Coll (Listing Officer) v Mooney

The statutory question whether part of a property is a “self-contained unit” depends on whether it has been constructed or adapted for use as separate living accommodation. The court must assess the property’s physical characteristics as they exist, including layout, services, fixtures and facilities in the remainder of the building. The purpose or intention of the works and the occupiers’ subjective domestic arrangements are not the statutory test. Evidence of actual use may nevertheless assist in determining what use the building has physically been adapted for. A specialist valuation tribunal is the primary fact-finder, and an appellate court should interfere only for an error of law, an irrational or unsupported finding, or a plainly impermissible evaluation. The appeal was dismissed.

The Listing Officer appealed under regulation 43 of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 against the decision of the Valuation Tribunal for England dated 21 August 2015. The tribunal had ordered that 9–11 Ebenezer Road, Hastings, be entered as one dwelling rather than as two dwellings.

The property had originally been one dwelling but had later been divided and separately listed. After the owners acquired the whole property, they carried out works intended to restore it to one dwelling. The lower ground floor retained a utility room with laundry facilities and no kitchen, while the principal kitchen was on the ground floor. The Listing Officer treated the lower ground floor as a separate self-contained unit. The central issues were whether the tribunal had impermissibly relied on actual use and the building’s listed status when applying the statutory test.

1. Appeal dismissed. The VTE’s conclusion that the lower ground floor was not a separate dwelling was a question of fact and judgment under article 2 of the Council Tax (Chargeable Dwellings) Order 1992. The High Court’s jurisdiction under regulation 43 was confined to questions of law. Specialist tribunals’ factual and multi-factorial evaluations attract particular deference.
2. The correct inquiry is whether the relevant building or part has been “constructed or adapted for use as separate living accommodation”. The focus is the physical characteristics of the property as presently constructed or adapted. This is broader and more accurate than a literal “bricks and mortar” inquiry. It includes internal layout, services, fixtures and physical facilities for cooking, washing and laundry.
3. The relevant assessment may include the physical characteristics and facilities of the remainder of the building. Communal facilities can show that a part has not been adapted for separate and exclusive use. This differs from treating family or communal life as relevant, which is not the statutory test.
4. The actual use made by particular occupiers is not itself the statutory test, but evidence of actual use may be relevant evidence of the use for which the property was physically adapted. The VTE was therefore entitled to consider that the lower ground floor contained laundry facilities for the whole house and that the sole kitchen was on the ground floor.
5. The listed status of the property and the resulting restrictions on its reconfiguration were relevant evidential circumstances bearing on its physical characteristics. The VTE did not misdirect itself by considering them. Its finding that the lower ground floor was not available for separate and exclusive use as a kitchen was a permissible evaluation, even though food could technically be prepared there.
6. The VTE’s decision was read fairly and benevolently. Its incomplete recording of the evidence did not justify setting aside or remitting the decision, and the appeal was dismissed.

High Court (Administrative Court): statutory appeal from the decision of the Valuation Tribunal for England dated 21 August 2015. The tribunal’s decision was upheld and the appeal dismissed.