Avison Young Ltd v David Jackson (VO)

Regulation 38(7) of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 permits a temporary alteration to a rating list where the circumstances justifying it are temporary and have ceased. The provision is expressed in broad, non-technical language. Its availability does not depend on a narrow characterisation of the event stated in the ratepayer’s proposal.

Where premises are temporarily incapable of beneficial occupation during fitting-out works, the VTE may limit a nil rateable value to the works period. In exercising that discretion, it may weigh the comparative inaccuracies which would otherwise result, the scale of their effects, and the ratepayer’s ability to make a further proposal to secure the appropriate post-works valuation.

Avison Young Ltd, the ratepayer, appealed from a decision of the Valuation Tribunal for England made on 15 April 2019. The appeal concerned office premises undergoing stripping-out, fitting-out and installation of an internal staircase.

The parties agreed that the premises were incapable of beneficial occupation between 1 September 2014 and 23 January 2015, and that the rateable value should be reduced to nil for that period. The VTE nevertheless restored the former rateable value from 23 January 2015, pending a later alteration to reflect the reduced floor area.

The central issue was whether regulation 38(7) of the Valuation Tribunal for England (Council Tax and Rating Appeals) (Procedure) Regulations 2009 empowered the VTE to confine the nil valuation to the fitting-out period, and whether it should exercise that power.

1. Appeal dismissed. The VTE was entitled to limit the reduction of the rateable value to nil to the period ending when the premises again became capable of beneficial occupation on 23 January 2015.

2. Regulation 38(7) is a broad discretionary power enabling temporary alterations to a rating list where the circumstances justifying them are themselves temporary. Its purpose would be unnecessarily restricted by treating it as applicable only to a particular type of continuing event. The relevant circumstances could accurately be described either as the premises’ incapacity for beneficial occupation or as the stripping-out which produced that condition.

3. The expiry of those circumstances did not depend on the form of the ratepayer’s proposal. Although some grounds for a proposal under the alteration-of-lists regime may not engage regulation 38(7), that did not justify reading a narrow limitation into the general language of the provision.

4. The Vice-President’s exercise of discretion disclosed no error. Whichever order was made, the list would be inaccurate for the intervening period because a retrospective alteration to reflect the reduced area was no longer available. Restoring the former value caused a modest inaccuracy adverse to the ratepayer; retaining a nil value would create a much greater inaccuracy in its favour. The ratepayer could also have protected its position by making a proposal for the appropriate post-works valuation.

5. The Tribunal did not decide whether an appeal from a discretionary decision under regulation 38(7) should be reviewed rather than reheard. It held that the distinction could not affect this appeal, since it would have exercised the discretion in the same way.

• Upper Tribunal (Lands Chamber): dismissed the ratepayer’s appeal and left undisturbed the VTE order limiting the nil rateable value to the fitting-out period.
• Valuation Tribunal for England: on 15 April 2019, reduced the rateable value to nil from 1 September 2014 and restored the former rateable value from 23 January 2015.