Howard Gardens Manco Limited, R (on the application of) v Lucy Formela-Osbourne (Listing Officer)

In exercising the discretion to aggregate dwellings under article 4 of the Council Tax (Chargeable Dwellings) Order 1992, a listing officer must consider all the circumstances, but neither the legislation nor guidance prescribes a formula or outcome. Relevant factors may include structural alterations, the number of letting rooms, communal facilities, adaptations and the transience of occupation.

Practice guidance identifying factors and their usual tendency is not a rigid policy. The decision-maker may give different weight to those factors without having to justify a departure from a predetermined outcome. Comparable properties may be considered, but each property must be assessed independently. Equality of treatment requires consistent principles, not necessarily identical outcomes.

The claimant owned a purpose-built block of student accommodation containing 61 cluster flats and 391 en-suite bedrooms. The listing officer treated each bedroom as a separate dwelling for council tax purposes and declined to exercise the discretion under article 4 of the Council Tax (Chargeable Dwellings) Order 1992 to aggregate the bedrooms within each flat.

The claimant sought judicial review on five grounds, alleging failure to consider structural alterations, reliance on the number of bedrooms as an irrelevant factor, error of fact concerning communal space, irrational or unexplained departure from guidance on shared facilities, and inconsistent treatment compared with other properties.

1. Claim dismissed. The listing officer had a discretion under article 4 to treat a multiple property as one dwelling. The flats were distinct units for which aggregation had to be considered individually, but the legislation and Practice Note 6 imposed no formula or predetermined result.
2. Structural alterations were a mandatory matter to which regard had to be had under article 4(2). Their relevance concerned whether alterations had severed or facilitated the separation of parts from a formerly single dwelling or self-contained unit. It did not concern whether individual student bedrooms had themselves been altered. The purpose-built nature of the property rationally explained why the absence of structural alterations was given no weight.
3. The number of bedrooms in a flat was potentially relevant. It could affect the practical extent of communal living, and was a more stable indicator than the fluctuating number of occupiers. The officer was entitled to prefer consistent treatment across the property where only a small minority of flats had fewer bedrooms.
4. Review for error of fact required a material misunderstanding or ignorance of an established fact demonstrable by objective and uncontroversial evidence. The assessment of communal space involved judgment. The evidence that seating existed for every occupier did not conclusively determine whether the space was sufficient or convenient for collective socialising. No irrational factual error was established: E v Secretary of State for the Home Department [2004] EWCA Civ 49 and R (Chalfont St Peter’s Parish Council) v Chiltern District Council [2014] EWCA Civ 1393.
5. Practice Note 6 identified factors and their usual tendencies, but expressly rejected a tick-box approach. Shared kitchens could favour aggregation, while en-suite facilities could weigh against it. Giving greater weight to the latter was not an unexplained departure from the guidance.
6. Rationality permitted consideration of comparable properties where the applicable criteria did not dictate a particular result. Nevertheless, each property required independent assessment. Equality required consistent principles, not uniformity of outcome. The earlier decisions concerned different evidence and earlier guidance, so the officer was entitled to give them little weight and to conclude that the claimant’s property should be assessed on its own circumstances.

The claim was dismissed.