Corkish (Listing Officer) v Wright & Anor

Whether accommodation is a self-contained unit is an objective question of fact and degree. The relevant inquiry is whether the physical characteristics of the building make it reasonably suitable for use as separate living accommodation. Those characteristics include the unit’s services, fixtures, size and access, together with relevant characteristics of the remainder of the building. Intention is irrelevant. Actual use may sometimes support the conclusion reached from the physical characteristics, but it is not the test and will rarely carry significant weight. Access through the main building may point against separate accommodation, but it cannot determine the issue without consideration of the other physical features. A tribunal must give sufficient reasons to show that it applied this legal test.

The listing officer appealed under Regulation 43 of the Valuation Tribunal for England (Council Tax and non-domestic rating appeals) (procedure) Regulations 2009 against the Tribunal’s decision deleting a separate council-tax listing for an annex at the respondents’ home.

The annex was a converted garage containing one living room, a sink, storage, a fridge, a shower room and toilet, but no cooking facilities or separate public access. The Tribunal relied principally on access through the main house and the respondents’ use of the annex as an extension of their living arrangements. The central issue was whether the Tribunal had applied the correct objective test and given adequate reasons.

1. The appeal was allowed and the Tribunal’s decision was quashed. The question under the Council Tax (Chargeable Dwellings) Order 1992 is whether the construction or adaptation made the relevant building or part reasonably suitable for use as separate living accommodation.
2. The assessment is objective and concerns the physical characteristics of the building. Relevant features include services and fixtures, size, cooking facilities and access. Where part of a building is considered, the characteristics of the remainder may also be relevant. Intention and the purpose of the works are irrelevant.
3. Actual use may in some cases reinforce a conclusion derived from the physical characteristics, particularly where occupation is by persons outside the main household. It is not the statutory test and will usually have little weight. Access through the remainder of the building may point against separate accommodation, but cannot be determinative by itself.
4. Although the Tribunal could have concluded on the evidence that the annex was unsuitable by reference to its size, cooking facilities and access, its reasons did not show that it reached that conclusion by applying the correct test. The reference to intention in paragraph 33, the treatment of actual use, and the failure to address material physical features made the reasoning legally inadequate.
5. The High Court could not substitute a decision in favour of the listing officer. The matter was remitted to the Tribunal for reconsideration in the light of the judgment, with the constitution of the panel to be considered separately.

1. High Court (Administrative Court): allowed the statutory appeal from the Valuation Tribunal for England’s decision dated 10 July 2013, quashed that decision and remitted the matter for reconsideration.