Rating – Non-domestic rates – Appeals – Procedure – Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 – Appeal against respondent valuation officer’s rejection of proposal for reduction in rateable value of hereditament in 2000 rating list – Oral agreement reached on rateable value and set out in document to be signed by both parties – Whether agreement “signified in writing” within regulation 11 of 1993 Regulations so as to bind respondent – Whether appeal validly withdrawn by withdrawal form signed by both parties – Whether procedural unfairness or abuse of process by respondent so as to justify reopening of appeal – Appeal dismissed
The appellant disputed an entry made by the respondent valuation officer in the 2000 non-domestic rating list showing the headquarters of the Metropolitan Police at New Scotland Yard, London SW1, with a rateable value of £6.754m. The respondent rejected a proposal made by the appellant in 2000 to reduce the rateable value to £1. The appellant appealed but, after discussions between the parties, an oral agreement was reached in 2002 to reduce the rateable value to £5,400. The Valuation Office Agency (VOA) case officer faxed a document recording the agreement to the appellant’s agent together with a message that the agreement would not take effect until signed by both parties. The document was on a standard form containing the words: “The parties whose signatures appear on this document agree that the Rating List shall be altered by amending the entry to that shown below”. The appellant’s agent signed the form and faxed it back. However, no one ever signed the form on behalf of the VOA.
An officer of the VOA subsequently sent a withdrawal form in respect of the appeal to the appellant’s agent, who signed and returned it. The officer countersigned the form and submitted it with the effect that the appeal was withdrawn in May 2003. The appellant later maintained that the form had been signed by mistake. He made a further proposal to reduce the rateable value to £1, which the respondent again rejected, resulting in a second appeal to the valuation tribunal. Issues arose as to: (i) whether the first appeal had been settled at a revised rateable value of £5,400; (ii) the effect of the submission to the valuation tribunal of a form, signed by both parties, purporting to withdraw the first appeal; and (iii) if the first appeal had been withdrawn, whether the valuation tribunal should none the less have considered it because of procedural unfairness or abuse of process by the VOA.
The appellant argued that the oral agreement had no effect since it was not “signified in writing” as required by regulation 11 of the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993. The respondent argued that the faxed document was sufficient to signify the agreement in writing and that it was not necessary for the written document to be signed by both parties. By two decisions in March 2008 and January 2009, the valuation tribunal found that the first appeal had been withdrawn, rather than settled by agreement, and dismissed the second appeal with the effect that the respondent’s original decision, valuing the property at £6.754m, was confirmed. The appellant appealed.
Held: The claim/appeal was allowed/dismissed.
(1) Regulation 11(1) of the 1993 Regulations was a procedural provision, which had effect in accordance with its terms. If the requirements of the regulation were complied with, then the valuation officer would come under an obligation to alter the list to give effect to the agreement and the proposal would be treated as having been withdrawn. No further step was required by either party for that consequence to accrue. Where an appeal had already been referred to the valuation tribunal under regulation 12, and an agreement was then reached under regulation 11, the valuation officer was additionally required to notify the clerk to the valuation tribunal under regulation 34(4) and the appeal was deemed to have been withdrawn. However, whether or not the valuation officer altered the list or informed the clerk, the effect of an agreement to alter the list in terms other than those contained in the proposal remained that the proposal was treated as having been withdrawn under regulation 11(1) and the appeal was deemed to have been withdrawn under regulation 34(4).
If the requirements of regulation 11(1) were not met, the proposal remained extant, as did any appeal. An oral agreement could not mature into an agreement with the consequences provided for by regulation 11(1) and 34(4) unless and until it was signified in writing. No misunderstanding or mistaken belief on the part of the representatives of one or both of the parties as to the significance of an oral or otherwise inchoate agreement could make any difference to the operation of the regulation. Whether or not the parties understood that their oral agreement was not sufficient to dispose of the proposal and of the appeal was irrelevant to the operation of regulation 11(1). The purpose of those provisions was the promotion of certainty and the avoidance of disputes over whether a proposal or a subsequent appeal had or had not been resolved by agreement.
Since an oral agreement had no effect unless and until it was signified in writing, it was open to both parties to withdraw their agreement to the discussed alteration, or attach conditions to it, at any time before the necessary writing came into existence. The faxed document did not signify or record the existence of the oral agreement but, on the contrary, reflected an absence of agreement and introduced a condition that prevented agreement from being achieved until the condition was satisfied. The fax made the achievement of an agreement conditional on the signature of both parties to the document and made it clear that whatever had previously been said, agreement had not yet been reached and would not be reached and signified until the signature conditions had been fulfilled. Since no valuation officer had ever counter-signed the document, the final condition had never been satisfied and an operative agreement for the purpose of regulation 11(1) was never achieved.
(2) By signing the withdrawal form, the appellant’s agent had unequivocally consented to the withdrawal of the outstanding appeal against the first proposal. Having received the consent of the only other party to the appeal, as required by regulation 34(2), the VOA officer was entitled to countersign it and submit it to the clerk to the valuation tribunal as required by regulation 34(1)(b). The first appeal was therefore disposed of by withdrawal. The fact that the appellant’s agent did not appreciate that that was the consequence of his actions was irrelevant to their validity. There was no suggestion that any officer of the VOA had acted dishonestly or in bad faith or in any way designed deliberately to induce a mistake on the part of the appellant’s agent.
(3) It was not appropriate to treat the withdrawn first appeal as being before the Upper Tribunal by reason of procedural unfairness or abuse of process. The appellant had offered no explanation or analysis of the route by which an allegation of procedural unfairness or abuse of process in connection with a withdrawn appeal could result in an order for the appeal to be reinstated. Moreover, nothing in the VOA’s conduct in connection with the original proposal justified the suggestion that the appellant had been treated unfairly. No allegation of bad faith or misconduct was made against any of the VOA’s staff, nor was it suggested that the VO was bound by the oral agreement. Given those two concessions, there was no basis on which the operation of the 1993 Regulations could be interfered with. There had been no failure to comply with regulation 12 of the 1993 Regulations. The only prejudice caused to the appellant derived entirely from the voluntary act of his own agent in withdrawing the appeal.
(4) On the valuation issues, the Upper Tribunal determined that the property should be entered in the rating list with a rateable value of £6.45m with effect from 1 April 2004.
Melanie McIntosh (instructed by Wilks Head & Eve, chartered surveyors) appeared for the appellant; Galina Ward (instructed by the legal department of HM Revenue and Customs) appeared for the respondent.
Sally Dobson, barrister
