Council tax – Listing officer – Valuation – Error made in determining council tax band when property originally placed on council tax list – Appellant listing officer increasing council tax assessment – Valuation Tribunal for England allowing respondent property owner’s appeal – Whether VTE applying correct legal test in relation to appellant’s power to increase assessment – Appeal allowed
The respondent purchased a freehold property at Kerris Vean Farmhouse, Kerris Vean, Paul, Penzance, in 2016. The appeal property was a terraced house built pre-1900. It measured 242 m2 and comprised three living rooms, kitchen, five bedrooms and two bath/shower rooms. The property entered the council tax valuation as a band C dwelling with effect from 1 April 1993. The appellant listing officer considered that an error or mistake had occurred when the appeal property was originally placed into the list and decided that the banding should be increased to band D from 30 October 2016.
The appellant appealed against a decision of the Valuation Tribunal for England (VTE) allowing the respondent’s appeal against the rejection of his proposal that the council tax band applicable to his property be reduced from band D to band C. The VTE found that the appellant’s representative had been unable to provide evidence to justify her claim that the initial entry in the list had resulted from mistake. Significantly, the appellant was not permitted by the VTE to present evidence of sales that had occurred after April 1993, nor was she allowed to refer to the tone of the list, which was something that was established over time. The question was whether the VTE had applied the correct test.
Held: The appeal was allowed.
(1) In an appeal of this nature, the correct legal test to apply was, firstly, whether the appellant had power to increase the assessment and, secondly, whether there was evidence from the time the appeal property was initially placed in the council tax list at band C to show that this was a mistake. Because the appellant was unable to present the evidence or other information used by the appellant to make her original assessment that the property should be allocated to band C, the panel concluded that it could not determine whether that initial allocation was mistaken. The VTE set out a two‑part test: in relation to a dwelling, whether the appellant had the power to alter the council tax band applicable to the dwelling under regulation 3(1)(b)(i) of the Council Tax (Alteration of Lists and Appeals) (England) Regulations 2009; and whether there was evidence that was available to or, in the alternative, that was actually used by the appellant at the time the dwelling was initially placed on the valuation list on the basis of which the appellant could lawfully conclude that the original council tax band allocation was made in error. The key issue was what evidence had been admissible to support the listing officer’s determination under regulation 3(1)(b)(i) of the 2009 Regulations.
(2) Under regulation 3(1)(b)(i), a listing officer had the power to alter a valuation list on any day on which the listing officer determined, based on evidence available to the listing officer on that day, that the regulation 6(1) value of a dwelling indicated that the dwelling should be allocated to a different valuation band. Evidence available to the listing officer on that day was not limited to evidence that would have been available to the listing officer on or prior to the date on which the dwelling entered the valuation list, whether that was on 1 April 1993 or some subsequent date. The listing officer was entitled to take into account any evidence that was capable of establishing the regulation 6(1) value, including evidence of sales post-dating the date the dwelling entered the valuation list and evidence of the tone of the list.
(3) There was neither a statutory basis nor any basis in principle for a requirement that a listing officer, seeking to exercise her power under regulation 3(1)(b)(i), had to limit herself to the evidence actually considered by the listing officer at the time of the relevant dwelling’s entry into the valuation list. There were both practical and policy objections to such a restrictive test. The words “should have been determined” in regulation 3(1)(b)(i) had to be construed in context and by reference to the primary duty of a listing officer in relation to her valuation list, namely, the duty to compile and maintain an accurate list. Viewed in that light, parliament was concerned principally with the accuracy of the valuation list as at 1 April 1993 and not with the quality of the listing officer’s performance in her compilation of the valuation list as of that date. In exercising her power (and duty) to alter the valuation list, the listing officer was entitled to take into account any evidence capable of showing what the accurate valuation of a dwelling was, its true regulation 6(1) value, regardless of when that evidence arose. This might therefore include evidence of relevant sales post‑dating 1 April 1991 and evidence of the tone of the list which necessarily arose after 1 April 1993: Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks Co [1900-3] All ER Rep 600, Jafton Properties Ltd v Prisk (Valuation Officer) [1997] RA 137, R (Corus UK Ltd) v Valuation Office Agency [2001] EWHC 1108 (Admin), Domblides v Listing Officer [2008] EWHC 3271 (Admin), Chilton-Merryweather v Hunt [2008] EWCA Civ 1025; [2008] PLSCS 248; [2009] PTSR 568 and Adam v Listing Officer [2014] EWHC 1110 (Admin) considered.
(4) The VTE had applied the wrong legal test to determine the respondent’s appeal to the VTE. The matter would be remitted to the VTE for it to determine the appeal in accordance with the guidance given by the court in this judgment.
Hui Ling McCarthy QC (instructed by the Solicitor to HM Revenue & Customs) appeared for the appellant; Paul Reynolds (instructed by Brown Rudnick) appeared for the respondent.
Eileen O’Grady, barrister
Click here to read a transcript of Listing Officer for Cornwall v Dannhauser
