Jorgensen (Listing Officer), R (on the application of) v Gomperts

Whether accommodation is a self-contained unit under article 2 of the Council Tax (Chargeable Dwellings) Order 1992 requires an objective assessment of its physical characteristics. The court must consider whether the building or part of it has been constructed or adapted as separate living accommodation. Intention, actual use and prospective use are irrelevant. It is unnecessary to establish when, how or by whom the relevant physical configuration was achieved. A lockable door is not an essential condition, although privacy may be a material factor in particular circumstances. The assessment remains one for the tribunal, which must evaluate the facilities and physical configuration in the circumstances of the case.

The Listing Officer appealed under regulation 32 of the Council Tax (Alteration of List and Appeals) Regulations 1993 against the decision of the London North East Valuation Tribunal. The Tribunal had directed that a Victorian townhouse be entered in the Valuation List as one dwelling in Band G, rather than as a maisonette and a separate second-floor flat.

The Tribunal considered the second-floor accommodation, including its sleeping, cooking and bathroom facilities, but relied materially on the absence of a lockable entrance door, the history of occupation, and the absence of an intention to create separate accommodation. The central issue was the proper construction and application of the statutory definition of a self-contained unit.

1. Appeal allowed and matter remitted. The Tribunal had applied the wrong legal approach and the issue was remitted to a differently constituted Tribunal for reconsideration.
2. Article 2 of the Council Tax (Chargeable Dwellings) Order 1992 requires an objective assessment of the present physical characteristics of the building or part of the building. The question is whether those characteristics constitute separate living accommodation. The approach in Coleman v Rotsztein [2003] RA 152, Hayes v Humberside Valuation Tribunal and Kingston Upon Hull City Council [1998] RA 37, and Clement (Listing Officer) v Bryant and Others [2003] RA 133 supported that conclusion.
3. It is impermissible to decide the issue by reference to the subjective intention of the constructor or adaptor, or to the actual or prospective use by occupiers. It is likewise unnecessary to investigate precisely when, how or by whom the relevant adaptation occurred. Requiring such evidence would create uncertainty, cost and inconsistent treatment of physically identical accommodation.
4. The physical characteristics must nevertheless be examined closely in the circumstances of each case. There are no rigid rules concerning facilities such as cooking arrangements. Whether what is physically present constitutes a kitchen or other facility is primarily a matter for the Tribunal.
5. McColl v The Listing Officer [2001] RA 342 did not establish that a lockable door is required in every case. Privacy may be a material element in particular circumstances, but the question is whether the physical characteristics objectively provide separate living accommodation. The Tribunal must not treat a lockable door as a necessary condition.
6. A previous Listing Officer’s opinion may sometimes be admitted as evidence, but the decision must be that of the Tribunal. The earlier opinion concerning this property related to a materially different configuration and should not have been relied upon.
7. No order for costs was made. The respondent was given liberty to re-apply for costs if ultimately successful before the Tribunal.

• High Court (Administrative Court): Allowed the Listing Officer’s appeal against the decision of the London North East Valuation Tribunal and remitted the matter for reconsideration.
• London North East Valuation Tribunal: Directed that the property be entered as one dwelling in Band G from 6 September 2004.