merely because the DHS also served other dwellings, or other property that did not constitute living accommodation, situated outside the property in question. It was not impossible, as a matter of law, 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 could lie, since that would always be a matter of fact and degree. However, none of the 12 DHSs in the instant case fell within the curtilage of any dwelling or dwellings. The housing estates did not have a principal building within the curtilage of which the DHS was situated. Nor, since they comprised a large number of individual units, could the housing estates be said to possess a curtilage that included the DHS: Head (VO) v Tower Hamlets London Borough Council [2005] RA 177 applied.
Daniel Kolinsky (instructed by the legal department of HM Revenue & Customs) appeared for the appellant; the respondents did not appear and were not represented.
Sally Dobson, barrister
