Listing Officer, R (on the application of) v Callear [2012] EWHC 3697 (Admin)

Case No CO/3333/2012[2012] EWHC 3697 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT SITTING AT LEEDS
The Courthouse
1 Oxford Row
Venue Leeds West YorkshireDate Friday, 16th November 2012
England
LS1 3BG
B e f o r e:
HIS HONOUR JUDGE SHAUN SPENCER QC
(Sitting as a High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF LISTING OFFICERClaimantv
Between
CALLEARDefendant
Digital Audio Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr R Honey appeared for Claimant for The Respondent did not attend and was not represented
J U D G M E N T

JUDGE SHAUN SPENCER QC :

[1]This is an appeal by the Listing Officer from a decision of the Valuation Tribunal dated 1st March 2012. The Listing Officer has been represented by counsel, Mr Honey. The respondent, Paul Callear, has not appeared and has not been represented. I am satisfied from correspondence which has been shown to me by the appellants that he has been kept fully informed of the documentation and arguments which will be submitted to the court in support of the appeal : and that his absence is explicable on the footing that he does not wish to come. The same can be said for the interested party, Mr Paul Westmorland who has also been kept informed as to the date of the hearing.[2]The decision which is the subject of the appeal relates to some premises known as Flat 4, 7 Vernon Avenue, which is a road situated in the Edgerton or Halifax Road district of Huddersfield.[3]The Listing Officer had determined that Flat 4, which at all material times was occupied by the respondent, Paul Callear, formed a dwelling within the meaning of section 3 of the Local Government Finance Act 1992 and that as such it was chargeable to a council tax as a result of section 4 of the same Act.[4]The Tribunal decision was to a different effect. The Tribunal ordered that the entry and therefore the chargability to a council tax be deleted. The Listing Officer has appealed and an appeal lies upon a point of law. Referring to the relevant provisions. The Valuation Tribunal for England Council Tax and Rating Appeals Procedure Regulations 2269/2009 say by regulation 43:
"43.—(1) An appeal shall lie to the High Court on a question of law arising out of a decision or order which is given or made by the VTE on an appeal under section 16 of the 1992 Act... "
[5]So far as the High Court's powers are concerned, regulation 43(4) says:
"The High Court may confirm, vary, set aside, revoke or remit the decision or order, and may make any order the VTE could have made."
[6]Let me turn to the statutory provisions which relate to council tax. Section 1 of the Local Government Finance Act 1992 reads as follows:
"As regards the financial year beginning in 1993 and subsequent financial years, each billing authority shall, in accordance with this Part, levy and collect a tax, to be called council tax, which shall be payable in respect of dwellings situated in its area."
The word in that section therefore is "dwellings". "Dwellings" is given a special meaning by the Act. I refer to section 3. The black letter heading is "meaning of dwelling":
"(1) This section has effect for determining what is a dwelling for the purposes of this Part."
Subsection (2):
"(2) Subject to the following provisions of this section, a dwelling is any property which— (a) by virtue of the definition of hereditament in section 115(1) of the General Rate Act 1967, would have been a hereditament for the purposes of that Act if that Act remained in force..."
That obviously tells, so far as it goes, what a dwelling is. By virtue of section 4 of the Act council tax shall be payable in respect of any dwelling which is not an exempt dwelling. There is no case for the dwelling being exempt.[7]If I may turn to the expressions "hereditaments" which appears in the General Rate Act, section 115 is the interpretation section of that Act and it says this:
"'hereditament' means property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item in the valuation list..."
It may be thought that that interpretation does not shed floods of light, but the matter has been dealt with in a number of authorities, and I can helpfully cite from paragraph 9 of the judgment of Sullivan J in a case called Beasley v The National Council of YMCAs. He there sets out what the four ingredients are to constitute the test of ratable occupation: first, actual occupation; second, exclusive occupation, for the particular purposes of the possessor, of some value or benefit to the possessor and not enjoyed for too transient a period. Similar expressions are to be gleaned from the case which has been provided to me of John Laing & Son Ltd v Assessment Committee for Kingwood Assessment Area [1949] KB 344.[8]Given the structure of the legislation, it is the submission of the appellant that the matter which engages the attention of the Valuation Tribunal or should engage the attention of the Valuation Tribunal would be to take things in their proper order. That is, first, to address the question whether the premises constitute a dwelling within the meaning of section 3 of the Act, as further amplified by the General Rate Act and by the case law on the matter. If the premises do constitute a dwelling within that special meaning, then the dwelling by virtue of section 4 of the Act is chargeable to tax.[9]At this stage I refer to some photographs which were before the Tribunal and which have been included in the bundle before me. These appear at page 22 in the bundle which has been prepared for this hearing. At page 22 there is a view of 7 Vernon Avenue which is a dwelling with a number of storeys. A plan appears at page 23 and at page 24, one has a view of part of the flat. According to the document the flat is described as an area of 30 square metres. Whether that is 5 metres times 6 or) some more unequal distribution is not all that clear. The photographs perhaps suggest a shape which is nearer to a square than a rectangle but be that as it may. One sees in the area of the photograph a microwave, what is probably a fridge with a freezer section on top. One sees some form of kitchen equipment and one sees a proper size of cooker. We are not talking here about a Baby Belling or anything of that description.[10]So far as the information goes which was before the Tribunal, and which information the Tribunal appears to have accepted, the flat is available for the occupier, Mr Callear, obviously to sleep in, to cook in and to eat in. There is, on the accepted evidence, a shower in the flat. What it does not have is what I might describe as en-suite facilities for a water closet.There is some reference to there being a communal laundry or clothes washer.[11]In those circumstances I will turn to some parts of the actual decision. Paragraph 43:
"This was a complex case with a large amount of evidence. It was unusual in that both the appellant and his landlord were united and arguing for the same alteration to the list. In the main they cited the physical nature of the property and at the individual dwelling units did not provide the necessary facilities for the units to be regarded as self contained. In response the listing officer argued that each of the 10 units comprised self- contained accommodation. In support of his case he referred the Panel to the 1992 Act and it meaning of a 'dwelling' ; To Articles 2 and 3 in the 1992 order and to a number of superior court decisions."
In paragraph 44 the Tribunal said this:
"The High Court judgments did provide the Panel with authoritative legal guidance on what was and what was not a self-contained dwelling for council tax purposes."
There was then a point made by the Panel that they had not been provided with full transcripts, as opposed to selected extracts. It may be that the provision of a full set of the relevant statutes and case law confers an advantage on me, which the Tribunal did not have:
"45. …. the Panel made a finding of fact that the property at 7 Vernon Avenue has operated as a house in multiple occupation for at least 15 years. In that time the property has had a relatively high turnover of residents of both sexes. New residents usually agree an assured short-hold arrangement with landlord who according to his own evidence and that of the appellant's has been relaxed in accepting a surrender of a tenancy mid-term when a resident has found work elsewhere. However, the High Court has held that the actual use to which a dwelling is put is not relevant."
There was then a citation from a case called Jorgensen given by Mr Kenneth Parker, who was sitting as a deputy judge. He said this: the test of whether there is more than one self-contained unit is an objective one. Intention of use, actual and prospective are not relevant. It however is correct to consider whether, having regard to the particular circumstances of the case, the physical characteristics of the building do in fact constitute a separate living accommodation. He said further that it is necessary to do no more than to look at the present physical characteristics of the relevant building.[12]In appeals of the nature the High Court had decided that in determining whether or not a dwelling was self contained, a Tribunal or a court had to apply what was known as a purely objective bricks and mortar test.[13]Having regard to the physical characteristics of the appeal dwelling and the building (7 Vernon Avenue as a whole) the Panel established that the rooms provided to the residents are small bed-sit rooms with cooking facilities and a sink basin. The rooms provide limited living space for the residents. They cook, sleep and live in their room. Six of the rooms have a shower unit although these have been added on a piecemeal basis at the behest of the local authority. Those rooms that do not have showers are probably too small to accommodate a shower unit. None of the 10 rooms has a WC. These are located on each floor, except for the ground floor where the sole resident is required to use a WC on an upper floor. The residents share a laundry. They came to the crunch in paragraph 47.[14]Having reviewed the 1992 order and the case law, particularly the judgment in Clement v Bryant, the Panel noted that it was held that it is not crucial that every facility needs to integral to the unit of accommodation for it to be regarded as "self contained".[15]Although the absence of a particular facility was not necessarily fatal to the listing officer's case, in the case under consideration the degree of communal living and the sharing of facilities, especially the toilet and laundry facilities, together with the restricted living space, tipped the balance to such an extent that the appeal "dwelling" could not reasonably to be considered to be a self-contained unit. Moreover the appeal dwelling, although described by the listing officer as a "flat" was more akin to a small bed-sit with access to communal facilities in the main building.[16]One point which I should deal with in order to dispose of it: frequently the Panel refers to flat 4 as a dwelling - see, for example, paragraph 43, reference to "individual dwelling units"; paragraph 44, what was and was not a self- contained dwelling; paragraph 45, the actual use to which a dwelling is put and paragraph 47, "the appeal dwelling" appearing twice.[17]I do not think the appellant can really claim any forensic advantage from the use of the word "dwelling" where I have cited it. It seems to me clear that the Panel was not using the expression as a special term of art in the sense in which it is defined in section 3 of the Act.[18]In view of these references to self-contained, self-contained dwelling, self-contained unit, it is now appropriate that I now make some reference to the relevant order which covers this area.[19]The Council Tax Chargeable Dwellings Order 1992 549/1992. This quite plainly is an enlarging provision. Regulation 3 says this:
"Where a single property contains more than one self-contained unit, for the purposes of Part 1 of the Act the property shall be treated as comprising as many dwellings as there are such units included in it and each such unit shall be treated as a dwelling."
[20]What is a self-contained unit? For that one turns to a definition regulation. This is regulation 2:
"Self-contained unit means a building or part of a building which has been constructed or adapted for use as separate living accommodation."
[21]The expression there is "self-contained unit". The use in the decision of the expression "self-contained dwelling" rather amounts to a compilation of the expressions. That is the submission of the appellant.[22]The appellant's principal submission however is that the Panel should have addressed, first of all, the question whether Flat 4 amounted to a dwelling within section 3 of the Act. It is quite clear that that is the first question which has to be considered.[23]I refer, without specific citation, to the decision of Dobbs J in Hawthorne v Parr, Crown Office /1570/2009. To that extent I do agree that the Tribunal's decision discloses an error of law. What must first be addressed is the question whether the premises constitutes a "dwelling" within the meaning of section 3. That was not clearly addressed.[24]I am invited, with re-iteration, to decide for myself that Flat 4 does constitute a dwelling within the meaning of the Act. I am referred to the aspects of the case to which I have already made reference, the dimensions of the room, the photograph depicting the nature of the equipment available and the use of the room for just about every bodily function that can be imagined apart from those engaged in by use of the water closet which is outside the room.[25]The proposition is one which may be tempting. It is certainly submitted to me that it should be, but I take the view that for me to do that would, in the first place, involve arriving at a decision which the Tribunal had never addressed. While I think I have power to do it, I do not think it would be appropriate and in any event I would myself be uncomfortable about addressing that, without a sight of the assured tenancy agreement which it is said was available.[26]I do not however think it would serve any useful purpose for me to come to a decision myself on whether it amounts to a dwelling within the meaning of section 3 of the Act. The reason why I say that is this. In my view, it was quite plainly a self-contained unit within the meaning of the order. If by way of parity of reasoning I make some citation from the decision of Sullivan J in the Beasley case, to which I have already made reference.[27]‘I direct myself, as one does, that the issue is whether this particular room has been constructed or, in this case, adapted, for use as separate living accommodation. I take the view that that is plain enough. But looking further at the judgment given, at paragraph 14, I would be prepared to accept that in deciding whether a particular flat has or has not been constructed for use as separate living accommodation within a larger building, it will often be relevant to consider the extent of the communal facilities which have been provided in the flat and the extent of the communal facilities which have been provided in the remainder of the building.’[28]‘An obvious example perhaps at one end of the spectrum would be traditional student accommodation, in which what may be available in the student's room is simply the bedroom and all other facilities cooking, washing and toilet facilities are provided communally’[29]It may be that things have moved on a bit since then. I know myself that many students' accommodations now have what you might call en-suite washing, showering and toilet facilities. He said plainly such factors are in principle relevant to the question whether a particular room has been constructed for use as separate living accommodation. But it is said on the facts here, can it be said that any reasonable Tribunal could have reached the conclusion that given the extent of the facilities provided in the flats which I set out above and given the extent of the communal facilities, those flats have not constructed for use as separate living accommodation?[30]I take the view that the only item which might be arguably missing from these premises would be a lavatory or water closet. But I do not think that that absence prevents the room (Flat 4) from qualifying as separate living accommodation or as a self-contained unit. I do say, clearly, that I think that the conclusion that it did not amount to a self-contained unit was an unreasonable one. Therefore, I quash that finding and allow the appeal.[31]I am very conscious from the arguments which have been advanced to me that the appellant would much have been preferred that the matter be dealt with at this level on the basis of dealing with section 3 and coming to a finding as to whether the room was a dwelling or not within the meaning of the Act.[32]But I take the view that what the appellant is entitled to is a decision : not a decision on a particular basis. It is a decision on a particular basis which I was not prepared to give because, if necessary, I would have remitted the question of whether it was a section 3 dwelling to be considered by the Valuation Tribunal which is a specialist Tribunal dealing with these matters.[33]MR HONEY: My Lord, I am grateful. There is one issue in relation to the transcript which perhaps I could raise, which is the citations for the Hawthorne v Parr case, if I mention that for the purpose of the transcript. That is [2009] EWHC 2002 (Admin).[34]My Lord, that was the only thing that I need to raise with your Lordship.

JUDGE SHAUN SPENCER QC :

[35]I quoted the Crown Office number. But you are right, the neutral citation is what you said it was.[36]MR HONEY: My Lord, I am grateful.

JUDGE SHAUN SPENCER QC :

[37]Yes. Thank you.[38]Are there any applications for costs?[39]MR HONEY: No my Lord.

JUDGE SHAUN SPENCER QC : Perhaps I should say: no order for costs?

[41]MR HONEY: I am content for the formal order to say: no order as to costs.

JUDGE SHAUN SPENCER QC : In case people think I have forgotten.