Council tax — Whether ‘granny flat’ annex a self-contained unit for purposes of council tax — Whether valuation tribunals entitled to rely on terms of planning permission, community of living and impracticability of sale as appropriate deciding criteria
In each of the
four appeals by the Inland Revenue listing officer, the appellants sought to
quash the decisions of the respective valuation tribunals on the ground that
each erred in law in deciding that an annex (colloquially known as a ‘granny
flat’) fell to be treated with the principal property in question as one
dwelling and was therefore not liable to separate assessment for the purposes
of council tax. Article 2 of the Council Tax (Chargeable Dwellings) Order 1992
provides that a ‘self-contained’ unit means a building or part of a building
which has been constructed or adapted for use as separate living accommodation.
Article 3 provides that each self-contained unit in a property is deemed to be
a dwelling for the purposes of assessment for council tax.
Rodd v
Ritchings
An extension,
garage with accommodation, consisting of a living area with kitchen and
bathroom and a gallery bedroom, was erected with the benefit of planning
permission. This was granted subject to a condition that the accommodation
should not be occupied other than for purposes incidental to the use of the
whole dwelling concerned. Having regard to the terms of the planning
permission, the valuation tribunal concluded that the annex was not a
self-contained unit.
Gilbert v
Childs
The valuation
tribunal decided that a garage and extension with communicating door to the
main house was not a self-contained unit because of the level of communal
living and sharing of services and access to a fire door.
Batty v
Burfoot
Part of the
main dwelling-house consisted of a separate set of rooms accessed from the main
hall and sharing all services. In its reasons for concluding there was only one
unit, the valuation tribunal had regard to the impracticability of selling the
rooms separately from the house and to the community of living.
Batty v
Merriman
Although not
raised by Mr Merriman, the impracticability of selling the separate
accommodation was accepted by the same tribunal as in Batty v Burfoot
as the principal ground for its decision in favour of the council taxpayer.
remitted to the relevant tribunals for redetermination.
Rodd v
Ritchings
Although
the terms of a planning consent may be a legitimate factor to be taken into
account in the decision-making process in some cases, it would be wholly wrong
to treat it as the sole one, as opposed to one of a number of factors sounding
in the exercise.
Gilbert
v Childs
The level
of community living is a consideration outwith the relevant criteria required
to test properly the definition in question in article 2 of the 1992 order. The
tribunal’s decision had to be quashed under the treat in Simplex (GE)
Holdings Ltd v Secretary of State for the Environment [1988] 3 PLR
25, because it was not certain that the tribunal would have arrived at the same
decision on the basis of the fire door factor alone.
Batty v
Burfoot; Batty v Merriman
The
impracticability of selling the rooms in question was an unsound ground. The
concept of a self-contained unit in article 2 of the 1992 order does not
require any analysis of its future saleability.
The following
cases are referred to in this report.
Simplex
GE (Holdings) Ltd v Secretary of State for the
Environment (1988) 57 P&CR 306; [1988] 3 PLR 25
Cherwell
District Council v Hodges (1991) 31 RVR 163
These were
four appeals by notices of motion by the respective Inland Revenue listing
officers from decisions of Devonshire Valuation Tribunal, Norfolk Valuation Tribunal
and Kent Valuation Tribunal, to which the council taxpayers were made
respondents.
David Holgate
(instructed by the solicitor to the Inland Revenue) appeared for the
appellants; Gary Cowen (instructed by Max Barford & Co, of Tunbridge Wells)
represented Mr Burfoot; Siobhan McGrath (instructed by Seldon Ward &
Nuttall, of Bideford) represented Mr Ritchings; Mr Merriman appeared in person;
Mrs Childs did not appear and was not represented.
Giving
judgment, OGNALL J said: These four appeals are of identical character.
In each, by notice of motion, the Inland Revenue listing officer seeks an order
quashing the decision of the valuation tribunal. The decisions in question were
made pursuant to articles 2 and 3 of the Council Tax (Chargeable Dwellings) Order
1992 (SI 1992 No 549). In each case the tribunal decided that the annexe to the
property in question, colloquially known as a ‘granny flat’, fell to be treated
with the principal property as one dwelling and was therefore not liable to
separate assessment for the purposes of council tax.
In the order
in which I deal with these appeals, they are as follows:
the property of Mr Ritchings, known as ‘Mabruk’, near Bideford; (2) a decision
of Norfolk Valuation Tribunal, dated March 8 1994, affecting the property of
Mrs Childs, known as ‘Inglewood’ at King’s Lynn, Norfolk; (3) a decision of
Kent Valuation Tribunal, dated February 11 1994, affecting the property of Mr
Burfoot, known as ‘Tarpil Hus’ at Tunbridge Wells, Kent. (4) Last, a decision
of the same tribunal, on the same last mentioned date, affecting the property
of Mr and Mrs Merriman at 24 Chieveley Drive, Tunbridge Wells, in that county.
Although each
of these appeals originally raised a number of different issues for
consideration, the hearing assumed a more restricted dimension. The Inland
Revenue (the appellant in each case) contend that in all these cases the
reasons expressed by the tribunal disclosed errors of law. It is further said
that the errors are such that in all cases the decision should be quashed.
Originally the appellants further sought orders that each of the annexes in
question be treated as a separate dwelling under the regulations and that the
appeal be remitted to the tribunal with a direction to assess the valuation for
the purposes of the council tax. Before me, however, it is acknowledged that in
the event that any of the decisions are quashed, the appropriate consequential
order should be that the appeal be remitted to the tribunal for a rehearing.
I turn to the
relevant law. Subsection 1(1) of the Local Government Finance Act 1992 imposed
on billing authorities the duty to collect council tax in respect of
‘dwellings’ as defined in section 3 of the Act. For present purposes ‘dwelling’
is defined as any property, which would have been a hereditament within
subsection 115(1) of the General Rate Act 1967, had that Act still been in
force. The appellants do not contend that any of the annexes constitute a separate
hereditament. They rely on subsection 3(5) of the Act, which permits the
Secretary of State to prescribe that what otherwise might be treated as one
dwelling should, in fact, be treated as two or more dwellings. Once a dwelling
has been assessed as liable to the tax it is valued in one of the bands
quantified in subsection 5(2). Pursuant to his powers the Secretary of State
laid before Parliament the Council Tax (Chargeable Dwellings) Order 1992.
Article 3 of those regulations reads as follows:
Where a
single property contains more than one self contained unit, for the purposes of
Part I of the Act, the property shall be treated as comprising as many
dwellings as there are such units included in it and each unit shall be treated
as a dwelling.
Article 2
reads, in its material part as follows:
‘Single
property’ means property which would, apart from this Order, be one dwelling
within the meaning of section 3 of the Act;
‘self-contained’
unit means —
(a) a
building or part of a building; …
which has been
constructed or adapted for use as separate living accommodation.
These appeals
turn on the construction of ‘self-contained unit’ as therein defined and the
issue of what considerations are material to a determination of that definition
in its application to the facts of these four appeals.
Regulations
made pursuant to section 24 of the Local Government Finance Act 1992 provide
for appeals against an assessment for council tax to a local valuation
tribunal. By virtue of subregulation 5(1) of the Council Tax (Alteration of
Lists and Appeals) Regulations 1993 (SI 1993 No 355), a proposal that a
property ought not to be treated as a dwelling, if rejected by the listing
officer, goes before the local valuation tribunal. Subregulation 28(3) of those
appeal regulations requires that the tribunal must give reasons for its
decisions. Consonant with standard principles of judicial review, the expressed
reasons must be proper, adequate, intelligible and deal with the issues raised.
That is a sufficient review of the legal background to these appeals.
I now turn to
deal with them in the order indicated, but with this preface, which is common
to all of them: the only challenge now mounted by the appellants before me is
to the form of the expressed reasons given by the tribunal in question. It is
said that, in one way or another the expressed written reasons given disclose
an error or errors of law in the decision-making process. I am therefore not
considering irrationality, Wednesbury unreasonableness or perversity.
Accordingly, it is, in the circumstances, unnecessary to look further than the
form in which the tribunal expressed its reasons and to decide whether that
form of reasoning supports the appellant’s contentions. If it does, there then
follows a second question, namely whether any demonstrated error of law is of
such quality as to require the quashing of the decision. I derive the
appropriate test in this regard from dicta to be found in Simplex
(GE) Holdings Ltd v Secretary of State for the Environment (1988) 57
P&CR 306 and following. Where there are a number of reasons given, one or
more of which is erroneous, then if the error is a significant one in the
decision-making process, even though it is not a dominant one, the court will
interfere. If, on the other hand, the erroneous reason is insubstantial or
insignificant and the proper view is that that tribunal would necessarily have
reached the same decision, even had it not erred in that way, then the decision
should stand.
I turn to the
first property known as ‘Mabruk’. I can deal with this appeal with relative
brevity. The reasoning of the tribunal, as to whether the property fell to be
treated as one or two dwellings for the purpose of the tax, is to be found at
pp70 and 71 of the agreed bundle. The material parts of those reasons are as
follows, and I start by quoting from part of that which appears at p70:
The property
comprised the original bungalow, which had been built in 1978 and an extension
which was completed in January 1993. The extension was described by the
appellant as a garage with granny accommodation. It was linked to the original
property by a large hallway designed as a feature of the property. Its
accommodation comprised a living area with kitchen and bathroom and, so far as
the tribunal understood, a gallery bedroom extending over the twin garages. Mr
Ritchings explained that the accommodation was for occasional guest use, but
had been built also in anticipation of the time when he or his wife’s parents
may wish to move there.
The extension
had been erected under a planning permission dated 4 February 1986 which
stipulated, inter alia: ‘The accommodation hereby permitted shall not be
occupied other than for purposes incidental to the use of the whole dwelling
known as ‘Mabruk’ and shall at no time be used or occupied as a separate unit
of accommodation’.
Turning to
p71, having reviewed the countervailing submissions of the parties to the
appeal, the tribunal expressed its reasons in these terms:
… the tribunal concurred with Mr Ritchings
that, having regard to the plain wording of paragraph 2 of the Order
[which I take
it to mean article 2, which I have already recited]
and of the
express terms of the planning permission, it could not be said that the annexe
was a part of the building which had been constructed or adapted for use as a
separate living accommodation. The tribunal held therefore that a single
dwelling fell to be included in the valuation list and went on to consider in
what valuation band that dwelling should correctly be included.
That was the
sole reason expressed by the tribunal for its decision.
It is
apparent, therefore, that the tribunal regarded the terms of the planning
consent, and the restriction contained within it, as exclusively determinative
of the question it had to decide under the relevant regulations. Thus, the fact
that any user as a separate unit of accommodation would have been a breach of
planning consent was treated, as of itself, conclusively fatal to any argument
that the annexe fell, in fact, to be treated as a separate unit of living
accommodation.
In my
judgment, that approach was plainly an erroneous one. It may be that the terms
of planning consent are a legitimate factor to be taken into account in the
decision-making process in some cases. For my part, I can see force in the
argument that if the mode of actual use of the annexe in question is not
legally relevant to the definition of a self-contained unit, then any planning
restriction on the form of user is
the terms of a planning consent may afford legitimate assistance, for example,
in throwing light upon other relevant considerations. It would be wrong for me,
in this case, to express any conclusions on the question of the relevance, in
principle, of the terms of planning consent to the liability of premises to be
assessed separately for the tax. It is unnecessary for the purposes of this
appeal and consideration of it must therefore await an appeal where it
necessarily requires determination.
But I am quite
satisfied that even were the question of planning consent and its terms to be a
relevant factor, it would be wholly wrong to treat it as the sole one, as
opposed to one of a number of factors sounding in the exercise. Whether in this
case one construes article 2 of the regulations as meaning physically amenable
to use as separate living accommodation (the appellants’ argument) or, on the
other hand, intended to be used as such (the respondent’s argument), in neither
event can the terms of a planning restriction of itself rule the day. The fact,
were it to be the case, that an owner intended to make use of the annexe in
question in breach of planning consent could not, in my judgment, of itself
afford him any answer to liability of assessment for the tax on the basis that
it was a separate dwelling, if otherwise the evidence established that it fell
to be treated as such under the regulations. The tribunal in this instance gave
no other reason for its decision. There may have been others, I do not know.
But in default of any recital of them, it is clear that the tribunal failed to
apply its mind to any of the evidence, save for the restrictive terms of the
planning consent, or to consider whether any of the other unrecited evidence
featured in its consideration of the application of the regulations. This was a
clear error of law and the decision must be quashed.
I turn to the
property known as ‘Inglewood’. In this case the respondents have not appeared
either in person or by counsel, nor have they sought otherwise to make any
representations before me. The tribunal’s reasons are found set out at pp31 and
32 of the relevant bundle. I read first from p31:
In a proposal
received by the Peterborough Listing Officer on 20th April 1993, the taxpayer
and occupier of the property, Mrs K Childs, appealed against the Valuation List
Entry of Council Tax Band A on the grounds that the annexe was not a separate
property, but formed part of her son’s house and comprised the former garage plus
an 18ft x 13ft extension with a communicating door to the main house. At the
hearing, Mrs G Childs, representing her mother-in-law, expanded upon these
grounds by stating that the house had been extended as a family unit to allow
her elderly parents to reside there. Although the property was self-contained
to allow a certain degree of privacy, there was a connecting door to the main
house which remained unlocked. Mrs Childs explained that council regulations
had specified the connecting door must be a fire door, which in her opinion
signified that the annexe could not be sold separately as complete strangers
would have a right of access into her property.
I turn to read
part of p32. Having reviewed the material before it, and the respective
submission of the parties, the tribunal expressed itself in these terms:
In its
carefully considered opinion, the appeal dwelling and house comprise a single
family unit of occupation, notwithstanding the existence of a separate side
entrance to the annexe. While it accepts that the annexe has been designed to
allow a degree of self-sufficiency for the family members using it, there
remains a level of communal living and shared services such as the mains water
and drainage, in part the hot water system to the premises and the garden.
However, the tribunal considers the most significant determining factor to be
the existence of the fire door between the annexe and the main house which is
in place of a direct requirement of council regulations. This, in effect,
provides compulsory access between each section of the house and consequently
could not be permanently removed or impeded in any manner that would
successfully separate the two without the requirement to construct another
exit.
Sufficient
doubt has been cast upon the degree of detachment of the annexe to the extent
that it has not been proven to the tribunal’s complete satisfaction that two
wholly separate and independent units of accommodation exist at Inglewood. In
its judgment, the provisions of the statutory legislation have not been
conclusively fulfilled. It considers, therefore, that Inglewood is a single
unit of domestic accommodation, an integral part of which includes the
residence of Mrs Childs.
It will be
apparent from that recital of part of the reasoning of the tribunal, that the
appellants’ before me are correct to identify in their skeleton argument, in
particular, two reasons given by the tribunal: (a) the constant access provided
by the fire door; and (b) a level of communal living from which the tribunal
derived the conclusion that the whole premises comprised a ‘single family unit
of occupation’. For reasons which will become apparent later I put aside what I
shall call ‘the fire door reason’ and focus upon the single family unit of
occupation. The appellants’ submissions on this approach are to be found set
out in para 5.4, at pp12 to 14 of their skeleton argument. It is argued that
the tribunal had regard to immaterial considerations, namely the actual use of
the property and to a finding that there was a ‘single family unit of
occupation’. It is submitted that in it expressing itself in that way the
tribunal was confusing the test appropriate to defining a single hereditament
with the test appropriate under articles 2 and 3 of the order. Section 3(2) of
the 1992 Act defines a dwelling as — any property which would have been a
hereditament under the General Rate Act of 1967.
Articles 2 and
3 of the order rest upon the premise that the listing officer and the tribunal
are concerned ex-hypothesis with a single property or one dwelling. In
all four of the cases before the tribunals it was common ground that there was
only one rateable hereditament, for otherwise there would be no need to invoke
the powers under articles 2 and 3 of the order. It was not disputed that the
annexe in question was not being occupied, used exclusively, separately, or for
the purposes of a different occupier from the occupier of the main house. Thus,
in looking at the commonality of living as a family, Mr David Holgate argues
that the tribunal misdirected itself. It properly reminded itself of the
definition of a self-contained unit, namely a building, ‘constructed or adapted
as use for separate living accommodation’, but they then proceeded, it is said,
to test that, in part, by looking not at whether the annexe had been
constructed or adapted for use as a separate dwelling, but whether those living
in it, in fact, shared some degree of community of access to services with the
main house, or enjoyed some participation in the family life of those in that
house.
In this case,
I believe the appellants’ submissions are well founded. In particular, it seems
to me, that to give account to the level of communal living is to introduce a
consideration which is outwith the relevant criteria required in order to test
properly the definition in question. It will be obvious that the purpose behind
the great majority of these annexes is to furnish separate accommodation for an
older generation in such a way as to allow of mutual privacy, while at the same
time allowing for the degree of community which gives peace of mind to both
parts of the family. It follows that in most cases the actual degree of
communal living will be, or probably will be, significant. But that cannot
assist, in my judgment, in answering the question as to whether the annexe in
question was constructed or adapted for use as a separate dwelling. To that
extent I agree that the tribunal misdirected itself.
There remains
the question of whether that error of law requires that the decision be
quashed. The tribunal expressly treated what I have described as the ‘fire door
reason’ as ‘the most significant factor’. That means that I must analyse the
matter applying what I describe as ‘the Simplex test’. In using the
phrase ‘most significant’ the tribunal itself, I think, must be taken to
indicate that it regarded the factor of communal living as significant, albeit
less than the most significant fire door factor. In these circumstances, as
well as looking at the matter as a whole, I cannot be satisfied that the
tribunal would necessarily have reached the same decision in default of
misdirecting itself. It follows that even if the fire door factor was a
relevant one (on which I express no final conclusion) the decision of the
tribunal must be quashed.
Third, the
property known as ‘Tarpil Hus’. The reasoning of the tribunal is to be found at
p59 of the bundle. I propose to quote from a number of passages set out on that
page.
He (Mr Burfoot
the owner of the property) states that the house is laid out in such a way that
the area concerned could not be sold on the open market as a separate entity
and therefore has no market value to which council tax can be applied. Planning
consent was granted for one dwelling only, and it was stipulated that the area
set aside for his wife’s mother … was
designed in such a way that it could not be considered self-contained for the
purpose of selling or subletting … Mr
Burfoot provided a plan and photographs of the house which showed that it is
laid out in such a way that to sell the rooms occupied by Mrs Blee would mean
allowing outsiders to use the main part of the house as a common entrance way
and provide them with full access to all other rooms. He is therefore of the
opinion that the rooms cannot be sold separately on the open market and
therefore have no market value. They should therefore not be included in the
Council Tax List as a separate hereditament …
The listing
officer feels that there are several factors which decide whether or not a
property is self-contained:
(a) can the
property be sold separately?
He proceeds
thereafter, according to the tribunal, to list a number of other factors. The
tribunal concludes in these terms:
We have
examined all the evidence in this case most carefully and have found it a very
interesting case on which to adjudicate. However, after due consideration, it
is our opinion that Tarpil Hus comprises one property. Although Mrs Blee does
have her own set of rooms, it would not be practicable to sell these rooms (on
the open market) separately from the house. The rooms have no separate front
door (access is gained by using the hallway thus giving access to all other
rooms), the same key is used for all locks and all services (electricity and
water) come from the main part of the house.
The tribunal,
therefore, included in its reasons, first, that it would not be practicable to
sell the rooms occupied by Mrs Blee on the open market separately from the
house. Second, the degree of community with the family in the main house enjoyed
by that lady. Both those reasons are challenged by the appellants. As to the
second of those reasons, the degree of community of living, that is not raised
in the notice of motion in this case by the appellants. Moreover, although I
have already criticised that factor with regard to the appeal by Mrs Childs, it
may well be that in the case I am now considering, it is at least arguable that
that factor here would fall to be treated as so subordinate to the totality of
other reasons expressed by the tribunal that it would not require the decision
to be quashed on that ground.
Accordingly,
in this case, it is necessary to consider the other reason called into question
before me, namely the impracticability of sale. At the outset it should be
acknowledged that, to my mind, it is deeply unfortunate and unsatisfactory that
in this case, as well as in the next one I have to consider, the listing
officer abetted the suggested error of law by himself submitting to the
tribunal that the practicability of sale was a relevant factor in the
decision-making process. Mr Holgate accepts the embarrassment, but none the
less submits, I think correctly, that the court should still interfere if the
reasoning is proved to be erroneous in law, albeit that it was conduced to by
the appellant’s representative at the hearing before the tribunal.
Mr Gary Cowen,
on behalf of the respondents in this case, submitted, first, that by analogy
with a test for defining a hereditament, practicability of sale was a relevant
factor in the test to be applied by the tribunal on the present issue. That is
what he described in his written argument as the hereditament point. His
reasoning is to be found set out at paras 4.2 to 4.7 of his written skeleton
argument. I do not propose to repeat it in this judgment. I reject the
reasoning behind it. To be fair to counsel, it did not seem to me that
confronted with certain difficulties, it was ever in the forefront of his
submissions. He chose to concentrate, I think wisely, on what is described as
the second, or valuation point. This is helpfully summarised in paras 4.8 to
4.12 of his skeleton argument. It may be expressed in this way: the basis for
council tax is the value of the property if it were to be sold on the open
market. The basis for valuation is to be found in para 6 of the Council Tax
(Situation and Valuation of Dwellings) Regulations 1992 (SI 1992 No 550).
Subregulation
6(1) of those regulations reads as follows:
Subject to
regulation 7, for the purposes of valuations under section 21 (valuations for
purposes of lists) of the Act, the value of any dwellings shall be taken to be
the amount which, on the assumptions mentioned in paragraphs (2) and (3) below,
the dwelling might reasonably have been expected to realise if it had been sold
in the open market by a willing vendor on 1 April 1991.
I am reminded
that in the assumption therein referred to there is no assumption that the
property is capable of being sold in the open market. It is, therefore,
submitted by Mr Cowen as follows: as a property can only be valued for council
tax if it is, in fact, capable of being sold on the open market, if it cannot
be sold on the open market there can be no basis for valuation for the purposes
of the tax. In those circumstances, since it cannot be valued for that purpose,
it cannot be treated as a separate dwelling for the purposes of the tax.
Subordinately, counsel submitted that assistance could be derived from the
terms of the decision of Auld J, as he then was, in Cherwell District
Council v Hodges (1991) 31 RVR 163. That was a case concerning the
earlier community charge and, to my mind, the quite different provisions of
subsection 48 of the Local Government Finance Act 1988. I did not find that
case, with respect to counsel, to be helpful.
Mr Cowen
submitted that provided the impracticability of sale rests on the physical
character and layout of the annexe in question, it is a relevant consideration.
He submits that this is not something going merely to a subsequent valuation of
the premises for banding purposes, but to the capacity to value the premises at
all (emphasis supplied).
At first
sight, this appears an attractive argument, but in the event I believed it to
be unsound for a number of reasons. (a) Reliance on the terms of subregulation
6(1) is, to my mind, to import into the test which is apt under article 2 of
the Chargeable Dwellings Order, namely the nature and character of the
premises, a test designed to go exclusively to its valuation. As Mr Holgate put
it, that is for the tail to wag the dog. (b) Saleability may be a useful test
in confirming that the premises are self-contained, but a view that, in fact,
they cannot be sold separately cannot assist in deciding whether they are to be
treated as self-contained. (For this purpose see the argument as elaborated in
para 6.4, iii of the appellant’s skeleton argument). (c) There has been no
suggestion before me that it would be legally (emphasis supplied)
impossible to sell the annexe in question. When one, therefore, confines
oneself to the question of an actual sale (emphasis supplied)
subregulation 6(1), relied on by the respondents, itself supports the concept
of a ‘willing vendor’.
I accept the
appellant’s submission that those words mean that the valuation must proceed
upon the basis that there is a willing vendor, even if all the practicalities
dictate that in any given case there could, in fact, never be one. Such
practicalities might well dictate, in an appropriate instance, that the
valuation is zero or wholly nominal, but the concept of a ‘willing vendor’
requires the exercise of valuation to be undertaken. It is therefore fallacious
to contend that this valuation provision, even if relevant to the exercise of
definition, leads to the conclusion that if sale is, in fact, impracticable the
premises cannot be treated as a self-contained unit.
As part of
that aspect of the matter the appellants, through Mr Holgate, further submitted
that I could test the proposition by assuming a bid of the owner of the
dominant house for the annexe part of the premises, or vice versa. I
confess still to being uncertain as to the real importance of this submission.
I am sure the failing is mine. I am doubtful, in any event, as to its validity,
having regard to the reference to ‘open market’ in subregulation 6(1) of the
valuation regulations and I disregard it for the purpose of my conclusions.
Given the deemed ‘willing vendor’, to determine that the annexe would not be the
subject of a bid is not the same thing as saying that physically it could not
be sold. If it is physically capable of sale and nobody would, or does, wish to
buy it is a point going exclusively, in my judgment, to valuation and not to
the essential physical character of the premises.
Last, I go
back to the words of article 2, which is the genesis of the whole matter,
‘constructed or adapted for use as separate living accommodation’. I do not
accept that the concept, as there identified, requires any analysis of its
future saleability.
If I may be
allowed to say so, Mr Burfoot is to be congratulated on
before the tribunal on his own behalf. It is clear from the way in which he
expressed it that the question of the practicability of sale was, in all
essential respects, the beginning and the end of his argument and it is equally
clear, from the way in which the tribunal reviewed the evidence and
submissions, as well as expressed its conclusions, that the practicability of
sale was in the very forefront of their considerations and reasoning. For the
reasons I have just spelled out, the tribunal, in my judgment, misdirected
itself in giving account to the factor of practicability of sale. It may be
that in some cases an apparent reliance on that factor is, upon analysis, no
more than a perhaps unsatisfactory or inelegant way of expressing conclusions
as to relevant criteria touching upon the physical character and layout of the
premises. But I do not think that that is the case here. Having regard to the
prominence afforded to this factor, and my conclusions as to its legal status,
the decision of the tribunal in this instance must be quashed.
Last, 24
Chieveley Drive and its annexe. It is to be noted that this was a decision by
the same valuation tribunal on the same day as it disposed of the appeal
affecting Mr Burfoot’s premises, known as Tarpil Hus. Furthermore, a reading of
the tribunal’s reasons in this instance demonstrates a striking similarity not
only in the factual material review, but more particularly in the manner in
which the tribunal expressed its reasons. For this purpose I turn to p46 of the
relevant bundle.
Access to Mrs
Nash’s rooms (that is the lady who occupied the annex) can only be gained by
using the main front door to the house, and walking through the lounge and
dining area of the main part of the house. There is ready access between the
house and the additional rooms and the door between them is kept unlocked.
The tribunal
here again reviewed the respective submissions on each side. It again reminded
itself that the listing officer had spoken of practicability of sale as being a
relevant characteristic, and at the end, in words which echo observations
expressed in Mr Burfoot’s case and have an uncannily familiar ring, expressed
itself thus:
We have
examined all the evidence in this case most carefully and have found it a most
interesting case on which to adjudicate. However, after due consideration, it
is our opinion that 24 Chieveley Drive comprises one property. Although Mrs
Nash has her own set of rooms, it would not be practicable to sell these rooms
(on the open market) separately from the house. The rooms have no separate
front door (access is gained by walking through rooms in the main part of the
house, thus giving access to all other rooms) and all services are common to
both parts of the house. Mrs Nash seems to be part of the Merriman household as
the door between her rooms and the rest of the house is left unlocked and she
often uses their rooms in which to entertain her friends.
It will be
apparent, therefore, that the appellant’s challenge to this decision rests on
identical grounds to those advanced in the case of Mr Burfoot and his premises,
Tarpil Hus. That would dictate that my conclusions, in all normal events,
should be the same, despite Mr Merriman’s helpful skeleton argument. But I have
given consideration in this instance to two further questions: (a) whether in
this case the reasoning, as expressed, really reflects giving account to
practicability of sale as a discrete legal factor; or (b) whether it was
intended to be no more than a facet of the tribunal’s assessment of the
physical character and layout of the premises? I have not found this, I confess,
an easy question to answer. Unlike the other appeal before it on that day (the
appeal by Mr Burfoot), the tribunal here had no submissions from Mr Merriman
that it should take practicability of sale into account. His submissions were
essentially directed to the physical character and layout of the annexe and, in
particular, to the means of access and egress.
It will be
apparent to those who look at the two bundles here affecting Mr Burfoot’s
appeal and Mr Merriman’s appeal that Mr Burfoot’s appeal was listed as hearing
41 and Mr Merriman’s as hearing 42. Whichever way around in point of time they
were dealt with, it is clear that the listing officer raised the spectre of
this factor of practicability of sale in both cases and that the tribunal took
it on board. Looking at the two decisions together, as in the particular
circumstances I therefore believe I am entitled to do, it would be wrong, I
think, to view the approach of the tribunal in this case as in any way sensibly
distinguishable from the approach in the case of Tarpil Hus. Thus it did, it
seems to me, treat practicability of sale as a separate discrete factor and,
for the reasons I have already given, it was wrong so to do.
The second
question is this: whether the application of the Simplex test to this appeal
would warrant allowing the decision of the tribunal here to stand. I am bound
to say that were I to be judging the merit of the appeal on the particular
facts I would have had a deal of sympathy with Mr Merriman’s contentions
without, of course, giving any consideration to the practicability of sale. I
think at the end of the day this appeal, along with that of Mr Burfoot, should
go back to Kent Valuation Tribunal. If my observations are of any comfort to Mr
Merriman then he may, of course, adopt them before the tribunal on the
rehearing, so long as he understands that the decision must be exclusively the
tribunals; it cannot be mine. The decision of the tribunal in this case is,
therefore, likewise quashed.
