Corkish (Listing Officer) v Wright and another

Council tax – Rateable occupation – Valuation – respondents’ former garage being converted into accommodation – Appellant listing officer treating annex as self-contained unit amenable to separate council tax charge – Valuation tribunal allowing respondents’ appeal – Appellant seeking to quash decision – Whether valuation tribunal applying correct test for self-contained unit – Appeal allowed

The respondents owned a three-storey mid-terrace split-level town house in Basingstoke, Hampshire. Prior to their occupation the garage had been converted into accommodation. It comprised a single room of living area measuring either 11.6 or 12.7 m2 (the parties differed on the measurements). The room had a kitchen work surface with sink and storage cupboards and a fridge below. It had no cooking facilities. There was an adjacent WC and shower room. The annex had no separate public access; access was through a door in the main hallway of the house. It was used by the respondents as an extension to their living arrangements in conjunction with the main house. The appellant listing officer claimant decided that the annex was a self-contained unit, defined in article 2 of the Council Tax (Chargeable Dwellings) Order 1992 (SI 1992/549) as “a building or part of a building which had been constructed or adapted for use as separate living accommodation”, so that it was amenable to a separate charge for council tax.

The Valuation Tribunal for England allowed the respondents’ appeal against that decision, concluding that the annex was not a building or part of a building which had been constructed or adapted for use as separate living accommodation. The appellant appealed, contending that the tribunal had applied the wrong test by erroneously stating the test as turning on the intention with which the annex had been created. The decision nowhere identified that the tribunal was applying the correct test of objectively assessing the physical characteristics of the building. It was impossible to tell from the terms of the decision what physical characteristics rendered the annex unsuitable as separate living accommodation. The respondents argued that the tribunal had applied the right test and had reached a conclusion which was open to it on the evidence. The tribunal had been entitled to rely on the actual use of the annex, and the access arrangements, as relevant factors.

Held: The appeal was allowed.
Decisions of lay administrative tribunals had to be interpreted with a degree of benevolence. Such decisions were not to be construed as if they were statutes or court judgments, nor subjected to pedantic exegesis: Osmani v Camden London Borough Council [2005] HLR 325 and R (on the application of Siborurema) v Office for the Independent Adjudicator [2007] EWCA Civ 1365 considered.
In the present case, the material before the tribunal would have entitled it to conclude that the annex was not a self-contained unit by reference to its physical characteristics, including in particular its size and cooking facilities as well as the access arrangements. However, the court was unable to accept that the tribunal had reached its conclusion on that basis, or that it had applied the correct legal test by reference to the physical characteristics of the building, even on the most benevolent approach permissible. It was impossible to ignore the reference in the tribunal’s decision to Jorgensen (Listing Officer) v Gomperts [2006] RA 300 which referred to the intention of the extension and not how it was currently used. The tribunal went on the address intention, which suggested that it had considered that to be the relevant test: Hayes v Humberside Valuation Tribunal [1998] RA 37, Beasley (Listing Officer) v National Council of YMCAs [2000] RA 429, McColl v Subacchi (Listing Officer) [2001] RA 133, Clement (Listing Officer) v Rotsztein [2003] RA 152, Williams (Listing Officer) v Royal National Institute for the Blind [2003] EWHC 1308 (Admin) and Daniels (Listing Officer) v Aristides [2006] EWHC 3052 (Admin) considered.
In any event, the decision did not set out the correct test. Nor did its terms as a whole suggest that the correct test was being applied sub silentio. The reasons section of the decision did not mention two of the three physical characteristics which were being relied on as telling against suitability as separate living accommodation, namely the absence of cooking facilities and size. It failed to identify what were the elements which would normally deem the building to be a self-contained unit, or to identify any which might point the other way. The only two factors identified as supporting the decision were the actual use to which the annex was being put, and the access arrangements. The former was of no weight, and the latter incapable of being determinative. It was impossible to tell from the terms of the decision what physical characteristics the tribunal thought rendered the annex unsuitable as separate living accommodation, which strongly suggested that the tribunal was not applying a physical characteristics test. Accordingly the decision had to be quashed and the matter remitted for reconsideration by the tribunal.