Is there a time limit on making proposals to the Valuation Office Agency ('VOA') in respect to a local non-domestic rating list ('Local Rating List') in England? Is a person eligible to make a proposal in relation to a Local Rating List, no matter how far back in time that Local Rating List was complied?
This article will consider this issue, in light of:
(1) Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009 ('2009 Regs'), particularly reg.6 and 6A of the 2009 Regs, entitled, respectively, 'Proposals: general' and 'reg. 6A Proposals made on ground in regulation 4(1)(b)'; and
(2) Non-Domestic Rating (Alteration of Lists and Appeals) (England) (Amendment) Regulations 2022/1198 ('2022 Regs'), which inserts into the 2009 Regs, a new regulation, namely reg.5A, entitled 'Proposals: limits'.
This article will focus on the new reg.5A.
Overview - Time Limits on Proposals
Broadly, and subject to some exceptions, there are two deadlines to consider. A deadline measured from when:
(1) a 'check was completed'. This is to be found in reg.6(1) of the 2009 Regs, which provides:
'Subject to regulation 6A, a proposal in relation to a hereditament may only be made within the period of 4 months beginning with the date on which a check was completed in relation to the hereditament.'[1] (this is a deadline which readers might be familiar with); and
(2) a 'confirmation to the VO' was made. This is to be found in reg.5A(1) of the 2009 Regs, which provides:
'Subject to paragraphs (2) and (3), a person may only make a proposal to alter a list if they have provided a confirmation to the VO before the day on which the next list is compiled.' - which will be discussed below.
Reg.5A applies to 2017 List and subsequent Lists
On 1.4.23, the 2022 Regs came into force (reg.1(1)). The 2022 Regs:
(1) apply to England and Wales (reg.1(2)), but reg.5A, the new provision under consideration in this article, only relates to England[2]; and
(2) '...apply in relation to an English list compiled on or after 1st April 2017.' 'English List' as per section 55(8) of the Local Government Finance Act 1988 ('1988 Act'), means a local/central non-domestic rating list complied for a billing authority in England/for England[3].
As a result, reg.5A only applies to Local Rating Lists complied on or after 1.4.17, so that is (presently):
(1) 2017 Local Rating List (complied 1.4.17); and
(2) 2023 Local Rating List (complied 1.4.17)
As the law stands, it will apply to subsequent Local Rating List as well. However, the 2022 Regs do not apply to 2010 Local Rating List, or earlier Local Rating Lists[4].
Insertion of Reg.5A in the 2009 Regs
Reg.2 of the 2022 Regs, is entitled 'Amendment of the Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009', and regs.2(1) and 2(2) of the 2022 Regs insert into the 2009 Regs, a new reg.5A.
Reg.5A in the 2009 Regs
The new reg.5A in the 2009 Regs reads:
'(1) Subject to paragraphs (2) and (3), a person may only make a proposal to alter a list if they have provided a confirmation to the VO before the day on which the next list is compiled.
(2) A person may only make a proposal to alter a list on the ground set out in regulation 4(1)(d) or (f) if they have provided a confirmation to the VO before-
(a) the day on which the next list is compiled; or
(b) the end of the period of six months beginning with the date of alteration,
whichever is the later.
(3) A person may only make a proposal to alter a list on the ground set out in regulation 4(1) (e) if they have provided a confirmation to the VO before the end of the period of six months beginning with the day on which the next list is compiled.".'
Structure
As will be apparent, reg.5A is structured as follows:
(1) there is a default eligibility rule, contained in reg.5A(1), but this is subject to
(2) exceptions, contained in reg.5A(2) and (3).
Default Eligibility Rule
Reg.5A(1) provides the default eligibility rule: '...a person may only make a proposal to alter a list if they have provided a confirmation to the VO before the day on which the next list is compiled.'
In other words, a person is only eligible to make a proposal to alter a Local Rating List complied on or after 1.4.17, if (and only if), a qualifying condition is satisfied, namely, that: before the day on which the next list is complied, the person had provided a confirmation to the VO. So, to make a proposal to alter:
(1) the 2017 Local Rating List, the qualifying condition is that prior to 1.4.23, the person, the would-be proposer, must have provided a confirmation to the VO;
(2) the 2023 Local Rating List, the qualifying condition is that prior to a date currently in the future, the would-be proposer must have provided a confirmation to the VO;
Analysis of whether the qualifying condition exists, brings in consideration of four concepts:
(1) 'Proposal' - reg.2 of the 2009 Regs is entitled 'Interpretation: general' and reg.2(1) contains the following definition of 'proposal' - that it 'means a proposal under regulation 6 for the alteration of a local list or the central list'[5];
(2) 'making' a Proposal - reg.6(3) of the 2009 Regs, states that 'The date a proposal is made is the date on which it is served on the VO.'
(3) VO - reg.2(1) states that 'VO' '...means valuation officer' and reg.3(1), entitled 'Interpretation of Part 2' (Part 2 being 'Alteration of Local Lists'[6]), states that 'VO' '...in relation to a list, means the VO for the authority for which the list is compiled and maintained'[7]
(4) Confirmation - reg.3(1) of the 2009 Regs, states that 'Confirmation' '...means a confirmation under regulation 4C(1)(c)'[8]
Exceptions
There are exceptions to the default eligibility rule, as provided in reg.5A(2) and (3) of the 2009 Regs. Whether the proposed Proposal falls within an exception, will depends on the ground founding the proposed Proposal. The possible grounds being those set out in reg.4 of the 2009 Regs, entitled 'Circumstances in which proposals may be made'[9]. Where the ground founding the proposed Proposal is a ground set out in
(1) reg. 4(1)(d) or (f), the deadline in reg.5A(2) applies. Reg. 4(1)(d) or (f) read:
'(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;'
'(f) the day from which an alteration is shown in the list as having effect is wrong;'
(2) reg. 4(1)(e), the deadline in reg.5A(3) applies. Reg. 4(1)(e) reads:
'(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;'
Case law
As far as the author is aware, there is no reported authorities on reg.5A.
SIMON HILL © 2024*
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] Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009 ('2009 Regs') contains:
(1) reg.6, entitled 'Proposals: general'; and
(2) reg.6A, entitled 'Proposals made on ground in regulation 4(1)(b)'
Taking these in turn:
(1) Reg.6 reads in full:
'(1) Subject to regulation 6A, a proposal in relation to a hereditament may only be made within the period of 4 months beginning with the date on which a check was completed in relation to the hereditament.
(2) A proposal must be made by serving it on the VO-
(a) using the VO's electronic portal; or
(b) in another manner agreed with the VO.
(3) The date a proposal is made is the date on which it is served on the VO.
(4) A proposal must include -
(a) the name, address and contact details of the proposer;
(b) the grounds of the proposal including the particulars on which each of the grounds is based (“particulars of the grounds of the proposal”);
(c) details of the proposed alteration of the list;
(d) the date from which the proposer asserts the proposed alteration should have effect;
(e) the date on which the proposal is served on the VO;
(f) evidence to support the grounds of the proposal; and
(g) a statement as to how the evidence supports the grounds of the proposal.
(5) A proposal in relation to a hereditament (“the hereditament”) made on the ground set out in regulation 4(1)(e) must also include-
(a) the date of the decision made in relation to another hereditament (“the decision”);
(b) the name of the tribunal or court which made the decision;
(c) information to identify the other hereditament;
(d) the reasons the proposer believes that the decision is relevant to the rateable value or other information shown in the list for the hereditament; and
(e) the reasons the proposer believes that, by reason of the decision, the rateable value or other information shown in the list for the hereditament is inaccurate.
(6) If a proposal in relation to a hereditament is made on one or more of the grounds set out in regulation 4(1)(a) to (g) and (i) to (l) and the hereditament is occupied under a lease, easement or licence to occupy (or, where sub-paragraph (c) applies, was so occupied), the proposal must also include-
(a) where the proposer is the occupier, the amount payable each year by the proposer, as at the date the proposal is made, in respect of the lease, easement or licence to occupy, the date at which that amount first became payable and details of any rent-free periods;
(b) where the proposer is not the occupier but is an IP in relation to that hereditament, the amount payable each year to the proposer, as at the date the proposal is made, in respect of the lease, easement or licence to occupy, the date at which that amount first became payable and details of any rent-free periods; or
(c) where the proposer is not an IP in relation to that hereditament, the amount that was payable each year by or to the proposer (as the case may be), as at the last day on which the proposer was such an IP, in respect of the lease, easement or licence to occupy, the date on which that amount first became payable and details of any rent-free periods.
(7) A proposal may deal with more than one hereditament only-
(a) if it is made on the ground set out in regulation 4(1)(k) or (l); or
(b) where the person making the proposal does so in the same capacity in relation to each hereditament and each hereditament is within the same building or the same curtilage.
(8) A proposal made on the ground set out in regulation 4(1)(d) or (f) may include a request for either or both of the following -
(a) the restoration of the list to its state before the alteration was made; and
(b) a further alteration of the list in respect of the hereditament.'
(2) Reg.6A reads in full:
'(1) Paragraph (2) applies to a proposal in relation to a hereditament made on the ground set out in regulation 4(1)(b) if the ground relates to a material change of circumstances mentioned in paragraph 2(7)(d), (da) or (e) of Schedule 6 to the Act.
(2) The proposal may be made by the later of-
(a) the last day in the period of 4 months beginning with the date on which a check was completed in relation to the hereditament; and
(b) the last day in the period of 16 months beginning with the date on which the VO received a confirmation.
(3) Subject to paragraph (4), a person may make only one proposal on the ground set out in regulation 4(1)(b) in relation to each material change of circumstances.
(4) A person may make one proposal on the ground set out in regulation 4(1)(b) in relation to more than one material change of circumstances if-
(a) the material day is the same for each material change of circumstances; and
(b) the effective date is the same for each material change of circumstances.
(5) If a person has provided information to the VO under regulation 4C(1) in relation to a material change of circumstances but does not make a proposal within the period in regulation 6(1), or if applicable the period in paragraph (2) of this regulation, the person may not make a proposal in relation to that material change of circumstances.'
Reg.4 of the 2009 Regs is entitled 'Circumstances in which proposals may be made' and reg.4(1)(b) reads:
'(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 (but this is subject to paragraph 2ZA of Schedule 6 to the Act)'
Schedule 6 of the Local Government Finance Act 1988 is entitled 'Non-domestic Rating: Valuation' and paragraph 2ZA reads:
'(1) Sub-paragraph (2) applies for the purposes of-
(a) compiling a list on or after 1 April 2026, where the day by reference to which the rateable value of a non domestic hereditament in England is to be determined is a day specified under paragraph 2(3)(b), and
(b) altering a list compiled on or after 1 April 2023.
(2) In making a determination or a further determination as to the rateable value of a hereditament situated in England for the purposes for which this paragraph applies, no account is to be taken of any change to a matter within paragraph 2(7)(aa), (da) or (e) that-
(a) is directly or indirectly attributable to a relevant factor, and
(b) in a case within sub-paragraph (1)(a), occurs after the day by reference to which the rateable value is to be determined but on or before the day on which the list is to be compiled.
(3) The relevant factors are-
(a) legislation of any country or territory;
(b) provision that is not within paragraph (a) but is made under, and given effect by, legislation of any country or territory;
(c) advice or guidance given by a public authority of any country or territory;
(d) anything done by a person with a view to compliance with anything within paragraph (a), (b) or (c).
(4) Sub-paragraph (2) does not apply to the making of a determination to the extent that it concerns whether a hereditament or some part of a hereditament—
(a) is or is not a domestic property, or
(b) is or is not exempt from local non-domestic rating.
(5) In this paragraph “legislation” includes any provision of a legislative character; “public authority” includes any person exercising functions of a public nature.'
[2] There is nothing in the Non-Domestic Rating (Alteration of Lists and Appeals) (England) (Amendment) Regulations 2022/1198 ('2022 Regs') which applies to a Welsh rating list. This is because reg.1(3) of the 2022 Regs states 'These Regulations apply in relation to an English list compiled on or after 1st April 2017.' and 'English List' as per Local Government Finance Act 1988, section 55(8) means, as might be expected, non-domestic rating lists in England. It is therefore unclear why reg.1(2) states 'These Regulations extend to England and Wales' rather than just 'These Regulations extend to England'. It perhaps matters not.
[3] Local Government Finance Act 1988, section 55 is entitled 'Alteration of lists' and subsection (8) reads (so far as presently relevant):
'In this section “English list” means-
(a) a local non-domestic rating list that has to be compiled for a billing authority in England, or
(b) the central non-domestic rating list that has to be compiled for England;'
[4] Rateable valuation revaluations have taken place in England and Wales, generally, on a 5 yearly cycle (i.e. quinquennially). Namely, in:
(1) 1956
(2) 1963
(3) 1973
(4) 1990;
(5) 1995;
(6) 2000;
(7) 2005;
(8) 2010;
(9) 2017 (it should have occured in 2015 on the 5 yearly cycle, but it was delayed);
(10) 2023 (the most recent revaluation)(5 years after 2017 would have been 2022; this was 6 years after 2017)
[5] This definition applies only in relation to a local non-domestic rating list compiled on or after 1st April, 2017. See Non-Domestic Rating (Alteration of Lists and Appeals) (England) (Amendment) Regulations 2017/155 reg.4(2)(c).
[6] Part 2 of the Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009/2268 ('2009 Regs') is entitled 'Alteration of Local Lists' and contains regs.3 to 17 inclusive, the bulk of the provision in the 2009 Regs. The other parts are:
(1) Part 1 - regs. 1 and 2, entitled 'General';
(2) Part 3 - reg.18, entitled 'Alteration of Central Lists'
(3) Part 4 - reg.19 to 21 inclusive, entitled 'Provisions relating to Particular Appeals and Applications'
(4) Part 5 - regs. 22 to 25 inclusive, entitled 'Miscellaneous and General'.
For completeness, there is also a schedule, Schedule 1, entitled 'Modifications of the non-domestic rating (alterations of lists and appeals) regulations 1993 as to England only'.
[7] This definition applies only in relation to a local non-domestic rating list compiled on or after 1st April, 2017. See Non-Domestic Rating (Alteration of Lists and Appeals) (England) (Amendment) Regulations 2017/155 reg.5(3)(a).
[8] This definition applies only in relation to a local non-domestic rating list compiled on or after 1st April, 2017. See Non-Domestic Rating (Alteration of Lists and Appeals) (England) (Amendment) Regulations 2017/155 reg.5(3)(a).
Reg. 4C of the Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009/2268 ('2009 Regs') is entitled 'Confirmation of accuracy of information' and reads:
'(1) On receiving information about the hereditament provided by the VO under regulation 4B(2), the person must-
(a) if any of that information is inaccurate, provide the VO with the accurate information;
(b) if the VO has asked the person under regulation 4B(4) to provide the VO with any missing factual information, provide the VO with the missing information; and
(c) confirm to the VO-
(i) which of the information provided by the VO under regulation 4B(3) is accurate; and
(ii) that any information provided by the person under sub-paragraph (a) or (b) is accurate.
(2) A confirmation and any information provided by a person under paragraph (1) must be provided-
(a) using the VO's electronic portal; or
(b) in another manner agreed with the VO.
(3) A confirmation must include a statement as to whether or not, on the day the person provides the confirmation, the proposer qualifies as a smaller proposer.' [bold added]
[9] Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009/2268 ('2009 Regs') contains reg.4, entitled 'Circumstances in which proposals may be made', which 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 (but this is subject to paragraph 2ZA of Schedule 6 to the Act);
(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 10.'