National Car Parks Ltd. v Baird (Valuation Officer) & Anor [2004] EWCA Civ 967

“(2) In regulation 4 (time from which alteration to have effect), after paragraph (6) there shall be added - “(6A) An alteration made to correct an inaccuracy in a list on the day it was compiled shall have effect from that day.” [(6B)...]”

“and if this regulation [ie regulation 15] had not been made and if in the former regulation 6 the reference to regulation 4 was a reference to regulation 13 of these Regulations.”

“19. The Manchester hereditament was entered in the rating list that came into force on 1 April 1990 as “Car Park, Former Warehouse and Railway Land, Watson Street, Manchester M2” with an assessment of £343,500 RV. It comprised the converted lower floors of a multi-storey warehouse together with an extensive area of open land to the rear, all occupied as a public car park. On 23 August 1990 J Trevor & Sons served on the VO a proposal to alter the entry in the list by reducing the assessment to £1. 20. The appeal resulting from this proposal was due to be heard by the Manchester South Valuation Tribunal on 31 January 1994. Negotiations with a view to a resolution of the appeal took place between Mr Lilley [ of J.Trevor & Sons, the agent for NCP] and Mr Todd [the valuation officer] during December 1993 and January 1994, and a meeting between them took place in Manchester on 17 January 1994. On 26 January 1994 Mr Todd and Mr Steven Cooper of J Trevor & Sons had a meeting at the subject premises and agreed that the useable capacity of the public car park was 1042 spaces. The next day 27 January 1994 Mr Lilley and Mr Todd spoke on the telephone and agreed that the proper assessment was £260,000 RV. Mr Lilley’s agreement to this figure was subject to the approval of his client, and later that day Mr Lilley spoke to Mr Birks and received his instructions to accept the reduction, subject to the operation of the transitional relief provisions. Mr Lilley carried out the necessary calculations and these showed that it would be financially beneficial if the August 1990 proposal were to be withdrawn and he were to request the VO to alter the assessment in the list to £260,000 with effect from 1 April 1992. Mr Lilley then telephoned the clerk to the VT to notify him of his instructions to withdraw the appeal. 21. Despite Mr Lilley’s attempted withdrawal of the appeal, the VT on 31 January 1994 considered it. On 3 February 1994 it issued a decision determining that the assessment should be reduced to £260,000 with effect from 1 April 1990. On 18 and 23 February 1994 Mr Lilley wrote to the clerk of the VT asking that the decision be set aside under regulation 45 of the 1993 Regulations. Since there was no objection to this from the VO the VT issued a certificate on 8 March 1994 setting aside the decision. On 10 March 1994 J Trevor and Webster (as the firm was now called) wrote to the VO formally withdrawing the appeal and requesting him to alter the list to show an assessment of £260,000 with effect from 1 April 1992. On 22 April 1994 Mr Todd left the Manchester office to take up new duties in the City of London. Before leaving he had made arrangements for the list to be altered in accordance with the request in the letter of 10 March 1994. On 28 April 1994 the VO gave his notice to the VT withdrawing the appeal. 22. The VO did not in fact alter the list to show the agreed assessment of £260,000 until 30 August 1994. By that time the 1994 (Amendment) Regulations had been made and had come into force (on 9 July 1994), so that the alteration showed as the effective date, in accordance with the amended regulations, 1 April 1990. What had happened following Mr Todd’s departure was that the VO’s clerical staff had on 9 May 1994 prepared a form, form VO 7001 (referred to as a “pink”), in relation to the appeal hereditament, annotating it with the remark “Please review as per SDT [ie Mr Todd]”

“There was no dispute as to the facts that I have set out. There was, however, dispute as to whether in each case, as the appellant claimed, these facts showed that there was an understanding that the VO would alter the list so as to show the agreed value with effect from 1 April 1992 and that he would do so within a reasonable time. I return to this matter later.”

“It is, of course, clear that in each case the VO was aware of why it was that the appellant’s agents wished to pursue the course of withdrawing the proposals and looking to the VO to make alterations at the assessments agreed under his general statutory power. It is also clear that the VO, with whom agreement had been reached on value, was happy to go along with this procedure. The evidence does not, however, show in either case that there was any agreement or understanding between the parties that the VO would alter the list to show the assessment that had been agreed with effect from 1 April 1992, whether or not that remained the correct date under the applicable regulations when the alteration was made.”

“The nature of the procedure that the appellant was looking to the VO to carry out was to alter the list to the agreed assessment in the exercise of his general duty to maintain the list and in accordance with the regulations. Amendment of the regulations was by then a not infrequent occurrence, and it seems to me inconceivable that the VO could be taken to be undertaking to alter the list with effect from 1 April 1992 even if, at the time he altered it, the regulations as then existing required him to apply some other effective date.”

“There is, in any event, a further objection to [NCP’s counsel]’s contention. It was not his case that there was an agreement between the parties that the VO would alter the list to show the agreed assessment with effect from 1 April 1992. He said rather that there was an understanding that this would be done, and that the appellant had a right that it would be done that accrued on the withdrawal of the appeal. But whether it is expressed as an agreement or an understanding giving rise to rights and obligations, there is, in my view, a fundamental objection to the argument. The VO’s duty under section 41(1) to maintain an accurate list is a duty owed not to an individual ratepayer but to the public at large. It is a duty, therefore, that cannot be qualified by any agreement or arrangement or understanding between the VO and a ratepayer. The agreement on value could not give rise to any duty on the VO’s part to alter the list to show that value. It could only provide evidence of what the correct value was; so that if, for instance, before the VO altered the list, further evidence became available that suggested that some other value was correct, the VO would not be obliged – indeed he would not be entitled – to ignore this further evidence.”

“I cannot accept the submission that the VO was under any duty or obligation to alter the list within a reasonable time. Such a requirement cannot, in my judgment, be read into the very general terms of his duty under section 41 to maintain the list, and there is no basis for importing some contractual obligation to qualify his statutory duty. It is possible that he could not delay so long in making the alteration that it would be “conspicuously unfair” and thus an abuse of power (see Corus [2002] RA 1 at para 54), but it seems to me impossible to say that a delay of the number of months that occurred in these cases could be characterised as an abuse of power. It is only because the regulations had been amended in a way that was adverse to the appellant before the alterations were made that they now complain. It is not suggested, however, that either VO deliberately delayed so that the 1994 (Amendment) Regulations might be made and might come into force before the alterations were made.”

“That duty has to be discharged in the real world, where there are finite resources, and only 24 hours in the valuation officer’s day. He may have to give priority to certain known inaccuracies, and defer consideration of other matters which possibly require alteration.”