“Occupied hereditaments liability. (1) A person (the ratepayer) shall as regards a hereditament be subject to a non-domestic rate in respect of a chargeable financial year if the following conditions are fulfilled in respect of any day in the year— (a) on the day the ratepayer is in occupation of all or part of the hereditament, and (b) the hereditament is shown for the day in a local non-domestic rating list in force for the year. (2) In such a case the ratepayer shall be liable to pay an amount calculated by— (a) finding the chargeable amount for each chargeable day, and (b) aggregating the amounts found under paragraph (a) above.” (a) on the day the ratepayer is in occupation of all or part of the hereditament, and (b) the hereditament is shown for the day in a local non-domestic rating list in force for the year. (a) finding the chargeable amount for each chargeable day, and (b) aggregating the amounts found under paragraph (a) above.” (ii) Section 45: “Unoccupied hereditaments: liability (1) A person (the ratepayer) shall as regards a hereditament be subject to a non-domestic rate in respect of a chargeable financial year if the following conditions are fulfilled in respect of any day in the year— (a) on the day none of the hereditament is occupied, (b) on the day the ratepayer is the owner of the whole of the hereditament, (c) the hereditament is shown for the day in a local non-domestic rating list in force for the year, and (d) on the day the hereditament falls within a class prescribed by the Secretary of State by regulations. (2) In such a case the ratepayer shall be liable to pay an amount calculated by— (a) finding the chargeable amount for each chargeable day, and (b) aggregating the amounts found under paragraph (a) above.” (a) on the day none of the hereditament is occupied, (b) on the day the ratepayer is the owner of the whole of the hereditament, (c) the hereditament is shown for the day in a local non-domestic rating list in force for the year, and (d) on the day the hereditament falls within a class prescribed by the Secretary of State by regulations. (a) finding the chargeable amount for each chargeable day, and (b) aggregating the amounts found under paragraph (a) above.”
“(1)Where section 45 applies in relation to a hereditament, the chargeable amount for a chargeable day is zero in the following cases. (2)The first case is where— (a)the ratepayer is a charity or trustees for a charity, and (b)it appears that when next in use the hereditament will be wholly or mainly used for charitable purposes (whether of that charity or of that and other charities).”
“On 12/5/18 the court wrote to you to confirm that the required fee had not been paid. The fee was eventually received on 21/5/18. The court have (sic) no discretion to extend the 21 day time limit. Your fee paid application is therefore out of time. As such DJ Hadfield has confirmed that he is not able to state a case.”
“(1) Where a court, be it a Magistrates' Court or a Crown Court, refuses to state a case, then the party aggrieved should without delay apply for permission to bring judicial review, either (a) to mandamus it to state a case and/or (b) to quash the order sought to be appealed. (2) If the court below has already (a) given a reasoned judgment containing all the necessary findings of fact and/or (b) explained its refusal to state a case in terms which clearly raise the true point of law in issue, then the correct course would be for the single judge, assuming he thinks the point properly arguable, to grant permission for judicial review which directly challenges the order complained of, thereby avoiding the need for a case to be stated at all. (3) If the court below has stated a case but in respect of some questions only, as here, the better course may be to apply for the case stated to be amended unless again, as here, there already exists sufficient material to enable the Divisional Court to deal with all the properly arguable issues in the case. (4) This court for its part will adopt whatever course involves the fewest additional steps and the least expense, delay and duplication of proceedings. Whether, as in Ex Parte Levy, it will be possible to proceed at once to a substantive determination of the issues must inevitably depend in part upon whether all interested parties are represented and prepared, and in part upon the availability of court time. Applying those principles to the present case, there can be no doubt that rather than remit the case stated to the Crown Court for further questions to be raised, this court should proceed as if this challenge had been brought by judicial review. I see no possible need to produce further formal documents for the purpose.”
“(1) Any person who was a party to any proceeding before a magistrates’ court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved; ….. (2) An application under subsection (1) above shall be made within 21 days after the day on which the decision of the magistrates’ court was given. ….. (5) If the justices are of opinion that an application under this section is frivolous, they may refuse to state a case, and, if the applicant so requires, shall give him a certificate stating that the application has been refused; but the justices shall not refuse to state a case if the application is made by or under the direction of the Attorney General. (6) Where justices refuse to state a case, the High Court may, on the application of the person who applied for the case to be stated, make an order of mandamus requiring the justices to state a case.”
“You must send this form so as to reach the recipients not more than 21 days after the decision about which you want to appeal to the High Court. If that decision was by a magistrates’ court, the court has no power to extend that time limit.”
“Consequences of failing to pay the specified fee 21. —(1) Subject to paragraph (2), where an application to which these Regulations refer is to be accompanied by a specified fee, the application will not be considered to have been validly made unless it has been accompanied by that fee. …..”
“Thirdly, it is widely appreciated that the rules on charitable exemption can be manipulated to the advantage of both the owner of business premises and the charity leasing the premises. The landlord of unoccupied business premises will have to pay rates. However, if he lets it to a charity which carries on charitable activities, the landlord is no longer the ratepayer within the statutory definition in section 65. But the charity is able to take advantage of the charitable exemption. …. However, when determining whether the exemption applies or not, it is immaterial that the purpose of the arrangement between the landlord and the charitable tenant is to reduce or avoid payment of the business rates: see the Kenya Aid case …para. 38. There is nothing unlawful in parties seeking to arrange their affairs so as to avoid paying taxes which they would otherwise have to pay, if they can lawfully do so.”
“Even taking all the evidence, including that of Mr Wilcock, at its highest I could not be satisfied that those items which were exhibited (or intended to be exhibited) were such as to enable judicial notice of their quality to be taken. In the absence of such judicial notice being taken the court would require evidence as to their quality to make such an assessment. In this case there was insufficient evidence to enable me to be satisfied the public benefit test was satisfied.”
“However, the standard of proof will merely be that of the balance of probabilities, and …like all cases of the burden of proof in litigation, it is a swinging burden. As the evidence of varying weight develops before the magistrates, the eventual burden of proof will, in accordance with ordinary principles of evidence, remain with or shift to the person who will fail without further evidence.”
“70. But suppose, for the sake of argument, that someone wished to argue that such education [according to conventional curricula] was not for the public benefit at all, perhaps because of some deeply held religious or other belief. The starting point of the judge would surely be that the provision of standard education is for the public benefit. … there are surely some matters of which the court can take judicial notice, one of which must be the proposition that mainstream education of that sort is for the public benefit. …. 85. … our above analysis shows that there is to be no presumption made that any particular type of education is for the public benefit: there is to be no presumption that education according to the curriculum adopted across schools (whether in the public or independent sector) is for the public benefit and there is to be no presumption even that specialist education for physically or mentally disabled children at no extra cost to them or their parents is for the public benefit.”
“Where a museum is concerned and the utility of the gift is brought in question it is, in my opinion, … essential to know at least something of the quality of the proposed exhibits in order to judge whether they will be conducive to the education of the public. … It was said that this was a matter of taste, and de gustibus non est disputandum, but here I agree with the judge that there is an accepted canon of taste on which the court must rely, for it has itself no judicial knowledge of such matters, and the unanimous verdict of the experts is as I have stated.” (iii) Davies LJ was of a similar view: “It is, in my opinion, clear that where necessary the court, in order to decide whether a valid charitable gift has been made in circumstances like the present, may, and indeed must, receive expert evidence on the question of whether the display of the articles comprised in the gift is calculated to be for the advancement of education or otherwise of benefit to the public.” (iv) Likewise Russell LJ: “The mere fact that a person makes a gift of chattels to form a public museum cannot establish that its formation will have a tendency to advance education in aesthetic appreciation or in anything else. Inquiry must first be made, what are the chattels? Five hundred balls of string could not have that tendency. … Some further judicial inquiry is needed directed to the quality of those chattels. The judge cannot conduct that inquiry on his own, unless the matter be so obvious as to call for no hesitation. He may be lacking in aesthetic appreciation. He is, I consider, entitled to the assistance of people expert in such matters and to arrive at a conclusion based on such assistance. ….”
“.1 Where the defendant in judicial review proceedings is a Court, Tribunal or Coroner, the Administrative Court will generally not impose costs orders against the defendant where the defendant has not acted obstructively or improperly and only makes representations neutrally on the procedure or law. .2 Where a Court, Tribunal or Coroner does contest the claim, it becomes liable for costs, subject to the principles discussed in this section of the Guide.”
“(i) The established practice of the courts was to make no order for costs against an inferior court or tribunal which did not appear before it except when there was a flagrant instance of improper behaviour or when the inferior court or tribunal unreasonably declined or neglected to sign a consent order disposing of the proceedings. (ii) The established practice of the courts was to treat an inferior court or tribunal which resisted an application actively by way of argument in such a way that it made itself an active party to the litigation, as if it was such a party, so that in the normal course of things costs would follow the event. (iii) If, however, an inferior court or tribunal appeared in the proceedings in order to assist the court neutrally on questions of jurisdiction, procedure, specialist case law and such like, the established practice of the courts was to treat it as a neutral party, so that it would not make an order for costs in its favour or an order for costs against it whatever the outcome of the application. ….”
“However, counsel’ssubmission, that [the judge’s] approach of concentrating exclusively on the question of “use” leads to the conclusion that, in all cases where a building is used for a single purpose, that sole use, however limited in extent within the building, is that for which the building is “wholly used”, is unpersuasive.
“…. As was pointed out in the English Speaking Union case and again in argument before us, the charity’s construction would substitute the word “solely” for the word “wholly”
“In the context of this legislation and having regard to the language used, it is reasonable to infer that Parliament intended that the substantial mandatory exemption from rates for a charity in occupation of a building should depend upon the charity actually making extensive use of the premises for charitable purposes (i.e. use of the building which is substantially and in real terms for the public benefit, so as to justify exemption from ordinary tax in the form of nondomestic rates), rather than leaving them mainly unused.”
“37. However, I do not think that the argument can be sustained. A building may fairly and properly be described as being wholly used for a particular purpose even though not every square metre of floor space is in constant use all the time. For instance, the whole of a room used as an office can be described as being wholly used as an office, even though it is spacious and not crammed with people working. I also think it can fairly be described as being wholly used as an office, albeit it is closed and left vacant during the night. Even if that is not right, it is possible to imagine buildings which indeed are in constant use the whole time for charitable purposes (e.g. a permanent soup kitchen to feed the destitute or an office staffed 24 hours a day by the Samaritans to be available to give advice to people who feel suicidal). So it cannot be concluded that the word "wholly" in the phrase "wholly or mainly used for charitable purposes" has no meaning or proper function if the extent of use interpretation of section 43(6) is adopted.”
“I would not go so far as the appellant in describing this factor as “decisive” but it plainly was seen by the judge as a matter of some weight. In those circumstances I cannot be sure that the decision would necessarily have been the same even if this factor had been ignored.”
“No explanation has been presented to me as to why the respondent company should need such an extensive portfolio of property nor has any explanation been put before me as to precisely what charitable use the company is making of those hereditaments.” (2) The tenancies were all tenancies at will on the same terms and with rents of£1 . All the tenancies were granted by three companies with the same directors. The tenancies of Windsor House and Delta View were all dated11 April 2017 and the tenancies of Cobalt Square were dated between16 December 2016 and23 September 2017 . (3) The published accounts showed that the company’s balance sheet had shown assets of£500 for two years and that it was “as though the company is totally inactive”
“There is no evidence of further or additional use of the hereditaments by [PAPOA] at all, nor even any claim of such additional use. The inescapable conclusion is that the hereditaments stood empty and unused for almost all of the time involved, even on [PAPOA’s] own account of matters”
“Taking everything into account that had been put before me in this matter, I was driven to the conclusion that, despite the ostensible charitable nature of [PAPOA’s] purposes, at least according to its Articles of Association, there was no persuasive evidence at all that [PAPOA] was actually pursuing or promoting those purposes. Furthermore I had heard no evidence that would properly serve to contradict the assertion of one of [Birmingham’s witnesses] that [PAPOA] is a shell or a sham set up specifically to avoid the payment of nondomestic rates properly due in relation to the hereditaments in question. There was, in my view, no evidence from which I could have properly concluded that a significant section of the public has, would have or could have benefitted from [PAPOA’s] extremely limited activities. I similarly was not satisfied that the use or next use of the hereditaments in question would be wholly or mainly for charitable purposes. From the very sparse use, if actual use there was at all of these hereditaments by [PAPOA], it was abundantly clear to me that the premises were not being used wholly or mainly for charitable activity. It was further absolutely clear that [PAPOA] was certainly not making extensive use of the premises for charitable purposes. …”