The Valuation Office Agency's Local Rating List for national non-domestic rates ('business rates'), can sometimes fail to record a property as a non-domestic hereditament[1].
When the inaccuracy on the Local Rating List (the 'Rating List') is discovered and Valuation Office Agency ('VOA') corrects the Rating List, to include the property as a hereditament, can the billing authority claim for business rates, for a period before the Rating List was corrected, from someone who rateably occupied the property during that (before the Rating List was corrected) period?
This issue came up for consideration in The Queen on the Application of Andy Mann Ltd v York Magistrates Court v Selby District Council [2020] EWHC 2540 (Admin) ('Andy Mann'), before HHJ Davis-White QC (sitting as a Judge of the High Court) (the 'Judge') on 11.8.20, along with some other interesting issues.
Other Issues in Andy Mann
While not the focus of this article, it might be helpful to highlight the other issues addressed in Andy Mann. The other issues were: (1) ratepayers access to the courtroom on the day of the hearing[2]; and (2) legal advisor's role and the procedure, when the legal advisor: (a) seeks advice from another legal advisor[3] on the issues he must advise the lay justices upon; and (b) gives legal advice to lay justices in the retirement room/outside the courtroom, and the need for that advice to be repeated in open court (for the parties to make submissions thereon, with that (provisional) advice liable to variation or confirmation[4]. The Judge also: (3) commented on the perils of court staff advising litigants in person about court procedure[5]; and (4) considered whether or not the proceedings by way of judicial review were ill-founded on the basis that there was an alternative remedy which was eminently more suitable i.e. the appeal by way of Case Stated procedure - which is usually the more appropriate route for bringing a challenge (to a Magistrates Court's decision about business rates) before the High Court[6].
Andy Mann - Overview
In Andy Mann, a company (Andy Mann Limited) was in rateably occupation of a property ('Unit 3') from 1.5.18[7] to 31.12.18 (8 months). During this time, Unit 3 was not listed/did not appear on the Rating List, and company did not receive a demand notice from the relevant billing authority in relation to business rates. But, it was during the period 1.5.18 to 31.12.18 that the property's absence from the Rating List was first discovered:
(1) On an unspecified date, the landlord of the property, advised the billing authority, that the property had been let to company from 1.4.18 (quite why, as we shall see, the company was only billed from 1.5.18, is unclear)(paragraph 9);
(2) the billing authority, on checking its records, realised that the property was not included on the Rating List (paragraph 9);
(3) the billing authority's property inspector visited the area, to examine the position on the ground (paragraph 9);
(4) in October 2018, the matter was referred to the VOA (paragraph 9);
(5) in about October 2018, an individual from the VOA visited the property (paragraph 10);
During this VOA visit, the company's director was informed, informally, that the likely rateable value of the property, would be more than £20,000 (paragraph 10). The company's director thought this would be too much for the company, and so the company served notice on its landlord, and vacated the property 'at the end of December 2018' (paragraph 13);
On 25.6.19, so after the company had ceased to rateably occupy the property, Unit 3 was entered on the Rating List (paragraph 11) with a rateable value of £24,000 (not that the rateable value matters here)(paragraph 11).
Crucially, the VOA entry for Unit 3, stated that the alteration took effect from 1.5.18 (paragraph 11).
The billing authority, noting Unit 3's new entry as a hereditament on the Rating List, responded, by serving on c.12.7.19, a demand notice on the company for business rates, for the 1.5.18 to 31.12.18 period[8]. The company disputed its liability, arguing, in effect, that it was a 'condition of liability' (paragraph 14), that the property must have appeared on the Rating List on the days of its rateably occupation (i.e not through any backdating, but actually, at the time)[9]. As it had not, then, the company said, the company was not liable for any business rates in respect the property for those days (paragraph 14). The company did not pay, and so, the Billing Authority issued an application by way of complaint, in the Magistrates Court, for non-payment of the (allegedly) due but unpaid business rates, in respect to hereditament Unit 3, for the period 1.5.18 to 31.12.18; the billing authority contending that the effect of the entry showing the alteration took effect from 1.5.18, meant that business rates were due from 1.5.18).
On 17.12.19, after hearing submissions from both sides, the Magistrates Court decided to impose a business rates liability order ('BRLO') on the company for the 1.5.18 to 31.12.18 period (paragraphs 1 and 20). In response, the company brought judicial review proceedings in the High Court, against that decision (judicial review proceedings were the wrong procedure, but the High Court was prepared to allow the procedure to continue notwithstanding).
In the High Court, the company's contention was that the Magistrates Court made an error of law, when it rejected the proposition that, because '...at the time the [company] was in occupation of the property, the property was not entered on the relevant local non-domestic rating list... the 'Rating List' (paragraph 5), this meant that no business rates liability could arise in relation to that period. Or, to put this another way:
(1) the Magistrates Court had been wrong to reject the contention that '...rates cannot be charged to [the company] because on each of the days the relevant 'hereditament' was occupied by the [company], it was not shown for the day in question in the Rating List.' (paragraph 6), referring to the wording of section 42 and 43 of the Local Government Finance Act 1988 ('LGFA 1988'), or
(2) '...the magistrates' erred in law in deciding that a hereditament can be added to the Rating List with retrospective effect so that section 43 LGFA 1998 is operated on the basis that the hereditament was on the list during a period when in fact it was not.' (as the Judge summarised, at paragraph 45).
Andy Mann - Discussion and Conclusion
Describing the substance of the point raised, as 'quite simple' (paragraph 45) under the heading 'The alleged error of law', the Judge determined the issue as following. He:
(1) first set out sections 42 and 43 of the LGFA 1988 (so far as required):
'42. Contents of Local Lists.
(1) A local non-domestic rating list must show, for each day in each chargeable financial year for which it is in force, each hereditament which fulfils the following conditions on the day concerned.
[There are then a number of conditions set out].
(2) For each day on which a hereditament is shown in the local list, it must also show whether the hereditament…
[Then there is a further list of conditions.]
(3) For each day on which a hereditament is shown in the local list, it must also show whether any part of the hereditament is exempt from local non-domestic rating.
(4) For each day on which a hereditament is shown on the list, it must also show the rateable value of the hereditament.
[I do not set out sub-paragraph (5)]
43. Occupied Hereditaments Liability
(1) A person (the ratepayer) shall as regards a hereditament be subject to a non-domestic rate in respect of a chargeable financial year if the following conditions are fulfilled in respect of any day in the year-
(a) on the day the ratepayer is in occupation of all or part of the hereditament, and
(b) the hereditament is shown for the day in a local non-domestic rating list in force for the year.' [bold added]
(2) criticised the company for the fact that its contention/argument failed to take into account the Non-domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009 (as amended) (SI 2009/2268) (the 'Regulations')[10] (paragraph 47).
The contents and effect of these Regulations, and in particular, the fact that the Regulations empowered the VOA to alter the Rating List retrospectively, as from a date in the past[11] , was critical. The Judge said, at paragraphs 48 to 51:
'The Regulations provide for alterations to be made to the Rating List. Amendments may be proposed by "interested persons", which include the occupier of the property, among others. The grounds for amendment are wide under regulation 4. They include among others, 4.1(b) the rateable value shown in the list for hereditament is inaccurate by reason of a material change of circumstances which occurred on or after the day on which the list was compiled and 4.1(g) a hereditament not shown on the list ought to be shown in that list.'
I interpose here - it was pursuant to reg.4.1(g)[12] that the VOA had altered the Rating List in Andy Mann. The Judge continued:
'Regulation 14 provides for the effect of alterations. Some of them are permitted to take effect with retrospective effect. The relevant wording is that the alteration has effect from the day in question, which, as I say, can be a date prior to the making either of any application by way of proposal to the valuation officer for a change or the decision of the valuation officer.
Regulation 16 provides:
"16. Effective Date to be shown in the list
Where an alteration is made, the list shall show the date from which the alteration is to have effect'.
I pause to note that in this case that is what the register shows, and a date of [1.5.18] is given. Although there may be grounds to think that that date should have been an earlier date, when [the company] went into occupation, on the face of it that date has not been shown and his company is clearly not prejudiced by a later date having been chosen.
In this particular case, I do not have chapter and verse as to the particular underlying basis for the alteration nor the basis on upon which the alteration was backdated, not all alterations are capable of being backdated. However, that was not the challenge before the magistrates nor is it the challenge before me. In both cases the challenge was simply said to be that section 43 did not permit backdating.'
The Judge then concluded, at paragraph 51:
In my judgment there is nothing in section 43 which prevents backdating and the Regulations specifically provide for it. There was no case before the Magistrates nor before me that the Regulations are ultra vires.'
Turning then to the final argument put forward by the company, the Judge dismissed the argument that such a conclusion was impermissible, because it would have the effect that an occupant of property, not on the Rating List, would not know their exposure to business rates whilst going into rateably occupation of it (and presumably also whilst occupying it). First describing this argument, and then dismissing it, the Judge said, at paragraphs 52 and 53:
'One point raised by [the company's director] is that backdating cannot be permitted by the Act, because he says, otherwise it would not be possible for an occupant in the situation of the claimant in this case to know about a potential rates liability when it entered into occupation if at that point, as in this case, the relevant property had not been included in the relevant rating list.
The short answer to that is twofold. First, occupiers must be taken to know the law, however unrealistic that may be, and therefore in the postulated circumstances the risk of later amendment with retrospective effect is something they should know about. Secondly, and perhaps more practically, it is open to occupiers or prospective occupiers to check the register, see especially regulations 4(a) onwards to the 2009 Regulations, which may trigger an amendment by the valuation officer and thereby, in any event, alert the valuation officer to the fact that there are premises in respect of which there is a possibility that rates ought to be payable and that the rating list should be altered.'
Summary
The Regulations permit the Rating List to be altered and for the alteration to take effect from a date in the past. A new entry will state, from what date, the alteration takes effect. Liability for business rates is imposed as if the Rating List had that new entry, from the date the alteration is stipulated to take effect from, including if that date is in the past. The Magistrates Court in Andy Mann had not therefore erred in law (paragraph 58) when the Magistrates Court had acted on this basis, and imposed the BRLO upon the company. As the Rating List had been altered retrospectively, from 1.5.18 forward, the company was to be treated as liable for the business rates for the hereditament for the relevant period (1.5.18 to 31.12.18). It did not matter that the hereditament had not, at the tie, appeared on the Rating List. Consequently, the 'judical review' (appeal) in Andy Mann was dismissed.
SIMON HILL © 2023*
BARRISTER
33 BEDFORD ROW
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole, or the Copyright holder. No attempt has been made to provide an exhaustive review/account of the law in this area. *Copyright is owned by Barrister Search Limited.
[1] In The Queen on the Application of Andy Mann Ltd v York Magistrates Court v Selby District Council [2020] EWHC 2540 (Admin), the Judge, in footnote to the judgment, provided the following explanation of what a 'hereditament' is:
'"Hereditament" is defined by Section 64 of the LGFA 1988 primarily by reference to the previous definition contained in Section 115 General Rate Act 1961 , that is 'hereditament' means property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item in the valuation list. As I say, this not a complete definition.'
[2] In The Queen on the Application of Andy Mann Ltd v York Magistrates Court v Selby District Council [2020] EWHC 2540 (Admin) ('Andy Mann'), HHJ Davis-White QC (sitting as a Judge of the High Court) (the 'Judge'), the company was summoned first to appear at a hearing on 5.11.19. On that date, the case was adjourned to 17.12.19 (the 'adjourned hearing'). The Judge recorded, at paragraph 17 and 18, that:
'According to [the ratepayer's director], the representative of the council who attended on [the adjourned hearing], told him that he, [the ratepayer's director], should wait outside the courtroom while the hearing proceeded in his absence and that after the hearing the result would be communicated to him. I have to assume that [the ratepayer's director's] version of events is correct; it is not contested. In any event, [the ratepayer's director] sought permission to attend the hearing and did so. Any potential procedural defect was therefore cured.
The acknowledgement of service of the Magistrates' Court in these proceedings points out that [the ratepayer's director's] allegation about all of this is one made against the council, not against the court or any court staff. However, before me, [the ratepayer's director] indicated that his recollection is that a member of court staff said effectively that the representative of the council was 'in charge' and on that basis, initially, he did withdraw from the hearing room. It seems to me lessons can be usefully learned both by the court and by the council in respect of that. Of course, as [the ratepayer's director] himself said, any person summoned to appear before the court is entitled to and should be expected to attend before the court as summonsed and not be excluded from the court hearing affecting his, her or its position.' [bold added]
There is an important point here. The billing authority is not the court. The court is completely separate body. The billing authority may work closely with the court, to help the court organise the court list, and to deal with all the cases the billing authority has, efficiently, but the billing authority is no more than just another party in litigation. The billing authority cannot prevent the other side (the ratepayer/the ratepayer's representative) from attending a court hearing. The position is the same as any other piece of litigation. One side cannot prevent the other side entering the court room and presenting its case to the Magistrates Court. Any such attempt by a billing authority representative would be wrong.
[3] In The Queen on the Application of Andy Mann Ltd v York Magistrates Court v Selby District Council [2020] EWHC 2540 (Admin) ('Andy Mann'), HHJ Davis-White QC (sitting as a Judge of the High Court) (the 'Judge'), the company made two objections to the procedure that took place on 17.12.19 (the adjourned hearing), where the BRLO was made. The first objection, dealt with in this footnote, was that:
'...the assistant clerk (or the legal adviser) to the magistrates apparently consulted another colleague, another Assistant Clerk or legal adviser, in the course of the hearing.'
with the consequence that, the company (through its director attending and representing the company at the hearing) did,
'...not know what the conversation was and ...that gave an impression of an outsider influencing the case.' (paragraph 21)
The Judge said rejected this objection (the Judge referred to them as 'complaint'), saying there was here 'no ground for complaint' (paragraph 22). The Judge said, at paragraphs 22 to 25:
'The matter is covered by the Criminal Procedure Rules 2015 ("CPR") and Practice Directions ("PD").
PD 24A sets out the duties of a clerk to the justices and an assistant clerk (or legal adviser) to the magistrates. Paragraph 24A.3A provides:
24A.3 Where a person other than the justices' clerk (a justices' legal adviser), who is authorised to do so, performs any of the functions referred to in this direction, he or she will have the same duties, powers and responsibilities as the justices' clerk. The justices' legal adviser may consult the justices' clerk, or other person authorised by the justices' clerk for that purpose, before tendering advice to the bench….."
There was accordingly nothing improper in the legal adviser speaking to another legal adviser or member of staff for the purposes of obtaining assistance in their role in a particular case. [A Magistrates Court legal administrator] has explained the position of the legal adviser and the person that he consulted as follows:
'there is nothing unusual or inappropriate about taking advice from more senior colleagues and this is often done by email or over the phone if that other colleague is not in the same building. I would not be concerned [the legal advisor on 17.12.19]...took advice from a colleague not present in the room. What matters is that any subsequent legal advice should be given in public....
I agree with that broad summary about the circumstances in which a legal adviser can correctly take advice from other members of staff.
As I pointed out ...a key point though... is that it is quite clear to everyone in court the advice that is being given to the Magistrates, because they are the finders of fact and law.'
[4] In The Queen on the Application of Andy Mann Ltd v York Magistrates Court v Selby District Council [2020] EWHC 2540 (Admin) ('Andy Mann'), HHJ Davis-White QC (sitting as a Judge of the High Court) (the 'Judge'), the company made two objections to the procedure that took place on 17.12.19 (the adjourned hearing), where the BRLO was made. The second objection, dealt with in this footnote, was:
'...the assistant clerk retired with the Magistrates, although the advice then given does seem to have been repeated in public.' (paragraph 21)
The Judge said rejected this objection (the Judge referred to them as 'complaint'), saying there was here 'no ground for complaint' (paragraph 22).
Later, this objection seemed to be, that 'As regards the giving of advice and the decision reached, [the company director] now asserts that no statement was made as to the legal advice given to the Magistrates and that they gave no reasons for their decision...' (paragraph 26)
(1) on the legal advice given to the Magistrates Court by the 17.12.19 legal advisror, this ran counter to:
(a) the company directors letter, written 2 days after 17.12.19 hearing where he said that the clerk announced in court that the issue raised by the company's director, was a matter of interpretation of the law and that he would advise the magistrates accordingly (paragraph 26); and
(b) the 17.12.19 legal advisors recollection that advice was given by the 17.12.19 legal advisor in open court (paragraph 27).
(2) on the Magistrates Court giving reasons for their 17.12.19 decision, this ran counter to the 17.12.19 legal advisor recalling that the Magistrates Court did give reasons, essentially, the wording of sections 42 and 43 of the Local Government Finance Act 1988 does not prevent 'backdating' and does specify that sums are liable from the date of occupation.
On the law, the Judge said
'The matter is covered by the Criminal Procedure Rules 2015 ("CPR") and Practice Directions ("PD")' (paragraph 22);
and, at paragraph 29 to 32:
'Normally, legal advice tendered to the magistrates must be transparent and recorded in court. Similarly, it is a fundamental requirement that reasons are given for judgments, although as is well known, the intensity or fullness of the reasons required can vary slightly depending on the precise circumstances.
The position regarding the giving of advice is also covered by CPR Part 24:
(1) A justices' legal adviser must attend the court and carry out the duties listed in this rule, as applicable, unless the court-
(a) includes a District Judge (Magistrates' Courts) and
(b) otherwise directs
(2) a justices' legal adviser must-
(a) …
(b) whenever necessary, give the court legal advice and-
(i) if necessary, attend the members of court outside the courtroom to give such advice, but
(ii) inform the parties (if present) of any such advice given outside the courtroom'.
This is supplemented by the following part of Practice Direction 24A, in the next part of paragraph 24A.3 that I have already cited earlier. The relevant words are:
'If the justices' clerk or that person gives any advice directly to the bench, he or she should give the parties or their advocates an opportunity of repeating any relevant submissions, prior to the advice being given'.
32. Also relevant are Paragraphs 24A.14 and 24A. 15 of PD 24A which provide:
"24A.14 When advising the justices, the justices' clerk or legal adviser, whether or not previously in court, should (a) ensure that he is aware of the relevant facts; and (b) provide the parties with an opportunity to respond to any advice given'.
"24A.15 At any time, justices are entitled to receive advice to assist them in discharging their responsibilities. If they are in any doubt as to the evidence that has been given, they should seek the aid of their legal adviser, referring to his notes as appropriate. This should ordinarily be done in open court. Where the Justices request their advisor to join them in the retiring room, this request should be made in the presence of the parties in court. Any legal advice given to the justices other than in open court should be clearly stated to be provisional; and the adviser should subsequently repeat the substance of the advice in open court and give the parties the opportunity to make any representations they wish on that provisional advice. The legal adviser should then state in open court whether the provisional advice is confirmed or, if it is varied, the nature of the variation.' [bold added]
Conscious that the Judge was referring to criminal procedural rules, in relation to a Magistrates Court exercising its civil jurisdiction, the Judge said, at paragraph 33:
'I have not heard argument as to the applicability of these provisions to civil proceedings of the type in question in this case, but in my view consider the relevant provisions reflect the requirements of a fair trial and Article 6 of the European Convention on Human Rights.'
As stated, on the facts, the company's objection here was rejected. Later, the Judge added:
'...the lessons from this case are that the provisions of the Practice Direction and Criminal Procedure Rules that I have read out regarding retirement, are ones that should be drawn to magistrates' attention and to which legal advisers should be well conversant with.' (paragraph 37)
and
'...points of procedure like this are absolutely crucial, the Rule of Law depends upon parties feeling that they have had a fair hearing in court.' (paragraph 35)
[5] In The Queen on the Application of Andy Mann Ltd v York Magistrates Court v Selby District Council [2020] EWHC 2540 (Admin), HHJ Davis-White QC (sitting as a Judge of the High Court) said:
'...usually the court is not in the business of giving legal advice for very good reasons. The natural attempt of court staff to assist litigants can sometimes cause problems if the advice is not full or accurate and again, lessons may need to be learned to make clear that the court in expressing a view is seeking simply to assist but that the litigant should always seek their own legal advice or carry out their own legal research. The courts cannot give advice to litigants as to appropriate matters of procedure. The court makes rulings by way of judgments on the appropriate procedure. It does not, through staff, proffer procedural advice.' (paragraph 40)
This was in response to the company reporting that a Magistrates Court administration officer, had:
(1) correctly advised the company that '...the usual position is that there is a 21-day period to appeal.' (paragraph 39); but
(2) unfortunately, seemingly overlooked, mentioning section 111 of the Magistrates Court Act 1980 dealing with appeals by way of case stated, when he pointed the company towards judicial review procedure (paragraph 40).
[6] In The Queen on the Application of Andy Mann Ltd v York Magistrates Court v Selby District Council [2020] EWHC 2540 (Admin), under the heading 'The procedure in this case', HHJ Davis-White QC (sitting as a Judge of the High Court) said, at paragraph 43 to 44:
'The first issue that I have to deal with is whether or not these proceedings by way of judicial review are ill-founded on the basis that there was an alternative remedy which was eminently more suitable. That is, of course, the procedure of appeal by way of case stated. This matter has been addressed in the context of liability orders for non-domestic rates in the wellknown case of R (on the application of) Brighton and Hove City Council v Brighton and Hove Justices [2004] EWHC 1800 (Admin). I refer to Paragraphs 22-25 of that judgment which clearly set out the position.
As Burnton J said at Paragraph 23 of his judgement…
[23] …this is the normal procedure [that is appeal by way of case stated] for challenging errors of law stated by Justices. It has a number of advantages, not the least of which is that the discipline of a case stated normally ensures that the High Court has before it a statement by the justices of the issues that they had to decide, the evidence before them, their findings of fact and the reasons for their decision. If the case stated is defective (because, for example, the justices' statement of their findings of fact is ambiguous), it may be remitted to them for amendment: see the Practice Direction to Part 52 , at 52 paragraph76. The reasons of the justices in the present case are relatively informal and do not include what I expect to see, the case stated. Furthermore in an appeal by the way of case stated this court is able to make any order that the lower court might have made: see CPR Part 52.10(1) . The powers of this court on judicial review are more limited; it can quash the lower court's order and order it to make another order only if that other order is the only one properly open to it'.
[24] However this court retains power in the exercise of its judicial review jurisdiction to quash a decision of justices that is unlawful. Judicial review proceedings are most appropriate where it is alleged that there has been a procedural impropriety on the part of the Justices, see the classic explanation of Lord Bingham LCJ, in R (Rowlands) v Hereford Magistrates Courts [1998] QB 110 . This is not such a case despite the magistrates' court apparent misconception. The High Court may refuse relief in judicial review proceedings on the ground proceedings by way of case stated where appropriate, but the bar is discretionary, not mandatory.'
In that case, Burnton J decided as a matter of discretion to permit the claim to proceed by way of judicial review, even though the challenge should have been by way of appeal by case stated. In this particular case, I take a similar course. First, no objection has been raised to the procedure and it is difficult to identify any prejudice to the parties caused by the form of the proceedings. Secondly, Mr Downes seemed to have been positively advised by the magistrates' court that judicial review was the only remedy. Magistrates' courts, as I have said, must be careful in the advice they proffer. Thirdly, His Honour Judge Saffman in this case gave permission to proceed and did not raise the issue of the appropriate procedure. Finally, and a reason that I gratefully adopt given by Burnton J, 'unless prejudice is caused to any party or there is some other good reason to refuse to permit a party to proceed by way of judicial review… in my judgment the court should be reluctant to cause a good claim to be defeated by an error as to the form of the proceedings.'
[7] The original demand notice was for a longer period. However, after correspondence with the ratepayer, revised demand notices were issued, for a business rates liability period 1.5.18 to 31.12.18 (paragraph 13)
[8] This was, strictly speaking, a revised demand notice. The first demand notice served 3.7.19 covered the wrong period (paragraph 12-13)
[9] i.e. '...the property was not at any relevant stage while the applicant was in occupation, shown for the day in the relevant rating list in force.' (paragraph 46 of The Queen on the Application of Andy Mann Ltd v York Magistrates Court v Selby District Council [2020] EWHC 2540 (Admin)).
[10] The Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009/2268 come with an explanation attached, explaining in overview, the contents of the regulations. That explanation provides:
'These Regulations, which apply in relation to England only, revoke and partially replace the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 2005 (“the 2005 Regulations”).
The Regulations reflect the establishment on 1st October 2009 of the Valuation Tribunal for England (“VTE”), which is to assume the jurisdiction currently exercised by 56 valuation tribunals in England. Those tribunals, which are to be abolished on 1st October 2009, deal with matters arising under:
regulations under section 55 of the Local Government Finance Act 1988 (“the 1988 Act”), paragraph 4A of Schedule 4A to the 1988 Act, paragraph 5C of Schedule 9 to the 1988 Act, section 45 of the Land Drainage Act 1991 (c.59), section 16 of the Local Government Finance Act 1992 (c.14) (“the 1992 Act”), regulations under section 24 of the 1992 Act, and paragraph 3 of Schedule 3 to the 1992 Act.
Those provisions of the 2005 Regulations which relate to procedural matters relevant to the current system of valuation tribunals have not been carried forward in these Regulations because similar provisions are contained in the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 (S.I. 2009/2269).
The opportunity has been taken to re-order some of the other material contained in the 2005 Regulations and to make minor drafting amendments.
These Regulations are primarily concerned with the alteration of local and central non-domestic rating lists, which are compiled under the 1988 Act. They cover the alteration of non-domestic rating lists by valuation officers, proposals for such alterations from other persons and appeals to the VTE where there is disagreement about a proposal between the valuation officer and another person.
Part 1 of the Regulations (regulations 1 and 2) contains definitions of terms used in the Regulations.
In Part 2:
regulation 3 defines terms used in Part 2,
regulation 4 sets out the circumstances in which proposals to alter the list may be made,
regulation 5 specifies the time limits within which proposals are to be made,
regulation 6 sets out the content of proposals,
regulations 7 to 13 provide the procedures to be followed by valuation officers in relation to proposals,
regulation 14 provides for the determination of the effective date of any alteration made,
regulation 15 makes special provision in relation to advertising hoardings,
egulation 16 requires the effective date of any alteration to be shown in the list, and
regulation 17 makes provision for the notification of any alteration, and
In Part 3, regulation 18 applies Part 2, with modifications, to hereditaments shown on the central non-domestic rating lists.
In Part 4, regulation 19 sets out the procedure for appeals against building completion notices and the imposition of penalty notices. Regulation 20 reproduces, in an amended form to reflect the establishment of the VTE, paragraph (7) of regulation 17A of the 2005 Regulations which was inserted by S.I. 2006/2313. (With the exception of regulation 20 and regulation 23(3) mentioned below, regulation 17A is spent and is not reproduced in these Regulations.)
Regulation 21 requires valuation officers to give notice to billing authorities or the Secretary of State of certain applications to the VTE or appeals to the Upper Tribunal (which has superseded the Lands Tribunal), and to notify the VTE of appeals to the Upper Tribunal. Billing authorities are also required to notify the VTE of appeals made to the Upper Tribunal as regards decisions or orders relevant to completion notices.
In Part 5, regulation 22 makes provision for the giving or service of notices. Regulation 23 deals with the retention of records by valuation officers and includes, in paragraph (3), provision comparable to that in regulation 17A(8) of the 2005 Regulations. Regulation 24 prescribes information to be supplied by authorities for the purposes of paragraph 6(1A) of Schedule 9 to the Act.
Regulation 25 contains revocation, savings and transitional provisions. Broadly, the effect is to revoke the 2005 Regulations, which are being replaced partly by these Regulations and partly by the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009, and the Non-Domestic Rating (Alteration of Lists and Appeals) Regulations 1993 (“the 1993 Regulations”) which were saved by the 2005 Regulations for purposes connected with lists compiled before 1st April 2005. Regulation 44 of the 2005 Regulations, which continued the 1993 Regulations, is saved for purposes relevant to alterations made after the coming into force of these Regulations that affect lists compiled before 1st April 2005. Provision is made for things done under the 2005 Regulations before 1st October 2009 to be treated, where required, as done under the equivalent provision of these Regulations or the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009. The 1993 Regulations are saved, with modifications, for purposes relevant to lists compiled before 1st April 2005 and have effect for those purposes as if made under Schedule 11 to the 1988 Act as amended by the Local Government and Public Involvement in Health Act 2007.'
[11] There are some 'long stop' provisions, which mean that the backdating cannot go back indefinitely. There were not dealt with in The Queen on the Application of Andy Mann Ltd v York Magistrates Court v Selby District Council [2020] EWHC 2540 (Admin) because the backdating was only to a date about 1-2 years earlier.
Non-Domestic Rating (Alteration of Lists and Appeals)(England) Regulations 2009/2268 contains reg. 14, entitled 'Time from which alteration is to have effect: 2005 and subsequent lists'
'1) This regulation has effect in relation to alterations made on or after 1st October 2009 to a list compiled on or after 1st April 2005.
(1A) Paragraphs (2), (2A), (2B) and (6) do not apply in relation to a list compiled on or after 1st April 2017.
(1B) Subject to paragraphs (3) to (7), for a list compiled on or after 1st April 2017, where an alteration is made to correct any inaccuracy in the list on or after the day on which it is compiled, the alteration shall have effect from the day on which the circumstances giving rise to the alteration first occurred.
(2) Subject to paragraphs (2A) to (7), where an alteration is made to correct any inaccuracy in the list on or after the day it is compiled, the alteration shall have effect-
(a) from the day on which the circumstances giving rise to the alteration first occurred, if the alteration is made-
(i) before 1st April 2016 otherwise than to give effect to a proposal;
(ii) in order to give effect to a proposal served on the VO before 1st April 2015;
(iii) on or after 1st April 2016 where the circumstances giving rise to the alteration first occurred on or after 1st April 2015 and the alteration is made otherwise than to give effect to a proposal;
(iv) in order to give effect to a proposal served on the VO on or after 1st April 2015 where the circumstances giving rise to the alteration first occurred on or after that date;
(b) from 1st April 2015 if the circumstances giving rise to the alteration first occurred before that date and the alteration is made on or after 1st April 2016 otherwise than to give effect to a proposal;
(c) from 1st April 2015 if the alteration is made in order to give effect to a proposal served on the VO on or after that date and the circumstances giving rise to the alteration first occurred before that date.
(2A) Where-
(a) an alteration (alteration A) is made on or after1stApril 2015 in order to give effect to a proposal made on the ground set out in regulation 4(1)(d) or (f); and
(b) the proposal was served on the VO within 6 months of the alteration which gave rise to the proposal (alteration B) alteration A shall have effect from the day on which alteration B had effect. (2B) Where-
(a) an alteration is made in order to give effect to a proposal served on the VO on or after 1st April 2015 which was made on the ground set out in regulation 4(1)(e);
(b) the decision which gave rise to the proposal was made before 1st April 2015; and
(c) the proposal was served on the VO within 6 months of the decision which gave rise to the proposal the alteration shall have effect from the day on which the circumstances giving rise to it first occurred.
(3) Subject to paragraph (4), where an alteration is made to give effect to a completion notice, the alteration shall have effect from the day specified in the notice.
(4) Where under Schedule 4A to the Act a different day-
(a) is substituted by a different notice under paragraph 1(3) of that Schedule;
(b) is agreed under paragraph 3 of that Schedule; or
(c) is determined in pursuance of an appeal under paragraph 4 of that Schedule, the alteration shall have effect from the day so substituted, agreed or determined.
(5) Where the day on which the relevant circumstances arose is not reasonably ascertainable-
(a) where the alteration is made to give effect to a proposal, the alteration shall have effect from the day on which the proposal was served on the VO; and
(b) in any other case, the alteration shall have effect from the day on which it is made.
(6) For the purposes of paragraphs (2)(a)(ii), (2A), (2B) and (5)(a), a proposal which is made under regulation 8(6)
(a) shall be deemed to have been served on the VO on the day on which the proposal to which the invalidity notice relates was served.
(7) An alteration made to correct an inaccuracy (other than one which has arisen by reason of an error or default on the part of a ratepayer)-
(a) in the list on the day it was compiled; or
(b) which arose in the course of making a previous alteration in connection with a matter mentioned in any of [paragraphs (1B) to (5)] 5 , which increases the rateable value shown in the list for the hereditament to which the inaccuracy relates, shall have effect from the day on which the alteration is made.
(8) Where an alteration needs to be made after the first anniversary of the day on which the next list is compiled, it shall have retrospective effect only if it is made to give effect to a proposal.'
[12] The Non-Domestic Rating (Alteration of Lists and Appeals)(England) Regulations 2009/2268 contains reg.4(1)(g), which reads 'a hereditament not shown in the list ought to be shown in that list;'.
For completeness, reg.4 is entitled 'Circumstances in which proposals may be made' and reads:
'(1) The grounds for making a proposal are-
(a) the rateable value shown in the list for a hereditament was inaccurate on the day the list was compiled;
(b) the rateable value shown in the list for a hereditament is inaccurate by reason of a material change of circumstances which occurred on or after the day on which the list was compiled;
(c) the rateable value shown in the list for a hereditament is inaccurate by reason of an amendment to the classes of plant and machinery set out in the Schedule to the Valuation for Rating (Plant and Machinery) (England) Regulations 2000 which comes into force on or after the day on which the list was compiled;
(d) the rateable value shown in the list for a hereditament by reason of an alteration made by a VO is or has been inaccurate;
(e) the rateable value or any other information shown in the list for a hereditament is shown, by reason of a decision in relation to another hereditament of-
(i) the VTE,
(ii) a valuation tribunal, or
(iii) the Lands Tribunal, the Upper Tribunal or a court determining an appeal or application for review from the VTE, a valuation tribunal, the Lands Tribunal or the Upper Tribunal,
to be or to have been inaccurate;
(f) the day from which an alteration is shown in the list as having effect is wrong;
(g) a hereditament not shown in the list ought to be shown in that list;
(h) a hereditament shown in the list ought not to be shown in that list;
(i) the list should show that some part of a hereditament which is shown in the list is domestic property or is exempt from non-domestic rating but does not do so;
(j) the list should not show that some part of a hereditament which is shown in the list is domestic property or is exempt from non-domestic rating but does so;
(k) property which is shown in the list as more than one hereditament ought to be shown as one or more different hereditaments;
(l) property which is shown in the list as one hereditament ought to be shown as more than one hereditament;
(m) the address shown in the list for a hereditament is wrong;
(n) the description shown in the list for a hereditament is wrong; and
(o) any statement required to be made about the hereditament under section 42 of the Act has been omitted from the list.
(2) Subject to paragraph (3), a proposal may be made-
(a) by an IP who has reason to believe that one of the grounds set out in paragraph (1) exists;
(aa) by a person, other than an IP, who in relation to a hereditament-
(i) has reason to believe that one of the grounds set out in paragraph (1) exists,
(ii) has reason to believe that the ground relates to any time during which the person was an IP in relation to that hereditament,
(iii) as an IP made a request under regulation 4B(2), and
(iv) (whether or not as an IP) complied with regulation 4C;
(c) by a person, other than an IP, who-
(i) has reason to believe that a ground set out in paragraph (1)(c), (d) or (f) exists, and
(ii) was an IP at any time during which the alteration or amendment in question had effect.
(3) No proposal may be made-
(a) by reference to more than one ground unless, for each ground relied on, the material day and the effective date are the same;
(b) by -
(i) an IP, where that person (or a person having a qualifying connection with that person), acting in the same capacity, has made a proposal to alter the same list in relation to the same hereditament on the same ground and arising from the same event;
(ia) a person mentioned in paragraph (2)(aa) or (c), where that person (or a person having a qualifying connection with that person), acting in that capacity or acting as an IP, has made a proposal to alter the same list in relation to the same hereditament on the same ground and arising from the same event;
(ii) an IP or a person mentioned in paragraph (2)(aa) or (c), where a proposal to alter the list in relation to the same hereditament and arising from the same facts has been made by another person (excluding a person having a qualifying connection with the IP) and has been considered and determined by a valuation tribunal, the VTE, the Lands Tribunal or the Upper Tribunal;
(c) on the ground set out in paragraph (1)(d), to the extent that the alteration was made as a result of a previous proposal relating to that hereditament or gives effect to the decision of a valuation tribunal, the VTE, the Lands Tribunal, the Upper Tribunal or a court determining an appeal or an application for a review in relation to the hereditament concerned.
(4) In paragraph (3)-
“effective date” means the day from which the alteration, if made, would have effect in pursuance of this Part;
“event” means the compilation of the list, a material change of circumstances or an alteration of the list by the VO; and
“material day” , in relation to a hereditament, means the day determined as regards that hereditament in accordance with rules prescribed by regulations under paragraph 2(6A) of Schedule 6 to the Act.'